ACSBlog

  • August 6, 2014
    Guest Post

    by Michael Scimone, Associate, Outten & Golden LLP.

    Last Tuesday, the National Labor Relations Board’s (“NLRB”) General Counsel announced that his office would prosecute McDonald’s USA, LLC for unfair labor practices committed by its franchisees (i.e., the individual restaurants not owned by the corporation, which is most of them).  That means that the NLRB may hold McDonald’s liable if its nominally “independent” franchisees interfere with or retaliate against workers who try to form unions, strike, or demand better pay or working conditions. 

    The GC’s move is an effort to apply common sense to an all-too-common legal dodge.  McDonald’s claims that its franchisees are free to make their own decisions about labor matters.  But that’s hardly true in practice.  Fast food franchisors like McDonald’s have enormous leverage over their franchisees.  McDonald’s computers track franchisees’ sales and labor costs, monitor employee schedules, and calculate how much labor the stores need.  And McDonald’s is famous for controlling just about everything else in its restaurants – where they buy supplies, how they cook their food, and how they advertise the brand.  It even owns the restaurants themselves.  What’s left for the franchisee to control?  Is it realistic to imagine that a franchisee could bargain over wages, schedules, or health and safety without McDonald’s at the table?

    The franchisor-franchisee smokescreen allows McDonald’s to avoid responsibility for a range of labor abuses, from anti-union interference to wage theft.  McDonald’s workers have filed multiple lawsuits seeking to hold McDonald’s, along with its franchisees, responsible for ripping off workers by making them work off the clock and stealing their already-low wages.  McDonald’s, of course, denies all responsibility.

  • August 6, 2014
    Guest Post

    by Estelle Rogers, Legislative Director, Project Vote

    *This piece originally appeared on Project Vote’s Voting Matters.

    Forty-ninth anniversaries don’t usually garner much attention, but today a 49th anniversary—though filled with pathos—is worth commemorating. The Voting Rights Act was signed into law by President Lyndon Johnson on August 6, 1964. Often called the “crown jewel” of the civil rights movement, the Voting Rights Act has now lost a bit of its luster, tarnished by the Supreme Court’s decision in Shelby County v. Holder.

    The passage of the Voting Rights Act took barely four months after the President sent the bill to Congress; he called it “one of the most monumental laws in the entire history of American freedom.” And it passed by overwhelming bipartisan majorities in both chambers, foreshadowing the four reauthorization votes that reaffirmed its vitality over the years since. The last, in 2006, passed by a vote of 98-0 in the Senate and 390-33 in the House. But no more.

    Since the Supreme Court eviscerated preclearance, one of the most important tools written into the VRA to fight racial discrimination, the law’s historical bipartisan support seems but a distant memory.  Preclearance requires states and smaller jurisdictions with particularly troubling histories of voting discrimination to secure federal approval in advance for any voting changes. The law swept broadly, recognizing that even seemingly trivial statutory or administrative changes often operate to disadvantage racial and language minorities. One of its most significant advantages was to mitigate the necessity to file expensive and time-consuming lawsuits to redress voting discrimination on a case-by-case basis. As part of the VRA, it was reauthorized four times. But no more.

  • August 6, 2014

    by Caroline Cox

    Nicholas Bagley argues at The Incidental Economist that the full U.S. Court of Appeals for the D.C. Circuit should rehear Halbig v. Burwell. If sustained, Halbig puts millions at risk of becoming uninsured, meeting the standard for en banc review as a case of “exceptional importance.”

    Niraj Chokshi reports for The Washington Post that Utah Attorney General Sean Reyes has filed a petition for a writ of certiorari with the Supreme Court. The cert petition asks for a review of the U.S. Court of Appeals for the Tenth Circuit decision, last month, that affirmed a lower court’s determination that Utah’s same-sex marriage ban is unconstitutional.

    In The Wall Street Journal, Michelle Hackman interviews Adam Cox, Faculty Advisor for the New York University School of Law ACS Student Chapter, on the steps President Obama could take to help undocumented immigrants.

    The Diane Rehm Show hosts a debate on President Obama’s use of executive orders. Jonathan Turley, Stanley Brand and Jeffrey Rosen weigh in.

    Jamelle Bouie of Slate explains the dangers of “broken window” policing and the civil rights implications of being tough on minor offenses. 

  • August 5, 2014
    Guest Post

    by Adrian Alvarez, the Goldberg-Robb Attorney, Public Justice

    *This post originally appeared on Public Justice’s blog

    A Florida judge’s ruling that the state’s constitutional amendment banning same-sex marriage is unconstitutional under the U.S. Constitution is the third order of its kind to come out in less than a month. But in a twist on the debate over the right to marry, the judge’s order came about not to allow a couple to marry, but to allow a woman to divorce her estranged spouse. And the issue is about far more than the right to divorce, it’s also about access to justice.

    In 2002, Heather Brassner entered a civil union with Megan Lane under Vermont’s civil union statute. Four years ago, the couple separated and Brassner is now in a committed relationship and wants to end her civil union. Although. Brassner sought a dissolution of her civil union in Vermont, because she is not a Vermont resident, Vermont courts won’t dissolve the union without Lane’s approval and Lane has gone missing.

    So Brassner sought relief in Broward County, Fla., the place she’s lived for the past 14 years. 

    In 2008, Florida voters passed a constitutional amendment that bans same-sex marriage in the state. The amendment not only bans marriage, but is written so broadly that it includes civil unions. The amendment says:

    Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.

    Unlike the right to marry, I know of no U.S. Supreme Court opinion recognizing a person’s right to divorce as part of an individual’s right to liberty and privacy. In fact, the Florida court that decided Brassner’s case based its decision on a federally protected right to marry, not any federally protected right to divorce.

  • August 5, 2014

    by Caroline Cox

    Adam Liptak of The New York Times discusses Justice Ruth Bader Ginsburg’s recent comments on the Supreme Court’s different treatment of cases involving gay people and women. Justice Ginsburg comments suggest that the five-justice conservative majority does “not understand the challenges women face in achieving authentic equality.”

    In Slate, Emily Bazelon explains the recent decisions by the U.S. Court of Appeals for the Fifth Circuit and the U.S. District Court for the Middle District of Alabama that blocked major restrictions on abortion clinics. Despite these pro-choice victories, the legal fight against allegedly burdensome regulations on abortion clinics remains an uphill battle as a Texas law goes before the Fifth Circuit.

    Robert Barnes of The Washington Post reports that a Florida judge has found two of the state’s congressional districts unconstitutional. The decision, one of several challenging gerrymandering throughout the country, sets the stage for a possible Supreme Court case in the fall. 

    Shawn DuBravac, the chief economist of the Consumer Electronics Association, writes for the Harvard Business Review that the Supreme Court’s view on the Fourth Amendment is increasingly taking into account changing technology and the importance digital privacy.

    The New York Times’ James Barron provides the obituary for James S. Brady, White House press secretary for President Ronald Reagan and a major champion of gun control legislation.

    The Alliance for Justice published a comprehensive report detailing each federal case on the legality of a same-sex marriage ban.