Labor Law

  • December 20, 2013
    Guest Post

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

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

    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.

  • December 19, 2013
    by Gabriel J. Chin, Professor of Law, UC Davis School of Law
     
    * This post is part of a series examining Harris v. Quinn, for which the high court will hear oral argument on January 21.
     
    I was in a labor union and have been on strike; I happily paid my dues to Local 2325 of the UAW because I thought my brothers and sisters greatly benefitted from collective bargaining. But that is just my opinion, and no group of workers must be represented by a union unless a majority agrees, and no individual worker need join a union at all.  But those who decline to become a member of a union that a majority of their fellow workers chose often must pay an agency fee, to reimburse the union for benefits which accrue to all.
     
    That’s essentially the issue in Harris v. Quinn, which Kent Greenfield has already aptly described as a potential sleeper on the Supreme Court’s docket:  Are workers’ First Amendment rights impaired, not by being forced to join a union (which they are not) but by being forced to pay for collective bargaining (which they are)?  The Court could use the case to limit the ability of government workers to unionize, to eliminate any required payment of agency fees by non-members benefitting from the contract, or undermine the principle, embodied in the National Labor Relations Act, of exclusive representation by a single union.  All of these would be unfortunate, and would require repudiation of a line of Supreme Court decisions dating to the unanimous Railway Employees v. Hanson, 351 U.S. 225 (1956), which found no problem in a federal law allowing negotiation of contracts requiring all covered workers to pay union dues, rejecting dissenting workers’ claims that mandatory payment of dues compelled "ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought protected by the Bill of Rights."
     
    Harris involves home health care aides provided by the state of Illinois to certain ill people through Medicaid.  The case is maddening in a number of ways.  The plaintiffs—represented by, among others, former Acting Solicitor General Neal Katyal—insist that the workers at issue cannot be considered government employees, even though they get paychecks and health benefits from the state, must meet qualifications set by state regulations, and perform duties as required by those regulations and by individual social service supervisors.  Although the aides are “hired” and “fired” by the individual patients they serve, that is only so because the state in its generosity has delegated that authority.  The patients, who pay nothing both because of the rules of the program and because they are indigent, are not in any ordinary sense “employers.”
  • December 18, 2013
    Guest Post
    by Kent Greenfield, Professor of Law and Law Fund Research Scholar, Boston College Law School
     
    Most cases on the Supreme Court’s docket in any given year are not the likes of Windsor, Shelby County, or Fisher. Those get the headlines, of course, and rightly so. But most of of the Court’s caseload is dedicated to answering various arcane questions in eddies of the U.S. Code. By virtue of its position at the top of the judicial hierarchy, one of the Court’s primary jobs — still — is to be the final arbiter of these kinds of questions when the lower courts disagree. Only the most fastidious Court watchers pay much attention. (Back when I was clerking on the Court almost twenty years ago, I worked on a case that decided the statute of limitations for the Worker Adjustment and Retraining Notification Act. I’m shocked — shocked! — you don’t remember it.)
     
    So looking over the January argument list, no one would blame you if, at first glance, you assumed Harris v. Quinn falls into this group. The question presented appears to be exceedingly narrow and specific — whether home health care workers in Illinois, paid for by Medicaid, are state employees. If they are, then a union representing state employees will be under a duty to bargain collectively on their behalf, and the workers will be required to pay their “fair share” of the costs of such union representation. The case arose when some health care workers covered by the collective bargaining agreement challenged the mandatory union fees as a violation of the First Amendment.
     
    The Seventh Circuit decided the case in a terse, unanimous opinion. For nearly forty years, since Abood v. Detroit Board of Education, the law has been settled that public employees “may be compelled to support legitimate, non-ideological, union activities germane to collective-bargaining representation.” It is the quid pro quo of labor law: the unions are under a duty to represent all employees in the bargaining unit; in return, the employees are prohibited from free-riding.
  • December 11, 2013
    Guest Post

    by Charlotte Garden, an Assistant Professor at Seattle University School of Law, where she is co-advisor to the student ACS chapter.

    The past few Terms have been tumultuous for First Amendment doctrine, and this Term is shaping up to be another First Amendment blockbuster, with cases like Hobby Lobby Stores, Inc. v. Sebelius and McCutcheon v. FEC on deck. But for labor unions, another First Amendment case has potential to be the biggest game changer: In January, the Court will hear argument in Harris v. Quinn, a First Amendment case about union representation in the public sector. At stake are two important questions:  first, the extent to which states can allow homecare workers who are paid by the state to be represented by a union; and second, whether public employees have a constitutional right to refuse to pay for the costs of union representation. Thus, while Harris involves an Illinois statute that allows homecare workers to bargain collectively, it has the potential to affect the structure of public sector bargaining throughout the country. 

    Illinois is deeply vested in improving working conditions for homecare providers – not only do better wages and working conditions mean more stability in the profession (which is good for consumers), but the state also administers many of the programs that fund homecare workers. Under these programs, while consumers or their guardians choose their own homecare workers and direct their day-to-day work, Illinois determines the number of hours they can work, defines minimal standards, creates training opportunities, and sets the workers’ wages and issues their paychecks, among other job parameters. This division of responsibility between state and consumer sets the stage for Illinois’s decision to allow homecare workers to form a union, and is a primary reason for the legal challenge in Harris.

    Specifically, elected officials made the proprietary decision that homecare workers – a group that defies the traditional hallmarks of a centralized workforce – are entitled to the same right as myriad other workers: the right to choose whether to form a union. The scope of that right, however, is carefully circumscribed by statute. The majority-approved union may bargain only with the state (not with consumers), and only over the economic conditions that the state controls, such as wages, benefits, training, and certain other working conditions.  

  • October 31, 2013
    Guest Post
    by Emily J. Martin and Cortelyou Kenney, National Women's Law Center. Ms. Martin is the Vice President and General Counsel of the NWLC. Ms. Kenney is a Cross-Cutting Legal Projects Fellow at the NWLC.
     
    Thirty-five years ago today, the Pregnancy Discrimination Act (PDA) was signed into law, remedying the Supreme Court’s 1976 decision in General Electric Company v. Gilbert which held that discrimination on the basis of pregnancy was not sex discrimination, but rather discrimination between pregnant and non-pregnant persons. Congress acted quickly to rebuke this analysis by passing the PDA, which recognizes what is obvious to most – that discrimination on the basis of pregnancy is unlawful discrimination on the basis of sex. The PDA also makes clear that women affected by pregnancy, childbirth, or related conditions must be treated at least as well as other employees “not so affected but similar in their ability or inability to work.” As a result of the PDA, once-common policies – such as forcing pregnant women off the job regardless of their ability to work – are no longer permissible.
     
    Yet pregnancy discrimination still persists more than a generation after the PDA’s passage. This is in part because stereotypes about pregnant women persist in the workplace, despite the law’s protection. But even more troublingly, pregnancy discrimination also persists because some courts have read the language of the PDA narrowly, ignoring both its plain language and its intent while also limiting its protections for pregnant workers.
     
    Specifically, courts have opened loopholes in the PDA that have too often left without protection those women who need temporary work accommodations because of pregnancy. Many women work through their pregnancies without any need for accommodation, but some pregnant workers, particularly those who work in more physically demanding or less flexible jobs, need some adjustments in work rules or duties. When their requests for reasonable accommodations – such as being allowed to carry a water bottle, refrain from climbing ladders, or avoid heavy lifting – are refused, pregnant workers must often choose between their paycheck and a healthy pregnancy even when their employers provide similar accommodations to employees who need them because of disability or injury.