Labor Law

  • 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.
  • October 18, 2013
    Guest Post
    The U.S. Supreme Court this week heard argument in DaimlerChrysler AG v. Bauman, a case arising out of the Dirty War in Argentina. The plaintiffs allege that Daimler, the German automaker, is responsible for the disappearance and torture of workers at a Mercedes-Benz plant in Argentina, because plant managers identified union leaders and others as “subversives” who were then targeted for persecution. This case is worth watching, because it could herald broad new protections for multinational corporations that enjoy the privilege of doing business in the United States.
    The focus of the Supreme Court hearing, however, was not on the substance of the claims, but on whether Daimler can be sued in the United States at all. The Ninth Circuit Court of Appeals ruled that Daimler could be sued in California because its subsidiary Mercedes-Benz USA (MBUSA) does extensive business in California, and MBUSA’s activities could be attributed to Daimler. My organization, EarthRights International, submitted an amicus brief on the side of the Bauman plaintiffs, arguing that the Constitution does not require courts to treat corporations and their subsidiaries separately for jurisdictional purposes, especially where they are economically integrated.
    Several justices seemed hostile to the victims of torture and disappearance, but they did not suggest a coherent rationale for dismissing the case. Few seemed to want to constitutionalize a rule of corporate separateness, but most expressed some discomfort with the case.
    What’s at stake here is essentially whether Congress, or any U.S. state, has the power to tell a corporation: “If you do business here, even if it’s through a subsidiary, victims of your crimes in other countries can sue you here.” In this case, the abuses are torture and disappearance; in another case it might be selling chemical weapons. Do we really want to establish a constitutional rule that a company that sells chemical weapons to a foreign regime can exercise the privilege of doing business in the United States without submitting to justice from its victims?
  • August 23, 2013
    Guest Post

    by Nicole G. Berner, Associate General Counsel of the Service Employees International Union (SEIU), and Elena Medina, SEIU Law fellow. This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.

    Fifty years ago, a quarter of a million Americans converged at our nation’s capital for the March on Washington for Jobs and Freedom. They demanded, in the words of Dr. Martin Luther King, Jr., payment on the nation’s promissory note for racial and economic justice. Our founding leaders executed that note when they signed into law the inalienable rights set forth in the Constitution and the Declaration of Independence. Yet almost two centuries later, the country was mired in racial segregation and discrimination. So on August 28, 1963, Dr. King and other civil rights leaders and activists called on America to cease defaulting on its obligations to its citizens of color.There have been many crucial victories since that historic day, but five decades later the promises of that note remain out of reach for too many people. Due to the proliferation of low-wage jobs, too many hardworking Americans still cannot afford basic necessities like groceries, rent, childcare and transportation. 

    Dr. King understood that the struggles for racial equality and economic justice are inextricably linked.  In his words, “[w]hat does it profit a man to be able to eat at an integrated lunch counter if he doesn’t have enough money to buy a hamburger?” Dr. King therefore fought tirelessly alongside labor activists for what he believed were the rights of all workers to “decent wages, fair working conditions, livable housing, old-age security, health and welfare measures, conditions in which families can grow, have education for their children and respect in the community.”

    Indeed, it was the sanitation workers’ strike that brought Dr. King to Memphis, Tennessee in 1968. Thirteen hundred Black sanitation workers had walked off the job to protest unsafe working conditions and discriminatory treatment. They refused to return until they secured better pay, improved working conditions and union recognition. Dr. King applauded them for “reminding, not only Memphis,” but also “the nation that it is a crime for people to live in this rich nation and receive starvation wages.” Tragically, he was assassinated the following day. But he would have been proud to know that those sanitation workers went on to negotiate an agreement implementing all of their demands.

  • July 19, 2013
    Guest Post

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

    When faced with drastic changes to its own rules, the Senate apparently can reach a compromise.  A Democratic threat to use the so-called nuclear option to change the filibuster rules caused Republicans to agree to cease blocking a vote on President Obama’s nominees to various agencies, including the National Labor Relations Board (NLRB) and the Department of Labor.

    This compromise, reached July 16, will enable an up or down vote on the package of five nominees for the NLRB.  As a part of the agreement, the president consented not to re-nominate the two current recess appointees to the Board.  Instead, the president has nominated two experienced labor attorneys, Nancy Schiffer, who recently retired from her position as Associate General Counsel for the AFL-CIO, and Kent Hirozawa, who is on the staff of current Board Chair Mark Gaston Pearce. President Obama previously re-nominated Pearce, whose term expires in August, and nominated two attorneys with long careers representing management, Philip A. Miscimarra and Harry I. Johnson. Thus the package contains the traditional three members from the president’s party and two from the opposing party.

    Hearings are scheduled on the nominations and the agreement raises hope that the Board members will be confirmed before Board Chair Pearce’s term expires in late August, when the agency would once again be unable to act because of the absence of quorum. The four blocked nominees to other agencies have already been confirmed. The actions of Republican senators on the NLRB nominees were part of a pattern of obstructing the president’s nominees. Blocking the NLRB nominees was particularly egregious, however, because the NLRB members, unlike the EPA Administrator and Labor Secretary, serve a judicial function and cannot act without a quorum.