Sunday, June 9, 2019
Bill Herbert writes that about the Call for Papers for the 47th annual conference of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College. The conference will be held on March 29-31, 2020. The theme of the conference will be Inequality, Collective Bargaining, and Higher Education. Proposed papers, panels, or workshops are due September6, 2019 to 2020 Abstract Dropbox.
Check out the Call for Papers link to see all of the interesting topics being solicited, both for paper presentations and interactive workshops.
Thursday, May 16, 2019
Steven Greenhouse, long-time labor journalist for the New York Times, has a new book coming out just in time for your Labor Day gift-giving: Beaten Down, Worked Up: The Past, Present, and Future of American Labor (Knopf, forthcoming August 2019). Here's the publisher's description:
In an era when corporate profits have soared while wages have flatlined, millions of Americans are searching for ways to improve their lives, and they're often turning to labor unions and worker action, whether #RedforEd teachers' strikes or the Fight for $15. Wage stagnation, low-wage work, and blighted blue-collar communities have become an all-too-common part of modern-day America, and behind these trends is a little-discussed problem: the decades-long decline in worker power.
Steven Greenhouse sees this decline reflected in some of the most pressing problems facing our nation today, including income inequality, declining social mobility, the gender pay gap, and the concentration of political power in the hands of the wealthy. He rebuts the often-stated view that labor unions are outmoded--or even harmful--by recounting some of labor's victories, and the efforts of several of today's most innovative and successful worker groups. He shows us the modern labor landscape through the stories of dozens of American workers, from G.M. workers to Uber drivers, and we see how unions historically have empowered--and lifted--the most marginalized, including young women garment workers in New York in 1909, black sanitation workers in Memphis in 1968, and hotel housekeepers today. Greenhouse proposes concrete, feasible ways in which workers' collective power can be--and is being--rekindled and reimagined in the twenty-first century.
Wednesday, May 8, 2019
Congratulations to Sergio Gamonal C. (Univ. Adolfo Ibanez - Santiago) and César F. Rosado Marzán (Chicago-Kent) on the publication of their book Principled Labor Law: U.S. Labor Law through a Latin American Method by Oxford University Press. Here's the publisher's description:
The gig economy, precarious work, and nonstandard employment have forced labor law scholars to rethink their discipline. Classical remedies for unequal power, capabilities approaches, "third way" market regulation, and laissez-faire all now vie for attention - at least in English.
Despite a deep history of labor activism, Latin American scholarship has had scant presence in these debates. This book introduces to an English-language audience another approach: principled labor law, based on Latin American perspectives, using a jurisprudential method focused on worker protection. The authors apply this methodology to the least likely case of labor-protective jurisprudence in the industrialized world: the United States. In doing so, Gamonal and Rosado focus on the Thirteenth Amendment as a labor-protective constitutional provision, the National Labor Relations Act, and the Fair Labor Standards Act. This book shows how principled labor law can provide a clear and simple method for consistent, labor-protective jurisprudence in the United States and beyond.
Wednesday, March 20, 2019
In 2015 the National Labor Relations Board (NLRB or Board) said no to a union election petition filed by the Northwestern University football team. In doing so, the Board reversed the finding of a regional director below that the requirements of a valid petition were met, including a finding that the Northwestern football players were employees for purposes of the National Labor Relations Act (Act). Strangely, the Board on appeal did not hold that the football players were not employees, or that Northwestern was not an employer, or that the football team did not substantially affect interstate commerce. These are all of the typical reasons that the Board might say no to an election petition and decline jurisdiction. Rather, the Board refused to assert jurisdiction even though it admitted that Northwestern football players might be employees, Northwestern University is certainly an employer, and the Northwestern football team has a substantial effect on interstate commerce. Without much explanation, the Board simply stated that asserting jurisdiction would undermine labor stability and thus be inconsistent with the goals of the Act.
Curiously, there was no dissenting opinion despite the substantial findings of fact by the regional director finding the petition valid, and despite the fact that the decision was appealed to the liberally controlled Obama Board. This essay is the first substantive critique of the NLRB’s decision in the case. The essay looks carefully and deeply at each of the stated, as well as the unstated but implied, reasons for the decision. What the essay reveals is an administrative agency decision that neglects to make critical findings and arguments in support of the agency’s position against the petition. Also, the essay uncovers a flaw in the Board’s understanding of the limited scope of its discretion to decline jurisdiction in instances where the entity involved has a substantial effect on commerce. Essentially, this essay is the missing dissenting opinion in the case.
Thursday, March 14, 2019
First were the adjuncts at Duke. An now, adjunct faculty at Elon joined in the act by voting for union representation--112 to 68 in favor of representation by the SEIU. It's not clear whether the University will file election objections, although they have already noted that this is an option. However, given that some of the issues driving support for the union seem relatively easy to address (e.g., not allowing adjuncts to apply for full-time job openings), one has to wonder if it wouldn't make more sense at this point to simply deal with those issues and move on. But we shall see . . . .
This goes to show that even in a state that regularly vies for the lowest union density in the country, there is still labor activity going on.
Friday, March 8, 2019
Today--International Women's Day--every current player on the U.S. Women's Soccer team filed a sex discrimination suit against the U.S. Soccer Federation. The suit is also seeking class status that would cover players as far back as 2015. This is essentially the next step in an earlier complaint filed by players with the EEOC in 2016. The violations claimed are under the Equal Pay Act (paying women players less than male players for substantially the same work) and sex discrimination under Title VII (based on disparate wages and treatment in comparison to male players). The Washington Post summarizes some of the factual allegations listed:
In the lawsuit, the women claim that in 2016, U.S. Soccer made more than $17 million in unexpected profits thanks largely to the women’s team, while paying the women players substantially less than their male counterparts. According to the lawsuit, a comparison of pay schedules for the two teams shows that if each team played 20 exhibition games in one year, members of the men’s team could earn an average of $263,320 each, while women’s players could earn a maximum of $99,000.
The lawsuit also highlights differences in World Cup bonuses for the two teams. After 2014 World Cup, U.S. Soccer paid out a total of $5.375 million in bonuses to the men’s team, which lost in the round of 16. In 2015, U.S.Soccer paid out $1.725 million in bonuses to the women, who won their World Cup, the lawsuit states.
One interesting element is that many of these conditions are rooted in a 2017 collective-bargaining agreement, which U.S. Soccer is sure to cite. However, traditionally, there was an expectation that unions can't waive Title VII and similar rights. Of course, there also used to be the same expectation when it came to mandatory arbitration clauses covering Title VII and similar claims, which the Court later abandoned. So stay tuned.
Friday, March 1, 2019
Today, in Kent Hospital, the NLRB ruled that lobbying expenses--even if related to employment terms or indirectly to collective bargaining--are always nonchargeable. The Board also found that the union violated its duty of fair representation by not providing nonmembers a so-called "validation letter," which I'll get to in a moment,
As a reminder, or introduction, unions' ability to require nonmembers to pay dues (where they can require them to pay any dues at all--i.e., private-sector employers in non-right-to-work states) is based on where those dues are going. The Supreme Court (in Beck, among other cases) has divided union activities into two categories: chargeable (which unions can require nonmembers to contribute to) and nonchargeable (nonmembers can choose not to contribute). Some activities are easy to classify. For instance, expenses related to negotiating and implementing a collective-bargaining agreement are clearly chargeable; political activity such as working to elect a candidate is clearly not. Kent Hospital deals with an activity in middle: lobbying. The key line usually used for distinguishing the two classifications is that unions can only require contributions for activities "necessary to ‘performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.’” (Beck, Ellis).
In Kent Hospital, local nurses unions are part of a regional union (UNAP), and each local contributes a per capita amount of funds to UNAP. In turn, UNAP uses these funds for various activities, including lobbying for certain bills in states in which it operates. The bills at issue in the case were those addressed to: hospital regulation (including mergers), public employee retirement system, hospital funding, safe patient handling programs, mandatory hospital overtime, and mental health care funding. In other words, bills that would obviously impact and be of concern to nurses, albeit not always in a direct way. The ALJ found that the hospital merger, hospital funding, and mental health funding were chargeable because they would affect UNAP's ability to represent its members. The Board disagreed, concluding broadly that lobbying activities are never chargeable, because they are is not part of unions' statutory collective-bargaining obligations. This is true, according to the Board, even if targeted to matters that may be subject to collective bargaining (e.g., workplace changes related to patient safety).
Whatever one thinks about the bills here, the Board seems to have painted with too broad a brush. There is a wide range of legislation, some of which may well be directly related to unions' collective-bargaining obligations. Among many examples she uses in her dissent to criticize the majority's categorical "lobbying is nonchargeable" rule, Member McFerran cites a bill that would change terms in a collective-bargaining agreement. The dissent is well worth the read, as it does a good job undercutting the majority's categorical approach.
Finally, the Board addressed the union's failure to provide objectors an audit verification letter, which the union possessed but didn't provide to nonmember objectors because it didn't think it was legally required to. An audit verification letter is what it sounds like: something from an auditor stating that the union's classification of expenses is appropriate. Following the Ninth Circuit, the Board concluded that unions must provide objectors the audit verification letter, rather than the mere assurance that the auditor agreed to the classification as occurred in Kent Hospital. Member McFerran agreed, although dissented to applying this new rule retroactively.
Wednesday, February 27, 2019
Many thanks to Paul Harpur (Queensland) for sending us word that the Australian state of Queensland on February 27 passed a Human Rights Act significantly expanding the right to join trade unions. Here's the speech explaining the new statute, and here's notice of the bill's passing. Section 22 provides that every person has the right to freedom of association with others, including the right to form and join trade unions. The Act will commence operation in two phases. On 1 July 2019, the Anti-Discrimination Commission will be re-branded as the Queensland Human Rights Commission and from 1 January 2020, the complaints mechanism will commence, which will allow people who consider that their human rights have been violated by a public entity to lodge a complaint directly with the Commission.
Tuesday, February 26, 2019
Angie Tran (Cal State - Monterey Bay) has just published ‘Decent Work‘ Examined: Eyes Wide Open in Labor Relations in Vietnam, in Voices: Global South Studies Center, University of Cologne. Here's a summary:
[T]he assumption that the three sides [government, employers and workers] in the [ILO's] enshrined tripartite structure have equal voice at the negotiating table does not reflect the reality in Vietnam. I argue that the implementation of social dialogue has not genuinely benefited workers when the three sides in this framework do not have equal voices at the negotiating table. As demonstrated in the three cases below, labor relations in Vietnam have witnessed the strengthening of the state-management alliance and the weakening of labor, represented by one overarching labor union, the Vietnamese General Confederation of Labor (VGCL). Moreover, the actual implementation of social dialogue at the factory level focuses on only conflict resolution, missing the other two goals: social equity, and effective policy implementation, which would have addressed the deep-rooted problems in labor relations and improved workers’ lives.
Friday, February 15, 2019
Some recent L&E stories that I've been too busy lately to post on (see my follow-up post):
- The Denver teachers strike ends after three days. Looks like the deal will significantly increase salaries and the .parties agree to study the bonus scheme that helped precipitate the strike. As an aside, this year seems to be one of more traditional, union teacher strikes, as opposed to the previous years' non-union teacher protests and strikes. I'm not sure if it's just coincidence or something else (e.g., state politicians did more to pacify teachers prior to the November elections), but it's worth watching.
- The Seventh Circuit just held en banc that the ADEA does not permit disparate impact claims by applicants. This issue has Supreme Court review written all over it. I'm not sure when, as there's some question whether there's an active circuit split (the 7th & 11th have held the same; to the best of my knowledge, all the circuits going the other way did so before the Smith v. Jackson case from the Supreme Court that clarified the ADEA's disparate impact analysis). In the meantime, it's a great teaching case because it's going some good statutory interpretation aspects, weaving a tension of textual factors, past Court precedent, and statutory purpose.
- In other Seventh Circuit news, the court just ruled on Scabby the Rat (who seems to be going out of his way to define the modern labor movement). It held that a town ordinance prohibiting Scabby did not violate the union's First Amendment rights because the ordinance was content neutral and wasn't enforced in a discriminatory fashion. At the same time, the NLRB's General Counsel has indicated a desire to go after the use of Scabby and other inflatables (which employers really hate, thereby showing their effectiveness). So expect Scabby to stay in the news.
- The NLRB has invited briefs regarding whether it should decline jurisdiction over charter schools. Note this would be a decision to voluntarily decline jurisdiction, not a ruling that the Board lacks jurisdiction (like the Northwestern college football case). I'm not a huge fan of this tactic, especially in a case like charter schools where you lack the conflict in public and private teams playing each other. But note that if the NLRB follows through, they're not going to be able to totally avoid the issue because employees could still bring individual complaints alleging ULPs.
Thursday, February 14, 2019
Thanks to Michael Oswalt (NIU) for sending word, and getting permission to post, about the adjuncts at Elon voting next week in an SEIU organizing drive. Here's Michael's description of what's happening:
I'm writing to ask if you might consider signing a legal academic letter of support for non-tenure-track faculty who are organizing a union at Elon University. Throughout the process, administrators have argued that the adjuncts are managers excluded from the NLRA. While the Region recently rejected this claim and scheduled an election for next week, the local (Workers United Southern Region) and the International (SEIU) fear that the University will appeal to the Board. This would not only delay the process at Elon, it would endanger one of the most successful and inspiring unionization trends of the past few years.
The campaign is hoping to finalize the letter by COB Saturday; here's the sign-on page.
Saturday, January 26, 2019
Yesterday, the NLRB issued a decision in the SuperShuttle DFW case, providing yet another analysis to determine whether an individual is an employee or independent contractor under the NLRA. The Board's new approach is basically just to adopt the D.C. Circuit's test from the 2011 FedEx case, which I've examined (and criticized) elsewhere. That test relies most heavily on whether the worker has "entrepreneurial opportunity."
As a preliminary matter, it is important to remember that the Supreme Court has held multiple times that when a statute lacks a meaningful definition of "employee," the common-law "right-to-control" test for determining whether someone is an employee or independent contractor should apply. The Court, in Roadway Systems, explicitly held that the NLRA is one of those statutes. So the question for the NLRB is to determine what the common-law test requires.
Note that the analysis is not referred to as the "common-law 'entrepreneurial opportunity'" test. That's because, for its long history, that test has stressed that the most important factor is the purported employer's right to control the manner and means of work of the purported employees. Entrepreneurial opportunity may be relevant, along are numerous other factors, but the right to control is the focal point of the test (I'm actually being generous here because entrepreneurial opportunity isn't explicitly a factor in the common-law test, although other factors hint at a similar concern). In fact, in an ironic twist, the D.C. Circuit just last month stressed this exact point with regard to the NLRB's joint-employer test. In that case, the D.C. Circuit gave a pretty strong warning that the Board needs to be careful not to stray too far from the common-law's focus on right-to-control.
Despite all of this, in SuperShuttle, the NLRB adopted a D.C. Circuit test that makes entrepreneurial opportunity the overriding concern in the analysis. The NLRB downplayed that that's what the D.C. Circuit did, but that interpretation is just wrong. The court held, among other things, that it was "shift[ing the] emphasis’ away from the unwieldy control inquiry in favor of a more accurate proxy: whether the ‘putative independent contractors have significant entrepreneurial opportunity for gain or loss.’" And that shift, to my mind, is indefensible.
You'll note that SuperShuttle has exactly zero citations showing judicial support for the notion that entrepreneurial opportunity is an "important animating principle" of the common-law test other than the D.C. Circuit's decisions. Those decisions, in turn, elevated entrepreneurial opportunity based on an erroneous (one might even say disingenuous) interpretation of the common law. There is simply no reasonable way to say both that the NLRB uses the common law test and that the test's primary focus is entrepreneurial opportunity. The first proposition, as the Board majority itself acknowledges, is undoubtably true; the second is just as clearly untrue. (Member McFerran makes the same point in her dissent.) The common-law test simply does not consider entrepreneurial opportunity as a key principle. Indeed, a closer question is whether it considers it at all. Thus, the Board could reasonably argue that entrepreneurial opportunity should be the animating factor, but it can't make that happen without defying the Supreme Court's clear mandate that when Congress doesn't provide a meaningful definition of "employee," the common-law test applies.
As bad as the NLRB's and D.C. Circuit's manipulation of the common-law test's history is, if that's all that was going on, this might not have too big of an impact. But it's not. What I view as the biggest practical effect of the D.C. Circuit's standard is how it define entrepreneurial opportunity. In particular, the court would allow a business to classify a worker as an independent contractor based simply on theoretical entrepreneurial opportunity, even if it is virtually impossible to take advantage of in practice. This means that businesses can manipulate their agreements with workers to give the appearance of entrepreneurial opportunity, while ensuring that workers lack any genuine opportunity to act like anything but employees. In SuperShuttle, the Board didn't explicitly get into this question, so it's not entirely clear how close they're going to hew to that aspect of the D.C. Circuit's approach, although the Board implied that they were doing the same thing, particularly by failing look into whether drivers had any real ability to use their vans for other work. But the reason why they didn't address this issue may be more disturbing. The Board failed to consider whether the drivers had the option to sell their services to other business--something that is a key characteristic of an independent contractor. Instead, the Board merely stressed that the drivers had control over how much they would work for SuperShuttle and, therefore, how much they earn. You know who else controls how much they earn by determining how much they work? Virtually every hourly and piece-rate employee (albeit with varying ability to control their hours).
Finally, one other significant impact of SuperShuttle was to reject the Obama Board's test in another FedEx decision (see a trend here?), in particular its use of economic dependency. On this point, I'm in agreement with the current Board. While I prefer a more expansive test that considers economic dependency, that's not what the Board should be using. Again, the Court has said that statutes like the NLRA with no real definition of "employee" should use the common-law test. That test doesn't stress economic dependency, unlike the test under the FLSA and FLRA, which have statutory language that suggest a broader classification. So while as a policy matter I prefer using economic dependency, that's not what the NLRB should be doing. The way to fix this is for Congress to better define "employee" or for the Supreme Court to move away from its common-law default.
In sum, SuperShuttle is a a vey poorly reasoned decision, no matter what you think the best test should be from a policy perspective. What will be interesting is to see how the SuperShuttle test fares in the circuit courts. I suspect some circuits are going to squarely reject the new rule, while some may approve. Even more interesting will be the D.C. Circuit's take. The court will have to grapple with its equally bad FedEx decision, which seems to run directly counter to its recent holding on the joint-employer issue, not to mention explicit Supreme Court precedent.
Friday, January 18, 2019
The Wall Street Journal reports today that data from the Department of Labor show union density continuing to fall. Total density in 2018 was 10.5%, down from 10.7% in 2017. Density in the public sector fell from 34.4% to 33.9%). Here's a link to the DOL BLS press release with links to the relevant tables; below is an excerpt from the WSJ article:
The overall rate of union membership in the U.S. fell last year, largely reflecting a decline in the rate of state employees’ unionization, according to the latest Labor Department data.
The union membership rate, or the percent of wage and salary workers who were members of unions, dropped to 10.5% in 2018 from 10.7% a year earlier, the Labor Department said Friday.
The decline stems mainly from a decrease in union membership among state employees, whose membership rates fell to 28.6% in 2018 from 30.3% a year earlier.
Tuesday, January 15, 2019
Among the many NLRB doctrines that have swung in various directions is the one in which an individual employee's actions or words may be concerted activity protected by Section 7 of the NLRA. The Meyers I and Meyers II cases are the foundation for this doctrine, but we've seen many subsequent Board decisions applying the doctrine in different ways depending on the Board members involved. This week's decision in Alstate Maintenance continues that trend, as the full Board (well, the current four members at least) purports to "begin the process of restoring the Meyers standard." Maybe I'm missing something, but it seems to me that, purely from a doctrinal perspective, that statement is an overreach and the decision is a bit of tempest in a teapot.
Under the Meyers standard and related cases, the General Counsel can show that an individual employee is engaging in concerted activity if the employee was attempting to initiate or to prepare for group action, or if the employee was engaging with or on behalf of a group of employees (there are other ways as well, such as enforcing rights under a collective-bargaining agreement). The Board doesn't attempt to alter these underlying rules, but instead goes all in for a stingy interpretation of individual-concerted activity. In essence, the Board distinguished cases where it felt it could do so, and overruled the one case that it believed to be too much of an impediment (WorldMark by Wyndham). In particular, the Board rejected statements in that case that an employee who protests in a group meeting in engaging in concerted activity by attempting to intimate group action and that complaining in a group setting is necessarily concerted activity (the dissent disputes this characterization of WorldMark). Instead, the Board in Alstate reiterated the need to engage in a fact-specific inquiry under Meyers II. The money quote is:
Rather, to be concerted activity, an individual employee’s statement to a supervisor or manager must either bring a truly group complaint regarding a workplace issue to management’s attention, or the totality of the circumstances must support a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action. Consistent with Whittaker and Chromalloy Gas Turbine, relevant factors that could tend to support drawing such an inference include that (1) the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment; (2) the decision affects multiple employees attending the meeting; (3) the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely (as in WorldMark) to ask questions about how the decision has been or will be implemented; (4) the speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and (5) the meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.
 We do not hold that all these factors must be present to support a reasonable inference that an employee is seeking to initiate or induce group action. In keeping with Meyers II, the determination of whether an individual employee has engaged in concerted activity remains a factual one based on the totality of the record evidence. . . .
One thing that's odd about this case is that it involved not only an employee's comment (a skycap who initially stated that a group of skycaps had helped a similar group arriving at the airport previous and didn't receive a tip) but also a partial work stoppage (the employee and others refused to help the new group). Alas, the GC only focused on the comment, although one might wonder why the fact that group action actually occurred did play a bigger role in the Board's analysis. Nevertheless, I don't see Alstate as making any major, substantive changes to the Meyers standard. Rather, it seems to be an example of a restrictive reading of Section 7 that we'd except from a Republican Board, announced in a way to send a message to parties about what it's doing. That said, as Michael Duff emphasized to me, even if the doctrine isn't effected much, this can have real impacts on employees who are protesting conditions at work.
Yes, says Erin McHenry-Sorber (Assistant Professor of Higher Education, West Virginia University -- and thanks to Paul Harpur for sending me the link). Here's an excerpt from her recent article in The Conversation:
The Los Angeles teachers strike suggests that the wave of teacher protests is not over.
Teacher strikes and work stoppages have been preceded by a nationwide teacher shortage that continues to grow across many states, which do not have enough certified math, special education, science, and in increasing cases, elementary teachers – to meet the needs of their students. In California 80 percent of districts reported a teacher shortage in the 2017 to 2018 school year.
Teacher shortages are most often blamed on low teacher pay, one of the commonalities across teacher strikes. These shortages are arguably exacerbated by an increase in the “teacher pay penalty,” the term used to describe disparities in teacher salary compared to professions requiring comparable levels of education.
At the same time teachers find themselves increasingly undervalued, most states are still funding their public education systems at levels below that of the 2008 recession. This includes California, which is ranked 41st nationwide in per pupil spending when adjusted for cost of living. As long as public schools remain underfunded, the nation can expect to see more teacher strikes in other school districts and states in the near future.
Monday, December 31, 2018
The D.C. Circuit has just ruled on the NLRB's Browning-Ferris joint-employer test, largely approving the standard that made many on the employer-side of things apoplectic. In Browning-Ferris v. NLRB, the court approved of the joint-employer rule, but remanded because it held that the Board didn't apply part of the rule correctly. This issue is becoming increasingly convoluted, so let me break down some of what's going on.
- Why did the court decide this case in the first place? As we've been following, the Board has already reversed the Browning-Ferris test once, which they had to vacate because of a recusal issue. They are now in the process of reversing course via rulemaking. Despite that, the Board asked the court to decide the case, which the majority readily agreed to do, over a dissent. The reason the court did this brings me to the second point.
- De novo review for the joint-employer test. The court emphasized that determination of the Board's joint-employer rule is reviewed de novo. Because the joint-employer standard is based in common law, according to the court, no deference to the agency is required (as opposed to application of the standard, which is a mixed question of law and fact). And because the court wasn't giving the Board any deference, the court determined that there was no need to wait for the Board's new rule. Note that this is not good news for the Board's draft joint-employer rule, although may be good news for those who prefer a more consistent rule over the long-term.
- Reserved and indirect control is relevant to joint employment. As a reminder, the big argument is whether and to what extent the joint-employer test should consider reserved and indirect control. Browning Ferris said that actual and direct control is not required; the current Board disagrees. In this case, the court was crystal clear that the argument made by the employer and dissenters in Browning-Ferris that joint employment can be based only on exercised control and direct and immediate control are wrong. Full stop. As the court noted, the common law is riddled with examples and statements that reserved control and indirect control are relevant to joint employer determinations. So this extreme view--that joint employers must have actual and direct control--is currently dead in the D.C. Circuit. But there's a middle ground that may still available, which I'll get to in a moment. But first . . .
- Remand. Despite uphold the Browning-Ferris test, the court held that the Board mis-stepped in this case. In particular, when applying the new rule in this case, the Board didn't make clear whether it relied on evidence on indirect control over essential terms and conditions of work (which is relevant) versus indirect control over "routine parameters of company-to-company contracting," like a cost-plus contract or advance description of tasks (which is not relevant). Thus, the court remanded to the Board to clarify whether there is enough relevant evidence to support a joint-employment finding.
- Meaningful collective bargaining. The court also tacitly approved the Board's inquiry into whether a putative joint employer controls enough essential terms and conditions of employment to permit meaningful collective bargaining, but wanted the Board to define terms of that inquiry more in a case, unlike here, when the Board actually applies invokes that question. That's good news for folks, like yours truly, who have argued for a more collective-bargaining focused joint employer test.
- Finally, the money question: What next? I was talking this morning to Robert Iofalla at Bloomberg News (I will link to his article when it comes out), who is exploring this question. One option is that the Board will press an extreme position during its rulemaking and thumb its nose at the court's admonition that reserved and indirect control is relevant (which could then lead to the Board's nonacquiescence policy, possible circuit split, and cert. petition). But my guess--and I stress guess--is that the Republican majority of the Board will go as far as it can without directly conflicting with the court's decision. In other words, as it did in Hy-Brand, the Board could acknowledge that evidence of reserved or indirect control can be relevant. And, then, it can answer the questions that the court expressly left open: whether only indirect and/or reserved control is enough to find joint employment. The current Board will obviously say "no," which will leave us with basically the same test we had before Bronwing-Ferris. The Board could still lose when the D.C. Circuit or another court takes up that question, but this seems to be a lower risk strategy than going the extreme route. The "relevant-but-not-sufficient" strategy still leaves plenty of room for a narrow joint employer test, especially when a Trump Board is applying it, while avoiding the time-consuming litigation that would result from defying the D.C. Circuit and seeking a circuit split. Avoiding these types of risks are especially important when the Board is doing something it rarely does by engaging in substantive, formal rulemaking.
Still plenty more to come, so stay tuned.
Friday, December 7, 2018
- Anne Trebilcock, ed., Comparative Labour Law (Edward Elgar, 2018), 904 pp. Collection of key journal articles on the topic, with the editor's introduction (comparative labor law's uses and limits, sources and methods, axes of comparison, means of enforcement). Link: https://www.e-elgar.com/shop/comparative-labour-law.
- Anne Trebilcock, "International Labour Organization," in Michael Bowman & Dino Kritsiotis, eds., Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge University Press, 2018), 848-880. Overview of the ILO's unique approach to treaty making, revision and interpretation.
- Anne Trebilcock, "Challenges in Germany's Implementation of the ILO Decent Work for Domestic Workers Convention," 34:2 International Journal of Comparative Labour Law and Industrial Relations (2018) 149-176.
Friday, November 30, 2018
One of the questions that followed the Supreme Court's Janus decision was whether unions had to give back dues that unions had already collected. Several employees, backed by anti-union groups, sued based on the theory that unions shouldn't be able to keep funds that the Court has announced were unconstitutionally required under collective-bargaining agreements with their public employers. Unions, on the other hand, responded that although the Court had long made clear its intention to overrule Abood and rule this way, clear precedent states that until the Court makes such a change, current caselaw applies. This isn't just an interesting legal question; there is a ton of money at stake for unions.
Yesterday, we got the first judicial decision on this question, in favor of unions. In Danielson v. AFSCME, the Western District of Washington dismissed a lawsuit seeking a declaratory judgment that past-paid fees were unconstitutional and seeking a return of those funds. At the heart of the dismissal was the court's holding that the union involved enjoyed a good faith defense against the Section 1983 claim because when they collected the fees, they were legal under both state and federal law. There's a general understanding among many courts that Section 1983 includes a good faith defense and the court held that it applied here. That's not surprising given that the Supreme Court has been very clear that lower courts should not try to predict what the Court will do--the law is what it is until the Court says it isn't.
This is a significant win for public-sector unions, but this issue isn't over. There are several other identical suits which could well come out differently, and I'm sure this case will be appealed. So stay tuned.
Thursday, November 15, 2018
Congratulations to Ken Dau-Schmidt, Marty Malin, Roberto Corrada Chris Cameron, and Catherine Fisk on the imminent publication of their casebook Labor Law in the Contemporary Workplace (3d ed. West, 2019). Here are the publisher's notes:
Labor Law in the Contemporary Workplace prepares students for the practice of labor law by introducing them to the principles of American labor law and many of the issues that labor attorneys face. The book is organized around contemporary problems as a means of teaching the core principles of labor law. Although the primary focus of the book is the National Labor Relations Act, considerable attention is given to the Railway Labor Act and public-sector labor laws because of their growing importance in contemporary practice. The third edition takes account of changes in the law since the first edition and second editions were published and in particular new interpretations of the National Labor Relations Act by the National Labor Relations Board and recent state restrictions on public sector collective bargaining.