Labor law

  • May 9, 2013

    by Jeremy Leaming

    It seems whenever given the opportunity to weaken the judiciary, Sen. Chuck Grassley (R-Iowa) runs with it and in the process spreads lots of misinformation about the federal courts.

    Grassley, who has helped his Republican colleagues in the Senate block or slow-walk President Obama’s judicial nominees, has called for cutting the number of judges on the U.S. Court of Appeals for the District of Columbia Circuit, discussed here.

    Now as the Senate Judiciary Committee begins consideration of the bipartisan comprehensive immigration bill, S. 744, the Ranking Member Grassley has offered 77 amendments to the legislation. Among them is one, dubbed Grassley17, which would isolate immigration court rulings from federal court review. As it stands now, the bill provides for some judicial review. For example, individuals denied citizenship could seek review in a district court or court of appeals pursuant to the Administrative Procedures Act.

    But Grassley’s effort to alter the comprehensive immigration measure would close the door to federal courts, except for one – in Washington, D.C. and only for review of constitutional challenges. Thus if immigration judges improperly deny or revoke citizenship, their actions will largely go unchallenged.

    Not only is Grassley’s effort an affront to judicial review, it is, let’s be honest, a part of a wider attempt to greatly slow or scuttle immigration reform. S. 744 is a rather large bill and far from perfect. It includes stringent enforcement provisions including billions of dollars for the Department of Homeland Security to spend on border enforcement. It also requires undocumented immigrants to wait at least 10 years until they can apply for legal residence and another three years until naturalization, according to The New York Times.

    But senators have offered more than 300 amendments to the immigration reform bill. Seth Freed Wessler of ColorLines says the Republican amendments “would largely gut the promise of a path to citizenship and impose nearly unachievable benchmarks for border security.” Nonetheless Wessler notes Democrats control the committee and are thus likely to hold off many of the amendments. Wessler though notes some of Grassley’s other amendments, such as one that would strike language aimed at protecting “immigrants from being deported because” of anti-immigrant laws, such as the one enacted by Arizona.

  • May 9, 2013
    Guest Post

    by J. Chris Sanders, Counsel, Jobs With Justice

    President Obama’s nominees to the National Labor Relations Board are set to appear before a Senate hearing next week. What's at stake? To recap, the president nominated two labor-side members of the Board, who weren't confirmed due to the dysfunction holding up all kinds of administration nominees. Obama then appointed them in a recess in order to get a quorum of three Board members, who then rendered hundreds of decisions. The regal U.S. Court of Appeals for the D.C. Circuit recently ruled that the recess appointments were improper, and those hundreds of decisions were made without a quorum. So the decisions are in limbo, and the power to decide cases in the future at all is at risk. The administration has appealed the D.C. Circuit’s opinion to the U.S. Supreme Court. In the meantime, the president has nominated two management-side Republicans (a traditional, balanced approach) and re-nominated the chair to complete the five-person Board. They're headed to headhunter hearings before the Senate next week. 

    The dust-up has big consequences for working people, labor law, presidential appointment power, and the rule of law in the workplace.

    Pity the poor NLRB, enforcer of the venerable National Labor Relations Act. Over the last couple of years, this little federal agency has had its turn in the barrel with the "Obama-is-a-socialist" faction. Just one, prominent example: In 2011, a routine investigation found that Boeing's decision to build a new aircraft-production facility in South Carolina instead of at its Seattle base was partly to punish Seattle union workers for previous strikes. (The right to strike- to withhold one's labor to oppose mistreatment- is, at least on paper, federally protected from retaliation.) The evidence was strong, so the NLRB moved forward, and issued an unfair labor practice complaint.

     
    The mouth-breathers went ballistic. They blew it out of proportion into an attack on the New South and the marketplace. Boeing became a cause célèbre in Republican politics. A congressional committee subpoenaed the NLRB's General Counsel to a hearing in South Carolina. Hundreds of bills have been filed to destroy, de-fang, and de-fund the agency. Its budget is and was under attack, even before the sequester.  
  • May 8, 2013

    by Jeremy Leaming

    While the Obama administration has done much to diversify the federal bench, Senate Republicans have so far successfully kept one of the nation’s most important appellate courts free of any diversity. The U.S. Court of Appeals for the District of Columbia Circuit rules on significant and often complex matters, including national security concerns; but it also rules on matters that are of great concern to corporate America.

    Since the Republican Party is the primary coddler of the super wealthy, it’s hardly surprising that its leaders in the Senate are working feverishly to ensure that President Obama has little if any opportunity to change the ideological makeup of the D.C. Circuit. The graphic (right) produced by People For The American Way is a compelling and accessible picture of the matter. (Senate Judiciary Committee Ranking Member Chuck Grassley is also pushing legislation that would cut the number of judges on the bench; he claims the D.C. Circuit has enough judges and a light caseload. For the truth, read retired D.C. Circuit Chief Judge Patricia Wald’s piece for The Washington Post.)  

    For many years now, the D.C. Circuit has been controlled by conservative judges. There are four vacancies on the bench and Senate Republicans have successfully blocked the president from filling them. As Miranda notes in a PFAW blog post, because of Senate obstructionism Obama is the “first president since Woodrow Wilson to serve a full first term without placing a judge on the D.C. Circuit.”

    An opinion yesterday by a three-judge panel of the D.C. Circuit provides yet another example of the Court’s pro-business tilt. It knocked down a rule by the National Labor Relations Board (NLRB) requiring employers to post notices about the rights of workers, such as joining a union or advocating for safer working conditions. In a post for AFL-CIO NOW, Mike Hall calls the NLRB rule “commonsense and evenhanded,” noting that such notices also inform workers that they do not have to join a union. But the D.C. Circuit found a way to side with corporations that aren’t especially eager to inform workers of their rights pursuant to the National Labor Relations Act.

    That opinion follows one from earlier in the year, Canning v. NLRB, where the D.C. Circuit invalidated the president’s appointments to the five-member NLRB. That opinion has been appealed by the Obama administration. In short, the three-judge panel of the D.C. Circuit essentially redefined what a recess appointment is, one that differs greatly from practice and federal court precedent. (See Sec. 2 of Article II of the U.S. Constitution.)

    The D.C. Circuit has also proven hostile to environmental regulations that are often challenged by corporations. In a post for grist, the Constitutional Accountability Center’s Simon Lazarus and Doug Kendall say the D.C. Circuit, on “any given day … has the power to throw the environmental movement into complete disarray.” (They could have added to the great delight of many corporations or the Koch brothers.)

  • May 7, 2013

    by Jeremy Leaming

    Once again a right-wing controlled federal appeals court has dealt a blow to workers’ rights. The Koch brothers and their staunch defenders of an unwieldy corporate America have yet another court action to celebrate.  

    In National Association of Manufacturers v. National Labor Relations Board, a three-judge panel of the U.S. Court of Appeals for the District of Columbia invalidated a rule issued by the National Labor Relations Board (NLRB) requiring employers to post notices containing information about rights pursuant to the National Labor Relations Act (NLRA). For instance a flyer, poster or notice could inform workers of their rights to create a union, engage in collective bargaining, advocate for safe working conditions, or wage a strike. The NLRB rule also stated that companies failing to post such notices were engaging in unfair labor practices.

    The three-judge panel, all consisting of Republican-appointed judges, invalidated the NLRB rule, saying it went beyond the Board’s authority, the Los Angeles Times reports. The D.C. Circuit also complained the NLRB rule amounted to government-controlled speech, saying employers covered by the NLRA cannot be forced in all circumstances to post or disseminate workers’ rights spelled out under the law. The D.C. Circuit called this “compelled speech” and said the employers “see the poster as one-sided, as favoring unionization, because it ‘fails to notify employees, …, of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in the excess of the amounts required for representational purposes.’”

    The D.C. Circuit is often considered the second most important court in the country because it hears an array of weighty constitutional matters, including the creation of federal regulations, like those aimed at enforcing the NLRA. The eleven-member court has four vacancies and Senate Republicans have blocked President Obama’s attempts to fill the vacancies. Earlier this year, the Senate, led by Minority Leader Mitch McConnell (R-K.Y.), again blocked the nomination of Caitlin Halligan to a seat on the bench. She has subsequently withdrawn her nomination.

    The Senate Judiciary Committee has conducted a hearing on another Obama nominee to the D.C. Circuit, Sri Srinivasan. But during that hearing, Ranking Member Chuck Grassley (R-Iowa) announced legislation to cut the number of judges serving on that bench to 8. If Grassley has his way, Obama will be fortunate to get one judge placed on the D.C. Circuit.

  • May 7, 2013
    Guest Post

    by Fatima Goss Graves & Amy K. Matsui, National Women's Law Center

    This week the Senate HELP Committee will vote on the nomination of Thomas Perez to be the next Secretary of Labor.   In the midst of the many unfair and unfounded attacks lobbed against Mr. Perez in recent weeks, an important legal doctrine for combating sex discrimination has also come under attack: disparate impact. Under Mr. Perez’s leadership as the Assistant Attorney General for Civil Rights at the Department of Justice, the Department has employed the longstanding disparate impact analysis to combat employment discrimination.  Its application is not only legally sound, but exceptionally important to eliminate discrimination and further justice.

    The Supreme Court and Congress have long made clear that Title VII of the Civil Rights Act “prohibits employers from using employment practices that cause a disparate impact” based on sex and other protected classes. The doctrine of disparate impact allows for a remedy when an employment practice that may be neutral on its face has an unjustified adverse effect on members of a protected class.

    Disparate impact has been crucial to addressing entrenched discriminatory employment practices.  Indeed, women’s entry into high-wage, nontraditional occupations has been made possible in large part by challenges to unfortunate employment practices that disproportionately disadvantage women, which would have otherwise remained unchanged but for the Title VII’s disparate impact doctrine.  Courts, for example, have struck down height, weight or strength requirements implemented by employers in police departments, fire departments, in construction and in correctional facilities because the requirements were not related to job performance, but instead reflected stereotypes about the skills required for a position.  Moreover, there are often alternative practices that may both satisfy job performance demands and allow for a diverse workforce.