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Posts Tagged ‘Class Actions’

Ahead of CFPB Rule, Congress Prepares for a Showdown over the Future of Forced Arbitration and Consumer Class Actions

Tuesday, March 21st, 2017

Last week, lawmakers laid the groundwork for a battle over consumer rights and forced arbitration that likely will play out through the spring.

First, congressional Democrats introduced several bills to restore consumers’ right to hold corporations accountable in court for wrongdoing. Led by U.S. Sen. Al Franken (D-Minn.), lawmakers on March 7 introduced a slate of bills aimed at ending the use of forced arbitration in various sectors. Forced arbitration provisions, also known as “ripoff clauses,” block consumers from challenging illegal corporate behavior.

Lawmakers were joined at a packed press conference by people who had been harmed by forced arbitration: a veteran illegally fired from his job while serving in the military and blocked from suing his employer; a victim of Wells Fargo fraud whose class action was kicked out of court; and former news anchor Gretchen Carlson, barred from speaking out about sexual harassment she had suffered at Fox News.

Among the bills introduced were Franken’s Arbitration Fairness Act, which would prohibit forced arbitration in consumer, employment, civil rights, and antitrust cases and Sen. Sherrod Brown’s (D-Ohio) Justice for Victims of Fraud Act, which would close the “Wells Fargo loophole” by restoring consumers’ right to sue when banks open fraudulent accounts without their knowledge.

However, in stark contrast to this push to strengthen rights and restore corporate accountability, GOP lawmakers began pressing to make it harder for consumers to band together when harmed and take corporations to court.

Two days after the Franken press conference, the House passed H.R. 985, the so-called “Fairness in Class Action Litigation Act” would effectively kill class actions by imposing insurmountable requirements to file group lawsuits. This would make it nearly impossible for consumers to hold corporations accountable for illegal and abusive behavior.

Among other onerous provisions, H.R. 985 would require that each harmed person suffer the “same type and scope of injury.” Under this absurd standard, a Wells Fargo customer with two fake accounts opened in his or her name could be barred from joining together with customers who had three fraudulent accounts. The bill also would build in costly and unnecessary delays and appeals, limit plaintiffs’ choice of counsel, and drastically restrict attorneys’ fees.

Joining together in a class action often is the only chance real people have to fight back against widespread harm, including corporate fraud and scams – particularly when claims involve small amounts of money, where it would be too costly for an individual to pursue a separate claim. Class actions have also been critical vehicles for overcoming race- and gender-based discrimination and have been instrumental in achieving victories as momentous as desegregation of our schools, as was the case in Brown v. Board of Education.

Beyond protecting the rights of the disadvantaged, class actions act as a crucial check on corporate misbehavior by returning money to harmed consumers and workers. Removing the threat of class liability would encourage systemic fraud, as banks and lenders that pad their bottom lines by committing fraud would have a competitive advantage in the marketplace.

In the financial sector, the proposed CFPB arbitration rule is a major target of financial industry lobbyists precisely because it would restore the right of consumers to join class action lawsuits. According to the CFPB’s arbitration study, class actions returned $2.2 billion in cash relief to 34 million consumers from 2008-2012, not including attorneys’ fees and litigation costs. While the CFPB rule is expected to be finalized this spring, it would be rendered largely ineffective should H.R. 985 become law.

You can watch our video against H.R. 985 here and follow developments on Twitter using the hashtag, #RipoffClause.

This article originally appeared at FairArbitrationNow.org on March 17, 2017. Reprinted with permission.

Amanda Werner is Arbitration Campaign Manager with Public Citizen and Americans for Financial Reform, where her work focuses on the Consumer Financial Protection Bureau (CFPB)’s arbitration rulemaking. She represents a broad coalition of consumer, civil rights, labor, and community groups as part of a robust public campaign in support of a strong final rule against the #RipoffClause.

21 Female Senators to Help Decide Fate of Bill That Would Kill Harassment, Discrimination Suits

Monday, March 20th, 2017

Asking female applicants whether they were married and planned to have children in a job interview. Telling female employees how to dress (and show more skin). Overtly and concretely penalizing female employees for taking maternity leave. Promoting low-performing men over the highest-performing women. Asking women employees to have sex with their boss to advance their careers. Penalizing female employees for not taking part in alcohol-fueled corporate partying when they were pregnant or breastfeeding. Bragging about how many female subordinates a male executive had had sex with.

This sounds like the bad old days but, unfortunately, it isn’t. Just a few years ago, current and former female sales representatives at a medical cosmetics company, Medicis Pharmaceutical (now owned by Valeant Pharmaceuticals), banded together to bring a class action against their employer for regularly doing all of these things, and more, including unequal pay and retaliation for reporting discrimination and harassment. Each of the approximately one hundred women in the class who filed claims received an average of $44,000 in back pay and damages, and the attorney’s fees were not taken out of that compensation. That’s not small change.

But there’s more. In theory, an individual woman could have brought the case and gotten back pay and damages. What an individual woman could almost certainly not have done was force Medicis to change its practices – Medicis could have paid her money and washed its hands. Here, though, the class was able to use its leverage to get Medicis to agree to, among other things, create anti-discrimination policies and training; establish systems for investigating reports of discrimination and harassment; be transparent about how it set and measured sales goals; eliminate penalties for taking parental leave; and establish policies about alcohol at corporate events and intra-office romantic and sexual relationships. In other words, it took a class action to ensure that Medicis follows the law not just with regard to the women who sued, but with regard to all the women who come after.

In the minefield of workplace discrimination and harassment, there’s another advantage to class actions, too. One woman bringing these types of claims may (unfortunately and wrongly) be easily dismissed as too sensitive, as not qualified for the promotion she sought, or as subject to one-off comments from a single troublesome executive. She may also be retaliated against for speaking out – as many of the women in this suit were. But where woman after woman after woman tells the same story, she cannot be so easily dismissed.

And yet Congress is on the verge of wiping away the ability for women to band together and challenge such discrimination and harassment in the workplace. Last week, the House GOP narrowly approved the so-called “Fairness in Class Action Litigation Act.” The bill would drastically roll back the ability to bring class action lawsuits like the one against Medicis. Fourteen Republicans opposed the bill, along with every single Democrat in the House, but that wasn’t enough to defeat it. After being pushed through the House Judiciary Committee – without a hearing, and with a nighttime vote – the bill now makes its way to the Senate, where a record 21 female Senators will be among those deciding its ultimate fate. While the Senate has not yet scheduled any action on the issue, civil rights groups and their allies are mobilizing to ensure the House proposal never becomes law.

There are a lot of big, important and downright frightening ideas making the rounds on Capitol Hill these days, from taking away Americans’ health insurance to eliminating Meals on Wheels and turning the Environmental Protection Agency over to oil and gas lobbyists. But it’s imperative that voters insist their Senators give proper attention to this all-out assault on the courts. Unless they do so, a key tool in battling discrimination could quickly disappear. That threat is too real, too serious and has too many dire consequences for too many Americans for Senators to do anything other than give it the deliberative attention – and debate – that it deserves.

This article originally appeared at DailyKOS.com on March 19, 2017. Reprinted with permission.

Paul Bland, Jr., Executive Director, has been a senior attorney at Public Justice since 1997. As Executive Director, Paul manages and leads a staff of nearly 30 attorneys and other staff, guiding the organization’s litigation docket and other advocacy. Follow him on Twitter: .

Leah Nicholls joined Public Justice’s D.C. office in September 2012 as the Kazan-Budd Attorney. She was previously senior staff attorney for civil rights and general public interest at the Georgetown University Law Center’s Institute for Public Representation. Leah had also been a teaching fellow and adjunct law professor at the Law Center.

THINK YOUR RIGHTS ARE SAFE? THINK AGAIN...

Friday, March 3rd, 2017
Julia Roberts has delivered a lot of great lines. One of my favorites is from Erin Brockovich: “By the way, we had that water brought in specially for you folks. Came from a well in Hinkley,” she tells the alarmed corporate lawyer about to take a sip.In the movie, Roberts’ character meets with moms, dads, and children who’ve become sick after the local utility let poisons leak into their small town’s drinking water. “You want their diseases?” she asks after rattling off a list of people affected by the spill.

Roberts’ character helps the people of the town band together to sue the company. This type of lawsuit—called a class action—has been used by Americans of all stripes for the past 50 years to fight back when an unethical business or unjust government policy is making them sick, cheating them of their money, or otherwise screwing them over.

But now, because of corporate special interests and their influence over some members of Congress, class actions are in grave danger of becoming a thing of the past.

Late in the evening on Feb. 17, when the rest of us were distracted by Trump’s latest tweet, a bill got served up in Congress that would sound the death knell for class actions. Through a long list of new rules (that sound almost innocent to the non-lawyer, but are anything but), the bill would make it so class actions essentially become extinct. The House is set to vote on this bill (H.R. 985, the misnamed “Fairness in Class Actions” bill) next week, probably on Wednesday, March 8.

I work at a small nonprofit that supports David v. Goliath type cases like the one in Erin Brockovich. Some of the cases are famous—think the 21st century equivalent of Brown v. Board of Education or the multi-state case against Big Tobacco. Others you’ll probably never hear about, but they fight against injustice (and win!) for groups who too often have no power: foster kids, immigrants, Native Americans, the sick, and seniors.

Without this essential check in place, our delicately balanced system would tip over and land with a heavy thud onto the side of corporate special interests. Sure, the vast majority of businesses are ethical and most government policies are fair—but what about when they aren’t? What about when the poisons in the groundwater give us cancer, or when our employer refuses to promote women because they have this annoying habit of getting pregnant, or when our bank creates a bunch of fake accounts or cooks the books or destroys our retirement in some other new way they’ve dreamt up? What would we do then, if class actions were impossible?

We could still sue individually, but that assumes anyone could afford to foot the legal bill. Do you know how much it costs to hire your own lawyer for a lawsuit like this? $10,000? That barely gets you started. $100,000? Maybe. But if your case stretches on for a decade, as some cases do, try over $1,000,000—what with depositions and electronic discovery to conduct, motions to dismiss to fight off, and appeals on top of appeals on top of appeals.

I don’t know about you, but I don’t have a million dollars (or even one-tenth that) to devote to suing anybody. Right now there is no line item in my family’s budget for “lawsuits.” So basically, in a no-class-action future scenario, if I get screwed over by a company or the government, there will be absolutely nothing I can do about it. This would be a huge win for anyone itching to start their own Ponzi scheme, but a terrifying disaster for the rest of us.

Listen, I understand. There are a lot of crazy things going on right now, and we’ve all got a lot to worry about. But this is important. We all need to stop reading this article and immediately call/email/fax our Congressional representatives and tell them to vote NO on H.R. 985.

Otherwise, when the excrement hits the air conditioning (thanks to Kurt Vonnegut for that delicate phrasing), we regular Americans will have no power to fight back. And call me cynical, but there sure does seem to be a lot of excrement flying around these days. This is no time to allow our elected officials to take away one of our most significant tools of self-protection.

I hope I never have to band together with thousands of my fellow Americans to sue a corporate giant or branch of government, but I most definitely want to retain the right to do so.

Click here to find out more about H.R. 985 and what you can do to stop it.

This blog originally appeared on impactfund.org on March 2, 2017. Reprinted with permission.

Amy Daniewicz is the Grant Program Administrator at the Impact Fund. Prior to working at the Impact Fund, Amy worked in a similar capacity for the Michael & Susan Dell Foundation, where she managed grants supporting children in the Austin community. Prior to that, Amy worked as a non-profit communications director, an entrepreneur, and a blogger. Amy holds a master’s degree in social work from the University of Texas at Austin and a bachelor’s degree in English from Trinity University. Amy’s favorite joys in life are spending time with her husband and three children, making and eating good food with friends and family, and enjoying the beauty of nature.

House GOP’s Bill to Eliminate Nearly All Class Actions Would Encourage More Ponzi Schemes & Other Corporate Cheating

Thursday, March 2nd, 2017

There was a lot of national attention when Bernie Madoff’s Ponzi scheme collapsed and it became clear that he had stolen hundreds of millions of dollars from investors around the country. Many thousands of stories were written about how he went to prison, the SEC investigated both the scheme and how the scheme had been able to go on so long, and a number of private lawsuits tried to recover money for investors from various people who enabled his scheme.

But in all of the coverage of Madoff’s Ponzi scheme, I never saw a single story that said “this is actually good for the free market; what we really need is for Congress to try to block lawsuits that would let investors recover their money from the crooks and discourage these schemes.”

A couple of years later, enter Congressman Bob Goodlatte (R-Corporate Lobbyist Heaven), with his ironically titled “Fairness in Class Action Litigation Act,” which passed through the House Judiciary Committee two weeks ago. Its passage was a remarkable feat of avoiding public notice or debate, with Goodlatte ramming through the legislation in the middle of the night, voting down all amendments along party lines, and refusing to even hold a hearing on the bill, which had at least ten new provisions never included in the previous version passed by the Committee.

Now, the bill is expected to be voted on by the full House next Tuesday.

Goodlatte’s bill was drafted by corporate lobbyists to eliminate the vast majority of class action lawsuits. It would roll back protections for defrauded investors, cheated consumers, people whose privacy has been violated, small businesses harmed by price fixing, workers cheated by wage theft, and pretty much anyone harmed in any way by corporations that break the law.

The legislation has been opposed by nearly every major civil rights organization in America (including Public Justice, the public interest law firm which I head), nearly every major consumer advocate in the nation, the Committee on Rules of Practice & Procedure of the Judicial Conference of the United States (America’s federal judges see the abuse of separation of powers of this ham handed meddling in the ways courts operate), the normally very business-oriented American Bar Association (business lawyers have joined with lawyers for individuals in seeing the mischief here; after all, many small businesses will be harmed by this bill), and numerous academics (their letter are available here, here and here).

Among other things, the lawsuits it would wipe away include cases against Ponzi schemes. While Madoff may have been the biggest corporate criminal in that field, a number of other crooks have cheated American investors in Ponzi schemes, and class action lawsuits have repeatedly successfully recovered investors’ money.

In McGrew v. Harris Bank, for example, a case pursued in Washington State, a successful class action recovered more than $14 million for investors cheated in a Ponzi scheme. Similarly, in Getty v. Philip Steven Harmon, lawyers for investors identified a key person responsible for this scheme who was affiliated with SunAmerican Securities, Inc. – which knew or should have known that securities laws were being violated. The suit recovered more than $5 million for cheated investors. Under Rep. Goodlatte’s bill, these investors almost certainly would have been out of luck. (The legal explanation is set out in painful detail in the letters attached above in this piece.)

Corporate lobbyists might say this pair of successful class actions taking on Ponzi schemes are anecdotes. For people who like data, though, the Consumer Financial Protection Bureau did a careful study of 400 class actions against banks and payday lenders. In those cases, the CFPB found that more than 13 million customers received more than $2.7 billion in recoveries. One of the many lies that Congressman Goodlatte likes to say about class actions is that they don’t actually help cheated consumers, and instead just enrich the lawyers. But the CFPB study of the actual results in these class actions against lenders found that the total attorneys fees in the cases amounted to 16% of the gross relief received by the consumers.

It’s hard to tell right now whether this bill has any serious chance of becoming law. A much milder, more competently drafted version of the Bill was opposed by 17 House Republicans in the last Congress, and never moved in the Senate. Presumably every, or nearly every, Senate Democrat and some moderate Republicans will vote against a bill that would (among other things) make it impossible to bring most lawsuits that offer relief when corporations pay female employees less than male ones, or protect the public from defective products. But the emboldened corporate lobbyist class has spent a lot more money to try to move the bill in this Congress.

The best way to ensure this terrible bill gets blocked is if a large number of Americans contact their legislators and urge them to vote to defeat it.

This time around, we can’t count on President Obama’s veto pen. President Trump has not said anything about the bill one way or the other. We can only hope he might feel constrained by his often-repeated promises not to side with corporate lobbyists against regular Americans, and decide not to sign this monstrosity if it does make it to his desk. But we can’t rely on that scenario, either, and need to stop this bill before it makes its way to the White House.

Rep. Goodlatte’s timing is less than ideal, too. He’s trying to eliminate class actions just a couple of months after the revelations that Wells Fargo had cheated two million of its customers by creating false and unauthorized credit card and checking accounts in their names. That news came not long after Volkswagen was caught rigging its pollution control devices not to work (after prominently advertising to consumers how environmentally friendly its cars were), and a short time after hundreds of thousands of American consumers got refunds or had their homes repaired as a result of class actions, following the discovery that defective Chinese dry wall was damaging their homes. It’s an odd time for the House Republican leadership to decide that Americans should not be able to pursue their rights against corporations that break basic consumer protection, employment and securities laws.

Battling big business can be a herculean task in today’s Congress. Yet it is essential that every American understand the direct, and damaging, impact this particular legislation will have on countless consumers.

This bill isn’t about “fairness.” It’s about giving a gift to corporate lobbyists on Capitol Hill.

This blog originally appeared in Huffington Post on March 2, 2017. Reprinted with permission.

Paul Bland, Jr., Executive Director, has been a senior attorney at Public Justice since 1997. As Executive Director, Paul manages and leads a staff of nearly 30 attorneys and other staff, guiding the organization’s litigation docket and other advocacy. Follow him on Twitter: .

D.R. Horton Rising: The Ninth Circuit Sides with the Seventh Circuit and the National Labor Relations Board on Class Action Waivers, in Morris v. Ernst & Young, LLP

Wednesday, September 7th, 2016
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Yesterday, the Ninth Circuit took sides in a major split within the U.S. Courts of Appeals over the enforceability of class arbitration waivers. In Morris v. Ernst & Young, LLP, No. 13-16599, Slip. Op. (9th Cir. Aug. 22, 2016), the Ninth Circuit held that employers violate Sections 7 and 8 of the National Labor Relations Act (“NLRA”) by requiring employees covered by the NLRA to waive, as a condition of their employment, participation in “concerted activities” such as class and collective actions. (Slip Op. at 1.)

By this holding, the Ninth Circuit joins the Seventh Circuit, which in Lewis v. Epic Systems Corp., 823 F.3d 1147 (7th Cir. May 26, 2016) adopted the National Labor Relations Board (“The Board”) position in D.R. Horton, Inc., 357 NLRB No. 184 (2012). Under this line of authority, the Federal Arbitration Act (“FAA”) does not mandate enforcement of a contract that waives the substantive federal right to engage in concerted action established in Section 7 of the NLRA. (Slip Op. at p. 18-19.) Bryan Schwartz Law blogged in detail about the Lewis v. Epic Systems Corp. decision, here.

In Morris, two employees filed a class and collective action alleging that their employer had misclassified workers as exempt and deprived them of overtime in violation of the Fair Labor Standards Act (“FLSA”) and California labor laws. As a condition of employment, the employees were required to sign contracts containing a “concerted action wavier” that obligated them (1) to pursue legal claims against their employer exclusively through arbitration and (2) to arbitrate individually in “separate proceedings.” Based on these agreements, the employer moved to compel the employees to arbitrate their claims individually. The U.S. District Court granted the employer’s motion. (Slip Op. at p. 4-5.)

The Ninth Circuit reversed, reviewing the decision to compel arbitration de novo. Chief Judge Sidney R. Thomas explained in the opinion:

This case turns on a well-established principal: employees have the right to pursue work-related legal claims together. 29 U.S.C. § 157; Eastex, Inc. v. NLRB, 437 U.S. 556, 566 (1978). Concerted activity – the right of employees to act together – is the essential substantive right established by the NLRA. 29 U.S.C. § 157. Ernst & Young interfered with that right by requiring its employees to resolve all of their legal claims in “separate proceedings.” Accordingly the concerted action waiver violates the NLRA and cannot be enforced.

(Id. at p. 6.)

The Ninth Circuit explained that the FAA does not dictate a contrary result. (Id. at 14.) While the FAA creates a “federal policy favoring arbitration” clause enforcement, the Act contains a savings clause that prohibits enforcement of arbitration agreements that defeat substantive federal rights, including the right to engage in concerted activity under the NLRA. (Id. at 15, 26.) In Morris, employees’ waiver was illegal not because it required the employees to pursue their claims in arbitration, but rather, because they could not do so in concert. (Id. at p. 16.)

Other circuit courts have taken a contrary position, enforcing employers concerted action waivers under the FAA. See Cellular Sales of Missouri, LLC v. N.L.R.B., 824 F.3d 772, 776 (8th Cir. June 2, 2016); Murphy Oil USA, Inc. v. N.L.R.B., 808 F.3d 1013 (5th Cir. 2015); Owen v. Bristol Care, Inc., 702 F.3d 1050, 1053-54 (8th Cir. 2013); D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 361 (5th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 297 n.8 (2d Cir. 2013).

As more circuits choose sides on whether class action waivers in arbitration agreements are enforceable, Supreme Court review becomes an inevitability.

The High Court would also be wise to resolve a disagreement between the Ninth and Seventh Circuits regarding such waivers. In the Seventh Circuit, any “[c]ontracts that stipulate away employees’ Section 7 rights . . . are unenforceable.” Epic, 823 F.3d. at 1155. The Ninth Circuit precedent is narrower, making such contracts enforceable if employment is not conditioned on agreeing to the clause. (Slip. Op. 11, n. 4.) For example, if an employee has the opportunity to opt-out of a class action waiver and keep his or her job, but chooses not to, that waiver would be enforceable by the employer in the Ninth Circuit. (Id. (citing Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1076 (9th Cir. 2014))). The Seventh Circuit provides a clearer rule, one that better comports with the purposes of the NLRA, and one that the Supreme Court should adopt.

For now, workers in the Ninth and Seventh Circuits, as well as their advocates, should take note that employers cannot force employees to sign class action waivers as a condition of employment, because Epic and Morris tell us that the NLRA provides employees with the right to vindicate their employment rights collectively.

This blog appeared on Bryan Schwartz Law on August 23, 2016. Reprinted with permission.

Rachel Terp is an associate at Bryan Schwartz Law, where she focuses on employment discrimination, whistleblower, and wage and hour claims. Previously, Ms. Terp was a Bridge Fellow with the East Bay Community Law Center (EBCLC), where she specialized in consumer litigation.

 Bryan Schwartz Law is an Oakland, California-based law firm dedicated to helping employees protect their rights in the workplace. Mr. Schwartz and his firm have fought to prohibit discrimination, retaliation, and harassment obtained reasonable accommodation for disabled employees, vindicated whistleblowers’ rights and ensured that corporations pay workers all wages they are owed. Bryan Schwartz Law has successfully litigated individual and class action complaints nationwide, helping to recover millions of dollars for thousands of employees, forcing corporations and Government agencies to change their practices and punish wrongdoers. Bryan Schwartz Law is also one of the few Bay Area-based law firms with extensive experience representing Federal employees in their unique Merit Systems Protection Board and Equal Employment Opportunity Commission complaints.

 

Why Supreme Court Nominations Are One of the Most Important Issues for Working People

Friday, September 2nd, 2016

Kenneth QuinnellThere’s a lot at stake in the 2016 presidential election. While U.S. Supreme Court nominations may not be the most headline-grabbing stories that come out of a presidency, they probably should be. With Supreme Court justices serving for life and having significant power in interpreting laws that affect our daily lives, the importance of court appointments cannot be overstated.

This election, in particular, could shape up to be one of the most important elections in terms of shaping the court in American history. After Antonin Scalia’s death earlier this year, Republicans in Congress have sworn to prevent a replacement from being chosen until after the election and have stalled President Barack Obama’s nomination of Merrick Garland for more than 150 days. In all likelihood, it will be up to the winner of the 2016 presidential election to choose Scalia’s replacement, be it Garland or someone else.

But that’s not the end of the story. According to a 2006 study by the Harvard Journal of Law and Public Policy, the average retirement age for Supreme Court justices is 78.7. As of the beginning of the next president’s term, three of the nine justices will be older than 80. Another will be 78. While those justices seem healthy and committed to staying on the court for the near future, Scalia seemed the same way before passing away at 79. It’s not outside the realm of possibility that the next president could literally appoint a majority to the court, especially if elected for a second term.

It isn’t necessarily the case that the appointment of one or two new justices will make a significant shift right away, but over time, replacing Scalia with a justice that is less of a right-wing ideologue has the potential to reshape many areas of American law—and, in particular, much of the law surrounding the rights and lives of working people. Here are six reasons that Supreme Court nominations are one of the most important issues in the 2016 elections:

1. Gerrymandering: With a case already moving its way through the courts, this one could come up soon. And it’s a big one. Ever wonder why the country keeps voting for Democrats for president, but Republicans control Congress? A key reason is gerrymandering, the process of drawing the district lines for congressional seats for partisan advantage. Currently, 55% of congressional districts were created to favor Republicans, compared to 10% drawn in favor of Democrats. That’s why, in 2012, when Barack Obama won re-election and a majority of votes for congressional seats went to Democrats (50.59%), Republicans managed to somehow get a significant majority of House seats (53.79%). In that cycle, 1.37 million more Americans voted for Democrats, only to see Democrats end up with 33 fewer seats in the House. If one spends any time reading constitutional law, they’ll find that the precedent is pretty strongly against this type of gerrymandering. A court appointed by Hillary Clinton would likely frown heavily on this type of manipulation of the electorate.

2. Voting Rights: In 2013, the court issued a ruling that shocked President Obama, legal scholars, civil rights groups and historians. The conservative majority on the court gutted the enforcement mechanism for the Voting Rights Act. This was almost immediately followed by states that were previously required, based on a history of discrimination, to get Department of Justice approval for changes to voting laws, passing a series of laws that made it harder for many, particularly African Americans, to vote. Republicans passed laws shortening voting hours, eliminating early voting and making it harder to register and harder to vote, among other new obstacles to people exercising their right to vote. Many of these laws have been rejected by courts, and it’s likely that the Supreme Court would look very negatively on them.

3. Citizens United: The court ruled that corporations can spend as much as they want to influence elections, as long as they spend it independently of campaigns. This led to tons of money flowing into elections and the creation of super PACs. Clinton wants this ruling overturned and said she’d appoint justices that would do so. Trump’s on the other side. Clinton-appointed justices are likely to take a stricter look at other attempts by corporations and the wealthy to have more influence on elections than the rest of the electorate.

4. Corporate Influence in Supreme Court Cases: A recent study found that between 2009–2012, the one entity most likely to get a hearing at the Supreme Court, out of all petitioners, was the Chamber of Commerce. The court was not only more likely to hear cases championed by the chamber, it was more likely to decide in favor of the corporate interests the chamber supported. The court also made it harder for citizens to engage in class-action lawsuits, making it harder for citizens to sue corporations like Comcast or Walmart for hurting working people or consumers and making it less likely those working people and consumers would win cases before the court. Additionally, in the notorious Hobby Lobby case, the court allowed some corporations a religious exemption, allowing them not to provide insurance coverage for contraception. Other anti-working people decisions in recent years involved making it easier for judges to dismiss cases earlier, without going to trial, and requiring some consumers to submit to arbitration, rather than going to court.

5. Workplace Fairness: A series of 5–4 decisions during the John Roberts Court era have come down against working people and their rights on the job. These rulings will be ripe for challenges once Scalia’s seat on the court is filled. Among the key rulings that are under scrutiny are those that make it harder to sue in cases of pay discrimination, make it easier to retaliate against and fire employees who report job bias claims, make it harder to prove age discrimination on the job, weakened the Family and Medical Leave Act, made it easier to promote “right to work” at a national level, weakened overtime protections, made it easier to dismiss wage theft claims and made it easier to fire public employees for public statements made in the course of their duties.

6. Deportations: Earlier this year, the court effectively killed an executive order from Obama that would have shielded as many as 4 million undocumented immigrants from deportation. It will likely be considered again under a new court.

Any number of other issues that affect working people could also come before the Supreme Court, including, but not limited to: education funding, Medicaid expansion, public funding of elections, solitary confinement of inmates, prison overcrowding and many other issues.

This blog originally appeared in aflcio.org on August 30, 2016.  Reprinted with permission.

Kenneth Quinnell: I am a long-time blogger, campaign staffer and political activist.  Before joining the AFL-CIO in 2012, I worked as labor reporter for the blog Crooks and Liars.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  My writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.  I am the proud father of three future progressive activists, an accomplished rapper and karaoke enthusiast.

Starbucks Served Venti-Sized Discrimination Lawsuit

Thursday, March 8th, 2012

Leah BraukmanTwenty-five year old Eli Pierre has only one full arm, but he says he’s never been told there was something he couldn’t do.

That is, until last month, when a San Diego, California Starbucks interviewed and then refused to hire him. Mr. Pierre is now suing the Seattle-based company in California state court alleging discrimination and wrongful failure to hire “despite his capable work history,” in violation of California’s Fair Employment and Housing Act (FEHA). He’s also claiming failure to prevent discrimination, to make reasonable accommodations, to engage in the interactive process in violation of FEHA, wrongful failure to hire in violation of public policy, and intentional infliction of emotional distress.

According to ABC News, Mr. Pierre, a former bartender, claims he wasn’t hired because he is missing half of his left arm, and that throughout his interview, he was told that he wouldn’t be able to work there – besides being teased about a previous job he’s held at Victoria’s Secret. (“Maybe he can help you find the right bra size”, the interviewer allegedly said to another Starbucks employee.)

A spokesperson for the coffeehouse chain contends that Mr. Pierre’s version of the interview is “vastly different” from what actually took place, and that he wasn’t hired because of his qualifications and answers to interview questions.

While ABC and the rest of the media provided plenty of information about Mr. Pierre’s lawsuit, it didn’t size up the strength of his claims. LASIS will.

ABC had what little law it did report, wrong. It stated that Mr. Pierre sued for discrimination in violation of the Federal Employment and Housing Act. Such a law doesn’t exist.

California has a state law, the Fair Employment and Housing Act, that is more expansive than federal employment discrimination laws, and that is what Mr. Pierre is relying on.

FEHA prohibits an employer from either refusing to hire or for firing someone based on a physical disability, defined in part as any anatomical loss that affects a body system and limits a major life activity. Not having an arm certainly qualifies as a physical disability, but it hasn’t stopped Mr. Pierre from working, a major life activity under the Act. A former boss even told ABC that Mr. Pierre “can carry more than somebody…with two arms.”

Even so, Mr. Pierre is clearly disabled and his discrimination argument seems pretty solid. Especially if what he said of the interview is true. In a 2002 California Court of Appeals case, a man with a prosthetic leg sued the Los Angeles Police Department when he wasn’t hired as a police officer. The court found no discrimination because the man didn’t meet the physical requirements of the job. And this makes sense. It would be ineffective for a police officer with a prosthetic leg to chase after a fleeing suspect by scaling fences and jumping over obstacles.

It’s harder for Starbucks to argue that it requires both arms to pour coffee. On the other hand, doing some field research I watched the baristas make my drink at a local Starbucks recently, and using two hands surely helped them work as quickly as they did.

But the crux of Mr. Pierre’s argument isn’t that Starbucks should have hired him on the spot, it’s that it didn’t engage in the “interactive process” of identifying reasonable accommodations that would allow him to work there.

In 2008, the California Court of Appeals said an employer is liable if the workplace could be modified to allow an employee to perform the essential functions of the job. For Starbucks, it wouldn’t take much. The interviewer had told Mr. Pierre it would never work out for him at Starbucks because he wouldn’t be able to reach certain syrups while making the drinks. Well, one place for Starbucks to start in trying to accommodate Mr. Pierre would be to move the syrups within reach.

Mr. Pierre also claims that when Starbucks didn’t give him the job or explore any potential accommodations, it violated public policy. The California Court of Appeals recognizes this as a separate claim, but as violations of FEHA are automatically violations of public policy, Mr. Pierre will likely succeed on this public policy argument, as his discrimination claims are rather robust.

Aside from the alleged FEHA violations, Mr. Pierre is suing for intentional infliction of emotional distress. To win on an emotional distress claim, Mr. Pierre would have to prove that Starbucks’ conduct was “outrageous” and exceeded “all bounds…tolerated by a decent society.” In 2006, the California Court of Appeals ruled that unlawful discrimination doesn’t necessarily lead to a successful emotional distress claim. That’s not to say a Starbucks interviewer should have treated Mr. Pierre as he did, but what happened during the interview doesn’t amount to the extreme behavior the court is probably looking for.

As a frequent Starbucks customer, I was disappointed when I heard of these accusations, especially as this isn’t the first time the company has been accused of discrimination. Last year, a Starbucks employee with dwarfism was fired after asking for a stool or stepladder because, the company said, “she could be a danger to customers and workers.” The Equal Employment Opportunity Commission sued the company for discrimination and Starbucks shelled out $75,000 to settle. I’ll keep going to Starbucks for now because I’m hooked. But if I hear of more offensive behavior like this, I might just try Dunkin’ Donuts instead.

This blog originally appeared in Legal as She is Spoke, a project of the  Law and Journalism track at New York Law School, on March 5, 2012. Reprinted with permission.

About the Author: Leah Braukman (2L) is first and foremost a proud graduate of the University of Florida — Go Gators!  While a “Gator” at heart, she is thrilled to be in New York City and studying law at New York Law School, and is equally excited about contributing to this blog. Leah is a member of Law Review, the Institute for Information Law and Policy, the Media Entertainment Fashion Law Association, and the Program in Law and Journalism.

Walmart Women Launch Another Round of Discrimination Suits, But Will It Even Matter in the Long Run?

Monday, October 31st, 2011

Ian Millhiser Last June, the Supreme Court tossed out a class action lawsuit brought by over a million Walmart employees alleging that the company systematically discriminates against women. The Court did not allow the women to try to prove that such discrimination exists, instead holding that the women did not have enough in common with each other to come together in one lawsuit. Yesterday, the women responded to this setback with the first of several cases breaking them down into smaller groups:

The lawyers promised an “armada” of other lawsuits in the next six months making discrimination claims in other regions of the country, as opposed to nationwide. “The case we are starting today is the first of many,” said Brad Seligman, one of the lead plaintiff lawyers. He added that the new lawsuits are “what we like to call Wal-Mart 2.0.” […]

The lawsuit filed Thursday in the United States District Court for the Northern District of California contends that Wal-Mart’s discriminatory practices on pay and job promotion affected more than 90,000 women currently or formerly employed at Wal-Mart and Sam’s Club stores in four regions in California and neighboring states.

This tactic could ultimately prove successful, and it is possible that many hundreds of thousands of women could receive long overdue justice by joining together in somewhat smaller groups. Even if they win, however, the sad truth is that this victory could probably never be repeated thanks to an enormous gift the Supreme Court gave powerful corporations last April.

When the Supreme Court’s Wal-Mart case was handed down, ThinkProgress called it only “the second worst class action case this Supreme Court term.” The worst decision — indeed, one of the very worst Supreme Court decisions in the last decade — was AT&T Mobility v. ConcepcionConcepcion built off a long line of misguided decisions allowing corporations to force their consumers and workers to sign away their right to sue the company in a real court and shunt any disputes into a secretive, privatized arbitration system that overwhelming favors corporate parties. Under Concepcion, corporations can not only take away your right to hold them accountable in a real court, they can also take away your right to join together with other victims of the corporation’s lawbreaking to form a class action lawsuit.

Thanks to this deeply erroneous decision, Walmart can now force each and every one of their workers to sign away their rights or they are fired. And without the ability to bring class actions in the future, many of these workers will be completely powerless against their megacorporate employer.

The class action one of the very few tools enabling vulnerable Americans to stand up to a wealthy and influential corporation. If a major corporation cheats a thousand of its workers out of a thousand dollars each, for example, very few of them will decide it is worth the hassle and expense of a major lawsuit and virtually no lawyer will be willing to take such a low dollar case on a contingency fee basis — meaning that the plaintiffs will have to pay more for legal counsel than they are likely to win in the end. If these thousand workers are able to join together into a class action, however, their million dollar claim suddenly becomes very attractive to top litigators — and the hassle of litigation will be virtually non-existent for most of the plaintiffs. Thanks to Concepcion, however, that is probably no longer an option.

Concepcion was an earthquake, and it shook one of the foundations of our civil justice system to the ground. Walmart may still be held accountable for its past actions, but it is doubtful that any of its workers will ever be able to join a class action against them again.

This blog originally appeared in ThinkProgress on October 28, 2011. Reprinted with permission.

About the Author: Ian Millhiser is a Policy Analyst at the Center for American Progress Action Fund and a blogger on judicial and constitutional issues for ThinkProgress.org. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the Guardian, the American Prospect and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox Business and many radio shows.

Court in Costco Discrimination Case to Employers: Don’t Fight Discrimination

Friday, September 23rd, 2011

Piper HoffmanPlaintiffs suing Costco for sex discrimination face another round of litigation thanks to the Supreme Court’s recent dismissal of the Wal-Mart sex discrimination case. Because of the Supreme Court’s decision, the Ninth Circuit Court of Appeals ruled on Friday that the Costco trial court must reconsider whether the plaintiffs can prove that the company should be liable for sex discrimination in store-level promotions. On this question the Court of Appeals, like the Supreme Court before it, ruled the wrong way, discouraging companies from implementing measures that would prevent discrimination.

When companies leave employment decisions like promotions to individual decision-makers without giving them clear, relevant criteria to guide their decisions, those decisions are often discriminatory, albeit sometimes unintentionally. Many corporations, including Costco, provide no uniform criteria – or any guidance at all – for making promotion decisions. This leaves each individual manager (the vast majority of whom are male at Costco) to make promotion decisions as he sees fit. When making decisions with unfettered discretion, people tend to rely on stereotypes and to promote those they are most comfortable with and who are most like them – in short, in the absence of clear criteria, men usually promote men. Witness Costco’s demographics: female lower-level managers at Costco are less likely to be promoted than their male counterparts. It appears that only two of Costco’s top 34 executives are women. The problem is not a shortage of interested or qualified women: Costco’s competitors have a much higher proportion of women in management than Costco does.

Companies can prevent this kind of discrimination. Sociological research shows that holding top management responsible for establishing and enforcing uniform, unbiased promotion criteria goes a long way. When companies provide managers with performance-related criteria for promotion decisions, managers can evaluate whether a candidate satisfies those criteria instead of making a gut-level decision based on personal relationship or other irrelevant factors.

Companies can also prevent sex discrimination in promotions by increasing the pool of candidates. When employees don’t know promotions are available, managers may not even consider qualified women for the positions – they may not know them well, or may rely on stereotypes to conclude that they don’t want promotions. The Costco case illustrates these consequences: the three women who sued desperately wanted promotions, but none of them ever applied for one – they couldn’t, because Costco did not accept applications, and they never knew when promotions were available anyway. An easy fix is to inform employees of promotion opportunities and invite applications. Interested women will throw their hats in the ring and managers will evaluate them based on the relevant criteria, resulting in more promotions of women.

The courts in Costco and Wal-Mart ruled the wrong way because they discouraged companies from adopting these measures. They held that corporations are not liable in class actions for the discretionary decisions of individual managers, creating an incentive for companies to wash their hands of preventing discrimination in their ranks. The more anarchic the system for decisions about promotions and other perks – raises, bonuses, etc. – the more insulation the company has from discrimination class actions. The Costco decision quoted the Supreme Court’s Wal-Mart ruling on this point: “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to [bring] a nationwide class [action] will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” In other words, if the only thing promotion decisions have in common is that managers make those decisions however they want, the company as a whole is not liable for resulting discrimination. In contrast, if the company disseminates guidelines for making promotion decisions that result in discrimination, the company can be held liable.

Smart companies will adopt best practices like enforcing uniform criteria for promotion decisions, both to retain and get the benefit of employing talented people and to avoid discrimination suits by individuals, which are not affected by the Wal-Mart and Costco decisions.

The Court of Appeals sent the Costco class action case back to the trial court for reconsideration, giving the plaintiffs another chance. But the trial court will labor under the higher court’s instruction (again, quoting the Wal-Mart decision) that it “must determine whether there was ‘significant proof that [Costco] operated under a general policy of discrimination.’” Proving that Costco operated under a general policy of laissez faire will not suffice to save this sex discrimination case.

This post originally appeared on Piper Hoffman-Rock the Boat: Law, Society, and Social Justice on September 22, 2011. Reprinted with permission.

About the Author: Piper Hoffman is a writer and employee-side employment lawyer. She holds degrees with honors from Harvard Law School and Brown University. Hoffman blogs regularly on law and social justice issues at piperhoffman.com.

Wal-Mart and Women: Skeptics Question New Initiatives

Monday, September 19th, 2011

kari-lydersenLast week, Wal-Mart announced the latest component of its relatively successful campaign to shift its image from corporate villain to socially responsible role model.

The company promised that it would double its business with women-owned contractors and suppliers in the U.S. and internationally, and educate and train hundreds of thousands of women through its nonprofit Wal-Mart Foundation. That means the company will buy products from more women-owned factories and farms and hire more women to construct its stores.

The move comes after Wal-Mart was up against the largest sex-discrimination class-action lawsuit in history, until the Supreme Court threw it out this summer.

Most labor and social justice advocates are glad to see any corporation change its practices in the face of social and economic pressure, so Wal-Mart’s recent announcement and its other recent efforts, such as contracting with minority suppliers, adopting sustainable environmental practices and increasing diversity and fairness in its stores, can be seen as small victories for campaigns that expose Wal-Mart’s practices.

But many labor and watchdog groups are still skeptical of the mega-corporation’s sincerity and the larger significance of its corporate responsibility initiatives, and they are calling on the company to continue examining and reforming its practices in a big way.

Jennifer Stapleton is spokesperson for Making Change at Wal-Mart, a campaign of the United Food and Commercial Workers international union. She said in a statement last week:

Wal-Mart’s latest PR gambit is trying to cover up decades of unjust treatment of women, but women know better. Wal-Mart causes systematic economic harm to women in the U.S. and around the world, and that is precisely why Wal-Mart is trying to sell us on a new image. Wal-Mart keeps millions of women in the U.S. and around the world in poverty, fails to protect women from unacceptable sexual and other forms of workplace harassment and works many women to the bone in sweatshop conditions around the globe. And, according to the women in the Dukes v. Wal-Mart gender discrimination law suit, Wal-Mart pays women less than men.

In May and June, a group called Organization United for Respect at Wal-Mart (OUR Wal-Mart) surveyed 501 Wal-Mart associates. On a number of questions about pay, fairness and opportunity, women were consistently less satisfied and felt treated less fairly than male workers, by margins of about 10 to 25 percent, depending on the question.

More than half the workers answered that conditions were “poor” or “fair” in terms of having dependable schedules, opportunities for advancement and training, just procedures for discipline and termination and other measures.

These answers imply a mediocre to substandard employment situation–not overwhelming dissatisfaction, but not as positive a result as one might expect from a company that has gone into overdrive to improve its image. Three-quarters of workers also said they thought under-staffing is a serious problem that has resulted in customer dissatisfaction and/or messy stores.

And given the lawsuit and the company’s recent announcement, the group stressed that the disparity between men’s and women’s answers is significant. A release quoted Lancaster, Calif.-Wal-Mart worker Maggie Van Ness saying:

If what’s going on at Wal-Mart happened at a small company, it would be bad enough. But because Wal-Mart’s the nation’s largest employer and sets standards for our communities and other companies, this is a full-scale epidemic. The data show widespread problems that are especially bad for women, who need these jobs.

Wal-Mart is the largest private employer of women in the U.S., with 808,000 women making up 65 percent of its domestic workforce as of 2001, according to a paper by Making Change at Wal-Mart. Between 1996 and 2001, women working at Wal-Mart earned on average $5,200 less per year than men, and were also much less likely to have salaried, upper-level management positions, according to a 2003 report. It also noted women in salaried positions earned $14,000 less per year than their male counterparts.

Last year, the Equal Employment Opportunity Commission negotiated an $11.7 million settlement with the company over complaints that at a Kentucky distribution facility, women were systematically discriminated against for certain positions that usually went to young males.

In light of Wal-Mart’s recent promise to increase business with women, Wal-Mart critics also point to the story of Margaret Garner, an African-American construction-business owner whom Wal-Mart had celebrated for her lead role in building its controversial first Chicago store, on the city’s impoverished West Side. Four years after it opened, Wal-Mart has billed that store as a success and planned dozens more stores for Chicago. But Garner’s firm declared bankruptcy last year, driven by $11.9 million in debt from cost over-runs on the Wal-Mart, as reported by Crain’s Chicago Business. The Crain’s investigation explains that Garner’s firm, which received incentives under city programs for minority contractors, sent most of the actual work to firms owned by white males. Garner’s firm sunk into debt when it couldn’t pay those companies as promised.

Also, a University of Illinois at Chicago and Loyola University study alleges that the West Side Wal-Mart drove other local companies out of business, a long-standing complaint which Wal-Mart says is not borne out by facts.

But according to Making Change at Wal-Mart,

For decades, Wal-Mart has shown that when it “invests” in a community, that community can expect lost jobs, depressed wages, bankrupt local business, and lowering of labor standards to follow quickly. Women in the U.S. and around the world would be far better served if Wal-Mart would improve its labor practices, raise its wages, and use its power to stand up for human rights instead of undermining them through its day-to-day business practices.

This post originally appeared in Working in These Times on September 19, 2011. Reprinted with permission.

About the Author: Kari Lydersen is an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.

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