Ruben J. Garcia

  • May 24, 2018
    Guest Post

    by Ruben J. Garcia, Associate Dean for Faculty Development and Research and Professor of Law, University of Nevada, Las Vegas, Williams S. Boyd School of Law

    The 1905 United States Supreme Court case Lochner v. New York was rhetorically volleyed back and forth in the Court’s opinion released May 21 in Epic Systems v. Lewis by Justice Neil Gorsuch writing the majority opinion, and in the dissenting opinion penned by Justice Ruth Bader Ginsburg.  In Epic Systems, the Court ruled 5-4 that mandatory arbitration agreements that require individual employees to waive the right to join together with fellow employees in class or collective arbitrations do not run afoul of the National Labor Relations Act of 1935’s (NLRA) protections for concerted activity. This is because these waivers, according to the Court, are authorized by another statute passed by Congress 10 years earlier, the Federal Arbitration Act of 1925 (FAA). However,  neither the text of the FAA nor NLRA mention these waivers at all.

  • April 9, 2018
    Guest Post

    by Ruben J. Garcia, Associate Dean for Faculty Development and Research and Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. ACS Board Member

    The United States Supreme Court’s April 2 decision in Encino Motorcars LLC. v. Navarro was certainly a setback for employees at car dealerships who work as service advisors. The Court ruled that service advisors were not eligible for overtime under the Fair Labor Standards Act of 1938 (FLSA) under an exemption that does not mention “service advisors” at all. But a dictum in the Court’s opinion represents an even greater blow for more than 70 years of interpretations under the FLSA and is a bad harbinger for enforcement of the Act in years to come.

  • 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.