Labor law

  • 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.

  • July 1, 2014
    Guest Post

    by Nicole G. Berner, Associate General Counsel, Service Employees International Union

    In a narrowly divided opinion, the conservative majority of the Supreme Court in Harris v. Quinn ruled against homecare workers who provide crucial care to people with disabilities and the elderly and to the consumers who rely upon that care to live independently and with dignity in their homes. Harris v. Quinn was brought by the National Right to Work Legal Defense Foundation, an extreme anti-worker group funded by the likes of the Koch brothers and the Walton family. The case is part of a broader concerted attack on working people and women in this country. Although the June 30 ruling is a setback for homecare workers, our members are more determined than ever to ensure quality care for people with disabilities and seniors, all of whom want nothing more than to enable this population to live independently and with dignity at home.

    The petitioners asked the Court to disregard one of the bedrock principles of Supreme Court jurisprudence (stare decisis) and to overrule Abood v. Detroit Board of Education, 431 U. S. 209 (1977), a case relied on and reaffirmed in myriad cases since it was decided nearly four decades ago. In Abood, the Court held that a government entity may, consistent with the First Amendment, require public service employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment. While the Court declined the invitation to overrule Abood – a decision that would have radically restructured public sector labor relations in this country – the majority instead ruled that Abood’s protections do not extend to home care workers in the State of Illinois.

    The Court’s narrow ruling leaves intact the right of most public service workers such as teachers, fire fighters, and police officers to join together in a union and to negotiate for fair share arrangements. The ruling also leaves intact the rights of the Illinois homecare workers to form a union and to bargain collectively through an exclusive bargaining representative. But the conservative five-justice majority carved out an exception to Abood for the tens of thousands of homecare workers in Illinois, thereby weakening the ability of this majority female workforce to advocate collectively for improved working conditions and quality care.

  • June 5, 2014

    by Jeremy Leaming

    Likely the most powerful court decision so far this year involving the Employee Retirement Income Security Act (ERISA), the U.S. Court of Appeals for the Eighth Circuit found that employers of a technologies company breached a fiduciary duty to take action to protect employees’ 401(k) plans from hidden fees that, as The New York Times has reported, can significantly harm workers’ retirements.

    In the case, Tussey v. ABB, Inc., a three-judge panel of Eighth Circuit largely agreed with a lower court opinion that the technologies company mishandled their employees’ 401(k), breaching fiduciary duties as detailed in ERISA.

    Writing for the majority opinion, Chief Judge William Jay Riley, citing 8th Circuit precedent, wrote that ERISA “imposes upon fiduciaries twin duties of loyalty and prudence, requiring them to act ‘solely in the interest of [plan] participants and beneficiaries’ and to carry out their duties ‘with care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims.’”

    Reporting for The New York Times, Gretchen Morgenson, wrote that the “significance of this ruling extends far beyond ABB. It sends a powerful message to plan sponsors everywhere: if you think you’ve done your fiduciary duty simply by offering low-cost funds as investment options, think again.”

    In late May, the entire 8th Circuit refused to rehear the three-judge panel’s ruling in Tussey. The Tussey opinion is available here.  

  • May 15, 2014
     
    At The Daily BeastGeoffrey R. Stone, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, discusses how we can “trace unequal education funding back to a horrendous, little-remembered 1973 [Supreme Court] decision.”

    Saturday marks the 60th anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education of Topeka. Lesli A. Maxwell at Education Week explains why “school diversity remains more complex than ever.”

    Amanda Holpuch at The Guardian comments on a report by Human Rights Watch which shows how young children who are “planting, weeding, and harvesting nicotine plants” are being “endangered by nicotine exposure in tobacco fields.”

    At the Richmond Times-Dispatch, Judith E. Schaeffer notes that “when it comes to marriage discrimination, the Commonwealth of Virginia has a great deal to learn from its own history.”

    Writing for CNN, Eric Segall urges the Supreme Court to televise its oral arguments and argues why life tenures for the justices must be removed.