Economic, Workplace and Environmental Regulation

  • July 24, 2015
    Video Interview

    by Nanya Springer

    Some talk this week centered on the issue of reforming the U.S. Supreme Court, with one irresponsible proposal gaining moderate attention, but Erwin Chemerinsky has been talking about fixing the Supreme Court for years.  In an interview with ACSblog, Chemerinsky ‒ the Distinguished Professor of Law and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law ‒ describes the Supreme Court’s greatest failures and proposes responsible solutions.

    Chemerinsky recalls the Lochner Era ‒ a period during which the high court struck down more than 200 laws enacted to protect consumers and employees, using the rationale that such laws interfere with freedom of contract. While the Lochner Era ended nearly a century ago, Chemerinsky explains that today’s Roberts Court “is the most pro-business Supreme Court that we’ve had since the mid-1930s.”

    This claim, as Chemerinsky notes, is backed up by empirical studies. From restricting the availability of class action suits and favoring binding arbitration to weakening the influence of unions, the Roberts Court has consistently sided with corporations over consumers and employees—all while refusing to recognize poverty as a suspect classification and determining that education is not a fundamental right.

    Chemerinsky offers reasonable proposals, such as imposing 18-year nonrenewable term limits, allowing cameras inside the Court and insisting that the justices conform to the same ethical standards, particularly with regard to recusal, as judges on other courts.

    Watch the full interview here or below.

  • July 21, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; Guttman is a member of the ACS Board of Directors.

    In the suffocating heat of a Washington, DC July, my thoughts drift back 30 years to a sweltering Beaumont, Texas summer. A fried fish sandwich and a milkshake at the “Pig Stand,” the smell of hydrocarbons wafting from nearby petrochemical plants, and talk of football – at any level – was Beaumont back then. 84 years after Beaumont’s 1901 Spindletop gusher gave rise to the formation of Gulf Oil and Texaco, it seemed that nothing in Beaumont had moved it forward to a new identity. It was a city stuck in time.

    The biggest event in Beaumont during that summer of 1985 was the strike by several hundred black women at the A.W. Schlesinger Geriatric Center. The strikers, ranging from cooks to nursing staff, were fighting over an attempt to roll back the average wage from $4.10 to $3.90 an hour. Fresh out of law school, I had been assigned by the Service Employees International Union (SEIU) to assist the strikers. Our office was a wooden structure with two small offices and a multipurpose room used for union meetings, press briefings, and cooking gumbo. It was in that office that I first met Cecile Richards and Kirk Adams who were SEIU’s organizers on the ground. All of us were in our 20s. Cecile, of course, would later become president of Planned Parenthood and speak at the Democratic National Convention. Kirk rose to become an International Executive Vice President of the SEIU.

    Although I had worked with SEIU though law school, the summer of 1985 was for me a crash course in the working person. In this case the workers cleaned bed pans and cooked food for the elderly; they set work aside for Sunday church services and rose to the occasion as organizers and press spokesmen during the Schlesinger labor dispute. I learned that dignity, intelligence, and perseverance are not traits reserved for those who wear a suit and tie. As the strike turned into a lockout and dragged through the heat of the summer, from that small union hall I learned to view things from the lens of workers, not just from the technical vantage point of a labor and employment lawyer whose analysis of case law is akin to dancing on the head of a pin. I learned for myself – but of course had to explain to others – that justice under the law and fundamental fairness are not necessarily the same thing. At the end of the day, neither Title VII of the 1964 Civil Rights Act nor the National Labor Relations Act offered any relief for the Beaumont strikers. There was law but no rights under it.

  • July 3, 2015
    Guest Post

    by Charlotte Garden, Associate Professor of Law and Litigation Director of the Korematsu Center for Law & Equality, Seattle University School of Law

    The Supreme Court granted cert. on Tuesday in Friedrichs v. California Teachers Association, a case about the constitutionality of union “fair share fees” in the public sector. Friedrichs will be one of next Term’s blockbusters – we can expect a decision in the last part of the Term, when the Court hands down its most closely watched cases. Here’s what’s at stake:

     

    1. What the case is about

    Like many states, California permits its teachers who vote for union representation to bargain collectively over many of their working conditions. (Conversely, California teachers’ unions are not permitted to bargain over some key work rules, such as teacher tenure, which is set by statute.) An elected union must fairly represent every employee in its bargaining unit, and in exchange, the union and the state may agree to require each represented worker to pay his or her share of the union’s representation costs. This is a common way for states to structure their labor relations, and it was approved by the Supreme Court in a 1977 case called Abood v. Detroit Board of Education. On the other hand, Abood also held that unions cannot require workers to pay for their other activities, such as organizing other workplaces, and political advocacy.

    The Friedrichs plaintiffs are asking the Court to overrule Abood and hold that public sector workers have a First Amendment right not to pay for union representation at all. (I described the case for ACSBlog in more detail here.) If the plaintiffs win, it would not mean that unions could stop representing non-paying workers; instead, it would mean that unions would have to represent them for free. One danger, then, is that so many workers might decide to free ride that their unions will collapse. That would harm workers, for whom unions help provide a route to the middle class, and also state employers who rely on collective bargaining as an effective method of workforce management.

     

    1. Why now?

    Twice in the last three years, in Knox v. SEIU Local 1000 and Harris v. Quinn, Justice Alito has authored majority opinions calling Abood into doubt. In response, groups opposed to public sector unions filed cases around the country arguing that Knox and Harris should be extended. Friedrichs was one of these cases; the plaintiffs are represented by the Center for Individual Rights and Michael Carvin, who also argued King v. Burwell and NFIB v. Sebelius. Their litigation strategy was to get to the Supreme Court as quickly as possible, and they accomplished it by admitting that their claims were foreclosed below and pressing for quick adverse decisions. But the lack of discovery in the district court will make for a thin record in front of the Supreme Court, which might have ultimately benefitted from evidence on topics like whether it is difficult to opt out of the non-mandatory portion of union fees, or the role of agency fees in promoting stable labor relations.

     

  • 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.

  • July 1, 2015
    Guest Post

    by Justin Pidot, Associate Professor of Law, University of Denver Sturm College of Law

    In its last decision of the 2014 term, the Supreme Court decided Michigan v. EPA, ruling that EPA must consider costs before deciding to regulate toxic air pollutants from power plants.  Lisa Heinzerling has identified the many questions that remain open in the wake of the Court’s decision.  And Dan Farber and Ann Carlson also provide insightful commentary on the meaning of the decision. As all three suggest, the lasting practical effect of the Court’s decision on mercury and other toxic emissions from power plants remains to be seen.

    Without retreading ground that has been well-covered already, I want to offer two observations.  First, I want to offer some (very cautious) optimism that the legal rule provided by the Michigan v. EPA decision has little effect.  Read broadly, the decision could require agencies in many contexts to consider costs before regulating.  I’m not convinced, however, that the decision necessarily tells us anything about when agencies must consider costs. 

    The Court offers several reasons that EPA unreasonably interpreted its authority to regulate power plants without accounting for the billions of dollars of costs such regulation might impose: 

    First, the Court explains that the toxic air pollution provisions of § 112 of the Clean Air Act differentiate between power plants and other stationary sources.  For sources other than power plants, the Act essentially allows EPA to consider, at most, health and environmental effects.  In contrast, the Act requires EPA to regulate power plants only if “necessary and appropriate.”  This contrast, the Court offers, must mean something.

    Second, the Court opines that appropriate regulation generally requires an agency to think about both the benefits of regulation and its cots.  This suggests, that could be read to presumptively require agencies to consider costs in making regulatory decisions.