The Lilly Ledbetter Fair Pay Act was the first bill signed into law by President Obama in 2009 and has been a vital tool in the battle against wage discrimination ever since. Writing for Roll Call on the anniversary of the bill’s passage, Lilly Ledbetter and the American Civil Liberties Union’s Deborah J. Vagins reflect on the legacy of the Ledbetter Act, the importance of the proposed Paycheck Fairness Act and the necessity of executive order.
Last year, the Senate eliminated its 60-vote supermajority requirement for most judicial and executive appointments after Senate Republicans chose to filibuster an egregious number of President Obama’s nominees. In an article for The Blog of Legal Times, Todd Ruger explains why it is likely that the Senate’s power to filibuster nominations will remain applicable to our nation’s highest court.
Writing for the Center for American Progress, Joshua Field examines the current state of the Voting Rights Act, post-Shelby County. In his report, Field addresses the need to combat voting-related discrimination and the role our federal courts must play going forward.
In an article for The National Law Journal, Tony Mauro examines the ACLU’s First Amendment fight against the Supreme Court’s ban on protesting on the Court’s plaza.
While there are many things one could say about the January 21 oral argument in Harris v. Quinn, three things stood out to this long-time labor lawyer. There was a long exchange between Justice Kennedy and the union’s lawyer about whether the issues about which public employers typically bargain are political issues. This portion of the argument cast doubt on the validity of the distinction that the Supreme Court has made between chargeable expenses, those related to collective bargaining and contract administration, and non-chargeable expenses, which include everything else but most importantly political expenditures.
This longstanding distinction has protected objecting employees from being forced to subsidize unions’ political activity. As suggested in the argument, however, anything relating to terms and conditions of employment of public employees involves government expenditures and the way government spends funds can always be characterized as a political issue. The reach of this argument calls into question not only the model of exclusive representation that has been the basis of labor law in this country since 1935, but also collective bargaining for public employees in general. If the union must represent all the employees in the bargaining unit, as it is required to do by law, it must negotiate for benefits and working conditions that affect government expenditures; some employees may view these as political positions to which they object. While it seemed that the National Right to Work Legal Defense Foundation’s argument questioned the constitutionality of public sector bargaining and exclusive representation, the lawyer assured the justices that those issues were not before them in this case. The implications for the American labor law system are clear, however.
There was also a suggestion that the free rider problem could be solved by abandoning exclusive representation and allowing the union to represent only its members. This ignores two realities. First, as a practical matter employers do not want to administer different pay plans, benefits and working conditions for similar groups of employees. The nonmembers would likely obtain what the union negotiates even without the requirement of exclusive representation. Second, as suggested by the union’s lawyer, what could be more coercive of associational rights than a system where unionized workers are paid more than nonunion workers doing the same job solely because they are union members? Although the attorney from the National Right to Legal Defense Foundation intimated that such a system would be constitutionally and legally permissible, it would be surprising if no legal challenge to such a disparity were mounted.
The U.S. Supreme Court in Harris v. Quinn may not overturn precedent, seriously disrupting public employee unions, but such a possibility was “at least on the table” during today’s oral argument in the case.
In an argument recap, SCOTUSblog’s Lyle Denniston reported that “atmospherics” of today’s oral argument “suggested strongly that this case has very large potential.”
The case involves Illinois recognizing a single union for its home health care workers. Health care workers are not forced to join the union (in this case SEIU), but all members are required to pay fees for the union to engage in collective bargaining. A few state health care workers represented by an anti-union outfit called the National Right to Work Legal Defense Foundation are challenging that practice embodied in the National Labor Relations Act and supported by high court precedent.
Defending precedent on public employee unions was U.S. Solicitor General Donald B. Verrilli, Jr., who Denniston reported, “talked as if he, too, perceived the case to be a severe test of public worker collective bargaining.”
Nearing end of oral argument, Verrilli urged the justices to uphold its 1977 precedent set in the case Abood v. Detroit Board of Education. That case has stood “for forty years, and is entirely consistent with the First Amendment jurisprudence regarding the government as employer,” he said.
If the high court were to upset precedent and decide, “You can’t have an exclusive representative union, that would be a stake in the heart of not just unions in the public sector but all unions,” Smith told NPR.
The United States Supreme Court will soon hear oral argument in Harris v. Quinn, concerning the rights and responsibilities of unionized home healthcare workers in Illinois. Others have already spoken well on the subject in this ACSblog series. And it seems to me that this case, flying under the legal radar until it is heard, is poised to let activist conservative justices undo the legal solidarity fabric that undergirds American labor relations.
I’ve been a union and workers’ lawyer for more than twenty-five years. I’ve represented construction and heavy-industry workers, the backbone of the traditional labor movement. I’ve represented some white-collar employees. But for most of my career, I’ve been by the side of so-called low-skilled, low-wage workers- retail clerks, meatpackers, healthcare aides- people who do hard, dirty, and dangerous duties that many won’t touch. Maybe, like me, you used to do manual labor, but now you use your eyes, fingers and creativity on the job much more than your back and knees. If so look at this issue through your memories and through the eyes of those who do truly hard work for very little.
The kernel of the Harris issue is workers paying for union services. Since there’s a lot of misinformation about union membership, union security and union participation, a little background is needed. No one has to become a member of a labor union: that’s your First Amendment right. If you don’t want to join, you don’t have to. In southern and western states (and now Midwestern states like Michigan and Indiana), the nearly half of America that is “right-to-work,” you can work in a union shop and get union benefits and services for free. But, in the rest of the country, if your workplace has a union and a contract with a union security clause, you have to pay an amount roughly equivalent to union dues to work there. You don’t have to join, you don’t have to agree, you don’t have to go to meetings, you don’t have to participate. But paying for union services isn’t optional.
The pending case of Harris v. Quinn may turn out to be a case that proves the axiom “Be careful what you wish for.” Harris has the potential to knock out one of the pillars under the carefully balanced labor law system in the United States. If it does so, the long term impact is uncertain.
Under long-established private sector law, largely adopted in many public sector labor law regimes as well, unions are selected by a majority of the employees and then required to represent all employees in the bargaining unit regardless of membership. Except in right to work states, employees thus represented can then be required to pay the cost of representation, although not the cost of any political or other activity engaged in by the union. The Supreme Court found this balanced system passed muster under the First Amendment in both the private sector and the public sector.
The system of exclusive representation serves the interest of labor peace, avoiding competing unions jockeying to outdo one another in obtaining benefits and continual negotiations by employers with a variety of unions each representing their own members. While this system requires some employees to accept and fund representation that they do not prefer, so does our political system in which representatives are also chosen by majority vote.
In our political system, we can campaign for our preferred representatives for the next election and try to influence our existing representatives. So too can employees try to convince a majority of their fellow employees to remove the union or choose a different union through a statutory election process. They can also try to influence the union by lobbying the union’s officials or campaigning for different leadership in government-mandated internal elections. If they choose to be union members they can vote for the union’s officers or run for union office themselves. Government employees can even communicate to their government employer their views in direct opposition to the union’s collective bargaining positions.