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The Trucking Industry Is a “Sweatshop on Wheels.” Here’s How Kavanaugh Could Make It Worse.

Thursday, October 11th, 2018

While the nation was focused on Brett Kavanaugh’s contentious confirmation process, the Supreme Court began hearing arguments in New Prime Inc. v. Oliveira, a major labor case that could impact thousands of workers throughout the country. The Court will determine whether workers in the hyper-exploitive trucking industry can sue their bosses for breaking the law. Kavanaugh wasn’t present for oral arguments and new Justices often recuse themselves from such cases, but there’s nothing but an unwritten rule preventing him from casting a vote. If Kavanaugh’s vote were to prove decisive, he could choose to participate or the justices could decide to re-hear the case.

New Prime (Prime) is a transportation outfit that runs an interstate trucking company. Dominic Oliveira claims that he participated in Prime’s apprenticeship program and was told by the company that he’d make more money as an independent contractor than he would as an actual employee. Oliveira signed an Independent Contractor Operating Agreement which allowed him the flexibility to determine his own schedule and work for companies besides Prime. However, Oliveira claims that Prime had a “pervasive involvement” in his work which prevented him from working for other places, despite the fact the company wasn’t supposed to. Oliveira filed suit against Prime in district court, alleging that the company failed to pay him minimum wage, a clear violation of the Fair Labor Standards Act.

Prime’s contract with Oliveira contained an arbitration clause that hypothetically required the two parties to resolve any work disputes through an arbitration process, as opposed to a lawsuit. Prime filed a motion to compel arbitration and dodge the legal action, but Oliveira opposed the action, pointing out that the contract is exempted by the Federal Arbitration Act (FAA) which makes arbitration agreements enforceable. The FAA exempts “contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce.” In 2001, the Supreme Court determined that his exemption applied to “contracts of employment of transportation workers.”

The Supreme Court will now determine whether Oliveira should have been classified as a contractor, and therefore will be forced to settle for arbitration, or whether he will be allowed to take Prime to court. “If the Supreme Court rules for the bosses in this case, it will send a clear message: that big companies that break the law get to decide if and when the rules apply to them,” Ceilidh Gao, a staff attorney who filed an amicus brief in the case with the National Employment Law Project, said in a statement. “If the Supreme Court rules against the workers, it would create further incentives for companies to misclassify their employees as independent contractors. Such a perverse outcome would be an affront to the basic fairness American workers demand.”

The case shines a light on an industry that has become tremendously exploitative over the last 40 years. In the 1960s and 70s, trucking was a lucrative profession with regular hours—drivers were taking home around $100,000 a year in today’s dollars. But things have changed drastically since the business was deregulated in 1980. In his 2000 book Sweatshop on Wheels: Winners and Losers in Trucking Deregulation, analyst Michael H. Belzer sounded an alarm, writing that truckers’ median earnings had dropped 30 percent. Eighteen years later, things have gotten even worse: After factoring inflation, the wages for truckers have fallen since 2003.

Deregulation also had the predictable effect of weakening the industry’s unions and increasing the number of “independent contractors” like Oliveira who end up owing their company money as a result of the associated expenses. “In the modern unregulated industry, the solution has been to shift the risks of truck ownership to the workers themselves,” explained Steve Viscelli, economic sociologist and author of The Big Rig Trucking and the Decline of the American Dream, in a 2016 interview. “Companies insulate themselves from the costs of market [and fuel-price] volatility by getting the workers themselves to buy the trucks and pay the operating expenses. That’s what they’ve achieved with these independent contractors.”

Oliveria’s case is just one of three arbitration cases that the Court is scheduled to hear this term, with Kavanaugh recently added to the bench. Typically, Justices don’t cast a vote in cases where they weren’t present for oral arguments. Most recently Justice Gorsuch recused himself from cases that had been heard before he was confirmed. However, there’s nothing compelling Kavanaugh from participating and he could weigh in if he wanted to.

Kavanaugh’s judicial career indicates that he’ll consistently side with business over workers. In 2008, he dissented from a ruling that established undocumented workers as employees who can start a union. In 2016, he wrote for the majority in a case that overruled an NLRB decision which allowed Verizon workers to adorn their vehicles with pro-union messages. Most infamously he sided with SeaWorld after one of its trainers was killed by a whale, criticizing calls to sanction the company and impose regulations on it.

The case is also being heard amid dozens of gig economy lawsuits filed by workers fighting to be classified as employees. One recent suit showed that Uber saves $500 million a year by classifying drivers as independent contractors in California. Early analysis of New Prime Inc. v. Oliveira indicates that the Court might be more skeptical of the employer’s claims than initially expected, but it remains to be seen whether a surprising outcome can be won on a Supreme Court that will now presumably remain conservative for decades to come.

Clarification: An earlier version of this piece implied Kavanaugh would definitely be voting in this case. Although that is a possibility, Justices often recuse themselves from cases in which they weren’t present for oral arguments.

This blog was originally published at In These Times on October 10th, 2018. Reprinted with permission.

Kavanaugh Is Terrible on Workers’ Rights—And That’s Anti-Woman, Too

Monday, October 8th, 2018

On October 6, the Senate voted to confirm Brett Kavanaugh, the Republican federal appellate judge accused by multiple women of sexual assault, to the Supreme Court.

In light of the allegations—which include attempted rape—the opposition to Kavanaugh has been dominated by concerns about the impact he will have on the lives of women. In addition to his alleged history of physical and sexual violence, protesters fear what Kavanaugh’s “radical” conservatism may augur for reproductive-rights victories, namely Roe v. Wade, the landmark 1973 decision that expanded the legal right to abortion in the United States. Yet these don’t constitute the only perils of the judge’s appointment: Kavanaugh bears a pattern of anti-worker adjudication—a stance that inordinately harms women.

Kavanaugh’s catalog of judicial decisions indicates a clear predilection for the capitalist class. In 2008’s Agri Processor Co. Inc. v. National Labor Relations Board, Kavanaugh argued that a kosher-meat wholesaler, Agri Processor Co., wasn’t required to bargain with an employee union. Before the suit, the United Food and Commercial Workers Union, filed an unfair labor practice charge with the National Labor Relations Board (NLRB) after Agri Processor Co. refused to bargain. Kavanaugh upheld the company’s claim that the workers who had voted in the union election were undocumented workers and therefore didn’t qualify as “employees” protected by the National Labor Relations Act—and thus were prevented from unionizing, so their votes in the union election were invalid.

There are numerous other examples of Kavanaugh issuing anti-worker rulings. In 2015, Kavanaugh ruled in favor of a Las Vegas casino that requested that police officers issue criminal citations against demonstrators protesting the lack of collective-bargaining rights of casino employees. And in 2013, he argued that a Black woman, LaTaunya Howard, couldn’t pursue a race discrimination suit after being fired from her position at the Office of the Chief Administrative Officer of the U.S. House of Representatives for “insubordination.” Howard alleged that her termination was both racially motivated and in response to complaints she’d made about racial pay disparities at her place of work. What’s more, Kavanaugh helped thwart an NLRB order that would have required the Trump Plaza Hotel and Casino to bargain with the United Auto Workers.

This anti-labor positioning is particularly injurious to women, who benefit disproportionately from union membership. The Institute for Women’s Policy Research found that women covered by a union contract earn an average of 30.9 percent more per week that women with non-union jobs, compared to men’s increase of 20.6 percent. Correspondingly, the wage gap between men and women workers is more narrow among those with union representation than those without it. The Economic Policy Institute reported last year that female union workers earn 94 cents for every dollar their male peers earn, versus 74 cents on the dollar without union safeguards.

Kavanaugh also has a history of jeopardizing the work benefits that inform earnings. Workers with union representation enjoy greater access to family, medical and maternity leave—an advantage for women, who are more often tasked with child and elder care than men, and often lose wages as a result. Unionized women are much more likely to have at least partially paid health insurance than those who aren’t unionized: Notably, 73.1 percent of women in union jobs have employer- or union-provided health insurance, an advantage only 49.1 percent of their non-union counterparts receive. It’s virtually the same case for retirement: The ratio of unionized to non-unionized women with employer-sponsored plans is 74.4 percent to 41.8 percent.

If unions and earnings among women are to be examined, it’s necessary to consider the huge impact a figure like Kavanaugh could have on Black women. Though the unionized workforce has decreased precipitously over the last several decades, Black women have traditionally had a higher rate of unionization, particularly in public-sector jobs, than women of other racial and ethnic groups. As of 2013, Black women outnumbered white, Latinx and Asian-American women in terms of unionization. And by 2015, unionized Black women outnumbered unionized Black men.

This is essential for a demographic that, research shows, would have to work an additional seven months to receive the same pay as white men, despite working more hours than white women. (Black women are also paid less than white men for the same job, independent of education level.)

The same urgency for protections applies to Latinx women, who are now the least likely of all women to have union representation. Statistics show that they’re in the most dire need of the boons of organized labor: Latinx women, for example, make 54 cents for every dollar earned by white men. As Esther López of United Food and Commercial Workers urges, “There exists a sure-fire way for Latina women to earn the better wages they deserve: joining a union in their industry. Latina women who have joined a union earn more than their non-union counterparts—$242 more per week, in fact, according to the Bureau of Labor Statistics.”

Another concern arising from Kavanaugh’s anti-labor record—and one particularly pointed in the wake of the allegations levied against him—is women’s vulnerability to workplace sexual harassment. The Equal Employment Opportunity Commission found that “25 percent to 85 percent of women report having experienced sexual harassment in the workplace.” Echoing López, writer Michelle Chen contends that collective bargaining is a viable means of combating this. “Union agreements,” she writes, “protect equality at work, provide everyday organizational support for workers, and promote public accountability by establishing legally binding conditions of employment,” and can pursue such measures as municipal anti-harassment ordinances.

Heeding Kavanaugh’s roster of rulings, the AFL-CIO, Communications Workers of AmericaNational Nurses United and other unions have formally opposed the now-Supreme Court associate justice. NNU has cited specific concerns for women, stating his assaults on collective bargaining rights and workers’ healthcare render him “unfit to serve on the Supreme Court of the United States.” The subtext is that women will pay the greatest price.

This article was originally published at In These Times on October 8, 2018. Reprinted with permission. 

About the Author: Julianne Tveten writes about the intersection of the technology industry and socioeconomic issues. Her work has appeared in Current Affairs, The Outline, Motherboard, and Hazlitt, among others.

Kavanaugh's SeaWorld dissent shows he wants to drag workers back a century

Tuesday, September 25th, 2018

During his years as a judge on the D.C. Circuit court, Brett Kavanaugh has dedicated a solid amount of time to writing extremist dissents to show us just what kind of a deciding vote he would be on the Supreme Court. One of those is his notorious SeaWorld v. Perez dissent, in which Kavanaugh said SeaWorld shouldn’t be held responsible for the killing of a trainer by an orca. Steven Greenhouse writes that the dissent is “remarkable because Kavanaugh shows far less sympathy to the whale trainer who was dismembered and killed than he shows to SeaWorld for being the victim of what he sees as government overregulation and overreach,” and that he “seemed to lack an empathy gene.”

It’s not just a lack of empathy, though. Kavanaugh’s dissent, Greenhouse suggests, is either profoundly ignorant of history or is an active attempt to undo historical progress:

He said that state tort law—for instance, lawsuits that workers bring against their employer because a machine chopped off an arm—would pressure SeaWorld to assure safety to its workers. But Kavanaugh bafflingly fails to realize that the workers compensation system was set up in the early 1900s in large part to prohibit workers from filing tort lawsuits against their employers. Moreover, state tort law compensates employees only after an arm is amputated or a worker is crippled, while government regulation in the form of OSHA aims to prevent such horrific injuries from ever happening.

In likening Dawn Brancheau to NFL players and NASCAR drivers, Kavanaugh essentially embraced a pro-corporate legal doctrine that was prevalent in the 19th century—that workers assume the risks inherent in a dangerous job. In other words, if Brancheau got killed or injured, well, tough luck. It’s on them. David Michaels, the head of OSHA under President Obama, criticized Kavanaugh for making “the perverse and erroneous assertion that the law allows SeaWorld trainers to willingly accept the risk of violent death as part of their job.” 

Is Kavanaugh that ignorant of history or is he fully aware of the brutal past of American workplaces, and knowingly trying to drag us back to that brutality? Given the totality of what we know about him, the latter seems the safe bet.

This blog was originally published at Daily Kos on September 24, 2018. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.

A Rundown of All the Ways Trump Is Overseeing an All Out, Under-the-Radar Attack on Workers

Friday, August 17th, 2018

Amidst headlines about porn stars and bromance with Russian President Vladimir Putin, it can be hard to track the many ways the Trump administration is hurting workers in the United States. The Supreme Court’s Janus ruling that struck a blow to unions’ ability to collect membership dues held a brief spotlight in the national news churn. But in a more-quiet fashion, the Trump administration already has been slowly dismantling worker protections, especially those enacted under the Obama administration.     

During his presidential campaign, Donald Trump repeatedly proclaimed that he would help workers. He even boasted, “I have great relationships with unions.” But actions speak louder than words, and the policies pursued by the Trump administration have directly targeted middle and lower-income workers and labor unions.

The anti-labor attack gained momentum in the last weeks of 2017. President Trump had to wait until his two nominees to the five-member National Labor Relations Board (NLRB) were confirmed. Those new members flipped the board’s majority from Democratic to Republican. The NLRB, which oversees collective bargaining law and enforcement of U.S. labor laws and standards, then quickly issued a slew of key decisions that rolled back a number of worker- and union-related reforms.

In one of the most important changes, the NLRB reversed a 2011 ruling that helped workers form smaller unions within a single workplace. The precedent set under Obama allowed the holding of a union election without including all the different types of jobs within that business that don’t share similar job duties, wages and working conditions. Employers complained that it led to “micro unions.” In a specific case, after 100 welders unionized at a large manufacturing plant, the NLRB ruled that the smaller organizing unit was illegitimate since any union election would have to include all 2,500 workers at the company, spanning 120 job classifications. The NLRB ruled 3-2 along partisan lines.

Another consequential case decided under Trump will hurt low-income fast food workers. The Trump board overturned a major 2015 decision that ruled employers are responsible for bargaining with workers, even if they have only indirect control over those workers’ employment. Fast-food companies like McDonald’s license smaller franchise businesses to run most of their restaurants. McDonald’s instructs these franchises on how to operate but leaves them to control many aspects of their day-to-day business. For decades, franchise employees who wished to bargain collectively were caught in a vicious trap. Their boss, the franchise operator, could insist that McDonald’s controlled the terms of their employment. But if they tried to bargain with McDonald’s, the company would insist that the franchise operator was their true employer.

Obama’s NLRB solved this problem by clarifying that companies like McDonald’s are, jointly with franchise operators, employers of these workers and can be forced to the bargaining table. This new standard permitted much more meaningful collective bargaining among millions of low-wage workers. Longer term, that ruling on joint employers would have dramatically improved collective bargaining rights in the fast-food industry. But the GOP majority on the NLRB scrapped this standard, returning to an old, stringent policy that requires employers to exercise “immediate and direct” control in order to be liable under labor law.

Other damaging decisions by Trump’s NLRB include:

— Reversing a 2004 decision bolstering workers’ rights to organize free from employer interference.

— Reversing a 2016 decision safeguarding unionized workers’ rights to bargain over changes in employment terms.

— Overturning a 2016 decision that required settlements between employers and employees to provide a “full remedy” to aggrieved workers, instead of partial settlements.

All of these were 3–2 decisions, with Republicans in the majority and Democrats dissenting.

Beyond the NLRB

But the NLRB is only one federal agency. Trump’s Labor Department has also rolled back several rules and executive orders that the Obama administration issued to protect workers. Those include the Fair Pay and Safe Workplaces rule, which required companies bidding for large federal contracts to disclose and correct past labor and safety violations. Another rescinded rule had established guidelines for when states can drug-test applicants for unemployment insurance benefits. Also rescinded was the “persuader rule,” which required law firms to publicly disclose any work they do for employers trying to fight against union organization efforts.

Meanwhile, the Occupational Safety and Health Administration (OSHA) has delayed three workplace safety rules issued during the last year of Obama’s presidency. Those rules required certain employers to submit injury and illness data electronically to OSHA for publication on the agency’s website; tightened exposure standards for silica dust, which is often breathed in by certain construction workers and linked to lung disease; and weakened workplace exposure limits for beryllium, an industrial mineral linked to lung cancer.

The Supreme Court also ruled to allow employers to require workers to sign arbitration agreements that waive their rights to file class or collective action lawsuits. Last June, Trump’s acting solicitor general filed a brief with the Court that took the opposite stance from the Obama administration, asserting that mandatory arbitration agreements do not violate the National Labor Relations Act and are enforceable under the Federal Arbitration Act.

Another important ruling made under the Obama administration regarded which workers were eligible to receive overtime pay. The Obama-era rules required nearly everyone paid less than $47,476 a year to be eligible for time-and-a-half overtime pay when they worked more than 40 hours a week. That was a big jump from the $23,660 threshold in place since 2004, and a cornerstone of the Obama administration’s efforts to lift wages. But a federal judge in Texas blocked that rule a week before it was scheduled to take effect, and Obama’s Labor Department appealed. However, Trump’s Labor Department filed a brief in federal appellate court indicating it will not advocate for these overtime changes.

In addition to all that, the Trump administration has proposed $2.6 billion in budget cuts—an enormous 21 percent—to the Department of Labor. Those cuts include a proposed elimination of four department programs and their services, such as training for worker-safety and for migrant farmworkers. The budget also seeks to significantly slash funding for Job Corps, a program that provides job training to disadvantaged youth, by $407 million, or 24 percent. Dimitri Iglitzin, a labor attorney in Seattle, says that “Of all of the ways that the Trump administration has been crushing labor, the most important has been the neutering of the Department of Labor. On a day-to-day basis, the agency that should be fighting for working people is doing so no longer.”

Typically, when the U.S. government shifts from a Democratic presidential administration to a Republican one, a certain level of pro-business policies and erosion of labor rights is expected. However, many labor experts say that the presidency of Donald Trump has led to a repeal of Obama administration regulations that is unprecedented, and is proceeding faster than is typical under a new GOP administration. Celine McNicholas, labor counsel at the Economic Policy Institute in Washington D.C., says the Trump rollbacks of various pro-labor rules and regulations, in addition to deep cuts to the Labor Department’s budget, have been devastating to U.S. workers and “are not business as usual.”

In just over a year and a half as president, Donald Trump has wiped away a number of the modest policy gains that organized labor made during the Obama years. The nominees he chose to fill crucial regulatory roles already are making it more difficult for workers. Taken together, this blizzard of decisions will hurt millions of workers and weaken their abilities to unionize and bargain collectively.

Another way forward

But it does not have to be like this. Germany, Sweden and other EU member states show another path that is better for workers and that creates a stronger relationship between businesses, employees and trade unions.

Countries like Germany and Sweden have stronger labor laws than in the United States, and consequently more influential trade unions. In addition, many EU member states benefit from what is known as “co-determination,” which includes works councils at every job site and worker-elected boards of directors for the biggest of businesses, including Fortune 500 companies. Imagine if Walmart and Amazon were legally required to allow its workers to elect up to 50% of the members of its board of directors? It’s unimaginable to most Americans, yet this is standard practice throughout Europe. Co-determination fosters a “culture of consultation” and a degree of economic democracy. As a result, there is more broadly shared prosperity, with social supports like universal health care, child care, affordable university education, affordable housing, job training/re-skilling, workplace protections, a decent retirement and more.

In an age of growing inequality, the European practice of co-determination has broken with a strictly “shareholder model,” and has set a standard for corporate governance that holds great potential for the digital age if used in a widespread fashion.

Labor attorney Thomas Geoghegan has proposed that U.S. states should try out codetermination. Geoghegan says states should offer tax breaks to companies that allow rank-and-file employees to elect a third to a half of its corporate board of directors. Doing so, says Geoghegan, would allow U.S. companies to test drive an alternative model to the current dysfunctional stockholder model. Also, states could try out this model by requiring that nonprofits, NGOs and universities allow their employees to elect a portion of its board of directors or trustees.

Three senators (Democrats Tammy Baldwin, Elizabeth Warren and Brian Schatz) have introduced legislation that would require that companies allow workers to elect one-third of their corporate board. The bill is not expected to pass, and while the AFL-CIO has endorsed this legislation, historically unions and labor advocates have not taken up this cause. Yet labor leaders don’t seem to have any other proposals that might stop the hemorrhaging of union members.

Certainly such progressive proposals are going nowhere at the federal level under the administration of Donald Trump. So the landscape for political change has shifted to states and to cities where Democrats and progressives are more dominant. Still, even when Democrats have been in control, whether at the federal level under President Obama or in heavily Democratic states like California, Maryland and Massachusetts, there has been little appetite to push the boundaries of ways to support labor unions or progressive labor reform.

Which is surprising, since the unionization rate in the United States has fallen to fewer than 7 percent in the private sector and 11 percent of all workers. And future prospects don’t look too bright.

In an age when many workers are becoming freelancers and contractors who supposedly are the “CEOs of their own business” (whether driving for Uber, or being a hotelier for Airbnb, or a freelancer for Upwork and dozens of other online platform companies), the fate of labor unions hasn’t been this threatened in nearly a century. The Trump administration is just the latest nail in a slowly closing coffin that has been in process for decades. It’s time for U.S. labor unions to try new tactics.

This article was originally published at In These Times on August 17, 2018. Reprinted with permission.

About the Author: Steven Hill is a senior fellow at FairVote, a former senior fellow and political reform program director with the New America Foundation, and former Holtzbrinck fellow at the American Academy in Berlin. For more information, visit Steven Hill’s website at www.Steven-Hill.com and follow him on Twitter @StevenHill1776.

Trump's Supreme Court pick is eager to take the war on workers up a notch

Tuesday, July 17th, 2018

Another week, another bout of Supreme Court-related horror for workers. Up this week, Donald Trump’s nomination of Brett Kavanaugh. It’s bad. It’s really, really bad—a reminder that, even following a disastrous-for-workers Supreme Court session, things can get worse.

  • Daily Kos’ own Meteor Blades wrote about Kavanaugh’s awful SeaWorld dissent, noting that Kavanaugh’s demeanor as he makes the rounds of the senators he needs to vote to confirm him is surely a sharp contrast with “the snarls and sneers and outright contempt contained in his judicial record when he talks about workers.”
  • Brett Kavanaugh once sided with an anti-union company that scapegoated undocumented workers, Ethan Miller writes. Oh, and the son of the owner of that company? Was sentenced to prison, the company’s violations were so egregious … and then Donald Trump pardoned him.
  • Moshe Marvit writes that Trump’s Supreme Court pick could spell a fresh hell for workers, citing repeated cases in which Kavanaugh ruled against the most basic exercises of the right to organize, like wearing t-shirts critical of the employer or displaying pro-union signs in parked cars.
  • And while I haven’t come across any allegations that Kavanaugh has a history of sexual harassment—and in fact the execrable Amy Chua wrote in the Wall Street Journal that he’s been a good mentor to women (I’m not linking, the piece is so disgusting and such an indictment of the elite legal world)—it’s worth noting that Kavanaugh clerked for and remained notably close to Judge Alex Kozinski, who was forced to retire due to a well-established pattern of harassment. Did he know? It’s a question worth asking. And if he didn’t know, how didn’t he know?

This blog was originally published at Daily Kos on July 14, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.

Trump’s Supreme Court Pick Could Spell a Fresh Hell for Workers’ Rights

Tuesday, July 10th, 2018

On Monday, President Donald Trump announced his nomination of conservative Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. If Kavanaugh is confirmed, Chief Justice John Roberts, a fellow conservative, will become the ideological and political center of the Supreme Court, and protections for women, minorities, voting rights, civil liberties and more could come under threat. Workers and labor unions should be particularly concerned about Judge Kavanaugh’s history of siding with businesses against workers and for pushing a deregulatory agenda.

In his 13 years on the Court, Chief Justice Roberts has helped to unleash unlimited corporate money into politics, open the door to mass voter disenfranchisement and lay the groundwork to strengthen the power of corporations over consumers and employees. He has also, in the words of Justice Elena Kagan, led the conservative project of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” This is who will now be the swing vote on the Supreme Court if Kavanaugh is confirmed.

Kavanaugh, who is 53 years old, once clerked for Judge Alex Kozinski, who abruptly retired last year after a long history of sexual harassment was revealed. Previously, Kavanaugh worked with Kenneth Starr to investigate President Clinton and draft the report that lead to Clinton’s impeachment. Over his last 12 years on the D.C. Circuit Court of Appeals,  Kavanaugh has shown himself to be an extraordinarily conservative judge. An analysis by Axios determined that Kavanaugh is just slightly less conservative than the most conservative member of the Court, Clarence Thomas.

A review of Judge Kavanaugh’s decisions regarding workers’ rights shows a disturbing trend of siding with employers on a range of issues.

In Southern New England Telephone Co. v. NLRB (2015), Kavanaugh overruled the NLRB’s decision that the employer committed an unfair labor practice when it barred workers from wearing T-shirts that said, “Inmate” on the front and “Prisoner of AT$T” on the back. Under the law, employees are permitted to wear union apparel to work, and the NLRB found that these shirts were protected under the National Labor Relations Act. The Board rejected the argument that “special circumstances” warranted limiting workers’ rights, because no reasonable person would conclude that the worker was a prison convict.

Kavanaugh rejected the Board’s legal analysis, writing, “Common sense sometimes matters in resolving legal disputes. … No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say ‘Inmate’ and ‘Prisoner.’” Kavanaugh was undoubtedly correct in his understanding of the company’s desire not to have workers wear such shirts, which is precisely why the workers did so. What the unions did in wearing the shirts was apply pressure in a labor dispute in a manner that the law has long allowed. However, Kavanaugh criticized the Board’s analysis, writing that “the appropriate test for ‘special circumstances’ is not whether AT&T’s customers would confuse the ‘Inmate/Prisoner’ shirt with actual prison garb, but whether AT&T could reasonably believe that the message may harm its relationship with its customers or its public image.” By shifting the focus to the employer’s public image, Kavanaugh undercut the right of workers to publicly protest and dissent.

In Verizon New England Inc. v. NLRB (2016), Kavanaugh overturned the NLRB’s ruling that workers could display pro-union signs in their cars parked in the company parking lot after the union waived its members’ right to picket. In his decision, Kavanaugh held that “No hard-and-fast definition of the term ‘picketing’ excludes the visible display of pro-union signs in employees’ cars rather than in employees’ hands, especially when the cars are lined up in the employer’s parking lot and thus visible to passers-by in the same way as a picket line.” Therefore, according to Kavanaugh, the union’s waiver of the right to picket also applied to signs left in cars.

Judge Kavanaugh again overruled a pro-worker NLRB decision in Venetian Casino Resort, L.L.C. v. NLRB (2015). The NLRB had determined that the casino committed an unfair labor practice when, in response to a peaceful demonstration by employees (for which they had a permit), the casino called the police on the workers. Citing the First Amendment, Kavanaugh held that “When a person petitions the government in good faith, the First Amendment prohibits any sanction on that action.” Calling the police to enforce state trespassing laws, Kavanaugh concluded, deserved such protection.

In UFCW AFL CIO 540 v. NLRB (2014), Judge Kavanaugh issued an anti-worker decision involving Wal-Mart’s “meat wars.” After 10 meat cutters in Jacksonville, Texas, voted to form the first union at a Wal-Mart, the company closed its meat operations in 180 stores and switched to pre-packaged meats. (The notoriously anti-union Wal-Mart denied that its decision had anything to do with the union vote.) After the switch, Wal-Mart refused to bargain with the meat cutters, arguing that they no longer constituted an appropriate bargaining unit. Judge Kavanaugh agreed with Wal-Mart’s argument, but did write that Wal-Mart must bargain with the union over the effects of the conversion of the employees.

Judge Kavanaugh has consistently sided with employers in labor law cases, to the detriment of workers’ labor rights. He also has argued that the Consumer Financial Protection Bureau, established in 2011, is unconstitutional, and Aaron Klein, director of the Center on Regulation and Markets at the Brookings Institution, has said that his nomination “could reverse over a century of American financial regulation.”

Labor advocates should be extremely concerned about this ideological bent if Kavanaugh becomes a justice on an already very business friendly—and conservative—Supreme Court.

This article was originally published at In These Times on July 10, 2018. Reprinted with permission.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

Janus Is Here—But Don’t Ring the Death Knell for the Labor Movement

Wednesday, June 27th, 2018

In a major decision that will impact labor for decades, the U.S. Supreme Court has just declared that all public-sector workers who are represented by a union have a Constitutional right to pay the union nothing for the representation.

The Court overturned its landmark 1977 decision in Abood v. Detroit Board of Education, which permitted public-sector unions to charge fair-share fees that covered the costs of providing collective bargaining and contract administration to non-members that were represented by the union. Today, in Janus v. AFSCME, the Supreme Court has held that the First Amendment prohibits public employee unions from charging a mandatory fee for the costs of representation. Therefore, going forward, all public-sector employees will be under so-called “right to work,” the union-busting legal framework that denies unions the ability to charge workers dues. This decision will directly and indirectly impact how unions are structured, how they engage with their members and objectors, how they organize and educate and how they are funded. But this decision will not destroy, defund or decimate labor.

First off, the Janus decision will only directly impact less than half of the labor movement. This is because the ruling only applies to public-sector workers: federal, state and local government employees. However, federal employees (including postal employees) have long been under so-called “right to work,” so Janus will have minimal direct impact on them. Furthermore, many state and local public-sector workers are already in “right to work” states, so this ruling will have no effect on them. This is not to say that the whole labor movement will not be negatively impacted by a decline in membership among public-sector unions, but it is important to remember that Janus will not place all union members under “right to work.”

It is difficult to predict what effect Janus will have on union membership overall. There is a good chance there will be at least some decline in membership, thanks to the free-rider problem: the likelihood of some workers who are not opposed to the union choosing to pay nothing simply because they can get something for nothing. However, state-level data on the decline of union membership following the passage of state “right to work” laws is not necessarily a good predictor of what will happen after Janus, because most of the state laws are a mixture of anti-worker laws that include “right to work.” For example, in Wisconsin, union membership declined 38 percent  between 2010 (the year prior to the passage of Act 10) and 2016. However, Act 10 contained a host of other provisions, such as the elimination of collective bargaining for public-sector workers.

Following Janus, unions will now have to fight for every union member to ensure they choose to remain members and pay their dues. Right-wing groups of the sort that brought Janus, Friedrichs and other anti-union cases, will mount a nationwide campaign to get members to quit the union. Many labor unions that have not been strong in engaging their membership will have to keep up a constant level of contact and organization to maintain their memberships or risk losing big. They will have to make the case to members why they should stay with the union and pay dues, and they will have to make that case often.

Unions are considering a number of options for getting state laws changed, or changing internal policy, to adjust to Janus. New York passed a law in anticipation of Janus, which other states are considering, that would allow unions to deny or charge for some services, such as grievance representation. Some states are considering laws that would require workers who are not members of the union to pay for representation in grievance procedures. This approach would have the benefit of discouraging free-ridership by not providing the full benefits of membership to those workers who choose not to join. However, it carries the danger of turning unions into pay-for-service organizations that will find themselves turning away workers in their time of need.

Labor law professor Samuel Estreicher has proposed an interesting approach that unions could take that would reduce the rate of possible free-riders, not require legislation, and not require unions to turn away non-paying workers. Estreicher argues that unions should require workers who choose not to pay their union dues to instead donate the money to a 501(c)(3) charity. Unions already permit religious objectors to take this route, and Estreicher suggests expanding the program to any objectors. Since this approach would require all workers to pay an amount equivalent to their dues—but would let them decide if the recipient was the union representing them or a charity—it would separate the true objectors from the free-riders.

The allowance of fair-share fees, in both the public and private sector, was in part intended to promote labor peace, and the imposition of “right to work” may lead to more strikes and labor unrest. The massive teacher strikes this year in West Virginia, Kentucky, Oklahoma, Arizona, Colorado and North Carolina have all taken place in “right to work” states, and this commonfact was likely no coincidence. Workers in “right to work” states tend to have lower salaries and fewer benefits. Meanwhile, unions are weaker, possibly because they serve as a moderating force to avoid direct—and often illegal—confrontation. These effects from “right to work” can create an environment where workers’ frustration grows, they have few options to better their situations without direct action, and they organize at a grass-roots level. After Janus, with “right to work” becoming the new rule for all public-sector workers, there may be a break from a long period of U.S. history when strikes have been rare.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.
This article was originally published at In These Times on June 27, 2018. Reprinted with permission. 

Supreme Court takes up case that will devastate public sector unions

Friday, September 29th, 2017

In what is all but certain to be a terrible blow to organized labor, the Supreme Court announced on Thursday that it will hear Janus v. AFSCME, a case seeking to defund public sector unions. The case presents an issue that was recently before the Court, and where the justices split 4-4 along party lines.

Now that Neil Gorsuch occupies the seat that Senate Republicans held open for more than a year until Donald Trump could fill it, he holds the fifth vote to deliver a staggering blow to the union movement.

The issue in Janus involves what are sometimes referred to as “agency fees” or “fair share fees.” As ThinkProgress explained when this issue was last before the Court:

Unions are required by law to bargain on behalf of every worker in a unionized shop, even if those workers opt not to join the union. As such, non-members receive the same higher wages (one study found that workers in unionized shops enjoy a wage premium of nearly 12 percent) and benefits enjoyed by their coworkers who belong to the union.

Absent something else, this arrangement would create a free-rider problem, because individual workers have little incentive to join the union if they know they will get all the benefits of unionizing regardless of whether they reimburse the union for its costs. Eventually, unions risk becoming starved for funds and collapsing, causing the workers once represented by a union to lose the benefits of collective bargaining.

To prevent this free-rider problem, union contracts often include a provision requiring non-members to pay agency fees.

The plaintiff in Janus asks the Supreme Court to declare these agency fees unconstitutional, at least in contracts involving public sector unions, under what can charitably be described as an aggressive reading of the First Amendment. Indeed, prior to his death, even conservative Justice Antonin Scalia sometimes appeared skeptical of the plaintiff’s legal theory (although he did join an opinionthat embraced much of it).

With Gorsuch on the bench, however, there is little suspense regarding how Janus will come down. Unions will almost certainly be severely weakened by this decision. And, as a benefit to the Supreme Court’s increasingly partisan majority, that will also weaken a key arm of the Democratic party’s political infrastructure, making it more likely that the Court will remain in Republican hands.

This blog was originally published at ThinkProgress on September 28, 2017. Reprinted with permission.

About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Supreme Court opens its new term with a direct attack on workers’ rights

Monday, September 25th, 2017

The Supreme Court returns next Monday from its summer vacation for the first full term where Neil Gorsuch will occupy a seat at the far end of the Court’s bench. And the Court will open this term with a trio of cases that are very likely to immunize many employers from consequences for their illegal actions.

The three cases — National Labor Relations Board v. Murphy Oil USAErnst & Young LLP v. Morris, and Epic Systems v. Lewis — all involve employment contracts cutting off employee’s rights to sue their employer for legal violations.

In at least one case, employees were required to sign the contract as a condition of beginning work. In another, employees were forced to give up their rights as a condition of keeping their job. These contracts contained two restrictions on the employees: 1) a “forced arbitration” provision, which requires any legal disputes between the employer and the employee to be resolved in a privatized arbitration system; and 2) a provision prohibiting employees from bringing class actions or other collective suits against their employers.

Requiring private arbitration favors employers over employees. As an Economic Policy Institute study determined, employees are less likely to prevail before an arbitrator than before a court, and they typically receive less money from an arbitrator when they do prevail.

Banning class action suits, meanwhile, effectively permits employers to violate the law with impunity, so long as they do not do too much harm to any individual employee.

If an employer cheats one employee out of $300,000 worth of wages, for example, that employee is likely to be able to find a lawyer who will take his case on a contingency basis — meaning that the lawyer gets a percentage of what the employee collects from the employer if they win. If the same employer cheats 10,000 employees out of $30 each, however, no lawyer is going to represent any one of these workers on a contingency basis. Plus, few employees are likely to bother with a $30 suit. It’s too much hassle, and too expensive to hire a lawyer who won’t work on contingency. The solution to this problem is a class action suit, which allows the 10,000 employees to join together in a single case litigated by a single legal team.

Banning such class actions effectively leaves these employees without remedy. As one federal judge explained, “the realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

The employer’s claim that they can combine a forced arbitration clause with a class action ban arises out of two previous Supreme Court cases that took an extraordinarily creative view of a nearly 100-year-old law.

In 1925, Congress enacted the Federal Arbitration Act to allow, as Justice Ruth Bader Ginsburg once explained, “merchants with relatively equal bargaining power” to agree to resolve their disputes through arbitration. Beginning in the 1980s, however, the Court started to read this law expansively to permit forced arbitration between businesses and relatively powerless consumers and employees.

Then, the Court got even more aggressive. By its own terms, the Federal Arbitration Act exempts “workers engaged in foreign or interstate commerce.” Nevertheless, in its 5-4 decision in Circuit City v. Adams, the Supreme Court held that the Act applies to most workers engaged in foreign or interstate commerce. Thus, forced arbitration clauses in employment contracts were given special protected status, even though the federal law governing these clauses says otherwise.

Similarly, Justice Antonin Scalia wrote for a 5-4 Court in AT&T Mobility v. Concepcion that the Federal Arbitration Act has penumbras, formed by emanations from its guarantees that give it life and substance. The right of businesses to insert class action bans, Scalia claimed, is one of these penumbras contained in the 1925 law. And so businesses gained the power to add no class action clauses to their forced arbitration agreements, even if a ban on class actions violates state law — and despite the fact that the Federal Arbitration Act says nothing about class actions.

Nevertheless, the employees in Murphy Oil and its companion cases hope that another provision of law will protect them from signing away their right to join a class action.

A provision of the National Labor Relations Act (NLRA) provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Several lower courts have held that an employee’s right to engage in “concerted activities” protects their right to join class actions, and they cite multiple previous Supreme Court decisions which lend credibility to this claim.

In a world governed by the text of the law, employees would have a strong case that they cannot be forced to give up their right to bring class action litigation. But we live in a world governed by Circuit City and Concepcion — both of which demonstrate the Supreme Court’s willingness to take liberties with the law in forced arbitration cases.

This article was originally published at ThinkProgress on September 25, 2017. Reprinted with permission.
About the Author: Ian Millhiser is the Justice Editor for ThinkProgress, and the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.

Labor Opponents Already Have The Next ‘Friedrichs’ SCOTUS Case Ready to Go Under Trump

Tuesday, January 10th, 2017

The Supreme Court gave unions an unexpected victory last year when it issued a decision in a case that had threatened to take away the right of public sector unions to collect dues from workers they represent. That win may be short-lived.

Friedrichs v. California Teachers Association was meant to be the capstone in decades of cases that sought to have the courts determine that fair-share fees for public sector workers are unconstitutional. Fair-share fees, or agency fees, require workers represented by a union to pay the portion of fees that covers collective bargaining. They seek to balance the worker’s right to dissent from the union by relinquishing membership and not paying for activities that aren’t related to collective bargaining, with the union’s right to avoid free riders and not be forced to represent a worker who contributes nothing.

The Supreme Court, largely through decisions written by Justice Samuel Alito, had indicated that its 1977 case that allowed for fair-share fees in the public sector was ripe for a rare overturning by the Court. It all but invited a challenge. Several cases were in the pipeline, but Friedrichs took the unusual approach of conceding before each lower court that it should be dismissed so that it could move quickly to the Supreme Court. Friedrichs faced a hostile oral argument before a conservative majority; unions braced for the worst. Then, as the Court was drafting its opinion, Justice Antonin Scalia died, and with him, so did Friedrichs. The Supreme Court issued a tied 4-4 decision affirming the lower court in March.

However, there is another case in the pipeline that was stayed pending the outcome of Friedrichs. That case, which began as Rauner v. AFSCME, was originally brought by the ultra-wealthy Republican Illinois Gov. Bruce Rauner, who—shortly after taking office—issued an executive order placing all fair-share fees in an escrow account, rather than turning them over to unions. But Rauner screwed up a basic part of the case because he didn’t have standing to bring the case.

A federal judge wrote that Rauner “has no personal interest at stake. He is not subject to the fair share fees requirement. Instead, he essentially claims to have a duty to protect the First Amendment rights of all public employees in the state … In effect, he seeks to represent the non-member employees subject to the fair share provisions of the collective bargaining agreements. He has no standing to do so. They must do it on their own.”

To fix the problem, employees filed as intervenors (“undoubtedly with the Governor’s blessing,” as the judge noted), with the backing of the National Right to Work Legal Defense Foundation and the Liberty Justice Center.

Janus v. AFSCME, named after one of the workers, is pursuing the same strategy as Friedrichs in trying to get to the Supreme Court quickly. The Janus plaintiffs filed their second amended complaint in July, stating that the Supreme Court’s 1977 Abood v. Detroit Board of Education case, which permitted fair-share fees, remains good law, and all but invited the District Court in the Northern District of Illinois to dismiss their complaint. The District Court did so, and in their appeal to the Seventh Circuit Court of Appeals, the plaintiffs similarly state that their case must be dismissed. The goal, of course, is to get the case in front of the Supreme Court just as a Donald Trump appointee to the Court is seated.

Seattle University School of Law professor Charlotte Garden explains that this strategy also “allows the case to go up without a factual record. This means that there is no record that the unions can point the justices to in order to show the importance of agency fees.”

In Friedrichs, Justices Ruth Ginsburg and Stephen Breyer tried to give the union’s attorney the opportunity to state what he would have put in the record if he had had the opportunity to do so. But, as Garden explains, “being asked to make a proffer before the Supreme Court is tricky without the ability to engage in discovery.”

The Janus case is almost identical to the Friedrichs case in that both are premised on the idea that there is no line in the public sector between political and non-political activity. Conservatives justices have firmly embraced this rational, as was evident during the Friedrichs oral argument when Chief Justice John Roberts challenged California’s attorney to give his “best example of something that is negotiated over in a collective bargaining agreement with a public employer that does not present a public policy question.” The attorney responded that mileage reimbursement rates were such an example. Roberts shot back, “That’s money. That’s how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money.”

If everything that a public sector union does is political, then it is a much shorter line to find that a worker should not have to pay any part of the costs of collective bargaining. This would be a very worrisome conclusion for unions, which must do what they can now to stop such an outcome from happening.

As Democrats and the labor movement prepare for a possible fight over Trump’s imminent appointment to the Supreme Court, they should recognize that several major labor cases, brought by some of labor’s most persistent enemies, are waiting in the wings. Senators should question nominees about their view of Abood and other Supreme Court precedents that protect public employees’ labor rights. And if labor has any sway within the Democratic Party, it should make it clear that these issues should be disqualifying for any new appointment to the Court.

This post originally appeared on inthesetimes.com on January 4, 2017.  Reprinted with permission.

Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

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