Unfinished Business: The Fair Labor Standards Act 80 Years Later

This week ACS joined forces with the National Consumers League to mark the 80th anniversary of the Fair Labor Standards Act of 1938.

During an all-day symposium at the Georgetown University Law Center, we celebrated successes – like the recent victory that hourly workers and advocates had last week codifying a 2011 U.S. Department of Labor rule stating that tips are the property of the worker who earns them and not their employers.  Last week’s tip rule amended the FLSA. We discussed other legal frameworks that we need to change and update to meet the needs of our 21st century workforce.

Since our founding, ACS has been thoughtfully engaged in issues related to labor and employment law – asking ourselves what the next New Deal should look like and what our Greater Society plan would entail. We are currently wrestling with many important legal questions related to labor law. At the same time, we await the Supreme Court’s decision in Janus v. AFSCME, a ruling that has the potential to deliver a devastating blow to public sector workers. Despite the uncertain times, scholars agree that there are few pieces of legislation that have improved American lives more than the Fair Labor Standards Act.

Although many Americans today might think of Social Security as FDR’s most significant domestic achievement, the FLSA easily rivals Social Security because it changed the entire employment culture in the United States – a culture that was, quite literally, killing American workers.

The FLSA was a response to the economic conditions of the day. It was a response to events like the Triangle Shirtwaist Factory Fire, where immigrant workers died in a blazing inferno because their employers locked the exits to prevent them from taking unauthorized breaks. It was a response to children working with toxic chemicals for pennies on the dollar. And perhaps most of all, it was a response to a day and age where 25% of American workers were unemployed and many were willing to take almost any job to avoid bread lines and put food on the table for their families.

But 2018 and 1938 are very different times and the challenges that American workers face today are fundamentally different than the challenges they faced in the 1930s. Because of the FLSA, today’s children aren’t working with toxic chemicals and today’s workers are making a minimum wage.

But it’s not enough.

Today’s workers need legal reform – they need legal frameworks that guarantee health benefits, sick leave, maternity leave, and freedom from sexual assault in the workplace. They need not only a minimum wage, but a living wage. They need the legal tools to fight state preemption efforts in places like Alabama where states are trying to stop cities from raising their minimum wage and giving their workers additional protections and benefits.  And perhaps most importantly, they need these changes to be made against the backdrop of a changing economy. The Internet and the rise of the “gig economy” have created new ways to evade fair labor standards.

Mobilizing the Next Generation of Progressive Lawyers: A Recap of the 2018 ACS Student Convention

This year’s student convention was held at Northwestern University Pritzker School of Law in Chicago, Illinois, gathering nearly 200 students from 34 states plus the District of Columbia. A variety of scholars, judges, and advocates spoke on a range of topics that included #MeToo in the Legal Profession, the First Amendment, access to justice, police reform, and voting rights. Among the varying topics, speakers showed that the law can be a force to improve the lives of all people.

The most imperative themes of the convention were the urgent needs to: organize for equality, exercise the right to vote, and support others in exercising their rights. The convention began with an emphasis on voter pre-registration, with Meghan Paulas, ACS Director of Student Chapters, stating that we all need to “encourage 16- and 17-year-olds to pre-register to vote. Let’s build a volunteer movement around voter pre-registration. Make it a movement by students and for students.”

On the #MeToo movement, ACS President Caroline Fredrickson stated that horizontal networking is necessary to improve the situation of women in the legal profession. Touching upon the importance of #MeToo in the legal community, Fredrickson stated that “it’s you guys standing up for each other… it’s that kind of collective effort that will begin to change the culture.” With an emphasis placed on a collective call to action, the overall message of mobilization around progressive values and the promotion of gender equality set the tone for the convention. A Leaders from Law workshop featuring prominent attorneys serving as policymakers followed this discussion, and encouraged students to continue their leadership through seeking elected and appointed office. Professor Geoffrey R. Stone then addressed students in presenting the challenges they now face, and how the students’ legal skills, personal conviction, sense of justice, and commitment to individual liberty, dignity, and equality, will lead to progress.

The first keynote speaker, Illinois Attorney General Lisa Madigan explained her role as a defender of progressive values in the face of the Trump administration, in addition to offering tips on how to be a successful progressive lawyer. Rounding out her list of actions that will lead to success were developing one’s skills, using one’s voice, and voting. Her most poignant admonishment was directed to non-voters when she recalled the sacrifices of activists of the past: “People literally lost their lives so that women and African-Americans could vote… We can’t complain if we don’t vote and things don’t go the way we want them to go.”

A surprise visit from Chris Hayes of MSNBC encouraged students to think about the First Amendment as a way to improve the lives of all people. Speaking upon the importance of journalism and remaining active in the pursuit of truth, Hayes advised attendees to prioritize and support journalistic integrity. “As a journalist, my job is to not take cheap shots, not take people out of context, and to engage in good faith arguments.” His description of his vocation ultimately served as a reminder to seek equality by shining a light on inconvenient truths.

Members of the free press panel spoke on the direct and indirect ways that the president is impacting the press and the first amendment. As explained by Katie Townsend of the Reporters Committee for Freedom of the Press, “the words of the president matter, even if they’re empty threats. They can destabilize the system by labeling stories he doesn’t like as ‘fake news’. This has resulted in a spike in threats to journalists.” The need for unhindered and free press, as highlighted by Chris Hayes and the panel on the press, is essential in seeking equality and mobilizing for progressive change.

In remarks by panelists on religious freedom and the power of protests, the need for a stronger focus on civil rights and equality within progressive circles was highlighted. Johnathan Smith of Muslim Advocates states that the progressive movement needs to involve religious minorities, especially the Muslim community, and see their issues as civil rights issues. In a similar vein, Justin Hansford of the Thurgood Marshall Civil Rights Center at Howard University School of Law spoke on the varying ways in which different types of people are treated at protests. While explaining the differences in protesting in Ferguson and Charlottesville, Hansford advised that, “it’s instructive for us to think about the First Amendment not as an abstract construct but as a tool that is applied very differently depending on who the protestor is.”

The second keynote speaker, Vanita Gupta of the Leadership Conference on Civil and Human Rights, continued the focus on voting and furthering racial and gender equality. On DACA, Gupta stated that, “we’ve got to do everything we can to protect the DREAMers.” On describing her time working with black clients and the very high number of African-Americans in prison, she quoted an individual who told her that, “the only difference between 1920 and now is that they can’t hang us on a tree.” Similarly, in the panel on policing the police, Professor Randolph Stone of the University of Chicago Law School stated that, “the big theme found by the police accountability task force in Chicago was race and racism. Underlying issues like segregation and income inequality need to be addressed if we want communities to trust the police.”

The policing panel was conducive to bringing bias in policing to the forefront of students’ minds as they work to close the gaps in racial and gender equality. At the same time, ACS Associate Director of Student Chapters Peggy Li moderated a training on implicit bias in the legal profession featuring Hon. Bernice Donald, U.S. Court of Appeals for the Sixth Circuit; and Hon. Theodore McKee, U.S. Court of Appeals for the Third Circuit. The training included equipping the students with strategies on how to disrupt bias using real examples from voir dire to jury bias to a litigant’s bias in selecting an attorney.

The final plenary panel on strategies for advancing local progress included Barbara Barreno-Paschall of the Chicago Lawyers’ Committee for Civil Rights, who spoke on the importance of voting and running for office and creating those personal connections with people within your community. “It takes a personal connection. Start with a casual conversation and then invite that person to an event or give them an opportunity to take action.” The messages of voting, mobilizing, and pushing for different types of equality were also on view here.

The final keynote remarks from Jason Kander, the founder of Let America Vote, similarly raised the important issues of voting and equality. On efforts to suppress the vote, Kander stated that, “we need to call [depriving citizens of the right to vote] what it is. When it happened fifty years ago, it was un-American, and when it happens now, it’s just as un-American.”

While the 2018 ACS Student Convention involved many unique and distinct voices and messages, the underlying theme that cut across all panels and topics revolved around the importance of using the law to improve the lives of all people. Students left the weekend motivated to mobilize for equality, exercise the right to vote, and support others in exercising their rights.

Supreme Court Must Uphold Commonsense Consumer Protection Law

This week, the Supreme Court heard oral arguments in NIFLA v. Becerra, over the FACT Act a law that I co-sponsored in the California Assembly. The Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act passed the California State Legislature in 2015 with overwhelming support from legislators, then-Attorney General Kamala Harris, and 48 reproductive rights, women’s health, and social justice organizations. It’s been tied up in litigation ever since.

The FACT Act is a straightforward consumer protection law based on the legislature’s belief that people should have access to medically accurate information and that anyone who claims they provide medical advice and/or medical care is held to a high standard of honesty and professionalism. The FACT Act simply requires facilities to disclose whether there is a licensed medical professional supervising the facility or, in some cases, to post a small neutral notice about the availability of comprehensive state family planning and prenatal care programs available in California. A no brainer to protect pregnant women at a vulnerable time in their lives and their families.

Almost immediately after the FACT Act was passed in 2015, the National Institute of Family and Life Advocates (NIFLA)and others sued to block the law, claiming that the disclosure requirements violated their First Amendment rights, both because they compel speech content that conflicts with their anti-choice beliefs and because they believe the disclosure law targets fake women’s health centers because of their anti-choice beliefs. Four separate lower courts rejected their arguments, and U.S. Court of Appeals for the 9thCircuit affirmed the lower courts’ rulings. The Supreme Court agreed to hear whether the disclosures violate the free speech clause, but declined to hear the challenge on the freedom of religion clause.

Fake women’s health centers are not singled out by the FACT Act, but they worry about violating the law because of their deceptive tactics and refusal to simply provide pregnant women and their families with accurate medical information about pregnancy or pregnancy or family planning programs that provide the full range of options. These are part of a well-funded national network – and there are more than 2,700 across the country and in every state.

The people who shame and deceive women at fake women’s health centers are often the same people who protest and confront patients outside of family planning clinics. They regularly harass women and their families as they enter and leave those clinics, screaming at them and showing them graphic photos to shame or scare them. And, while these anti-choice activists are entitled express their agenda, they cannot be allowed to prey on women, lie about medical facts, and delay access to comprehensive reproductive or prenatal care.

Fake women’s health centers have a long and well-documented history of preying on pregnant women at a vulnerable time in their lives. They use intentionally misleading websites and advertisements to make women believe that they provide information about their full range of options. In reality, these websites and ads obscure the centers’ real agenda and ideology. Even women and their families who do their research can inadvertently end up at fake women’s health centers.

Fake women’s health centers give women scientifically inaccurate medical information, including claiming that abortions cause infertility, breast cancer, or mental disorders. A new report from the National Academies of Sciences, Engineering and Medicine issued just last week said that there is no scientific evidence to those claims. Some centers even tell pregnant women that one in four pregnancies ends in miscarriage, suggesting they wait it out rather than get an abortion. And, many of these health centers perform ultrasounds with the sole purpose of manipulating women to not have an abortion. These centers postpone appointments or give women inaccurate due dates to push them past important deadlines.

No one should be allowed to deceive a pregnant woman about her health and pregnancy options, or give a woman at a vulnerable time in her life the runaround instead of the information she seeks. The FACT Act ensures that women and their families are made aware of the comprehensive family planning services, including prenatal care, birth control, and abortion, offered by the state of California.

States, including California, require many types of businesses from auto shops to spas to post notices or licenses. Why should facilities that advertise that they provide a service as important as pregnancy-related medical services be any different? Fake women’s health center shouldn’t be given a special and broad exemption from common sense rules that protect everyone.

Are Recently Proposed Gun Regulations Constitutional?

*This piece was originally posted by the Brennan Center for Justice 

 

Keeping and bearing arms is a constitutional right, but the Supreme Court has gone to great lengths to emphasize that it is not absolute. In 2008, the late Justice Antonin Scalia wrote in District of Columbia v. Heller that “the right secured by the Second Amendment is not unlimited.”

In the wake of the Parkland, Florida school shooting, major U.S. retailers have decided to raise the minimum age to buy a gun to 21. Lawmakers and reform advocates, meanwhile, are offering several laws to regulate guns – but opponents of at least some of those reforms have cited the Second Amendment’s 27 words to reject such proposals out of hand.

So do these recent proposals pass constitutional muster? Here, I analyze a handful of these policy suggestions to see if they are in line with recent federal court rulings on the Second Amendment.

Bans on Assault Rifles and Large-Capacity Magazines
Every federal appeals court that’s ruled on assault rifle and large-capacity magazine bans has concluded that they comply with the Constitution. One court held that assault rifles aren’t covered by the Second Amendment at all; others that even if they are covered, they still can be banned because doing so sufficiently advances public safety. No matter the reasoning, the outcome has been the same: the Second Amendment doesn’t prevent these types of bans.

The Supreme Court, meanwhile, has had opportunities to overrule the lower courts, but the justices have consistently declined to do so.

Bans on Bump Stocks
Even the National Rifle Association has voiced support for restrictions on bump stocks — an attachment that allows semiautomatic weapons to fire faster. A ban wouldn’t directly restrict anyone’s ability to have a firearm; it would just prohibit them from modifying firearms into something more like a machine gun. And in Heller, the Supreme Court strongly suggested that machine guns can be prohibited.

Age Limits on Firearm Purchases
The constitutionality of this restriction is a closer call; many rights come into effect at age 18. One common comparison is to the right to vote — but there, the Twenty-Sixth Amendment expressly sets the age at 18. Besides obvious differences between ballots and guns that could justify different treatment, no such language is in the Second Amendment. Meanwhile, the leading Second Amendment case on age restrictions upheld a federal prohibition on handgun sales to people under 21. The court’s conclusion turned on the fact that, historically, the age of majority was 21, not 18.

What’s more, some have proposed raising the age for purchasing assault rifles only. As noted, complete bans on assault rifles are regularly upheld, so a less restrictive age requirement should be even safer under the Second Amendment.

Universal Background Checks
There appears to be no serious debate about whether requiring background checks for gun purchasers presents Second Amendment problems. In any event, no courts have held that the current background check system violates the right to keep and bear arms. The expansion of that system to more firearm transfers shouldn’t affect that conclusion.

Waiting Periods
Waiting periods vary, but the 3-day period proposed in Florida is quite standard. Recently, in Silvester v. Harris, the Ninth Circuit Court of Appeals upheld California’s 10-day waiting period, and in February the Supreme Court opted not to disrupt that ruling. Under the Silvester analysis, the shorter 3-day period proposed in Florida is constitutional. Justice Clarence Thomas dissented from the Supreme Court’s decision not to hear Silvester, arguing that the lower court’s reasoning was flawed. No other justices signed on to his opinion.

The Upshot?
The Second Amendment presents a significant constitutional obstacle to some regulation, and we should not underestimate the powerful symbolic role it plays in gun politics. But if the tragic shooting in Parkland can overcome the perennial gridlock and spur a new round of legislating, and if recent federal court cases serve as our guide, these gun restrictions likely would not be struck down as unconstitutional.

DeVos Seeks to Preempt State AGs from Protecting Students Against Loan Servicers

*This piece originally appeared on StateAG.org.  

One of the hallmarks of the Obama Administration was its commitment to cooperate with state efforts to enforce the law. President Obama's sweeping anti-preemption Executive Order ushered in eight years of joint federal/state (and completely non partisan) law enforcement that led to success in a wide array of areas, including but not limited to antitrust, consumer protection, environmental justice and criminal law.

As we move into the second year of the Trump Administration, the anti law enforcement forces are again on the offensive. Today, the U.S. Department of Education unsurprisingly proposed a rule that hopes to stop state government from enforcing the law against illegal activity by student loan servicers.

The goal is obvious: if the Trump Administration can knock the police off the beat by putting all enforcement power in the hands of federal libertarians who do nothing, the student loan servicers have a green light to continue to victimize hundreds of thousands of students. Those holding the fraud-based paper can become even wealthier, perhaps freeing them to invest in bringing back Trump University.

The state attorneys general remain the cops on the beat and will of course fight back. We wish them well.

 

Implicit Bias and the Legal Profession: A Recap of the 2018 ACS Student Convention Implicit Bias Training

At ACS, we believe that the law should be a force to improve the lives of all people. Our members—lawyers, law students, judges, professors, and policymakers—aim to build inclusion and equity.

Despite our best intentions, our behavior and choices are often influenced by biases that operate outside of our conscious awareness. As such, in order for us to build equity, it is vital for us to understand these processes, its role in perpetuating social inequality, its impact on our profession, and its impact in our courts. To build equity, we also need to proactively engage in disrupting bias.

At the 2018 ACS Student Convention last weekend, we provided our ACS student leaders with the opportunity to learn more about implicit bias—what it is and how we measure it; how implicit bias manifests itself in the real world, specifically in the legal profession; how we can disrupt this bias; and how students can work towards debiasing.

We had the pleasure to hear from the Hon. Bernice Donald, United States Court of Appeals for the Sixth Circuit; and Hon. Theodore McKee, United States Court of Appeals for the Third Circuit. Both serve as authors in the newly published resource guide for judges on implicit bias titled, Enhancing Justice: Reducing Bias. I moderated this engaging discussion.

Judge Donald and Judge McKee discussed implicit bias, social cognition, and stereotyping. They brought these concepts to life by providing real examples of implicit bias in their courtroom—from voir dire to jury bias to a litigant’s bias in selecting an attorney.

As a former implicit bias trainer, I was in awe hearing Judge Donald and Judge McKee discuss how they, and other judges, are working to raise awareness of implicit bias in the legal profession; and how they work to disrupt biases in their courtroom. To disrupt bias, the panel recommended that attendees:

  • Learn more about implicit bias and social cognition.
  • Take the implicit association test (IAT) to raise awareness of your own biases and to begin the process of disrupting bias. Take the IAT several times throughout the year.
  • Be mindful of who you are associating with and broaden your social circle.
  • Slow down and be more mindful. We rely on our implicit biases when we make decisions quickly and impulsively.

Judge Donald and Judge McKee also provided practical tips for our students on how they can work to disrupt bias, both at a personal level and in their workplaces, while balancing the pressures, internal structures, and time constraints of being a first-year associate or law clerk. The panelists noted the limitations of bringing about office-wide change, especially as a young attorney, but highlighted areas where young lawyers could have broad influence, including:

  • Participating in the hiring process;
  • Mentoring future law students;
  • Writing op-eds, law review articles, and law review comments;
  • Encouraging others to learn more about their biases by taking the IAT;
  • Where appropriate, speaking candidly about your experience with implicit bias;
  • Supporting one another and engaging in self-care; and
  • Strengthening and building connections with coalition partners and diverse communities to work towards bringing about office-wide and institution-wide change.

Learning more about our biases is the first step. Take the IAT here to begin your journey.