Labor law

  • April 21, 2015

    by Jeremy Leaming

    Sheryl Sandberg and Anne-Marie Slaughter have drawn much attention for their thoughts about the professional working lives of women.  But Sandberg and Slaughter have failed to recognize or willfully ignored the stations of the vast majority of working women – those women who do not have the luxury of “opting out” or “leaning in.”  The inadequacies of our workplace laws leave many working women behind and perpetually struggling to survive.

    American Constitution Society for Law and Policy (ACS) President Caroline Fredrickson, a former labor lawyer and a longtime leader in the legal progressive community, declares a powerful response to “leaning in,” or “opting out,” which dominate discussion of inequalities facing women in the workforce.

    The discussion of workplace equality for women now focuses almost exclusively on white-collar professionals.  This discussion needs broadening.

    Fredrickson’s compelling book, Under the Bus: How Working Women Are Being Run Over, tells the stories of many women, who do not have the protection of our laws or the ability to stand up to their employers’ often illegal demands.  Indeed, for too long many employers have ignored or been exempted from laws meant to protect workers against corporate malfeasance.  Fredrickson also notes the inadequacy of our laws is ingrained in a history riven with racial and gender biases.  Time after time, Fredrickson notes that historical progressive movements to improve the lives of working Americans have left women behind.  If our nation fails to embrace collective solutions to collective problems, inequality will continue to fester in America while democracy suffers.

  • April 14, 2015
    BookTalk
    The Workplace Constitution
    from the New Deal to the New Right
    By: 
    Sophia Z. Lee

    by Sophia Z. Lee, Professor of Law & History, University of Pennsylvania Law School

    “Right to work” is dominating the news, making headway in union strongholds and finding sympathy on the Supreme Court.  Yet the concept of a legal “right to work” harkens back to the early Twentieth Century when this and other substantive due process doctrines were used to strike down Progressive labor laws.  The New Deal Court supposedly laid to rest this “Lochner era” (thus named for an emblematic 1905 decision holding that a New York maximum-hours law violated workers’ and employers’ freedom of contract).  So how have right-to-work proponents managed to rally successfully behind such an anachronistic term?

    The Workplace Constitution from the New Deal to the New Right provides the first legal history of the right-to-work campaign.  As it demonstrates – right-to-work strategists’ Lochner-era moniker notwithstanding – these savvy and forward-looking activists quickly replaced their substantive due process claims with ones based on the First Amendment.  In the process, they forged a modern conservative civil rights campaign that grew up alongside its liberal counterparts.

    The conservative activists who fought the union power unleashed by the New Deal had sturdy Lochner-era roots.  Even before the New Deal, employers had moderated their open-shop activism, insisting that they were anti-closed shops, not anti-union.  When activists first gathered under the right-to-work banner in the early 1940s, their argument that no one should have to join or support a union to keep a job was in keeping with that Lochner-era position.  In 1944, Hollywood mogul Cecil B. DeMille brought the first right-to-work lawsuit over a one dollar assessment levied by his union.  DeMille’s suit likewise relied on Lochner-era substantive due process claims and precedent.

    But right-to-work activists quickly updated their legal claims to fit the emerging civil rights and civil liberties regime.  Even DeMille’s suit reflected this change: On appeal, DeMille’s lawyers added First Amendment forced speech claims based on the 1943 Supreme Court decision West Virginia Board of Education v. Barnette, which found that public schools could not compel students to salute the flag.  

    In the 1950s, right-to-work advocates pursued a coordinated litigation campaign akin to the NAACP’s challenge to public school segregation.  When their cases reached the Supreme Court in the 1950s and ‘60s, First Amendment forced speech and association claims, along with post-New Deal precedents, predominated.  Over succeeding decades, right-to-work advocates eliminated substantive due process claims from even the margins of their lawsuits.  The constitutionality of union security agreements comes before the Supreme Court today strictly as a First Amendment issue.

  • November 12, 2014

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

    In one of the surprising results of election night, four traditionally Republican states passed ballot measures increasing the minimum wage. By significant margins, voters in Alaska, Arkansas, Nebraska and South Dakota adopted laws raising the minimum wage. Voters in the blue state of Illinois passed an advisory referendum urging the legislature to increase the minimum wage, while at the same time electing a Republican governor. In a state like Alaska, the high cost of living may have influenced voters, but that does not explain the outcome in the other states. What caused these somewhat anomalous results?  After all, Republicans have traditionally opposed increases in the minimum wage and most continue to do so. 

    While speculation about the motivations of votes is always risky, these results appear to affirm the effectiveness of two recent strategies of workers’ rights advocates. First, it appears that voters are recognizing the serious inadequacy of the wages of low paid workers. The widely publicized demonstrations by low wage fast food and retail workers have raised public awareness and focused attention on the fact that many of these workers are adults, often with families that they are working hard to support.

    If I am correct that the public protests helped motivate voters, it reminds us that strikes and demonstrations, which until recently had been largely abandoned by unions and other advocacy groups, remain effective at drawing public attention to inequalities. Social media has enhanced the ability to both organize and publicize demonstrations. Strategic use of these tactics will continue to keep these issues in the public eye.

  • October 17, 2014

    by Caroline Cox

    Norm Ornstein argues in The Atlantic that the money flooding into judicial elections is the dangerous result of Citizens United.

    In Slate, Dahlia Lithwick considers what the Supreme Court’s silence on the major issues before it means.

    David Earley considers whether buying influence through campaign finance is a right in the blog for the Brennan Center for Justice.

    In The New Republic, Yishai Schwartz writes about the right way to end the attacks on abortion and voting rights.

    Kasey Burton provides an overview in the Alliance for Justice blog of oral arguments for Integrity Staffing Solutions v. Busk, which considers whether employees must be paid for time spent in mandatory security clearings.

  • October 17, 2014

    by Caroline Cox

    Norm Ornstein argues in The Atlantic that the money flooding into judicial elections is the dangerous result of Citizens United.

    In Slate, Dahlia Lithwick considers what the Supreme Court’s silence on the major issues before it means.

    David Earley considers whether buying influence through campaign finance is a right in the blog for the Brennan Center for Justice.

    In The New Republic, Yishai Schwartz writes about the right way to end the attacks on abortion and voting rights.

    Kasey Burton provides an overview in the Alliance for Justice blog of oral arguments for Integrity Staffing Solutions v. Busk, which considers whether employees must be paid for time spent in mandatory security clearings.