Ruben J. Garcia

  • October 4, 2017
    Guest Post

    by Ruben J. Garcia, Associate Dean for Faculty Development and Research, William S. Boyd School of Law, University of Nevada Las Vegas. Garcia is a member of the ACS Board of Directors and Board of Academic Advisors.

    In 1932 and 1935, Congress declared the public policy of the United States in labor matters as follows:

    “[I]t is necessary that [the individual unorganized worker] have full freedom of association, self-organization…in the designation of such representatives or in self-organization, or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”.

    In Section 3 of the Norris LaGuardia Act, Congress declared that contracts which conflict with the public policy declared above to be “unenforceable in any court of the United States.” Congress has not repealed or retracted these declarations.

  • December 1, 2016
    Guest Post

    by Ruben J. Garcia, Professor of Law, University of Nevada Las Vegas William S. Boyd School of Law

    Today, Dec. 1, was the day that the Obama Administration’s revision to the overtime rules would have gone into effect, were it not for a nationwide injunction issued by a federal court last week. The revised rule aimed to increase the amount under which employees would be automatically eligible for overtime pay for hours worked over 40 in a week. The rule required all employees earning below $47,476 to be paid time and a half for hours worked over 40 in a work week. Now, those employees will only be eligible for overtime if they also meet the tests for exempt duties as promulgated by the U.S. Department of Labor (DOL), a subject of frequent litigation because of the inherently subjective elements the exempt duties tests.

    On Nov. 22, a federal court in the Eastern District of Texas enjoined the DOL’s revision of the Rule which determine when an employee is “exempt” from the overtime pay requirements. Business groups complained primarily about the Rule’s index which would automatically keep the salary threshold in line with increases in cost of living—the absence of which has kept the minimum salary at a stagnant level for decades. States sued to block the rule principally on a federalism challenge, which was turned away by the federal court in short order based on Supreme Court precedents. 

    But the Court accepted the challenge of the states and the private plaintiffs under the Administrative Procedure Act, finding that the DOL went beyond its authority in setting the salary minimum at $47,476. On this theory, the DOL has a minimal role in filling out congressional intent about the extent of the overtime exemption for “bona fide executive, administrative, and professional” exemption from overtime requirements under the Fair Labor Standards Act of 1938. For decades, the DOL has set a presumptive salary threshold, beneath which workers are eligible for overtime regardless of their duties. Over that threshold, workers might be exempt if they perform sufficient duties. The revised rule did not affect the duties standards most recently revised in 2004 during the Bush administration. The 2016 revision, however, raised the salary threshold from $23,660 to $47,476. This doubling of the threshold beneath which employees are automatically entitled to overtime pay brought loud protests from the business community about how the increase would decrease the flexibility of employers and workers. Nonetheless, many employers increased employee salaries to ensure that workers would still be over the salary limit for the overtime exemption. Although the court expressly stated it was not challenging the authority of the DOL to set any threshold, the court did not say what salary level would have been reasonable.

  • May 11, 2016
    Guest Post

    by Ruben J. Garcia. Ruben Garcia is Professor of Law at UNLV William S. Boyd School of Law, where he teaches Labor Law and Professional Responsibility. He can be reached at [email protected].

    We are looking at another hot summer of litigation over the Obama Administration’s attempts to bring a modicum of regulation to the workplace. Currently, the Department of Labor’s Persuader Rule, enacted pursuant to federal labor law, is being reviewed in three different district courts and in Congress. Since 1959, the Labor Management Reporting and Disclosure Act (LMRDA) has required employers to disclose certain expenditures used to persuade employees in their choice of a bargaining representative. Once the DOL’s final revised rule implementing the mandate of the statute was published, employers and their law firms quickly brought suit to block the rule. The House Committee on Education and the Workforce held a hearing on April 27 which included three witnesses opposed to the rule, and one supporting it. Republicans in the House have introduced a Congressional resolution challenging the revised Rule as well.

    Federal courts in three different states will soon decide whether the revised rule should be enjoined because it exceeds the DOL’s authority or violates the U.S. Constitution. Apart from the merits of these challenges, there have been several complaints about how the revised rule’s requirement to report arrangements to provide “indirect persuasion” might cause attorneys to violate their ethical duty of confidentiality. The former president of the American Bar Association testified at the April 27 hearing that the revise Persuader Rule would “undermine the confidential attorney-client relationship.” The problem with these concerns, as I and numerous other labor law and legal ethics professors have written in a letter to the Committee, is that the revised Persuader Rule can coexist comfortably with the ABA Model Rules of Professional Conduct.

  • March 8, 2016
    Guest Post

    by Ruben J. Garcia, professor of law, University of Nevada, Las Vegas, William S. Boyd School of Law

    Imagine it is January 20, 2017. The Republican nominee for president is being sworn in on the steps of the Capitol. But Democrats have flipped the Senate with 54 seats to the Republicans’ 46 and now control the Senate Judiciary Committee. The Supreme Court has operated with eight justices for 11 months. Now imagine the Democratic leadership of the Senate proclaims its intention not to consider the nomination of the Republican president until any party has 60 votes so it can prevent any nominee from being confirmed without a clear majority of the “people’s branch.”

    This scenario is the mere flip side of what the Senate leadership is currently doing by preemptively announcing that they will not meet with or hold a hearing on any Supreme Court nominee until the next president is inaugurated. Based on the precedent they are setting now, nothing compels Congress to hold a hearing in 2017, either. In fact the Constitution’s text is very brief on this point. Article II, Section 2, Clause 2 of the Constitution gives the president the power to appoint a number of offices in the Executive Branch, but also judges in the courts: “The President . . . shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court . . . .”

    The purported justification, if any, of the Senate’s refusal to act is not constitutional but political, as they have all but admitted. Senate Majority Leader Mitch McConnell said, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” The fact that President Obama won the 2012 election with 62 percent of the Electoral College appears not to factor into their calculus. But the same justification can also be given after the presidential election, with divided control of the branches, suggesting that the will of the American people is not really clear.