Labor

  • June 28, 2013
    Guest Post

    by Emily J. Martin,  Vice President and General Counsel at the National Women's Law Center

    You may have missed it in the flurry of newsmaking by the Supreme Court this week, but on Monday, five of the Justices gave early Christmas presents to defendants accused of employment discrimination, when the Court handed down important decisions in two Title VII cases: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.  In both Vance and Nassar, the 5-4 decisions ignored the realities of the workplace and the ways in which employment discrimination and harassment play out every day.  Placing new obstacles in the path of workers seeking to vindicate their rights, the Court set aside the longstanding interpretations of the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII), and closed out a term in which the Court repeatedly limited the ability of individuals to challenge the actions of powerful corporations.

    Justice Samuel Alito wrote the Vance decision.  Prior cases have held that when a plaintiff shows she was sexually harassed, or racially harassed, or harassed on some other unlawful basis by a supervisor, her employer is liable, unless the employer can prove that the plaintiff unreasonably failed to take advantage of a process that the employer provided for addressing harassment. An employer is only liable for harassment by a co-worker, however, when a plaintiff can show that the employer was negligent in controlling working conditions—a far tougher standard.  Vance posed the question of who is a supervisor: Is it only someone who has the authority to hire, fire, or take other tangible employment actions? Or is it anyone who oversees and directs the plaintiff’s work on a day-to-day basis? Ignoring the ways in which day-to-day supervisors have been invested with authority over other employees that empowers them to harass, the Court ruled on Monday that employers are not vicariously liable for harassment by day-to-day supervisors who do not have the authority to hire, fire, and the like. Indeed, showing even more solicitousness for the interests of employers than the defendant in the case had shown for itself, the majority adopted an even narrower interpretation of the word “supervisor” than had been urged by Ball State.

  • December 14, 2012

    by E. Sebastian Arduengo

    Michigan Governor Rick Snyder (R) despite a massive outcry of protestors at the state capitol in Lansing signed a so-called “right-to-work” bill into law. And just like in neighboring Indiana, right to work passed despite a massive outcry, and Michigan joined 23 other states that have passed such legislation in a seeming race to the bottom for the benefit of corporations that have made massive political donations to the Republican proponents of these bills.

    So what is “right to work,” and why are so many Republican officials making it a legislative priority? Put simply, right-to-work legislation prohibits agreements that require employees of a firm to maintain union membership as a condition of employment, allowing workers who choose to do so the right to “work through a strike.” The problem with this is that federal law requires unions to bargain for a contract that benefits all workers, regardless of whether they become members of the union. And, unions are founded on the premise of collective action, when individuals can take advantage of the benefits that unions win in contracts without having to pay their fair share in dues; it creates a massive free-rider problem that undermines the purposes, and ultimately the benefits that a union provides. For that reason, the AFL-CIO calls this kind of legislation a “right to work for less [pay/benefits]” law.

  • November 8, 2011
    Guest Post

    By Dan Tokaji, the Robert M. Duncan/Jones Day Designated Professor in Law, Ohio State University, Moritz College of Law. Tokaji is also a member of the ACS Board.


    On Tuesday, Ohio voters rejected Issue 2, a measure that would have sharply limited the collective bargaining rights of public-sector employees. The outcome of this measure is significant for workers’ rights. But its greatest importance lies in its significance for the balance of political power, not just in Ohio but across the country.

    Issue 2 was a ballot referendum asking voters for a thumbs-up or thumbs-down vote on SB 5, a statute passed by the state legislature and signed by Governor John Kasich.  At the start of his administration, Governor Kasich took a very aggressive posture, memorably warning people to “get on the bus, or we’re going to run you over.”

    SB 5 became the centerpiece of Governor Kasich’s first year in office.  The law was advertised as a way of cutting government expenses and creating a more business-friendly environment for private-sector employers.   It was supported by most Republicans and opposed by Democrats in the state legislature.

    Without getting too deeply into the details of this long and complex statute, suffice it to say that SB 5/Issue 2 would have significantly weakened public-sector labor unions – including those representing police officers, firefighters, teachers, and many other local and state employees.   Not surprisingly, this change engendered fierce opposition from organized labor. Opponents collected enough signatures to put the law to a vote of the people as the state constitution allows.  

    Unquestionably, the defeat of Issue 2 is a black eye for Governor Kasich. The consequences of Issue 2’s defeat, however, go well beyond Ohio’s borders. 

    To see why, it’s helpful to consider what would have happened if Issue 2 had succeeded.  The measure would have dealt a crippling blow to organized labor, drastically curtailing its political influence.  This is especially significant in our post -- Citizens United world, in which there are effectively no limits on corporate campaign expenditures.  In this world, the only counterbalancing force to corporate political influence – at least the only one with enough money to make a major impact – is organized labor.