Labor Law

  • May 1, 2015
    Guest Post

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

    In a blog post following the Supreme Court’s decision last term in Harris v. Quinn, I predicted that the constitutionality of union fair share fees would soon be back at the Court. It took little prescience to make such a prediction and indeed, the plaintiffs in Friederichs v. California Teachers’ Association worked mightily to get the case on the Court’s docket as quickly as possible. The Court will decide whether to grant cert in the near future.

    Although this issue will no doubt return repeatedly to the Court, it should decline to hear the case. The 1977 decision of the Court in Abood v. Detroit Board of Education correctly concluded that fair share fees are constitutional, and the decision should not be disturbed. Abood allows the union to charge for its mandated representational duties, but not for political expenditures. In this context, the objectors’ first amendment interests are reduced and the interests of the government employer that has entered into an agreement with the union enhanced. Justice Alito suggested in Harris, however, that all union activity in the government sector implicates the highest first amendment interests. This is at odds with the Court’s cases on the first amendment interests of public employees following Abood.

    In recent years, the Court has held that the government has stronger interests in restraining speech when it acts as an employer. Accordingly, when employees speak pursuant to their job duties, their speech is unprotected. Additionally, when an employee’s speech is about an internal workplace grievance, it is similarly unprotected by the first amendment. It is precisely these grievances that the union is obliged to handle for all employees regardless of membership.  If speaking about the grievance is unprotected, why is compelling the unwilling employee to pay for this otherwise unprotected speech an interference with first amendment rights?  Further, Justice Alito’s Harris opinion suggests that when one employee asks for a raise, the speech is unprotected but when the union asks for a raise on behalf of all employees, it is high order political speech which the employee cannot be compelled to support.  As Justice Kagan pointed out in the Harris dissent, the fact that it takes more money to pay multiple employees does not transform the character of the speech when the substance, asking for a raise, is the same.

    There are many other reasons for the Court to deny cert. Abood has been settled law for almost 40 years, Justice Alito’s efforts notwithstanding. As Justice Kagan ably pointed out in Harris, principles of stare decisis, including the reliance interests of thousands of employers and unions and millions of employees, counsel restraint. Moreover, as I have argued in earlier posts, fair share agreements are an essential pillar of the system of labor relations that has served our country well for 80 years.  And finally, as pointed out in the opposition to cert, the record in this case has not been developed, as the plaintiffs rushed to accept Justice Alito’s invitation for an opportunity to overrule Abood.

  • April 28, 2015
    Guest Post

    by Charlotte Garden, Assistant Professor and Litigation Director of the Korematsu Center for Law & Equality, Seattle University School of Law. Follow her on Twitter @CharlotteGarden.

    In the wake of two major Supreme Court decisions about public sector unions, anti-union groups moved quickly, filing a raft of new complaints seeking to capitalize on and extend Harris v. Quinn and Knox v. SEIU Local 1000.  The first of those cases, Friedrichs v. California Teachers Association, has now reached the Court, which will consider granting cert later this summer.  A cert grant in Friedrichs will signal that at least four Justices believe that the Court is willing to go beyond Knox and Harris ― and possibly even impose “right to work” in the public sector.

    The Friedrichs petitioners call on the justices to overturn Abood v. Detroit Board of Education.  In Abood, the Court held that states and elected unions ― which are required to treat all the workers they represent fairly whether or not they join ― may agree to allow the union to charge each represented worker for his or her share of the union’s work on their behalf.  Abood’s caveat, though, is that employees have a First Amendment right to opt out of contributing towards their union’s other spending, including its spending on politics.  The Abood Court struck this balance in recognition of the relative weakness of workers’ First Amendment interests when their union is bargaining over pay, benefits and other working conditions with a public employer ― especially when weighed against employers’ and unions’ interests in promoting labor stability by preventing free ridership.  Abood is a foundational case that not only governs the relationship between public sector unions and the employees they represent, but also announced the principle that now undergirds other government regulatory programs that incidentally involve speech.

    The lawyers bringing Friedrichs and cases like it were likely encouraged by dicta in Harris and Knox, both authored by Justice Alito.  (Harris held that “partial public employees” ― those whose working conditions are set jointly by the state and individual private clients ― could not be required to pay anything towards the cost of union representation.  Knox held that unions must obtain affirmative consent from workers before charging them the optional portion of mid-year dues increases.)  And indeed, both opinions, but especially Harris, criticize Abood.  Nonetheless, it is telling that Harris left Abood entirely intact, despite the petitioners’ exhortations that the case should be overruled.  That suggests that at least one of the justices in the five-justice majority had significant reservations about overruling Abood just one year ago.

  • April 21, 2015

    by Jeremy Leaming

    Sheryl Sandberg and Anne-Marie Slaughter have drawn much attention for their thoughts about the professional working lives of women.  But Sandberg and Slaughter have failed to recognize or willfully ignored the stations of the vast majority of working women – those women who do not have the luxury of “opting out” or “leaning in.”  The inadequacies of our workplace laws leave many working women behind and perpetually struggling to survive.

    American Constitution Society for Law and Policy (ACS) President Caroline Fredrickson, a former labor lawyer and a longtime leader in the legal progressive community, declares a powerful response to “leaning in,” or “opting out,” which dominate discussion of inequalities facing women in the workforce.

    The discussion of workplace equality for women now focuses almost exclusively on white-collar professionals.  This discussion needs broadening.

    Fredrickson’s compelling book, Under the Bus: How Working Women Are Being Run Over, tells the stories of many women, who do not have the protection of our laws or the ability to stand up to their employers’ often illegal demands.  Indeed, for too long many employers have ignored or been exempted from laws meant to protect workers against corporate malfeasance.  Fredrickson also notes the inadequacy of our laws is ingrained in a history riven with racial and gender biases.  Time after time, Fredrickson notes that historical progressive movements to improve the lives of working Americans have left women behind.  If our nation fails to embrace collective solutions to collective problems, inequality will continue to fester in America while democracy suffers.

  • April 14, 2015
    BookTalk
    The Workplace Constitution
    from the New Deal to the New Right
    By: 
    Sophia Z. Lee

    by Sophia Z. Lee, Professor of Law & History, University of Pennsylvania Law School

    “Right to work” is dominating the news, making headway in union strongholds and finding sympathy on the Supreme Court.  Yet the concept of a legal “right to work” harkens back to the early Twentieth Century when this and other substantive due process doctrines were used to strike down Progressive labor laws.  The New Deal Court supposedly laid to rest this “Lochner era” (thus named for an emblematic 1905 decision holding that a New York maximum-hours law violated workers’ and employers’ freedom of contract).  So how have right-to-work proponents managed to rally successfully behind such an anachronistic term?

    The Workplace Constitution from the New Deal to the New Right provides the first legal history of the right-to-work campaign.  As it demonstrates – right-to-work strategists’ Lochner-era moniker notwithstanding – these savvy and forward-looking activists quickly replaced their substantive due process claims with ones based on the First Amendment.  In the process, they forged a modern conservative civil rights campaign that grew up alongside its liberal counterparts.

    The conservative activists who fought the union power unleashed by the New Deal had sturdy Lochner-era roots.  Even before the New Deal, employers had moderated their open-shop activism, insisting that they were anti-closed shops, not anti-union.  When activists first gathered under the right-to-work banner in the early 1940s, their argument that no one should have to join or support a union to keep a job was in keeping with that Lochner-era position.  In 1944, Hollywood mogul Cecil B. DeMille brought the first right-to-work lawsuit over a one dollar assessment levied by his union.  DeMille’s suit likewise relied on Lochner-era substantive due process claims and precedent.

    But right-to-work activists quickly updated their legal claims to fit the emerging civil rights and civil liberties regime.  Even DeMille’s suit reflected this change: On appeal, DeMille’s lawyers added First Amendment forced speech claims based on the 1943 Supreme Court decision West Virginia Board of Education v. Barnette, which found that public schools could not compel students to salute the flag.  

    In the 1950s, right-to-work advocates pursued a coordinated litigation campaign akin to the NAACP’s challenge to public school segregation.  When their cases reached the Supreme Court in the 1950s and ‘60s, First Amendment forced speech and association claims, along with post-New Deal precedents, predominated.  Over succeeding decades, right-to-work advocates eliminated substantive due process claims from even the margins of their lawsuits.  The constitutionality of union security agreements comes before the Supreme Court today strictly as a First Amendment issue.

  • November 12, 2014

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

    In one of the surprising results of election night, four traditionally Republican states passed ballot measures increasing the minimum wage. By significant margins, voters in Alaska, Arkansas, Nebraska and South Dakota adopted laws raising the minimum wage. Voters in the blue state of Illinois passed an advisory referendum urging the legislature to increase the minimum wage, while at the same time electing a Republican governor. In a state like Alaska, the high cost of living may have influenced voters, but that does not explain the outcome in the other states. What caused these somewhat anomalous results?  After all, Republicans have traditionally opposed increases in the minimum wage and most continue to do so. 

    While speculation about the motivations of votes is always risky, these results appear to affirm the effectiveness of two recent strategies of workers’ rights advocates. First, it appears that voters are recognizing the serious inadequacy of the wages of low paid workers. The widely publicized demonstrations by low wage fast food and retail workers have raised public awareness and focused attention on the fact that many of these workers are adults, often with families that they are working hard to support.

    If I am correct that the public protests helped motivate voters, it reminds us that strikes and demonstrations, which until recently had been largely abandoned by unions and other advocacy groups, remain effective at drawing public attention to inequalities. Social media has enhanced the ability to both organize and publicize demonstrations. Strategic use of these tactics will continue to keep these issues in the public eye.