ACSBlog

  • July 3, 2015
    Guest Post

    by Charlotte Garden, Associate Professor of Law and Litigation Director of the Korematsu Center for Law & Equality, Seattle University School of Law

    The Supreme Court granted cert. on Tuesday in Friedrichs v. California Teachers Association, a case about the constitutionality of union “fair share fees” in the public sector. Friedrichs will be one of next Term’s blockbusters – we can expect a decision in the last part of the Term, when the Court hands down its most closely watched cases. Here’s what’s at stake:

     

    1. What the case is about

    Like many states, California permits its teachers who vote for union representation to bargain collectively over many of their working conditions. (Conversely, California teachers’ unions are not permitted to bargain over some key work rules, such as teacher tenure, which is set by statute.) An elected union must fairly represent every employee in its bargaining unit, and in exchange, the union and the state may agree to require each represented worker to pay his or her share of the union’s representation costs. This is a common way for states to structure their labor relations, and it was approved by the Supreme Court in a 1977 case called Abood v. Detroit Board of Education. On the other hand, Abood also held that unions cannot require workers to pay for their other activities, such as organizing other workplaces, and political advocacy.

    The Friedrichs plaintiffs are asking the Court to overrule Abood and hold that public sector workers have a First Amendment right not to pay for union representation at all. (I described the case for ACSBlog in more detail here.) If the plaintiffs win, it would not mean that unions could stop representing non-paying workers; instead, it would mean that unions would have to represent them for free. One danger, then, is that so many workers might decide to free ride that their unions will collapse. That would harm workers, for whom unions help provide a route to the middle class, and also state employers who rely on collective bargaining as an effective method of workforce management.

     

    1. Why now?

    Twice in the last three years, in Knox v. SEIU Local 1000 and Harris v. Quinn, Justice Alito has authored majority opinions calling Abood into doubt. In response, groups opposed to public sector unions filed cases around the country arguing that Knox and Harris should be extended. Friedrichs was one of these cases; the plaintiffs are represented by the Center for Individual Rights and Michael Carvin, who also argued King v. Burwell and NFIB v. Sebelius. Their litigation strategy was to get to the Supreme Court as quickly as possible, and they accomplished it by admitting that their claims were foreclosed below and pressing for quick adverse decisions. But the lack of discovery in the district court will make for a thin record in front of the Supreme Court, which might have ultimately benefitted from evidence on topics like whether it is difficult to opt out of the non-mandatory portion of union fees, or the role of agency fees in promoting stable labor relations.

     

  • July 2, 2015
    Guest Post

    by Kelli Garcia, Senior Counsel, National Women’s Law Center

    The Supreme Court earlier this week stayed enforcement of key provisions of HB2—Texas’ sweeping anti-abortion law—pending the Court’s decision whether to hear an appeal in the case.  Only 9 abortion clinics would have remained open in the state had the law gone into effect leaving over 1.3 million women of reproductive age more than 100 miles from the nearest abortion clinic.

    The Fifth Circuits Unsound Reasoning

    Prior to the Supreme Court’s decision, the Fifth Circuit had overturned most of a district court’s decision striking down this dangerous requirement. The law requires that abortion providers obtain admitting privileges at a hospital within 30 miles of the abortion clinic and the requirement that clinics providing abortion services meet the standards for ambulatory surgery centers. The Fifth Circuit also held that the requirements could be applied to the sole abortion provider in El Paso, Texas because women in that region would be able to travel to an abortion provider in Santa Teresa, New Mexico. However, the Court did enjoin the state from requiring the sole abortion provider and clinic in the Rio Grande Valley to comply with the admitting privileges requirement and two of the requirements for ambulatory surgery center.

    These restrictions, often called targeted regulations of abortion providers or TRAP laws, are opposed by major medical organizations including  the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA) because they “imposes[] government regulation on abortion care that jeopardizes the health of women.” As both ACOG and the AMA note, abortions are an extremely safe procedure and complications requiring hospitalization are incredibly rare. There is no medical reason to require abortion providers to have admitting privileges nor is there any reason for abortion facilities to comply with more stringent requirements than other medical facilities that perform procedures with similar, or even greater, risks.

    Yet in upholding the abortion restrictions, the Fifth Circuit ignored the medical evidence, stating that the district court erred in weighing the burdens imposed by the restrictions against the medical efficacy of the restrictions.  The Supreme Court has never upheld a law that limits abortion services without first establishing that the law furthers a valid state interest. In addition, both the Ninth and Seventh Circuits have held that the courts must “weigh the burdens against the state’s justification, asking whether and to what extent the challenged regulation actually advances the state’s interest.” Such an inquiry is necessary to determine whether the restrictions impose an undue burden on a woman’s constitutionally protected right to abortion. As the Supreme Court stated in City of Akron, “The existence of a compelling state interest in health . . . is only the beginning of the inquiry. The State’s regulation may be upheld only if it is reasonably designed to further that state interest.”

    Texas Abortion Restrictions Threaten Womens Health

    Although the stay is good news for Texas women, it doesn’t undo the damage done by other abortion restrictions including provisions of HB2 that have already gone into effect.  Since 2013, when HB2 was passed, more than 20 abortion clinics in the state have closed.  As a result of these closures, many women seeking abortions were turned away from clinics and some of those women were unable to obtain abortions.

  • July 2, 2015

    by Caroline Cox

    At The Boston Globe, Kent Greenfield, faculty advisor for the ACS Boston College Law School Chapter, argues that the same-sex marriage ruling was as much an emotional exercise as an intellectual one.

    Eric Segall discusses at Dorf on Law how Justice Antonin Scalia has become “a caricature of the bitter old man despondent about the ‘good old days.’”

    The Editorial Board of The New York Times argues that it is time for the Supreme Court to allow television cameras in the courtroom.

    Brianne Gorod explains at Slate how President Obama’s choice not to defend the federal Defense of Marriage Act influenced the Obergefell ruling.

    At the blog for the Brennan Center for Justice, Ciara Torres-Spelliscy calls the ruling in the Arizona redistricting case “a win for democracy.”

  • July 1, 2015
    BookTalk
    Under The Bus
    How Working Women Are Being Run Over
    By: 
    Caroline Fredrickson

    by Caroline Fredrickson, President, American Constitution Society for Law & Policy

    When she was 18, my great-grandmother Mathilda Olafsson left Sweden to escape poverty, sailing alone in steerage to Boston where she was lucky to find a job as a maid. Like countless immigrant women, Mathilda was subject to sexual harassment, underpayment, and abusively long hours. As she endured backbreaking labor and meals consisting of her employers’ scraps, she hoarded her meager earnings, working toward a better life.

    Growing up, I found Mathilda’s story ‒ so far in the past, so different from today ‒ inspirational. But sadly, even after the enactment of various labor laws and worker protections, many working women are still enduring the abuses that my great-grandmother suffered. The truth is, domestic workers and workers in other undervalued, female-dominated professions have little more legal protection than Mathilda and her peers had.

    Americans tend to think working conditions aren't so bad today; the U.S. has prohibited discrimination against women, mandated equal pay for equal work, and adopted family leave legislation. But few Americans know that the progressive laws designed to improve wages and working conditions left out large portions of the working population. That’s because during the New Deal, President Franklin Roosevelt struck bargains with “Dixiecrats,” trading the rights of African American and female workers for votes in support of a minimum wage, overtime, and the right to join a union.

    As a result, certain workers – including nannies, housekeepers, farmworkers, small business employees, part-time workers, independent contractors, and temporary workers – have almost zero protection under U.S. law. Not coincidentally, these workers are disproportionately female and people of color.

  • July 1, 2015
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond

    The recent decision by a California labor commissioner that an Uber driver is an employee rather than an independent contractor is of limited significance in and of itself. What it may signal for the future of the sharing or gig economy is far more interesting.

    The decision is based on California law and, unless reversed on appeal, will require Uber to pay the driver several thousand dollars in business expenses. Determining whether an individual is an employee or an independent contractor is a complex decision based on a multi-factor test. Most employment statutes exclude independent contractors from their coverage, based on the theory that contractors are independent business owners that do not need the legal protection. In recent years, however, misclassification of employees as contractors has become a common practice. In some cases, misclassification may be mere error, but in others it is an attempt to evade employment laws, avoid deducting and remitting income taxes and escape payment of the employer portion of social security. Other advantages to the employer of the independent contractor classification are reducing the potential liability for any negligent or wrongful actions of the individual and avoiding payment of employee benefits.

    The IRS is attuned to the issue and watching for misclassification, along with enforcement agencies for employment statutes and plaintiffs’ employment lawyers.  Enforcement resources are limited, however, so misclassification remains rampant. While all courts and agencies use similar multi-factor tests, differences in emphasis and weighting of factors result in different conclusions about similar workers.  For example, in a series of cases about FedEx drivers under a variety of employment laws, some courts and agencies have found them to be employees and others, contractors.  Some decision makers emphasize the amount of control exercised by the business while others put more weight on the availability of individual entrepreneurial opportunities.

    The recent Uber decision is similar, emphasizing Uber’s control over many aspects of the drivers’ jobs. But this is just the application of one state statute, which is more employee protective than many, by one decision maker to one employee.  If more decisions find drivers to be employees under more statutes, however, the business model that supports the gig economy may be threatened.

    The more interesting issue that the decision raises is the relationship between the gig economy and existing law.  Depending on the details of the business model, workers in the gig economy might be considered independent contractors, part-time employees, temporary employees, or casual workers.  Many laws exclude some or all of these groups of workers.   If this becomes the dominant work pattern of the future, laws will need to be changed to protect workers against exploitation by businesses.