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Posts Tagged ‘SCOTUS’

Where Would Obama’s Supreme Court Nominee Merrick Garland Stand on Labor Issues?

Monday, March 21st, 2016

Despite hardline Senate Republican opposition to meeting with, let alone voting on, any potential replacement for recently deceased Supreme Court Justice Antonin Scalia, on Tuesday, President Obama nominated Chief Judge Merrick Garland of the U.S. Court of Appeals in Washington, D.C., to fill the vacancy left by Justice Antonin Scalia after his recent, unexpected death.

Garland is a highly qualified, well-respected judge, first appointed in 1997 by President Bill Clinton to the D.C. Circuit Court and confirmed by a vote of 76 to 23 in the Senate. Garland has been under consideration for a seat on the Supreme Court previously; he has a reputation for judicial restraint (quite unlike Scalia’s highly ideological attempt to use the Supreme Court to re-write the nation’s law).

It’s hard to give him a clear political label, but Garland does not seem to be as progressive on workers’ rights issues as Scalia was reactionary. In 2010 Tom Goldstein, publisher of SCOTUSblog, wrote that Garland was “essentially the model, neutral judge. He is acknowledged by all to be brilliant. His opinions avoid unnecessary, sweeping pronouncements.” On criminal law (and cases involving Guantanamo detainees), Goldstein wrote, Garland leaned a bit conservative, on first amendment, environmental and “open government” issues, a bit liberal. One consistent thread seems to be deference towards regulatory agencies, letting them make decisions without the Supreme Court always second-guessing or rewriting the law.

That sentiment may be important for labor issues before the Supreme Court, which has frequently acted to restrain the National Labor Relations Board and crimp worker rights in decades past. Scalia’s vote was crucial in the many 5-4 decisions by the Supreme Court that weakened rights and protections for American workers. His death, for example, seemed to have eliminated (for the moment) a likely 5-4 court decision in the Friedrichs case, which would have prevented public employee unions from charging non-members of the union a fee that paid for the benefits of union bargaining and grievance representation that union by law must provide.

But as Catherine Fisk notes in On Labor, the large number of 5-4 cases on labor issues suggests that “the importance of confirming a progressive is enormous,” both for future cases and potential review and overturn of earlier decisions.

Even if Garland is not a full-fledged “progressive,” his votes on NLRB cases involve more than deference to regulatory agencies,according to Hannah Belitz. In the four cases in which Garland did not agree to defer entirely to the NLRB, she wrote, Garland upheld pro-labor and voted to overturn pro-employer positions, leading her to describe him as having “an outlook that is generally favorable to union activity.”  But deference to the NLRB does not always imply support for workers.

AFL-CIO president Richard Trumka, Service Employees International Union (SEIU) president Mary Kay Henry and UAW president Dennis Williams were labor leaders who quickly welcomed the nomination and urged speedy consideration of Garland’s nomination. Trumka, a coal miner and lawyer before his labor career, praised his “impeccable credentials and deep experience.” Henry, whose union is not part of the AFL-CIO, said he would be

a good choice for working families. His record shows that he believes in the duty of government to protect regular Americans, and our democracy, from being corrupted by the excesses of the super wealthy and their corporate agenda. He has shown that he respects the opinion of the National Labor Relations Board…, and he has upheld disclosure requirements to keep a check on the outsized influence ‘dark money’ has on our government.

Garland appears to be a judge who is pretty nonpartisan in his rulings, caught in a moment of extreme political combat that threatens the public good and could reinforce many politicians’ lack of credibility. Sen. Orrin Hatch (R-UT), the senior Republican on the Senate Judiciary committee last week argued that President Obama should nominate Merrick Garland, “a fine man,” but the president won’t because he would have to satisfy his base with a liberal appointee.  Will Hatch now vote down a “fine man” to stymie a president he does not like?

This blog originally appeared in aflcio.org on March 17, 2016. Reprinted with permission.

David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy. He can be reached at davidmoberg@inthesetimes.com.

Abercrombie Lost A Supreme Court Case. Could They Win A Retail War?

Tuesday, June 2nd, 2015

Jessica_GoldsteinLast fall, Samantha Elauf, a young Muslim who was denied employment at Abercrombie and Fitch because her headscarf violated the company’s dress code, took her case all the way to the Supreme Court. On Monday, SCOTUS ruled against Abercrombie, 8-1, declaring that A&F’s refusal to accommodate a hijab-wearing applicant was a violation of civil rights law.

Elauf didn’t know about Abercrombie’s policy against headscarves; the Supreme Court needed to determine if it was Elauf’s responsibility to inquire for an accommodation or if the burden was on Abercrombie to provide an accommodation without waiting for Elauf to ask. The final call: it was on Abercrombie to provide for Elauf, not the other way around, and failing to do so constituted religious discrimination.

In a statement, Abercrombie said the case will go on and pointed out that the justices did not specifically say discrimination had occured: “We will determine our next steps in the litigation.”

So Abercrombie lost a battle. But could this loss help the chain win a retail war? If so, it wouldn’t be the first time Abercrombie rebounded from irrelevance.

As we noted on this site last year, the “cool” look once exemplified by Abercrombie’s preppy offerings and its blonde, white and athletic aesthetic is no longer cool among young shoppers. At its modern peak (which is to say, the second era of Abercrombie, after then-CEO Mike Jeffries revived the long-dormant brand in 1992), Abercrombie was raking in almost $2 billion in annual sales, with 22,000 conventionally hot employees populating 700 stores. Abercrombie thrived on a narrow definition of beauty.

As Jeffries put it in a now-infamous interview with Salon in 2006, “We hire good-looking people in our stores. Because good-looking people attract other good-looking people, and we want to market to cool, good-looking people. We don’t market to anyone other than that… In every school there are the cool and popular kids, and then there are the not-so-cool kids. Candidly, we go after the cool kids. We go after the attractive all-American kid with a great attitude and a lot of friends… Are we exclusionary? Absolutely.”

Repulsive as this modus operandi may be, there was a time, not too long ago, when it was smart marketing: when everyone was watching The O.C., when Mean Girls in their nearly-identical pink-on-Wednesdays attire reigned supreme, when sameness was the order of the day.

But 2006, in fashion years, is ancient history. Today’s teenagers are drawn to the cheap, trendy stuff on the shelves of H&M, Forever 21, and Zara (though the human cost of such inexpensive, wear-it-then-toss-it clothes is devastatingly high). Looking like everyone else is so five years ago. And Abercrombie’s idea of utopia as, basically, an Aryan, Logan’s Run-like game of touch football that never ends doesn’t jive with the taste of the most racially diverse generation in history.

 

Sales at A&F have been on the decline for years; stores have been shuttering across the nation. So before Elauf’s case was decided, Abercrombie was in the midst of some soul-searching. (Assuming corporations are people, why can’t brands have souls?) They killed the logo. They brought light into the stores and black clothing to the shelves. The nausea-inducing amounts of perfume amid the racks was taken down by a quarter. A&F even tried to go in a hipster direction; this did not sit well with the preppy populace, Abercrombie’s core demographic. Besides, these are not the kind of seismic changes that rescue a dying brand.

Maybe, just maybe, this SCOTUS case will be a watershed moment for Abercrombie. Not only is their old mode of cool no longer cool; it is so uncool that it’s literally unconstitutional. Imagine a brave new Abercrombie where the employees — ahem, “brand representatives” — actually represent a huge swath of America’s teenage population. Imagine it being totally ordinary to stroll into an A&F at the mall and be greeted by a girl in a hijab and a guy in a yarmulke.

Or maybe Abercrombie will continue its speedy, steady fall from power. But if you happen to be personally invested in the resurgence of Abercrombie as a cultural force, consider this SCOTUS ruling cause for cautious optimism.

This blog was originally posted on Think Progress on June 2, 2015. Reprinted with permission.

About the Author: The author’s name is Jessica Goldstein. Jessica Goldstein is the Culture Editor for ThinkProgress. She also writes recaps for Vulture, New York Magazine’s culture blog. Before coming to ThinkProgress, Jessica was a feature writer and theater columnist at the Washington Post. Jessica holds a B.A. in English and Creative Writing from the University of Pennsylvania. While at Penn, she wrote for Seventeen and Her Campus. Jessica is originally from New Jersey.

SCOTUS 2013-14 Labor Law Preview

Wednesday, October 9th, 2013
philip_miles_smallAnother Supreme Court season is upon us! The Court has a pretty decent lineup of labor law cases this year. I’ll break the employment law cases into a separate post. Let’s cut to the chase:

Recess Appointments

NLRB v. Noel Canning will probably get the most media attention of the bunch. The case will address whether President Obama’s appointments to the NLRB were constitutional. Per the cert. petition, the questions presented are:
1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.

2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.

This case could have a big impact on the President’s recess-appointment power beyond just the NLRB. Argument set for December 4, 2013.

Compensation for Changing Clothes
Sounds silly, right? But, in Sandifer v. U.S. Steel, steel workers claim they spend up to a few hours per week changing into their work attire. Under an FLSA exception, “changing clothes” may be excluded from compensation by a CBA.

Here, the “clothes” include things like flame-retardant jackets, metatarsals (steel-toed boots), and “snoods” (head and neck protectors). In other words, “donning and doffing” safety gear that is ordinarily compensable – but the gear is kind of clothes-y so maybe it’s not. SCOTUS will hopefully draw the line.

Fun fact: I interned at a U.S. Steel plant in Pittsburgh in the IT department in 1998. When I went into the mill I wore the jacket and metatarsals (and hardhat and goggles), but no “snood” – I guess they didn’t care that much about me ;-). Argument set for November 4, 2013.

Mandatory Dues
In Harris v. Quinn, the Supreme Court was petitioned to review the following questions:

1. May a State, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the State for greater reimbursements from its Medicaid programs?
2. Did the lower court err in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review?
This could make union dues-collecting more difficult. Set for argument on November 13, 2013. Update: Not yet set for argument, but probably January of February 2014.
Labor-Management Organizing Agreements
In Unite Here Local 355 v. Mulhall, the employer promised not to oppose union representation and granted union access to its property, and the union agreed to forego rights to picket, boycott, etc. The question presented:
Whether an employer and union may violate § 302 [of the Labor-Management Relations Act] by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business?
Set for argument on November 13, 2013 (same day as Harris v. Quinn – it’s a labor law doubleheader!).
This article was originally printed on Lawffice Space on October 7, 2013.  Reprinted with permission.
About the Author: Philip K. Miles III, Esq. is the creator of Lawffice Space.  He is an attorney with McQuaide Blasko, a full-service law firm headquartered in State College, Pennsylvania.  He belongs to the Labor and Employment, and Civil Litigation Practice groups.  Lawffice Space is an independent law blog focusing on labor and employment law.

Runkel: Supreme Court Jumping the Gun on Section 1983 ADEA Case?

Saturday, October 5th, 2013

secunda-paulAt RossRunkel.com today:

SCOTUS: Can public sector employees skip the ADEA and sue directly under the constitution?

Or should this case even be before the Supreme Court?

Madigan v. Levin [Briefs at SCOTUSblog] is set for argument [this Monday] October 7.

‘Harvey Levin, a state employee, claimed he was fired because of his age. He sued his boss under the ADEA and the constitution. The boss claimed qualified immunity.

The trial court threw out the ADEA claim, kept the constitutional claim, and decided the boss did not have immunity.

The boss brought an interlocutory (pre-trial) appeal to the 7th Circuit, which decided (1) no immunity and (2) Levin can go ahead with his constitutional claim.

Primary issue: Whether a public sector employee can bring an age bias claim directly under the Constitution without following ADEA procedures. That’s the issue everyone is talking about. For a good explanation, see Lyle Denniston’s discussion at SCOTUSblog.

Wait, wait, one more issue: Notice that the appeal to the 7th Circuit was interlocutory. Unusual. Allowed here because of the immunity issue. But the 7th Circuit also went forward with the ADEA-vs-constitution issue. I’d like to see the Court kick this case back to the 7th Circuit, telling them they jumped the gun. Wait for a trial to take place, and then appeal from a final judgment. Am I trying to be too orderly here?

FWIW, I think the Court should kick back the case for a trial before deciding the case on appeal.  I am very much a proceduralist on such matters.

As far as whether a public employee should be able to bring a constitutional claim based on age discrimination in addition to a claim under the ADEA, I think they should be able to do so. My primary thinking is that you can get individual liability in a Section 1983 case, whereas you cannot under the ADEA.  Also, in light of Grosschanging the causation standard to “but for” in ADEA cases, there might be an easier cauasation standard under Section 1983.  In any event, this analysis is supported by a similar conclusion come to by the Court in the Title IX realm in the Barnstable case a few years ago.

The one difference between this case and Barnstable is that you do not have to exhaust administrative remedies in Title IX cases like you do under the ADEA, so that may be a distinction which might make this case come out differently.  Court might place importance on the gatekeeping function the EEOC plays in ADEA cases and this may be seen as an end-around for some public employees (though Madigan brought both claims so must have exhausted administrative remedies).

This article was originally printed on Workplace Prof Blog on October 3, 2013.  Reprinted with permission.

About the Author: Paul Secunda is an associate professor of  law at Marquette University Law School.  Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law.  Professor Secunda is a frequent commentator on labor and employment law issues in the national media.  He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.

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