Labor Law

  • 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.

  • July 18, 2013

    by E. Sebastian Arduengo

    Thomas Perez was confirmed by the Senate to be Secretary of Labor this afternoon by a vote of 54 to 46. Perez’s confirmation comes after Senate Majority Leader Harry Reid reached a deal with the body’s Republicans where they agreed to end filibusters on several executive appointments, including Consumer Financial Protection Bureau head Richard Cordray and Environmental Protection Agency administrator Gina McCarthy, in exchange for President Obama dropping two nominees he had appointed to the National Labor Relations Board during a Senate recess at the end of 2011.

    Perez leaves his position as the Assistant Attorney General for the Civil Rights Division at the Department of Justice to take the helm at the Labor Department. At Justice, he notably challenged South Carolina’s 2011 voter ID law under Section 5 of the Voting Rights Act and led an investigation into alleged discriminatory policies and practices by the Maricopa County Sheriff's Office under Sheriff Joe Arpaio.

    He talked about his experiences fighting for voting rights at an ACS lawyer chapter event earlier in the year, describing Section 5, which was recently all but struck down by the Supreme Court, as the “crown jewel” of civil rights legislation. Without Section 5, Perez noted, efforts in covered jurisdictions to restrict voting would have been much more severe. Of his own role, Perez said that he was just one step in the “marathon relay” that is the struggle for equality and civil rights; a struggle, he added, which is not yet complete.

  • July 8, 2013

    by Jeremy Leaming

    Republican senators bent on shuttering or at least greatly hindering the National Labor Relations Board (NLRB), which is charged with protecting the right of workers to organize, continued their efforts of obstruction by holding up nominees to the five-member board. The Senate minority also sought to delay or scuttle the president’s nominations to the Environmental Protection Agency, Department of Labor and Consumer Financial Protection Bureau.

    Senate Democrats are discussing how best to reform chamber processes to facilitate more progress and action on various nominations. We may learn more following Tuesday’s Senate Democratic Caucus lunch meeting if Majority Leader Harry Reid (D-Nev.) raises the issue there with his colleagues.

    Regarding the NLRB, which Republicans have long maintained is an entity harmful to business interests, Senate Republicans blocked attempts to hold up-or-down votes on the nominations of Mark Gaston Pearce, Richard F. Griffin, Jr., Sharon Block, Harry I. Johnson III and Philip A. Miscimarra. Republicans have pointed to an opinion issued earlier this year by the U.S. Court of Appeals for the District of Columbia Circuit that President Obama’s now-expired recess appoints of some nominees were unconstitutional.

    The Republicans argue that until the litigation in the case, NLRB v. Noel Canning, is resolved the labor board should not be permitted to function. The Supreme Court announced in June it would consider the case during its next term. Business lobbyists and their allies in the Senate have looked for all kinds of ways to paralyze or greatly hobble the NLRB, such as refusing to consider to the president’s nominations, which led to the recess appointments.

    After the president sent his package of nominees to the NLRB this spring, ACSblog featured guest blog posts on the struggle over the labor board. They include compelling stories about the work of the NLRB and provide detailed context of the ongoing controversy:

  • June 28, 2013
    Guest Post

    by Emily J. Martin,  Vice President and General Counsel at the National Women's Law Center

    You may have missed it in the flurry of newsmaking by the Supreme Court this week, but on Monday, five of the Justices gave early Christmas presents to defendants accused of employment discrimination, when the Court handed down important decisions in two Title VII cases: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.  In both Vance and Nassar, the 5-4 decisions ignored the realities of the workplace and the ways in which employment discrimination and harassment play out every day.  Placing new obstacles in the path of workers seeking to vindicate their rights, the Court set aside the longstanding interpretations of the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII), and closed out a term in which the Court repeatedly limited the ability of individuals to challenge the actions of powerful corporations.

    Justice Samuel Alito wrote the Vance decision.  Prior cases have held that when a plaintiff shows she was sexually harassed, or racially harassed, or harassed on some other unlawful basis by a supervisor, her employer is liable, unless the employer can prove that the plaintiff unreasonably failed to take advantage of a process that the employer provided for addressing harassment. An employer is only liable for harassment by a co-worker, however, when a plaintiff can show that the employer was negligent in controlling working conditions—a far tougher standard.  Vance posed the question of who is a supervisor: Is it only someone who has the authority to hire, fire, or take other tangible employment actions? Or is it anyone who oversees and directs the plaintiff’s work on a day-to-day basis? Ignoring the ways in which day-to-day supervisors have been invested with authority over other employees that empowers them to harass, the Court ruled on Monday that employers are not vicariously liable for harassment by day-to-day supervisors who do not have the authority to hire, fire, and the like. Indeed, showing even more solicitousness for the interests of employers than the defendant in the case had shown for itself, the majority adopted an even narrower interpretation of the word “supervisor” than had been urged by Ball State.