Labor law

  • February 21, 2014
     
    Arizona lawmakers passed a bill that allows businesses to discriminate against gay and lesbian customers and to deny equal pay to women. GOP lawmakers are fervently defending the legislation, claiming that it protects the religious freedoms outlined in the Religious Freedom Restoration Act. MSNBC’s Adam Serwer reports on the controversial law.
     
    Oregon officials announced that they will no longer uphold the state’s ban on same-sex marriage. Although the fate of the ban has yet to be decided in the courts, the state’s decision remains a significant victory for gay couples in Oregon. Lyle Denniston of SCOTUSBlog has the story.
     
    Environmentalists are engaged in a legal dispute with the Environmental Protection Agency after a North Carolina energy company polluted a nearby river with hazardous coal ash. Rena Steinzor and Michael Patoka of the CPRBlog discuss the need to regulate toxic coal ash and the alleged mishandling by the state’s Office of Information and Regulatory Affairs.
     
    Human Rights Watch explains why a deadly U.S. drone strike on a wedding procession in Yemen may have “violated the laws of war.”
     
    Writing for Balkinization, David Gans responds to Prof. Douglas Laycock’s claim that corporations can exercise religion.
     
    At Womenstake, Stephanie Glover provides an update on women’s enrollment in health insurance plans through the new Health Insurance Marketplaces established by the Affordable Care Act.

     

  • February 18, 2014
     
    In an article for the The Orange County Register, Erwin Chemerinsky, Faculty Advisor for the University of California Irvine School of Law ACS Student Chapter, explains why the upcoming decision of Harris v. Quinn could pose a threat to public employee unions.
     
    Volkswagen workers at a Chattanooga, Tennessee plant announced their decision last Friday not to join the United Automobile Workers. Steve Greenhouse of The New York
    Times reports on the possibility of a German-style works council in 
    Chattanooga and what it could mean for Volkswagen and the UAW.
     
    At the CPRBlog, Thomas McGarity and Matt Shudtz examine the legal concessions made by the Occupational Safety and Health Administration in a policy proposal that protects workers from silica dust exposure.
     
    Writing for The Daily Beast, Jamelle Bouie discusses the Michael Dunn murder trial and the racial consequences of Florida’s “Stand Your Ground” law.
     
    Mark Sherman of The Associated Press notes how President Obama’s judicial appointees are shaping the discussion on same-sex marriage in Virginia.
     
    Writing for The Root, Henry Louis Gates Jr. explains why the race of a mythical princess continues to play a role in the study of black history.
  • February 4, 2014
     
    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.
  • January 22, 2014
    Guest Post

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

    This post is part of a series examining Harris v. Quinn, for which the high court heard oral argument on January 21.

    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.

  • January 21, 2014

    by Jeremy Leaming

    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.

    Representing Illinois and the union, Paul M. Smith, partner at Jenner & Block and a member of the ACS Board of Directors, discussed implications of the case with NPR before oral argument.

    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.

    For more analysis of the case see the ACSblog series on Harris v. Quinn.