Labor Law

  • January 22, 2016
    Guest Post

    by David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School

    There are cynics who say that Supreme Court justices are just politicians in black robes, willing to manipulate the law, and discard the Court’s own precedents, to suit their political views. But that’s misleading: the Court does not overrule its precedents very often at all. According to one analysis, in the last 75 years -- a period that includes activist Courts and restrained Courts, liberal Courts and conservative Courts -- the justices, in constitutional cases, have overruled just 91 of their previous decisions: an average of just over one each year.

    Oral argument this month in Friedrichs v. California Teachers Association made it look like a nearly 40-year-old decision called Abood v. Detroit Board of Education might be this year’s addition to that list. That would make no sense at all.

    Friedrichs, and Abood, are about the fees that public employees pay when they are represented by a labor union. Unions, of course, bargain with employers on behalf of employees, over wages, hours, and terms of employment, and they are required by law to represent all of the workers in their bargaining unit -- union members and non-members alike -- equally. Unions also engage in political activity, like campaigning on behalf of candidates. Since all employees benefit from the union’s bargaining and other workplace-related activity, the employer and union are allowed to agree that all employees will chip in to support that part of the union’s work. Otherwise, the entire arrangement might unravel: people will not pay for something -- in this case, the work that the union is required to do on their behalf -- if they can get it for free. At the same time, though, employees who disagree with the union’s political activities have a right, under the First Amendment, to refuse to pay for them. That’s what Abood held.

    It seems like a sensible compromise. But sensible or not, it has been the law since 1977. The Friedrichs litigation was ginned up by some conservative lawyers to try to get the Supreme Court to overrule Abood and hold that employees have a right to refuse even to contribute to work that the union is doing on their behalf.

    Nothing about Abood would justify the Court’s overthrowing it. 

    • Abood was a unanimous decision, and the Supreme Court has invoked it, cited it, implemented it, and relied on it many times in the intervening decades -- often unanimously. Lower courts have done the same. Only in the last few years -- decades after Abood was on the books but coinciding, of course, with a wide-ranging political attack on public employee unions -- has Abood’s status as a precedent been seriously challenged.
    • It’s not just that the courts have relied on Abood – twenty-three states have labor laws that rely on the Abood compromise. That means that collective bargaining agreements -- the workplace constitutions -- governing millions of employees and resolving countless workplace challenges will have to be rewritten, at enormous cost, monetary and otherwise, to the effective working of state and local governments.
    • And Abood is not just about labor unions. “Integrated” bar associations, to which lawyers are typically required to pay dues, engage in various forms of speech; the Supreme Court held that Abood governs that arrangement. The Court drew an analogy to Abood when it ruled that state universities could require students to pay activities fees that support student groups, including groups that propagated messages with which some students disagreed. If the Court overrules Abood, it is only a matter of time before litigants will challenge those institutions, too. Unless the courts are going to say that there are special rules that, for some reason, apply only to labor unions, they will have a hard time explaining why those other institutions are different.

    The teachers who are challenging Abood -- their lawyers, anyway -- portray this all as an epic battle about free speech and the First Amendment. But it is worth keeping things in perspective. Abood leaves teachers, and all other public employees, completely free to criticize their union as vociferously as they like. They can attack the union’s leadership, its priorities, or its tactics. Meanwhile, everyone accepts that teachers’ rights to speak in the workplace can be limited in order to make sure that schools will function well. Teachers cannot say whatever they want in a classroom; they cannot disrupt relations with their colleagues; they cannot speak abusively to students or parents.

  • January 12, 2016
    Guest Post

    by Charlotte Garden, associate professor at Seattle University School of Law, and Litigation Director of the Korematsu Center for Law & Equality. Follow her on Twitter @CharlotteGarden

    Lawyers are a naturally contrarian bunch, but there is near-unanimous agreement that yesterday’s oral argument in Friedrichs v. California Teacher’s Association went very badly for public sector unions and the public employers they bargain with. It is nearly inevitable that the decision will be 5-4, split along the usual line. It is also likely that Justice Alito will write the decision—that would be Chief Justice Roberts’s call, but Alito also authored the 2012 and 2014 opinions limiting public sector union fees and all but inviting Friedrichs; he will almost certainly be tapped to complete the trilogy.

    At argument, five Justices seemed poised to adopt the view that public sector agency fee requirements—under which union-represented workers must pay their share of the costs of contract negotiation and administration—are unconstitutional because those contracts cover matters of public concern. Time and time again, the conservative justices returned to that theme. For example, Chief Justice Roberts asked California Solicitor General Edward DuMont to name his “best example of something that is negotiated over in a collective bargaining agreement with a public employer that does not present a public policy question.” When General DuMont suggested mileage reimbursement rates, the Chief responded with “That’s money . . . And the amount of money that’s going to be allocated to public education, as opposed to public housing, welfare benefits, that’s always a public policy issue.” Yet, the Abood decision—which will likely be overruled by Friedrichs—also acknowledged that public sector collective bargaining concerned political issues, but still concluded that agency fees were consistent with the First Amendment. So what’s different now? Two things.

    First, the conservative justices seem to have settled on a basis to distinguish the many decisions giving government employers substantial leeway to reasonably prohibit or require speech: that collective bargaining involves a group of employees, while decisions like Garcetti v. Ceballos involved single employees. That distinction is shaky at best—after all, the wayward prosecutor in Garcetti violated a workplace norm that governed all prosecutors—but it has its genesis in Harris v. Quinn. There Justice Alito wrote that a single employee asking for a raise was not a matter of public concern, unlike a group of employees asking for a raise.

  • December 2, 2015
    Guest Post

    by Jason Steed, Associate at Bell Nunnally and president of the ACS Dallas-Ft. Worth Lawyer Chapter

    Class actions are crucial to protecting the rights and interests of workers and consumers. If an employer underpays a worker a few dollars every paycheck—or a credit card company overcharges a consumer a few pennies per transaction—the total loss to that worker or consumer might be only a few hundred dollars. That might be a lot of money to the individual worker or consumer, but it’s not enough to justify hiring an attorney for a lawsuit. Class actions enable dozens or hundreds or even thousands of individuals to bundle their claims into a single lawsuit so workers and consumers can recover the sums they are owed. And the threat of a class action discourages corporations and other entities from adopting schemes that might nickel-and-dime us to death.

    This is why the Supreme Court’s recent decisions undermining class action litigation are of great concern to those who care about the rights and interests of workers and consumers. In 2011, for example, in a case called Wal-Mart Stores v. Dukes, the Supreme Court made it much harder to certify a nationwide class action for employees seeking to recover lost pay due to sexual discrimination. According to the Court’s majority in Dukes (made up of the five most conservative justices), employees can’t bring a class action for sexual discrimination unless they can show that every worker in the proposed class suffered exactly the same sort of bias and discrimination. Statistical sampling isn’t good enough to support the class action. And without the ability to rely on statistical sampling to show commonality among members of the proposed class, large corporations will now be much less likely to face large class actions based on claims of discrimination.

    This Dukes decision looms in the background as the Court considers another important class action case this term. In Tyson Foods, Inc. v. Bouaphakeo, a group of several thousand employees at Tyson Foods brought a class action claiming Tyson failed to pay them sufficient wages for the time they spent donning (putting on) and doffing (taking off) personal protective gear before and after work. To prove the amount of lost wages, the workers relied on statistical sampling—averaging the times that various employees spent donning and doffing their gear. The district court certified the class, a jury returned a verdict of $5.8 million for the employees, and the Eighth Circuit Court of Appeals affirmed this judgment.

  • November 16, 2015
    Guest Post

    by Brishen Rogers, Associate Professor of Law, Temple University Beasley School of Law

    *This post is part of ACSblog’s Symposium on Labor and Economic Inequality.

    America’s inequalities are outrageous – and are suddenly all the rage. Thomas Piketty’s Capital in the Twenty-First Century and various social movements have given us a new language to dissect it: the “99 percent,” “r > g,” the “Fight for $15,” and “Uberization.” Policy professionals are taking note, with the Washington Center for Equitable Growth and various foundations funding research into its causes and consequences. Even Silicon Valley is talking seriously about a universal basic income.

    This is all to the good. And yet the debate is tepid in an important respect: It largely disregards the relationship between inequality and democratic participation. Granted, many criticize our campaign finance laws for tilting the playing field toward the rich. But the economic policy debate largely revolves around forms of tax-and-transfer. Picketty, for example, ultimately proposes little more than a global wealth tax. A universal basic income, for all its virtues, takes the same form.

    But aggressive campaign finance reform and a far more progressive tax code – even if politically possible – cannot ensure equality. The reason is simple: To succeed, egalitarian policies must be intertwined with more democratic economic and social structures. The good news, as discussed below, is that the rise of information technology is creating new opportunities to build a more inclusive democracy.

  • November 16, 2015
    Guest Post

    by Noah Zatz, Professor of Law, UCLA School of Law

    *This post is part of ACSblog’s Symposium on Labor and Economic Inequality.

    Three vibrant movements of our time are Black Lives Matter, theDREAMers, and Fight for $15. For many progressives, only the last may seem directed at our topic of work and inequality. That intuition is wrong. Legalized state violence – incarceration, deportation, even killing – can and does depress labor standards and enable workplace exploitation (and vice versa).

    We too often separate struggles against racialized state violence from those challenging economic inequality. The former seem to be about the public exercises of government power, while the latter seem to be about private exercises of corporate power. This is both an analytical error and a missed political opportunity.

    Think of criminal justice, immigration, and labor as three points of a triangle. Activists and academics increasingly link mass incarceration and mass deportation, especially as immigration enforcement is criminalized. Likewise, the government’s threat to detain and deport has been linked to employer power. Guest workers face deportation if they exercise the most basic labor right, the right to quit, and undocumented workers labor under employer threats to call in immigration enforcement. Employers use this power to disrupt organizing, degrade working conditions, and depress wages.

    An incarceration-labor connection parallels this immigration-labor connection. This connection mirrors the thoroughly racialized ways that immigration policy produces workplace disadvantage. That historical pattern continues today as Latina/os and others treated as presumptively “foreign” face profiling by employers and government authorities. Similarly, racism has long structured criminal justice in the U.S. From defining what is a crime to the notorious cocaine sentencing disparities, from the frequency of police stops to searches to uses of force, the criminal justice system casts an especially dark shadow over communities of color, and not by coincidence.