Thursday, November 13, 2014
Unfortunate news today for Sharon Block, whose second nomination to the NLRB was pending in the Senate. The White House has confirmed earlier reports that, facing Republican opposition based on the nutsy argument that she's unfit to serve because of the recess appointment issue, they are pulling her nomination. Really too bad for many reasons, not least of which is that Sharon was and would be an excellent Board member.
The very important silver lining with this move is that the White House is nominating Lauren McFerran (chief labor counsel for the Senate's Health, Education, Labor, and Pensions committee) for Block's slot. It sounds like this is partly with the assent of Republicans which, if true, is very good news for the NLRB as a whole, in that it assures the agency of having a full complement of members. Of course, it's unclear why it matters what the Republicans think given that the Democrats still have the majority during the lame duck session. Perhaps this was a fig leaf from the White House, but I really don't know.
Hat Tip: Patrick Kavanagh
Wednesday, October 8, 2014
Last week, the NLRB issued its decision in FedEx Home Delivery, the most recent case addressing FedEx's attempts to classify its drivers as independent contractors. What's notable about this case is that the NLRB expressly refused to follow an earlier FedEx decision by the D.C. Circuit. In that decision, the court rejected the traditional right-to-control focus of the common law test for employee status. Instead, the court held that the principal focus was entreprenurial opportunity. In its recent decision, the NLRB noted that its precedent, as well as the Supreme Court's, used the traditional common-law test. Moreover, although entrepreneurial opportunity was one of the factors, the proper focus is on actual entrepreneurial opportunity, not the more theoretical opportunity that the court's decision turned on.
As I've written before, I'm no fan of the court's FedEx decision, so I'm glad to see this development. There's a question whether this is a prelude to Supreme Court action in this area, which has gained increased attention. I tend to think the Court won't step in any time soon, as it's precedent has been pretty clear on this issue, the D.C. Circuit notwithstanding. But we'll see. In in the meantime, it's baeen a bad month for FedEx on this issue, as they've some other cases involving their drivers' classifications.
Monday, October 6, 2014
The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: firstname.lastname@example.org. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.
One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.
And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian. Here are the details:
The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/ Boca Raton, Florida, from July 27 to Aug. 2. You can submit a proposal at any time. However, proposals submitted prior to October 31st are more likely to be accepted.
This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these: First, SEALS strives to be both open and democratic. As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group. In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas. If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website. There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity). Second, there are no "age" or "seniority" restrictions on organizers. As a result, newer faculty are also free to submit proposals. Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.
October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, October 2, 2014
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.
So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.
Cases that directly deal with employment and labor questions:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man from growing a one-half-inch beard in accordance with his religious beliefs.
October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Monday, September 29, 2014
The NLRB recently issued its decision in Purple Communications. This was the case that the Board had indicated it was using to reexamine its Register-Guard precedent that gave employers virtually unfettered ability to bar employee use of employer electronic communication services. Only it didn't.
In its Purple decision, the Board concluded that the employer's non-dispruption rule was overly broad and warranted overturning an election that the union had lost. However, the Board decided not to address the employer's ban on electronic commnunications and the broader Register-Guard issue, holding it for "further consideration."
It's not clear why the NLRB decided to table the Register-Guard issue at this point. It could be any number of things--for instance, a desire to resolve the election at issue sooner. But those of us who have been interested in this issue, the bottom line is more waiting.
Friday, September 19, 2014
The House Subcommittee on Health, Employment, Labor and Pensions held a hearing last week, titled "Expanding Joint Employer Status: What Does it Mean for Workers and Job Creators?" Among the speakers was Harris Freeman, who supported the NLRB's ability to expand the definition of joint employer, as the General Counsel is seeking in Browning-Ferris. As we noted earlier, he also submitted an amicus brief to the NLRB on this issue.
The committee has released a video of the hearing, which includes all witnesses.
Wednesday, September 17, 2014
Susan Cancelosi & Charlotte Garden write to say they are working on an amicus brief in M&G Polymers v. Tackett, a case concerning the ongoing validity of the Yard-Man presumption in interpreting collective bargaining agreement clauses that promise retiree health benefits. The brief focuses on the initial negotiation of many retiree health benefits clauses during the 1960s and 1970s, offering context that explains why employers may have agreed to lifetime retiree health benefits during that key period of time.
If you would like to see the brief so that you can decide whether you would like to sign on, please contact Charlotte at email@example.com by Saturday, Sept. 20; the brief is due to be filed on Monday, Sept. 22.
Tuesday, September 9, 2014
Catherine Fisk has argued that Harris v. Quinn, taken to its logical conclusion, means that the duty of fair representation violates the free speech rights of unions by compelling them to represent non-members. Does it also violate the Takings Clause? There's an ongoing debate of the issue, initiated by Heather Whitney (Chicago) over at onlabor. Hat tip: Tom Cochrane.
Sunday, September 7, 2014
- Want to work for a company that provides work schedules in advance? Try a unionized one. The NY Times explains that they still exist, such as Macy's.
- Another round of accusations that Apple contractors in China are committing labor abuses. On the bright side, we're at least in an era where Apple and other companies regularly audit their contractors. Whether those audits do much is a different question.
- The fast food "Fight for Fifteen" protests continue, and this time there's more civil disobedience and arrests. Steven Greenhouse reports.
- Another Greenhouse story, this time on prevalence of wage theft suits, including fast food restauarants. It emphasizes that wage theft actions can target contractors and franchisees of companies that are targets of other types of pressure (e.g., Wal-Mart and fast food companies). The story also shows that government enforcement efforts can be an important protection for workers, especially lower-wage ones who might have a hard time hiring attorneys.
- An interesting interview with Rich Yeselson, a lang-time labor activist. He provides a nice, thorough defense of unions' role in the modern economy and why they are still relevant.
- A story on the Market Basket dispute, focusing on the fact that the employees--which were successful in getting a favored CEO back--were non-union. It's a good reminder that the NLRA doesn't just protect unionized employees.
- FedEx loses a dispute over drivers' classification as employees or independent contractors. The case is notable because the Ninth Circuit distinguishes the D.C. Circuit's stress on entrepreneurial opportunity. There doesn't appear to be a direct circuit split yet, but it wouldn't surprise me to see the Supreme Court step in on this issue eventually.
- And, finally, just for fun: 11 jobs that no longer exist. If my mornings are illustrative, I think there's still a market for "knocker-uppers."
Thursday, September 4, 2014
Sunday, August 24, 2014
The National Center for the Study of Collective Bargaining in Higher Education and the Professions has released its August e-note, which lists several relevant labor issues. Included are an interesting issue related to teh classification of charter schools. In Hyde Leadership Charter School - Brooklyn, the NLRB will determine if NY charter schools are private enough to be covered by the NLRA or are public enough to fall under NY State public labor law. Earlier, the Board found that Illinois charter schools were covered by the NLRA, although there are differences between the two states on this issue.
Read the full note, there are many other important issues included
Thursday, August 21, 2014
- The Nation reports on attempts by workers of a major packing company to highlight poor working conditions and union busting to improve their plight appeal to the good-employer image of Costco, which stocks many products of the company. In addition to quotes from Michael Duff, the story provides another example of how hard it is for unions to maintain support in the face of relentless anti-union tactics by employers--highlighting the push for less delay in NLRB elections.
- The NLRB's Macy's decision shows the Specialty Healthcare rule in action. Employers fear the potential for so-called "micro-unions." Although note that the unit in dispute in Macy's consisted of 41 employees, which is not exactly "micro."
- The White House recently enacted an Executive Order that requires federal contractors to disclose labor law violations that occurred during the previous three years and order agencies to have compliance advisers to oversee the selection of contractors. The contractors are not happy.
Hat Tip: Patrick Kavanagh
Thursday, July 31, 2014
It a 5-2 decision today, the Wisconsin Supreme Court held that the state's Act 10 was constitutional. As we reported earlier, the statute's validity was in doubt in earlier litigation, so this result wasn't a given. But unions certainly hadn't been counting on the court overturning the statute. At base, the decision held that Act 10's significant restrictions on public-sector bargaining did not infringe workers' First Amendment rights. Not a surprise for those of us in states with no collective bargaining. The next step for union supporters in Wisconsin, of course, is the upcoming vote on Gov. Walker's reelection.
Hat Tip: Patrick Kavanagh
Tuesday, July 29, 2014
UPDATE: Harris Freeman and Patrick Kavanagh wrote to remind me that in April, the NLRB invited briefing on whether to alter its current joint-employer standard. The GC's action in the McDonald's case could be part of the move in Browning-Ferris. (Harris' amicus brief on the case is here.)
Richard Griffin, the NLRB's General Counsel, has decided to pursue unfair labor practice charges against both McDonald's and several of its franchise owners. The ULPs allege retaliation--such as firings and other punishments--because of employees' labor activities. But the headline issue is that the GC has determined that McDonald's is a joint employer, along with the franchise owners. The is a big deal for corporate McDonald's, as the vast majority of restaurants are franchise owned, meaning that McDonald's will have to take more of a central role in monitoring restaurants' workplace practices. In turn, it would give labor organizations more opportunity to pressure McDonald's for improvements or possibly organize bigger units.
According to the GC's news release:
The National Labor Relations Board Office of the General Counsel has had 181 cases involving McDonald’s filed since November 2012. Of those cases, 68 were found to have no merit. 64 cases are currently pending investigation and 43 cases have been found to have merit. In the 43 cases where complaint has been authorized, McDonald’s franchisees and/or McDonald’s, USA, LLC will be named as a respondent if parties are unable to reach settlement.
Until we see evidence from both sides, it's hard to take a position on the joint employer issue. But this is an interesting development on the heels of Harris v. Quinn. I was just noting at a Supreme Court review this morning that the biggest impact of Harris may be the joint employment issue. In that case, the Supreme Court avoided the union agency clause question by finding a lack of joint employment status. There were arguments on both sides of that issue, but I expect courts to use Harris to narrow corporate liability under the joint employer classification. It's possible we'll see this in McDonald's if the case ends up in court.
Speaking of developments in this case, I feel obligated to make a note for non-labor law readers, especially after all the Boeing craziness a few years ago: the NLRB has not decided anything here. All that has happened is that the GC has decided to pursue a case against McDonalg's and some franchise owners (it's comparable to a district attorney filing charges in a criminal case). If there's no settlement, the case will first go to an administrative law judge and, after the ALJ decision, the case will go to the NLRB.
Hat Tip: Patrick Kavanagh
Friday, July 25, 2014
Michael Duff (Wyoming) recently posted Beneath the Veneer of Harris v. Quinn in the ClassismExposed blog. In the post, Duff puts forth what is a fairly controversial view for a union supporter: that reliance on agency fees is a bad idea for labor, which would not be mortally wounded had the Court gone all the way in Harris and declared public-sector agency fees unconstitutional.
To me, this issues pulls in others questioning the exclusivity principle in labor law. I'm still of a mixed mind on what would happen if exclusivity fell away, but that may be where we're headed. Certainly, unions would have more legitimacy if they only represented and collected dues from supporters. That said, opposition to unions won't be going away. Moreover, it's unclear to me how widespread members-only bargaining would work in practice. To my mind, there's still free-rider aspects to that kind of bargaining (e.g., employers are likely to extend union wages across-the-board), although that doesn't mean non-exclusive bargaining isn't superior. At base, it all really goes to the heart of what we mean by "collective" representation and whether an individualistic America still supports it in its current form. But enough of me--here's a sample of Duff's post:
I, a friend of the labor movement, oppose [agency fees] on strategic grounds.
First, I have never though it looked good even to elements within the working class to require membership or even payment of an agency fee.
Second, in my opinion, any union that relies on government power for support or dues collection is in big trouble in the long run. What the government giveth today it may taketh away tomorrow, and I simply do not trust or seek to rely upon the forces I believe have utterly captured government.
Finally, if a union really believes that ending the practice of requiring payment of dues or agency fees dues will cause members to stop paying dues, or nonmembers not to seek (eventually) membership, what kind of strength can that union actually have? Does anyone believe that such a union could, for example, motivate employees to take the risk inherent in collective action—the kind of risk that built the labor movement (think, for example, of the sit down strikes in Flint, Michigan) and that will soon be required again? You do not have to require working class fire breathers to pay dues and non-members in a workplace in which the union diligently fights for members will want to join. If this is not the state of things unions will lose every big fight since success comes from the working class intensity of the membership, not from the micro-tactics of leadership.
Read the entire thing!
Friday, July 11, 2014
The White House announced today that it intends to nominate Sharon Block to the NLRB, probably to replace Nancy Schiffer, whose appointment expires on December 12, 2014. Much of the news will play up the fact that she was one of the Noel Canning recess appointees, which the Supreme Court help to be unconstitutional last week. Given that timing, one might interpret this announcment as a White House attempt to show its displeasure with the decision and Republican opposition that led to the initital recess appointments.
Not to be lost in this political story line is that Block really knows her stuff and already served admirably, albeit in vain, on the NLRB (full disclosure: I used to work with her on the NLRB). I think, despite that personal connection, that it's fair to say that she got a bit of a raw deal in the nuclear option aftermath when the Senate Democrats and White House threw Republicans a bone by refusing to renominate her (and RIchard Griffin, although he was soon nominated as GC). So, it's nice to see her finally back to the NLRB, assuming her nomination is acted on before any potential changes in the Senate majority.
One final thought. As the above link shows, much of the supposed criticism of Block was that she stayed on the Board while her nomination was being challenged. I've written before that I think it's silly for a political appointee to resign in a situation like that. However, I'll also mention that it's even more silly when you consider what the D.C. Circuit held and the conservative four Justices would've held in Noel Canning--that virtually all recess appointments over the last 150 years were unconstitutional. Until conservatives, who supported that view, start demanding that all the Republican judges and other recess appointees over the years should've never accepted their appointments and should give back the salaries they received, I'm not going to take their objections to Block seriously.
Hat Tip: Patrick Kavanagh
The UAW just announced that it will continue to organize VW's Chattanooga plant by opening up a nearby office. This makes perfect sense. Given VW's support for the union and the interest from a large number of VW employees (note that although the UAW lost the election, they still got remarkably close given the geography and political pressure against them), maintaining a presence in the area could be helpful. This also allows the union to assist employees, thereby possibly showing holdouts how the union might benefit them.
One side note: many articles, including the one linked above, still have headlines stating that the union office will be inside the VW plant. I saw this in some early, pre-announcement stories, which made me scratch my head due to the potential 8(a)(2) problems. It was no surprise that these early reports were not accurate, but beware of headlines that seem to be picking up these early, erroneous rumors.
Thursday, July 3, 2014
Cesar Rosado (Chicago-Kent) writes to let us know that he's writing an amicus brief in the NLRB's Northwestern case. In case you've been in a cave for the year, that's the case in which a Regional Director concluded that collegiate football players on scholarship at Northwestern were employees under the NLRA and could seek to unionize.
Tuesday, July 1, 2014
The analyses here of yesterday's decisions, Jeff's in Harris v. Quinn and Charlie's in Burwell v. Hobby Lobby were spot-on and highlighted many of the legal implications of the cases going forward. There were some interesting facets that they did not discuss that I would like to think through a bit more.
One of the things that struck me about both decisions is their effect on women and particularly women of color. The workforce at issue in Harris is primarily female and heavily women of color. Similarly, lack of contraceptive access affects women most directly, and has larger impacts on women of color. Nearly half of the pregnancies in this country are unintended (a higher rate than other developed nations), and result in a large number of abortions and poorer health and economic, workplace-related consequences for the women who choose to continue their pregnancies and the children they deliver. The rates of unintended pregnancies among African American and Hispanic women are significantly higher than for white women because of lack of access to low cost, highly reliable contraception. And the health risks of pregnancy are significantly greater for women of color -- African American women are four times more likely to die in childbirth than are white women. Easy access (financially and logistically), reduces these effects significantly.
Unionization has been good, in general, for the home health care workers in Illinois. These are workers not covered by safety net statutes like the Fair Labor Standards Act and the Occupational Safety and Health Act, nor are most covered by anti-discrimination statutes like Title VII. They are not covered by the National Labor Relations Act, either, which is one reason that these workers have had little luck bargaining for better wages or working conditions. These workers who were allowed to organize in Illinois and to bargain with the state have seen their wages increase significantly, nearly tripling for some (from as low as $3.35 to now over $11 and set to reach $13 by the end of the year). They also have health insurance and other workplace benefits. The result has been good for the majority of those women, although the named plaintiff, a woman who cared for her own son at home, perceived the deduction from her paycheck as a reduction in medicaid benefits for her son. Overall, most people who need in home care, like the elderly -- who again, are disproportionately women, although white women, based on aggregate life expectancy data -- and people with disabilities, also benefitted by being able to retain workers long-term who can be reliable (able to rely on this as their primary income and not look for other or better paying work) and better trained. Those people who need care could remain in their homes and not have to live in institutional settings.
To the extent that the gender pay gap and the racial pay gap (and the racialized gender pay gap) are driven by horizontal labor force segregation, organization seemed the most promising force for change. The decision in Harris seems to minimize the effects of that progress. To the extent that these pay gaps are driven by either horizontal or vertical workplace segregation that results from pregnancy and caregiving responsibilities, or by the higher cost of health care for one sex, easy access to contraception seems a way to reduce those indirect and direct effects. The decision in Hobby Lobby seems to threaten that. If insurers do not continue to agree to absorb the costs of contraceptives, who will? And finally, aside from the effects on individuals (workers, those who need home health care, and the families of both), to the extent that these pay gaps lead to wealth disparities, health outcomes disparities, and an inability to live independently, the states face greater expenses in supporting those who need help.
The Court's opinion in Hobby Lobby contained some additional food for thought on the interaction of RFRA and other federal laws. The Court stated in the early part of its opinion that the decision was confined in a number of ways, including that it was confined to the contraceptive mandate of the ACA. But the logic of the opinion and the language in the bulk of it has few bounds. As Justice Ginsburg's dissent pointed out, the logic of the opinion would allow any corporation, regardless of it's organization or corporate purposes, to challenge any federal law of general applicability, including, for example, Title VII. While the majority explained that Title VII's prohibition on racial discrimination in hiring was the least restrictive means to ensure equal opportunity in employment on the basis of race, the court left its analysis at that. Title VII also prohibits classifying and segregating employees in any way that would tend to deprive them of opportunities based on race. Is that narrowly tailored enough? Is the way that language has been interpreted to include disparate impact narrowly tailored enough?
Moreover, what about the other classes protected by Title VII? Sex is notably absent from that language. Is the Court anticipating the Title VII action brought by Hobby Lobby's female employees or the EEOC itself challenging a lack of access to contraception as sex discrimination? Such a suit could be a ways off if insurers will go along with the accommodation worked out for nonprofit religious entities and religious organizations in this context. However the process to take advantage of that opt-out is also currently being challenged. And based on the Court's decision, the Eleventh Circuit has suggested that it thinks that process will definitely fail. Yesterday, just hours after the Court's decision, the Eleventh Circuit granted the Eternal Word Television Network an injunction against complying with the opt-out because signing or indicating to an insurer or the government in any way that the Network would refuse to comply with the mandate would trigger that coverage to be provided in another way, thus facilitating the Network's employees in possibly engaging in acts the Network finds immoral--including having sex for any reason other than for procreation. Judge Pryor's concurrence quoted the majority's language at length, stating that it was clear the requirement would violate RFRA. It is no real stretch to extend that to for-profit corporations as well.
Moreover, what of the burgeoning case law on sex as including gender identity and sexual orientation at least when what is at issue is gender nonconforming behavior by the employee? Is that cut off at the knees for any company asserting that it finds gender nonconformity immoral for religious reasons?
These are just some preliminary thoughts of the additional effects of the two cases--and I didn't even get into the government efficiency, corporate law, corporate personhood, or issues of religion also running through the one or the other decisions I'd love to hear thoughts on any of this in the comments or follow-up posts.
Monday, June 30, 2014
The Supreme Court just announced in Harris v. Quinn that it will not apply Abood to the employees at issue. In other words, the dissenting employees cannot be required to pay any dues. Interestingly, although the Court has lots of strong language questioning Abood, it refuses to overrule it. The key is that the employees here are "partial public employees," to whom Abood doesn't apply. Very odd distinction.
My guess is that the four Justices couldn't get Kennedy to join in overruling Abood. In fact, the language attacking Abood sounds a lot like a majority decision that was set to overrule it but was undercut by a change of heart by one Justice. Of course, it's impossible to know for sure (indeed, no Justices wrote a concurrence to overturn Abood), but it's possible that the ramifications of overruling Abood gave Kennedy (or others) pause. Among those, think about what would've been raised had Adood been overruled:
- The holding would liekly have been applied in the private sector. If opt-in was constitutionally required, it would almost certainly have applied to private workplaces, as long as the NLRB's enforcement of union security clauses is considered state action. However, the majority does briefly note that the issue is more troublesome in the public sector than in the private sector.
- Would overruling Abood open the door to minority (or "members only") collective-bargaining? This question goes to the heart of the exclusivity regime that, up to now at least, has been the foundation of modern American labor law. The NLRB has been reluctant to act on the arguments of Charlie Morris and others that the NLRA imposes on employers a duty to bargain with minority unions. If opt-in was the new regime, the Board might well have finally acted.
- Bye, bye duty of fair representation? If the Court held that is unconstitutional to require dissenting employees to pay for representation, would it also be unconstitutional to make unions provide services to those employees for free? Now that unions--like corporations--are basically people for First Amendment purposes (see also Hobby Lobby from today), the logical answer would be that the duty of fair representation to dissenters falls away.
- Building on the concept of stronger First Amendment protection for unions, there are several limitations on union expressive conduct/speech that would be open to challenge. The 8(b) restrictions on secondary boycotts and picketing are particularly vulnerable. Up to now, they have been upheld because they supposedly involve more conduct than speech and have economic impact. But those arguments seem to have lost their luster over the last few years in other contexts. Will unions finally be moved to go on the offensive with these arguments? (It would seem they have little to lose.) If so, will the Court be receptive?
All in all, public-sector (and probably private-sector) unions dodged a huge bullet today. Honestly, this is as good an outcome as unions could've realistically hoped for.