Labor

  • 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.

     

  • September 2, 2014

    by Caroline Cox

    Eric J. Segall, who spoke at the ACS Supreme Court Review in June, profiles in Salon Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit and his rulings on high-profile cases that are likely to be decided by the Supreme Court.

    In The New York Times, Adam Liptak reports that Supreme Court justices are increasingly putting data from amicus briefs into their opinions.

    Robert J. Samuelson argues in The Washington Post that more workers are at the mercy of the market and questions whether this trend will continue.  

    Vanita Gupta argues at CNN that drug laws are too harsh and out of step with public opinion.

    The question of how much oversight the federal government can have over state voter ID laws is up for debate in Texas, reports Laurel Brubaker Calkins for Bloomberg

  • August 6, 2014
    Guest Post

    by Michael Scimone, Associate, Outten & Golden LLP.

    Last Tuesday, the National Labor Relations Board’s (“NLRB”) General Counsel announced that his office would prosecute McDonald’s USA, LLC for unfair labor practices committed by its franchisees (i.e., the individual restaurants not owned by the corporation, which is most of them).  That means that the NLRB may hold McDonald’s liable if its nominally “independent” franchisees interfere with or retaliate against workers who try to form unions, strike, or demand better pay or working conditions. 

    The GC’s move is an effort to apply common sense to an all-too-common legal dodge.  McDonald’s claims that its franchisees are free to make their own decisions about labor matters.  But that’s hardly true in practice.  Fast food franchisors like McDonald’s have enormous leverage over their franchisees.  McDonald’s computers track franchisees’ sales and labor costs, monitor employee schedules, and calculate how much labor the stores need.  And McDonald’s is famous for controlling just about everything else in its restaurants – where they buy supplies, how they cook their food, and how they advertise the brand.  It even owns the restaurants themselves.  What’s left for the franchisee to control?  Is it realistic to imagine that a franchisee could bargain over wages, schedules, or health and safety without McDonald’s at the table?

    The franchisor-franchisee smokescreen allows McDonald’s to avoid responsibility for a range of labor abuses, from anti-union interference to wage theft.  McDonald’s workers have filed multiple lawsuits seeking to hold McDonald’s, along with its franchisees, responsible for ripping off workers by making them work off the clock and stealing their already-low wages.  McDonald’s, of course, denies all responsibility.

  • 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.