Labor law

  • April 15, 2013
    Guest Post

    by Alicia Plerhoples, Associate Professor of Law, Georgetown University Law Center

    I recently had the privilege of participating in a meeting of some leading and well-respected labor attorneys and scholars. Many questions were posed. With the decline of participation in labor unions, gutting of workers’ rights through “Right to Work” state legislation, and attempts to dismantle the National Labor Relations Board, what other legal mechanisms can be employed for the benefit of workers? Specifically, how can corporate laws facilitate workers’ rights? We also deliberated many possible advocacy avenues under corporate law including the following:  

    Reframe the argument against Citizens United and align workers with shareholders against unchecked corporate boards and management. Citizens United v. FEC recognized free speech rights under the First Amendment for corporations, including labor unions. While some advocate that labor unions take advantage of Citizens United through increased campaign activity and spending, labor unions face an uphill battle against anti-worker groups financed by better-funded corporate interests and wealthy individuals. Rolling back Citizens United is currently part of a larger worker rights’ plan, and one way to execute that plan (and garner a broader base of support) is to align workers’ interests with shareholder interests.

    The Supreme Court got Citizens United wrong by brushing aside an important corporate constituency -- shareholders. Retired Justice John Paul Stevens’ dissenting opinion was correct to argue that the majority opinion ignored the rights of shareholders. When corporations are allowed to spend unlimited treasury funds on “electioneering communications,” the corporate board chooses all aspects of the political donations -- which political groups to donate to, the timing of such donations, and whether to donate at all. Shareholders are effectively forced to contribute their money to political issues, even those that they oppose. When a shareholder invests in a corporation -- and realize that anyone in the United States whoever wants to retire must invest in corporations, whether directly or through mutual funds -- the shareholder is doing so for one purpose: to make money.

  • April 9, 2013

    by Jeremy Leaming

    Pushing back against Republican-led efforts in Congress to greatly hobble the National Labor Relations Board, President Obama is urging swift confirmation of three individuals to the five-member board.

    Senate Republicans have strived to keep the president from filling vacancies on the NLRB, which is charged with protecting workers’ rights. The NLRB must have three members to take any action and two of the current members were appointed via the recess appointments process, which a federal appeals court earlier this year said was done in an unconstitutional manner. This week the Republican-led House of Representatives is considering a measure that would shutter the NLRB until it has three members it considers legitimate. Republican senators have sought to keep a pro-corporate tilt to the NLRB or make it inoperative.

    In January 2012, Obama appointed Richard Griffin and Sharon Block to the NLRB during a congressional break. But then the U.S. Court of Appeals for the D.C. Circuit ruled that the president’s recess appointments violated the Appointments Clause of the Constitution. The ruling in Canning v. NLRB has been widely blasted as running counter to federal court precedent upholding recess appointments and more than a century of recess appointments made by other presidents. The NLRB has said it will appeal the D.C. Circuit’s opinion to the Supreme Court. Harvard Law School Professor Laurence Tribe in a column for The New York Times argued that Obama’s recess appointments passed constitutional muster, saying the Constitution clearly reserves “the authority the president needs to carry out his basic duties ….”

    The president, however, is seeking to keep the NLRB alive during the appeals process. Obama re-nominated NLRB Chairman Mark Pearce, a Democrat, and two Republicans, Harry I. Johnson III and Philip A. Miscimarra, The Associated Press reports. Earlier this year, Obama nominated Democrats Block and Griffin to full terms on the NLRB.

    In announcing today’s nominees, Obama noted that the NLRB “plays a vital role in our efforts to grow the economy and strengthen the middle class. With these nominations there will be five nominees to the NLRB, both Republicans and Democrats, awaiting Senate confirmation. I urge the Senate to confirm them swiftly so that this bipartisan board can continue its important work on behalf of the American people.”  

    AFL-CIO President Richard Trumka lauded the president’s action saying, “For America’s workers, business and the promotion of healthy commerce, putting forward a full, bipartisan package of nominees to the NLRB is the right thing to do.”

    Although the nominees include two who do not share the AFL-CIO’s staunch support of workers’ rights, Trumka said the “labor movement understands that when the NLRB is not at full strength and cannot enforce its orders, America’s economy falls out of balance, as it is today with record inequality and a shrinking middle class.”

  • March 19, 2013
    Guest Post

    by Nicole G. Berner, Associate General Counsel of the Service Employees International Union (SEIU) and Counsel of Record in Labor Movement Briefs filed in Hollingsworth v. Perry and United States v. Windsor & Elena Medina, SEIU Law Fellow. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.


    A broad coalition of labor unions, representing more than 20 million American workers, and the interests of working people more broadly, filed amicus curiae briefs in support of the respondents in the Supreme Court challenges to the Defense of Marriage Act (DOMA) and California’s Proposition 8. Both cases will come before the Court for oral argument next week. The briefs, the only to outline specifically the economic damages of these laws, advocate for the right of all working people to fair and equal treatment in the workplace, and for the right of lesbian, gay, bisexual and transgender workers to receive the same employment benefits and protections as their heterosexual co-workers.

    Marital status plays a key role in determining eligibility for-- and taxation of -- a myriad of workplace benefits and protections. These benefits, together with state and federal programs for working people and their families, form the safety net upon which most Americans rely for retirement and financial assistance in the event of illness, injury, disability or death. They are particularly crucial for families in which only one adult works outside of the home or is eligible for employer-provided benefits. Laws codifying marriage discrimination, such as DOMA and Proposition 8, largely deprive LGBT workers of access to these benefits and protections and thereby perpetuate a two-tiered workforce in which LGBT workers are treated inferior to their heterosexual counterparts and unfairly relegated to a lower stratum of economic security.

    Health Care Benefits. Employer-provided health care provides the most common source of medical coverage for working Americans and their families. But for same-sex couples, DOMA and Proposition 8 create a litany of impediments that complicate, penalize or flatly prohibit full family coverage. Without equal access to employer-provided spousal health care benefits, some non-covered same-sex partners are forced to rely on coverage available through public assistance or to go without health insurance entirely. Even for workers whose employers extend coverage to gay and lesbian spouses or who can afford to purchase private insurance for the non-covered spouse, DOMA and Proposition 8 deny access to tax benefits and raise health care costs for same-sex couples significantly, forcing such couples to pay thousands of dollars more on healthcare each year.

  • March 12, 2013

    by Jeremy Leaming

    While President Obama has advanced some eloquent calls for expanding equality, his administration must take more action to ensure equality in the workforce, according to a new ACS Issue Brief.

    Landmark measures such as Title VII of the Civil Rights Act of 1964 and President Lyndon Johnson’s executive order banning federal contractors from employment discrimination have been undermined by federal judges far too eager to protect the rights of employers, write Ellen Eardley and Cyrus Mehri in “Defending Twentieth Century Equal Employment Reforms in the Twenty-First Century.” 

    Citing Simon Lazarus, an attorney with the Constitutional Accountability Center, Eardley and Mehri write that lower federal court judges “have been ‘aggressively activist in narrowing, undermining, and effectively nullifying an array of progressive statutes,’ including statutes involving civil rights and affirmative action.” Eardley and Mehri, attorneys with Mehri & Skalet, PLLC, also note that former federal court judge Nancy Gertner has “recently declared that ‘changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 [are] tantamount to a virtual repeal.’”

    The authors also cite a study from the Harvard Law & Policy Review, the official journal of ACS, which reveals data showing that from 1979 through 2007 judges have increasingly sided with employers in employment discrimination cases and that the rare victories for workers are frequently invalidated at the appellate level. The study by Stewart J. Schwab and Kevin Clermont “found that the anti-plaintiff effect on appeal particularly disturbing because employment discrimination cases are fact-intensive and often turn on the credibility of witnesses.”

    And it’s not just the lower courts that have made it difficult for workers to challenge employer malfeasance, the authors add, noting that the U.S. Supreme Court has issued opinions making it tougher to bring class actions claims and providing federal courts with greater power to quickly dismiss workers’ employment discrimination cases.

    “The Draconian view of Title VII, distortion of the basic principles of civil procedure, and the new hurdles to class certification adopted by the federal judiciary make it difficult for employees to vindicate their rights,” Eardley and Mehri write.

  • February 19, 2013
    Guest Post

    by U.S. District Court Judge Robert W. Pratt, Southern District of Iowa


    In late January, U.S. Sen. Tom Harkin (D-Iowa) announced he would retire when this session of Congress ends in December, 2014. I have known Tom Harkin since we worked together as young lawyers at the Polk County (Des Moines, Iowa) Legal Aid Society. The first paragraph of any article about Harkin must mention the Americans with Disabilities Act, the landmark civil rights legislation outlawing discrimination against those with disabilities passed in the congress of 1989-90. This is as it should be because that law has literally changed the face of America but there is so much more, however, that most people do not know about his work.

    While at Polk County legal aid as a young lawyer he lobbied the Iowa legislature to pass the Uniform Consumer Credit Code, lobbied to eliminate the sovereign immunity for tort liability for governments, worked against those who wanted to raise the interest rates for consumers and challenged in the Iowa Supreme Court a loitering ordinance that was used indiscriminately against the poor.

    Although Iowa is now a politically competitive state, it was not always so.  From the time of the Civil War, just as southern states were solidly Democratic, Iowa was solidly Republican.  It was once common wisdom that “Iowa would go Democratic when hell went Methodist.” Remarkably   Harkin, during his political career has defeated five incumbent members of Congress, and is the only Democrat in Iowa’s history to be re-elected to the U.S. Senate. Along the way he has helped Iowa’s state Democratic Party to be one of the most progressive and best organized in the country. Harkin’s political legacy in Iowa is secure because of that and also because so many of his former staff and campaign people are prominent in today’s progressive movement.