Wednesday, June 27, 2018
The Supreme Court has just released its decision in Janus v. AFSCME. I’m not typically the best predictor of what the Court will do, but even I had this one called from the moment Justice Gorsuch was confirmed. The Court, in a 5-4 decision by Justice Alito, overruled its own Abood decision to hold that public-sector union fees are unconstitutional. I won’t repeat how we got to this point (although you can start at my earlier post on the Janus oral argument, which has links on the aborted Friedrichs case, as well as our coverage of 2014’s Harris v. Quinn, in which Alito made clear where he wanted to go on this issue), but the upshot is that public-sector unions nationwide must now operate on an opt-in basis for all union contributions—even contributions that go to core collective-representation services. In other words, the free rider issue that exists for the private sector in right-to-work states now exists for all public-sector workplaces.
The basis for the decision is that dissenting employees’ have a 1stAmendment right not to pay any funds to the union representing them—even for collective bargaining and other work that goes to the benefit of all unit employees. This follows the dicta in Harris, but is a clear departure from the Court’s public-sector employment jurisprudence, which does not look favorably on individual employees' 1st Amendment claims. In particular, if this case didn’t involve unions, you would expect the Court to hold that concerns about dues paid to a third party are not matters of public concern. This result, to my mind, is the culmination of several related factors: in addition to the strong pro-business bent of this Court, we’ve seen public-sector unions becoming more powerful than their private-sector counterparts, while also becoming strongly aligned with one political party. This has occurred during a period of time in which political antagonism is on the rise and we’ve more jurists appear willing to join that battle. As a result, unions as a whole, but public-sector ones in particular, have been targeted both politically and legally. And they just took a massive loss at the Court today.
Janus, of course, is not the end (although some unions may feel like it right now). Here are some questions I have after the decision—please add more (or responses) in the comments:
- Will courts try to apply Janus to the private sector? There has been some loose language by the Court in the past that raises the possibility that court enforcement of union fee agreements is enough for state action, particularly in more highly regulated areas. The Court since then has been moving towards a more narrow interpretation of state action, but as Janus shows, that doesn't mean they won't make an exception when unions are involved. Indeed, in Janus, the Court stated that the line between chargeable and uncharitable expenses is "unworkable" (it's certainly difficult at times, but this seems a stretch). On the other hand, in its defense of overruling Abood, the Court in Janus stressed the difference between public- and private-sector collective bargaining and footnote 24 the Court described this state action argument as "more questionable" now then when Abood was decided. This could be considered a minor win for unions. See Joe Slater’s helpful article on this topic in which he argues persuasively that this holding should not apply to the private sector.
- Is this the beginning of the end for exclusivity? Up to now, American labor law has been built on the notion that unions act as the exclusive representative of all employees in a unit. I predict (see warning above) that Janus will usher in more challenges to exclusivity. This may include unions being more willing to explore members-only representation, as well as the NLRB at some point addressing whether the NLRA requires employers to bargain with minority unions. For instance, a bill has already been introduced in NY that would allow unions to decline to represent non-member employees for grievances and other matters, while also allowing them to provide insurance and other benefits only to members; other states (California and NJ) have recently enacted and/or are working on other pro-union measures. One limit to this, however, is that in Janus, the Court seemed to double-down on the notion that unions and public-sector employers cannot agreed to contracts that treat nonmember employees worse. That doesn't preclude members-only unionism, but it does serve as a reminder that there would be limitations to such representation.
- Related to the exclusivity issue--is this also the end of fair representation? Even before the Janus decision was announced, unions filed suit in state courts challenging the idea that they have a duty to fairly represent all unit employees. Now that Court has held that the Constitution precludes dissenting employees from paying for union representation, unions will argue in turn that it is unconstitutional to force them to expend time and resources representing employees who pay nothing. Janus gives some mixed signals. In one direction, the Court stated that unions' "duty of fair representation is a necessary concomitant of the authority that a union seeks when it chooses to be the exclusive representative." Thus, unions may have to seek to be members-only to push this argument. In the other direction, the Court seems to approve of arrangements in which union charge nonmembers for using grievance or arbitration procedures.
- While exclusivity and fair representation are weakened, will Janus usher in a strengthening of public-sector employees’ 1st Amendment rights? The language in Janus suggests so, as it now states that public-sector working conditions are matters of public interest that warrant more 1st Amendment protections. Despite that, however, the answer I think is “no.” Although it’s not defensible, I believe the Court will limit its broad 1st Amendment interpretation to cases brought against unions. Individual employees, I predict, will continue to face steep challenges raises these claims. Indeed, in Janus, the Court made a point of stressing that union speech is a public concern and it distinguished Pickering by stressing the difference between a union pushing for a wage increase and an individual employee--all of which seems to be a to distinguish individual employees' free speech claims. In addition, I doubt the Court will be as concerned with the 1stAmendment when unions challenge Section 8(b) limitations on their right to protest, picket, and boycott. See Charlotte Garden’s article on this.
- How badly will this hurt unions? We saw fairly steep declines in union membership following major changes in states like Wisconsin. Will Janus and its new opt-in requirement extend that affect nationwide? I suspect that, on average, public-sector unions will see a big hit, but that the effect will not be consistent everywhere. This is especially true given that some states have already made moves to add protections for public-sector collective bargaining in anticipation of Janus.
- On a minor note, while discussing the difficulty in challenging what's chargeable and what's not under Abood, the Court in Janus stressed the "substantial" costs in bringing an arbitration case to make such a challenge. It wasn't central to either case, but that's one of the exact arguments in Epic Systems (and the earlier Italian Colors) that the Court didn't seem concerned about.
- On a non-labor related note, the number of precedents overruled by the Court in the last couple of weeks is remarkable--and that's just the ones overruled explicitly. For whatever reasons, the Court this term has seemed more willing to break from its past to achieve the result it wants, and it will be interesting to see if that trend continues next term.
Tuesday, June 26, 2018
Just a heads up: the Supreme Court just announced that tomorrow is the last day of the term. Which means that we'll have Janus. Not that the outcome is in doubt, but I'll have the decision posted, along with some thoughts ASAP. So stay tuned tomorrow morning, including following us on Twitter.
Monday, June 25, 2018
Monday, June 18, 2018
Yale Law Journal and Stanford Law Review have just published a companion symposium titled “#MeToo and the Future of Sexual Harassment Law.” The symposium addresses, among other things, how sexual harassment interacts with notions of gender policing, sex segregation, and arbitrary and unchecked power in the workplace; the kinds of reforms needed to more effectively discourage sexual harassment; and the need to extend protections to those who are accused of harassment. Here are the contributors; their abstracts are available on the other side of the page break.
- Vicki Schultz (Yale)
- Brian Soucek (U.C. Davis)
- Rachel Arnow-Richman (Denver)
- Angela Onwuachi-Willig (Berkeley en route to the deanship at Boston U.)
- Ramit Mizrahi (Mizrahi Law)
- Tristin K. Green (San Francisco)
- Ian Ayres (Yale)
- Nancy Gertner (Harvard)
- Susan Bisom-Rapp (Thomas Jefferson)
- Rebecca K. Lee (Thomas Jefferson)
- Nicole Buonocore Porter (Toledo)
- Ann C. McGinley (UNLV)
Friday, June 15, 2018
Some recent labor & employment stories in the news recently:
- The New York Times has a piece out today on the prevalence of pregnancy discrimination, which includes background on Peggy Young and her suit against UPS that went to the Supreme Court. It reminded of my time one summer as a law student working on a pregnancy discrimination trial at Vladeck Waldman in NY. I distinctly remember the attorneys being worried about our case--which should've been an easy one based on the facts--because of their past experience facing resistance to such claims in front of judges' and juries. Our client ultimately won this one, but looking back, it's crazy how much evidence of discrimination it took.
- The California Department of Industrial Relations found the Cheesecake Factory jointly liable for wage and overtime violations against janitors at its restaurants. The case involved new state laws imposing more legal liability on companies for their contractors's violations. In this case, a subcontractor was directly responsible for the violations, but both the Cheesecake Factory and the contractor it hired, which in turn hired the subcontractor, were held jointly liable.
- The NLRB has made explicit what has been clear for a while: it's going to engage in rulemaking on the joint employer test. Oh, and it will also conduct a comprehensive review of its ethical policies and standards for Board Member recusals.
- Thomas Edsall writes an op-ed in the NY Times about worker struggles in the current economy, particularly under the Trump administration. He quotes top economists, Sachin, and some other guy who blogs here.
Congratulations to Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex Univ. London) on the paperback publication of their book Lifetime Disadvantage, Discrimination and the Gendered Workforce (Cambridge Univ. Press). The book has garnered favorable reviews since its publication in October 2016. Richard Poole (Newcastle University, UK) described the book as “a fine achievement…a thorough, compelling, and valuable book.” Erika Kispeter (University of Warwick, UK) called the book a “successful combination of the sociological and legal aspects of women’s lifetime disadvantage in work” and “an accessible often fascinating analysis of current laws and their implementation.”
Nicole Porter (University of Toledo, USA), in a forthcoming review notes, “To my knowledge, this is the only book that outlines, in a systematic way, how all of the disadvantages and discrimination women face over a lifetime accumulate to contribute to women’s economic insecurity in old age.” Praising its “ambitious” and “broad-minded approach,” and “voluminous body of research,” she added, “I thoroughly enjoyed this book.”
Cambridge University Press is presently offering the book at the discounted price of $27.99 (£18.39). The flyer for this pricing is available here.
Tuesday, June 5, 2018
Though a formal contract has not yet been signed, the ABA Labor & Employment Law Section Newsletter has announced that the ABA Journal of Labor & Employment Law will be moving from University of Minnesota to St. Louis University. Miriam Cherry, Matt Bodie, and Marcia McCormick will be taking the reins from Laura Cooper and Steve Befort. Congrats to all!
COSELL XIII Registration Now Open: available here!!!
Registration is now open for The Thirteenth Annual Colloquium On Scholarship in Employment and Labor Law (COSELL), which will be held at the University of South Carolina School of Law in Columbia, South Carolina. We are celebrating our move into a completely new legal facility, and we look forward to you joining us for the conference from the evening of Thursday, September 27th through the afternoon of Saturday, September 29th, 2018. Information on registration, the conference hotel, and participating in the conference is now available here. Registration for the conference hotel is also now available online, and can be completed here.
We look forward to seeing everyone in South Carolina next fall, and please let me know if you have any questions about the registration process.
Monday, June 4, 2018
The Supreme Court just released its decision in Masterpiece Cakeshop, which dealt with a cake shop owner's claim that his religious freedom should allow him to refuse customers who wanted a cake for a same-sex wedding. The Supreme Court reversed a state commission's decision against the shop owner, holding that the decision violated his right to free expression. But the decision is narrower than it may first appear. In particular, the Court appeared to hinge the decision on the state commission's decision in the case, which it viewed as being impermissibly hostile to religion (this may have led to the 7-2 lineup at the Court).
This was not an employment case, but there are parallels. As a result, although the Court seemed to duck the underlying issue about free expression v. antidiscrimination laws, employers will no doubt try to use Masterpiece as a defense. But its value will depend on employers' ability to couch their employment discrimination as expression because one of the unique aspects of Masterpiece was that the shop owner claimed that making cakes was artistic--that is, constitutionally protected expression. Because of that, and the Court's criticism of the state commission, most employers will not be able to make an argument like Masterpiece. There will no doubt be exceptions--maybe a religious-themed artist that hires assistants--but there are not a lot of business that involve both the level of expression needed for such a claim, as well as the level of hostility that the Court perceived. But I'm sure many employers will make the argument nonetheless . . . .
Saturday, June 2, 2018
CHANGE OF DATE:
The Second Annual Equality Law Scholars’ Forum will be held at UC Davis Law School on Friday, November 16 – Saturday, November 17
Note: This is a change from the earlier announced November 9-10 date.
The date for submission of proposals (July 1) remains the same.
Corrected Call for Proposals:
Call for Proposals for the Second Annual Equality Law Scholars’ Forum
Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law last fall, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) announce the Second Annual Equality Law Scholars’ Forum to be held this fall. This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas. We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.
We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law. Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting. The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.
This year’s Forum will be held on November 16-17, 2018 at UC Davis Law School.
Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 1, 2018.
Full drafts must be available for circulation to participants by October 19, 2018.
Proposals should be submitted to:
Tristin Green, USF School of Law, email@example.com. Electronic submissions via email are preferred.
Friday, June 1, 2018
Some recent labor and employment law issues in the news:
- Well, it wasn't the big unit, but some employees at Boeing's South Carolina plant have voted to unionize. On Thursday, 178 technicians and inspectors voted (104-65) to be represented by the International Association of Machinists and Aerospace Workers union.
- The largest federal employees union, American Federation of Government Employees, is suing to stop new rules put in place by recent executive orders. The central target of the dispute is a new 25% cap on "official time" that union officials can spend on union business; the other orders encourage more terminations of federal employees and restrict agencies' ability to negotiate collective-bargaining agreements. The official time challenge is based on the Civil Service Reform Act provision that permits official time and the First Amendment. This latter claim may be difficult given the Davenport decision, although the union is making more of a discrimination argument based on the executive orders application only to work done on other employees' behalf rather than work that a union official does on his or her won behalf.
- Casino strike averted? Just hours ago, the Culinary Workers union reached a deal with Caesar's to avoid what was looking to be a massive strike in Las Vegas. Caesar's only employs about a quarter of the 50,000 workers who could potential strike, so nothings certain yet. But it does look like the strike threat is paying off for the union.