Ann C. Hodges

  • February 20, 2018
    Guest Post

    by Ann C. Hodges, Professor of Law Emerita, University of Richmond

    *This is part of ACSblog's Symposium on Janus v. AFSCME

    With oral argument scheduled February 26 and Justice Gorsuch on the bench, conventional wisdom is that the Supreme Court is poised to reverse forty years of precedent in Janus v. AFSCME. Janus is one piece of a longstanding campaign by conservative groups to reduce the power of unions.The desires of many conservatives to weaken unions by removing their power to collect fees from employees they are compelled by law to represent appear to have blinded them to the potential unintended consequences of Janus. A brief filed by conservative scholars, however, reveals that some are beginning to awaken to the potential for Janus to disrupt existing constitutional doctrine, the ability of government employers to control their workforces, and stable labor relations in the United States.

  • September 19, 2017
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond

    It is no surprise to observers of labor relations that the Supreme Court is once again considering a petition for certiorari in a case challenging the only reliable source of union funds. Well-funded interest groups have long sought to limit unions’ power by restricting their ability to charge for services they are required by law to provide. The petition currently pending in Janus v. AFSCME rehashes the same arguments rejected by the Supreme Court forty years ago in Abood v. Detroit Board of Education and downplays subsequent legal developments that support reaffirmation of the decision in Abood.

  • April 4, 2016
    Guest Post

    by Ann C. Hodges, professor of law, University of Richmond School of Law

    Justice Scalia was widely viewed as the swing vote in Friedrichs v. California Teachers Association. The Court’s 4-4 decision on March 29 supports that view, but leaves unknown how the case would have been decided had Justice Scalia survived to participate in the decision. In his concurring and dissenting opinion in Lehnert v. Ferris Faculty Association, Justice Scalia recognized that the state’s decision to require the union to represent nonmembers offered a compelling justification for charging the nonmembers for that representation. Despite this opinion, which preceded Justice Alito’s attacks on fair share fees in Harris v. Quinn and Knox v. SEIU Local 1000, Justice Scalia’s comments at the Friedrichs argument suggested that he accepted the position of the dissenting employees that all collective bargaining in the public sector is political. If that is the case, it undercuts the distinction that Justice Scalia accepted in his opinion in Lehnert, that the state can require payment for the mandated representational activities but not for political or ideological activities.

    Regardless of how the case might have come out with Justice Scalia on the Court, the Abood decision, which Friedrichs sought to overturn, has survived. The dead heat leaves the Ninth Circuit’s opinion upholding the statute based on Abood intact. Fair share fees remain constitutionally permissible at present. That this issue will return to the Court, however, is a certainty. Unions may have “dodged a bullet” but union opponents remain loaded and ready. The National Right to Work Legal Defense Foundation and the Center for Individual Rights are dedicated to eliminating the ability of unions to charge objectors for their representational activities and offer free legal services to employees that want to challenge unions on this ground. While Friedrichs’ counsel argued that the case would have no impact in the private sector, that is not at all certain given the Court’s previous decisions analogizing public and private sector union security. Further, these same organizations are committed to taking away union security in the private sector as well.

    The Friedrichs case was rushed to the Court without a record because the plaintiffs sought to capitalize on Justice Alito’s invitations in Harris and Knox. That strategy gave the unions several arguments that may be unavailing in a case with a full record. There are cases in the lower courts raising the issue that may be headed to the high Court. But there is little incentive to rush another case to the Court since it appears that the Republicans in the Senate will block confirmation of any nominee until after the 2016 elections. In addition, the Center for Individual Rights has indicated that it will ask the Court to rehear the case once a new justice is confirmed.

  • November 19, 2015
    Guest Post

    by Ann C. Hodges, Professor of Law, Richmond School of Law

    The Supreme Court’s grant of certiorari in Friedrichs v. California Teachers Association suggests that it is considering overturning almost 40 years of precedent allowing unions to charge for the representation that they are required to provide to workers. Little has changed since the Court, in Abood v. Detroit Board of Education, approved this important part of the labor relations systems adopted by many states to deal with their workers. In fact, Court decisions since Abood have given employers even more freedom in dealing with their workforces and in restricting the workers First Amendment rights in order to further the employer’s interest in providing efficient and effective government services. 

    In a new ACS Issue Brief I authored addressing Friedrichs, I point out the strong government interests that warrant the very limited infringement on First Amendment rights imposed by requiring employees to pay for the services they receive from unions.  The case is not about charging for union political activity. That is already prohibited. Nor does the requirement to pay fair share fees restrict the ability of employees to advocate for their own views with the government, including opposing the union’s negotiated collective bargaining agreement in open forums. Further the employees can remove the union as representative if a majority of their coworkers oppose union representation. The Court has approved far more onerous restrictions on employee speech rights in the interest of government efficiency. 

    Unions forced to represent workers without compensation will struggle to fulfill their function in the labor relations systems adopted by employers to manage their workforces. The goal of labor peace may be threatened. The resources available to unions to exercise their First Amendment rights and those of their members will be diminished by the failure of employees to pay for the services provided. Reducing the voice of workers in the marketplace of ideas creates even more space for the dominance of the corporate voice. Our democracy flourishes when all participate. Dominance by one segment of society impoverishes us all.

    For more information about the risks posed by invalidating the many existing state statutes allowing unions to charge fair share fees and the reasons that the Court got is right in 1977, read the ACS Issue Brief.

  • July 1, 2015
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond

    The recent decision by a California labor commissioner that an Uber driver is an employee rather than an independent contractor is of limited significance in and of itself. What it may signal for the future of the sharing or gig economy is far more interesting.

    The decision is based on California law and, unless reversed on appeal, will require Uber to pay the driver several thousand dollars in business expenses. Determining whether an individual is an employee or an independent contractor is a complex decision based on a multi-factor test. Most employment statutes exclude independent contractors from their coverage, based on the theory that contractors are independent business owners that do not need the legal protection. In recent years, however, misclassification of employees as contractors has become a common practice. In some cases, misclassification may be mere error, but in others it is an attempt to evade employment laws, avoid deducting and remitting income taxes and escape payment of the employer portion of social security. Other advantages to the employer of the independent contractor classification are reducing the potential liability for any negligent or wrongful actions of the individual and avoiding payment of employee benefits.

    The IRS is attuned to the issue and watching for misclassification, along with enforcement agencies for employment statutes and plaintiffs’ employment lawyers.  Enforcement resources are limited, however, so misclassification remains rampant. While all courts and agencies use similar multi-factor tests, differences in emphasis and weighting of factors result in different conclusions about similar workers.  For example, in a series of cases about FedEx drivers under a variety of employment laws, some courts and agencies have found them to be employees and others, contractors.  Some decision makers emphasize the amount of control exercised by the business while others put more weight on the availability of individual entrepreneurial opportunities.

    The recent Uber decision is similar, emphasizing Uber’s control over many aspects of the drivers’ jobs. But this is just the application of one state statute, which is more employee protective than many, by one decision maker to one employee.  If more decisions find drivers to be employees under more statutes, however, the business model that supports the gig economy may be threatened.

    The more interesting issue that the decision raises is the relationship between the gig economy and existing law.  Depending on the details of the business model, workers in the gig economy might be considered independent contractors, part-time employees, temporary employees, or casual workers.  Many laws exclude some or all of these groups of workers.   If this becomes the dominant work pattern of the future, laws will need to be changed to protect workers against exploitation by businesses.