• October 26, 2016
    Guest Post

    *Read more on this topic in the ACS Issue Brief: Redefining Employment for the Modern Economy

    by Brishen Rogers, Associate Professor of Law at Temple University Beasley School of Law

    The explosive growth of Uber and other on-demand labor platforms has brought public attention to a longstanding issue facing workers in this country: the fissuring of employment. Fissuring comes in many forms, including misclassification of employees as independent contractors, subcontracting and franchising arrangements.

    Such strategies can deprive workers of their rights under our employment laws, most of which define employment per the common law “right to control test.” That definition is narrow, failing to reflect the economic realities of modern work relationships. It is also notoriously difficult to apply in practice, which increases litigation costs and disempowers low-wage workers.

    This is not a small problem. Wage and Hour Administrator David Weil estimates that there are “over 29 million workers in just five industries affected …  including in the construction, hospitality, janitorial, personal care and home health care industries.”

    Unfortunately, some prominent reform proposals—such as to create a new legal category of worker that would slot between “employee” and “independent contractor,” with limited employment rights—would move us backwards rather than forwards. Ethically speaking, workers in fissured relationships are no less deserving of basic protections than standard employees. Creating a third category of worker would also make employment status litigation even more complicated and more expensive.

    In a new issue brief for ACS, I propose an omnibus employment status bill to address such challenges. The central reform would redefine employment under the core federal labor/employment statutes per the broad “suffer or permit” test from the federal Fair Labor Standards Act. In misclassification cases under that test, courts’ and agencies’ task is not to determine whether the putative employer enjoys a right to control the performance of the work, but rather “to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor).”

  • October 26, 2016

    by Katie O'Connor

    In these final two weeks of what has started to feel like the presidential election campaign version of Snowpiercer, we are all gearing up for a busy Nov. 8. Canvassers are undertaking GOTV efforts, station wagon and minivan drivers are volunteering to give rides, people are signing up for Election Protection and even the most casual of slacktivists are tweeting to remind their followers to check their polling places and voting hours. People are making plans to get to the polls, and many are volunteering their free time for other Election Day efforts. Election Day is exciting and our democracy is stronger when everyone wants to be a part of it.

    But zealous democratic participation has its limits. Your enthusiasm for your candidate or cause or for democracy itself has to be tempered by the right of other voters to vote without intimidation or coercion. Given the heated rhetoric about rigged elections and the persistent and forceful calls for election observers to go out and watch the polls, we should all take a minute to talk about where those limits are.

    Put simply, voter intimidation is a felony. Numerous federal laws prohibit voter intimidation by government officials and by private actors and in most states, those laws are reinforced by state laws prohibiting voter intimidation. There is no bright line to distinguish between legitimate poll watching activities and outright voter intimidation at the polls, but we know from past experience where poll watching starts to cross the line. First and foremost, poll watchers should do that and only that – watch. Directly confronting voters, especially in a threatening way, will often constitute voter intimidation. Writing down license plate numbers or taking pictures of voters as they arrive to or leave the polls will probably constitute voter intimidation. In many cases, the presence of law enforcement officials – or poll watchers who dress or say things in an attempt to mislead voters into believing they are law enforcement officials – can count as intimidation. And even if open carry laws allow firearms in a polling place, such open carry could still violate civil rights laws if it is intimidating.

  • October 26, 2016

    by Caroline Fredrickson

    Suddenly, in the span of just a few days, three senators broke rank with the 54-member majority who has denied any action on judicial nominations. It is too early to tell if this shift is a sideshow producing headlines in the Salt Lake Tribune and Politico or the beginning of the end of gridlock in the post-election lame duck session of Congress.

    Whatever the outcome in the coming weeks, #DoYourJob is not a strong enough hashtag to chronicle the constitutional crisis created by the senate blockade against President Obama’s 110 judicial nominations.  More than 10 percent of the federal bench is vacant. 

    To put this number in perspective, compare Obama’s vacancy rate of 10.8 percent with President George W. Bush’s 3.7 percent at this same point in his eighth year.  This is a virtual shutdown of the third branch of government as the second branch denies its constitutional duty to give “advice and consent” on nominees by the first branch. 

    Chatter about a constitutional crisis sounds overblown until you recall statements made by Senate Majority Leader Mitch McConnell (R-Ky.) and Sens. Orrin Hatch (R-Utah), Chuck Grassley (R-Iowa) and John McCain (R-Ariz.) regarding Obama’s nominee to the Supreme Court, Chief Judge Merrick Garland.

    Remember in February, barely an hour after the death of Justice Antonin Scalia, Senate Majority Leader Mitch McConnell stunned many with an historic announcement that the next president should fill the vacancy on the Court. McConnell reasoned that with a possible shift in the ideological bent of the Supreme Court the people should have a voice in the selection of the ninth justice.  This logic ignores the fact that voters do not elect Supreme Court justices.

  • October 24, 2016
    Guest Post

    by Keith Bradley

    Who do you think is the most powerful individual in government, after the president? Some might say the Secretary of Defense, the Attorney General or the Chair of the Federal Reserve Board. According to a panel of the D.C. Circuit, it is actually the director of the Consumer Financial Protection Bureau. On that ground, the court in PHH v. Consumer Financial Protection Bureau has just held it unconstitutional that, under the Dodd-Frank Act, the director can only be dismissed for cause.

    For those unfamiliar with the agency, it is the federal regulator of consumer protection in financial services—things like mortgage and credit-card lending, consumer reporting, debt collection, checking accounts, etc. The Dodd-Frank Act created the Bureau, inspired in large part by then-Professor Elizabeth Warren’s idea for a finance analog to the Consumer Product Safety Commission. The Bureau has a budget of about $480 million and just over 1,500 employees—a quarter or so as big as, say, the USDA’s Agricultural Research Service. The Bureau is certainly influential in its sphere; in a six-month period it reports securing $244 million in relief for consumers harmed by violations of federal consumer financial law. Yet, whether you think the Bureau is doing a good job or a bad job in the various areas it regulates, it is not immediately evident that its director is the second-most powerful official in the entire government.

    The opinion’s rhetoric reveals that this panel lost its mooring to the Constitution. The judges’ concern was that the director has “unilateral power,” by which the court really meant that the director runs the Bureau by himself, not as part of a multi-member commission or board. A commission or board is superior, the court said, because it poses less threat to individual liberty. To be sure, the Supreme Court has observed that the separation of powers protects individuals as well as the rival branches. But individual liberty is not the Constitution’s only value. To assess the validity of the Bureau, the question is not simply how it affects liberty, but how it measures up against the actual framework of the Constitution.

    To see the all-consuming importance of individual liberty to this D.C. Circuit panel, it will be useful first to run through the other justifications it offered.

    First, the opinion professed to be suspicious because having a single agency head with for-cause protection is novel. Setting aside whether that mode of constitutional analysis is wise, the panel’s historical review was incomplete. The National Bank Act of 1864 established the Comptroller of the Currency and it permitted (and still permits) the President to remove the Comptroller only “upon reasons to be communicated . . . to the Senate.” Textually and in terms of effect, “upon reasons” seems pretty similar to a “for cause” limitation. Assessing this historical example would be important for any careful examination of whether for-cause protection for a single agency head is a novelty. The D.C. Circuit panel dismissed it in a footnote stating that the Comptroller is an at-will official—for which the court cited no precedent and provided no explanation.

  • October 24, 2016
    Guest Post

    *This piece was originally posted on Homeroom, The Official Blog of the U.S. Department of Education

    by Jeffrey RosenPresident and CEO of the National Constitution Center

    Earlier this week, U.S. Secretary of Education John King gave an inspiring speech on civic education at the National Press Club. As part of his speech, he called for a commitment to nonpartisan constitutional education in our classrooms. At the same time, he recognized that civic education is not easy. Even for teachers and administrators with the best of intentions, these conversations—which often cover some of the most contested issues at the center of our public life—can skew partisan. This is no small problem.

    To navigate these conversations effectively, teachers must have training on how best to facilitate these discussions and must receive support from their principals, their administrators and the wider community. However, teachers must also have access to trusted, nonpartisan information about our Constitution and its history—information that can be hard to find in our polarized age. That is where the National Constitution Center comes in.

    As a national headquarters for civic education, the National Constitution Center delivers balanced, trusted educational programming and online resources that inspire, excite and engage Americans about the U.S. Constitution—its text, its history and its enduring importance. The centerpiece of our civic education efforts is our Interactive Constitution—already dubbed an “internet sensation” by USA Today.