Labor law

  • 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.

  • May 5, 2015
    Guest Post

    by Bill Lurye, General Counsel, and Matt Stark Blumin, Associate General Counsel, at American Federation of State County and Municipal Employees (AFSCME)

    On February 9, less than a month into his first term as governor of Illinois, Bruce Rauner issued an executive order barring state employee unions from collecting fair share fees, thus unilaterally transforming Illinois into a right-to-work state for state employees.  He justified this extreme act by arguing that, in his opinion – though contrary to Supreme Court precedent dating to 1977 – such fees violate the First Amendment.  Rauner’s anti-union executive order is a blatantly illegal power grab, and unions have filed suit to overturn it.

    As is the case in many states, Illinois’ public sector labor relations statute expressly authorizes collective bargaining agreements allowing unions to collect fair share fees, and over 40,000 state employees are covered by collective bargaining agreements (CBAs) that include fair share fee provisions.  Yet, despite strong separation of powers language in the Illinois Constitution that prevents him from legislating, Governor Rauner has declared that he will not turn over any of the contractually owed fair share fees to unions, no matter what the duly enacted state labor law statute says.

    First, some background on fair share fees in Illinois.  Just like a private sector union under the National Labor Relations Act (NLRA), a public sector union under Illinois law is required to represent every employee in a unionized bargaining unit whether or not the employee is a member of the union.  This means that the unions have to do lots of costly work on behalf of nonmembers, like negotiating the CBA fairly on the nonmembers’ behalf and handling any grievances they have.  Fair share fees represent the cost to the union of providing those services to nonmembers, and nothing more.  (Members who pay full union dues additionally fund other work by the union, such as lobbying or political donations, that fair share fees don’t cover.)  As even Justice Scalia has recognized in his concurrence in Lehnert v. Ferris Faculty Association, fair share fees “allow the cost of . . . the union’s statutory duties to be fairly distributed; they compensate the union for benefits which ‘necessarily’ – that is, by law – accrue to the nonmembers.”

  • May 1, 2015
    Guest Post

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

    In a blog post following the Supreme Court’s decision last term in Harris v. Quinn, I predicted that the constitutionality of union fair share fees would soon be back at the Court. It took little prescience to make such a prediction and indeed, the plaintiffs in Friederichs v. California Teachers’ Association worked mightily to get the case on the Court’s docket as quickly as possible. The Court will decide whether to grant cert in the near future.

    Although this issue will no doubt return repeatedly to the Court, it should decline to hear the case. The 1977 decision of the Court in Abood v. Detroit Board of Education correctly concluded that fair share fees are constitutional, and the decision should not be disturbed. Abood allows the union to charge for its mandated representational duties, but not for political expenditures. In this context, the objectors’ first amendment interests are reduced and the interests of the government employer that has entered into an agreement with the union enhanced. Justice Alito suggested in Harris, however, that all union activity in the government sector implicates the highest first amendment interests. This is at odds with the Court’s cases on the first amendment interests of public employees following Abood.

    In recent years, the Court has held that the government has stronger interests in restraining speech when it acts as an employer. Accordingly, when employees speak pursuant to their job duties, their speech is unprotected. Additionally, when an employee’s speech is about an internal workplace grievance, it is similarly unprotected by the first amendment. It is precisely these grievances that the union is obliged to handle for all employees regardless of membership.  If speaking about the grievance is unprotected, why is compelling the unwilling employee to pay for this otherwise unprotected speech an interference with first amendment rights?  Further, Justice Alito’s Harris opinion suggests that when one employee asks for a raise, the speech is unprotected but when the union asks for a raise on behalf of all employees, it is high order political speech which the employee cannot be compelled to support.  As Justice Kagan pointed out in the Harris dissent, the fact that it takes more money to pay multiple employees does not transform the character of the speech when the substance, asking for a raise, is the same.

    There are many other reasons for the Court to deny cert. Abood has been settled law for almost 40 years, Justice Alito’s efforts notwithstanding. As Justice Kagan ably pointed out in Harris, principles of stare decisis, including the reliance interests of thousands of employers and unions and millions of employees, counsel restraint. Moreover, as I have argued in earlier posts, fair share agreements are an essential pillar of the system of labor relations that has served our country well for 80 years.  And finally, as pointed out in the opposition to cert, the record in this case has not been developed, as the plaintiffs rushed to accept Justice Alito’s invitation for an opportunity to overrule Abood.