Labor law

  • August 1, 2014

    by Ellery Weil

    The New York Times Editorial Board discusses a recent decision by the National Labor Relations Board general counsel which found McDonald’s jointly responsible for the treatment of its workers at all of its franchises and argues that this should spur an increase in wages for fast food workers.

    Writing for SCOTUSblog, Lyle Denniston reports that challengers of the provision of the Affordable Care Act which provides subsides to those who obtain health insurance via the federal exchange are rushing their case to the Supreme Court, after two federal appellate courts delivered opposite rulings on the issue last month..

    At Politico, Laura W. Murphy compares attempts to reform the National Security Agency in the wake of revelations about the scope of its spying to successful efforts to limit the disparities in drug sentencing born from the War on Drugs.

    Benjamin Wittes writes at Lawfare about the CIA inspector general’s report regarding alleged hacking of Senate Select Committee on Intelligence (SSCI) staff files and records by the CIA.

  • July 30, 2014

    by Ellery Weil

    Brad Smith, General Counsel and Executive Vice President for Legal and Corporate Affairs at Microsoft, writes in a Wall Street Journal op-ed that Microsoft will argue in federal court that the federal government’s classification of emails which are stored on remote servers (i.e., the cloud) are not “business records,” but rather should be afforded the same privacy protections as letters in the U.S. Mail. At the 2013 ACS National Convention, Mr. Smith was presented with a Progressive Champion Award.

    In a piece for Bloomberg News, Laurel Calkins and Andrew Harris report on a 2-1 decision by the U.S. Court of Appeals for the Fifth Circuit affirming a trial court’s entry of a preliminary injunction against a Mississippi law that requires all doctors who work at an abortion provider to obtain hospital admitting privleges. If enforced, the law would shutter  Mississippi’s lone abortion clinic.

    Sarah Solon, writing for the ACLU, discusses the drop in crime since 1990 in relation to mass incarceration, concluding that mass incarceration does not actually make communities any safer.

    MSNBC’s Ned Resnikoff reports on a major decision by the general counsel for National Labor Relations Board, ruling that the McDonald’s corporation must share joint legal responsibility for the working conditions in its franchise locations.

    Emma Green, reporting for The Atlantic, explores the Satanic Temple’s attempt to use the Hobby Lobby decision to grant their members religious exemption from “informed consent” state abortion laws, which require doctors to distribute anti-abortion information before performing an abortion. The Satanists claim that their religion calls for medical decisions to be made without clouding the mind with “unscientific” claims. 

  • July 11, 2014
    Guest Post

    by Catherine Fisk, Chancellor’s Professor of Law, University of California Irvine School of Law

    As I have argued elsewhere, in striking down an Illinois law authorizing the state to require unionized home care workers to pay their fair share of the cost of union representation, the Supreme Court in Harris v. Quinn disregarded its longstanding rule that it does not decide questions of state law and failed to reconcile the result with the First Amendment rights of government workers or the Court’s other cases on when compulsory fees constitute compelled speech. 

    First, under Illinois law, government-paid and government-regulated home health-care workers are state employees. Justice Alito’s majority opinion in Harris disregarded state law when it invented a vague new category of non-“full-fledged” government employees who have greater First Amendment rights than other workers to refuse to pay the costs of union representation.

    Second, if under Garcetti v. Ceballos, and United States Civil Service Commission v. National Association of Letter Carriers, government employees have no First Amendment rights to speak on the job on matters of public concern or to engage in political activity on their own time, why do some government employees have a First Amendment right to refuse to pay for services that their union is legally required to provide them?

    Third, the Court failed to explain why fair share fees differ from compulsory payment of lawyers’ bar dues, which the Court approved in Keller v. California State Bar.  To quote Keller, substituting only “home care workers” for “legal profession,” Illinois has an “interest in regulating [home health-care workers] and improving the quality of [home health-care] services.”

    Yet there is a way forward. As I argue with Ben Sachs, where unions are unable to require objecting workers to pay fees – whether it’s in right-to-work states or in work situations that fall under Harris v. Quinn – we should get rid of the rule of exclusive representation. Non-fee payers wouldn’t be subject to the terms of the collective bargaining agreement, they wouldn’t have to interact with their employer through a collective agent, and they wouldn’t be required to pay anything to a union they didn’t vote for. Unions, for their part, would be required to represent only those workers who actually want representation.  Another possibility is that governments wishing to bargain with a single representative on behalf of their workers could agree to pay the cost of the representational services on behalf of all workers. No worker would then be compelled to pay anything to a union and the dissenting workers’ First Amendment rights would not be violated.

  • July 7, 2014
    Guest Post

    by Charlotte GardenAssistant Professor of Law and Litigation Director of the Korematsu Center for Law & Equality, Seattle University School of Law. She co-authored an amicus brief in Harris v. Quinn on behalf of more than thirty labor law professors. Follow her on Twitter @ProfCGarden.

    The Supreme Court’s final week turned out to be an even bigger blockbuster than expected. Not only did the Court issue decisions in Harris v. Quinn and Burwell v. Hobby Lobby, it also gave an encore performance, exempting Wheaton College from filing with its insurance company the form required to opt out of the ACA’s contraceptive mandate. These decisions share an important characteristic: they allow some to shift the costs of their ideological or religious commitments onto workers who may disagree.

    At first blush, Harris and Hobby Lobby appear to have little to do with each other: Harris is a First Amendment case about whether home health care workers could be required to pay a “fair share fee” covering their share of their union’s representation costs; Hobby Lobby is about a for-profit corporation’s right to opt out of the Affordable Care Act’s contraceptive mandate under the Religious Freedom Restoration Act (RFRA).  But Harris and Hobby Lobby share a number of similarities.  Both were 5-4 decisions authored by Justice Alito, and, as others have pointed out, they will both disproportionately impact women.  There is an additional similarity: while the majority opinions in both cases reflect concern for the rights of religious and political objectors, they ignore the fact that the real costs of these objections could be shifted directly onto other workers with different beliefs. 

    In Harris v. Quinn, the Court held that home healthcare aides in Illinois have a First Amendment right to avoid paying their share of the costs that an elected union incurs in representing them. But, under Illinois law, the workers who choose not to pay are not then excluded from union representation.  Instead, the union must continue to represent these workers fairly, which in turn means the union will incur tangible costs on their behalf during bargaining and while enforcing the resulting contract.  As others have explained, this creates an incentive to free ride. But who pays for that free riding? It is the union that incurs the representation costs, but it is other workers who ultimately pay those costs, in the form of their own dues and fees. In other words, Harris didn’t just create a right to opt out of union activity with which one disagrees; it will also result in some workers having to pick up the financial slack left when their co-workers opt out. This is a significant extension of the law: the Court had never before found a right to opt out of costs for activities that a union is statutorily obligated to perform. (The Court previously held that union-represented workers have a right to opt out of funding union political speech, but of course unions are under no statutory obligation to engage in politics.) Yet, the workers who will bear the costs of this ruling were entirely absent from the Court’s First Amendment analysis. And, while this rule does not yet extend to traditional public sector employees, Justice Alito made clear in his opinion that he thinks it should.

  • July 1, 2014
    Guest Post

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law, George Washington University Law School

    Why would you pay for something if you can get it for free?  The obvious answer is that you wouldn’t.  And after this week’s decision in Harris v. Quinn (No. 11-681), if you work as a homecare provider in Illinois, you can get all the pay raises and benefits increases that the union negotiates without having to pay a penny to support those efforts.  According to the 5-4 opinion written by Justice Samuel Alito, the First Amendment guarantees that outcome.  Here’s how he got there, and where he went off the proper constitutional track.

    In about half the states, employees who work for state agencies (including teachers) have the right to join unions, and those unions have the right to bargain with the state or its agencies over terms and conditions of work. Depending on both the state and the job, the union may be able to negotiate over pay and benefits, as well as working conditions. Many such contracts have grievances procedures in which the union represents workers in an effort to resolve disputes with the employer.  Negotiating and implementing contracts cost money, and to pay for those services, states authorize unions, where a majority of the workforce agrees to establish one, to charge all employees for those services directly related to collective bargaining.  In exchange, the union is under a legal obligation to fairly represent all individuals covered by the collective bargaining agreement. The right to organize for public employees is governed by state law, and there is another system for private sector employees that generally operates in the same way, albeit with some significant differences that were not relevant in Harris.

    The workers in Harris were paid by the state, but worked for Medicaid recipients who needed a variety of home care services. Under Illinois law, the recipients choose the person who would provide those services (many of whom are family members) and direct and control his or her assignments. There were many other distinctions between those workers and the typical state employee, but Illinois decided that it would be willing to allow those workers to form a union to bargain with the state over wages and benefits, if a majority of those who performed such services voted for a union, which would mean the mandatory payment of monthly dues to support its work.