Labor law

  • September 4, 2015

    by Nanya Springer

    On The Huffington Post BlogJudith E. Schaeffer of the Constitutional Accountability Center weighs in on the controversy in Rowan County, Kentucky, arguing that obtaining a marriage license should be hassle-free for everyone.

    In a press release, Demos announced that the U.S. Court of Appeals for the Ninth Circuit on Thursday reinstated a case challenging Nevada’s failure to provide voter registration services to its low-income citizens. The decision comes after the case was thrown out by the U.S. District Court for the District of Nevada.

    Sam Ross-Brown and Amanda Teuscher report in The American Prospect that the Department of Labor’s new rules allowing workers at higher income levels to qualify for overtime pay will not only result in an effective raise for millions of people, but will also give workers more control over their work hours and personal lives.

    The Center for Reproductive Rights announced in a press release yesterday that it has petitioned the U.S. Supreme Court for review of a decision by the U.S. Court of Appeals for the Fifth Circuit. In June, the Fifth Circuit upheld onerous restrictions on abortion clinic access in Texas which, if allowed to stand, would close more than 75 percent of clinics in the state.

  • September 1, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; member, ACS Board of Directors

    For a union-side labor lawyer, identifying the employer for the purposes of bargaining and unfair labor practices is akin to a search for the Holy Grail. Three years of law school and courses in labor and employment law ― from excellent professors at Emory Law ― could not prepare me for the challenge of this search which consumed virtually all of my time when I was a Washington, D.C.-based attorney for the Service Employees International Union from 1985 to 1990.

    The search began for me in the winter of 1985. SEIU had negotiated a city-wide contract covering its Pittsburgh janitors. Rather than allowing its union contractor to continue to service its buildings under the new labor agreement, Mellon Bank terminated its janitorial vendor and its union workforce. Nearly 70 workers lost their jobs and the benefits that went with them. They were replaced by low-wage, part-time workers who were not accorded nearly the same level of benefits. I was challenged to find a legal solution.  

    In the late hours of the night, poring through the case reporters at the University of Pittsburgh Law Library, I came across the Supreme Court’s decision in Boire v. Greyhound which established the joint employer doctrine. To my delight, I learned that an entity could be considered an employer even where employees were paid by another company. I also came across a Third Circuit case, NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., which ― in my mind as a young lawyer ― made things quite clear: Two or more employers can be co-employers “if they share or codetermine those matters governing the essential terms and conditions of employment.” If only the analysis were that simple.

  • July 24, 2015
    Video Interview

    by Nanya Springer

    Some talk this week centered on the issue of reforming the U.S. Supreme Court, with one irresponsible proposal gaining moderate attention, but Erwin Chemerinsky has been talking about fixing the Supreme Court for years.  In an interview with ACSblog, Chemerinsky ‒ the Distinguished Professor of Law and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law ‒ describes the Supreme Court’s greatest failures and proposes responsible solutions.

    Chemerinsky recalls the Lochner Era ‒ a period during which the high court struck down more than 200 laws enacted to protect consumers and employees, using the rationale that such laws interfere with freedom of contract. While the Lochner Era ended nearly a century ago, Chemerinsky explains that today’s Roberts Court “is the most pro-business Supreme Court that we’ve had since the mid-1930s.”

    This claim, as Chemerinsky notes, is backed up by empirical studies. From restricting the availability of class action suits and favoring binding arbitration to weakening the influence of unions, the Roberts Court has consistently sided with corporations over consumers and employees—all while refusing to recognize poverty as a suspect classification and determining that education is not a fundamental right.

    Chemerinsky offers reasonable proposals, such as imposing 18-year nonrenewable term limits, allowing cameras inside the Court and insisting that the justices conform to the same ethical standards, particularly with regard to recusal, as judges on other courts.

    Watch the full interview here or below.

  • July 21, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; Guttman is a member of the ACS Board of Directors.

    In the suffocating heat of a Washington, DC July, my thoughts drift back 30 years to a sweltering Beaumont, Texas summer. A fried fish sandwich and a milkshake at the “Pig Stand,” the smell of hydrocarbons wafting from nearby petrochemical plants, and talk of football – at any level – was Beaumont back then. 84 years after Beaumont’s 1901 Spindletop gusher gave rise to the formation of Gulf Oil and Texaco, it seemed that nothing in Beaumont had moved it forward to a new identity. It was a city stuck in time.

    The biggest event in Beaumont during that summer of 1985 was the strike by several hundred black women at the A.W. Schlesinger Geriatric Center. The strikers, ranging from cooks to nursing staff, were fighting over an attempt to roll back the average wage from $4.10 to $3.90 an hour. Fresh out of law school, I had been assigned by the Service Employees International Union (SEIU) to assist the strikers. Our office was a wooden structure with two small offices and a multipurpose room used for union meetings, press briefings, and cooking gumbo. It was in that office that I first met Cecile Richards and Kirk Adams who were SEIU’s organizers on the ground. All of us were in our 20s. Cecile, of course, would later become president of Planned Parenthood and speak at the Democratic National Convention. Kirk rose to become an International Executive Vice President of the SEIU.

    Although I had worked with SEIU though law school, the summer of 1985 was for me a crash course in the working person. In this case the workers cleaned bed pans and cooked food for the elderly; they set work aside for Sunday church services and rose to the occasion as organizers and press spokesmen during the Schlesinger labor dispute. I learned that dignity, intelligence, and perseverance are not traits reserved for those who wear a suit and tie. As the strike turned into a lockout and dragged through the heat of the summer, from that small union hall I learned to view things from the lens of workers, not just from the technical vantage point of a labor and employment lawyer whose analysis of case law is akin to dancing on the head of a pin. I learned for myself – but of course had to explain to others – that justice under the law and fundamental fairness are not necessarily the same thing. At the end of the day, neither Title VII of the 1964 Civil Rights Act nor the National Labor Relations Act offered any relief for the Beaumont strikers. There was law but no rights under it.

  • 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.