Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Supreme Court’

Public workers organize after Supreme Court attacked their unions

Tuesday, October 9th, 2018

The Supreme Court took a big swing at public worker unions in its Janus decision, which allows workers to demand the benefits of unions without contributing to the costs, essentially forcing their coworkers who are union members to subsidize them. But many unions are rising to the challenge.

In Connecticut at least, defections amount to a tiny trickle — just a fraction of 1 percent in most cases. […]

AFSCME Council 4 and other state employee unions are rapidly cutting into the ranks of non-members, restoring dues payments that were cut off from a total of about 7,100 people, depending on the month.

In Illinois, the Peoria Federation of Teachers is training teachers to be organizers, talking to other teachers about union issues:

We offer extremely good services for our members, but we realized if we don’t shift to an organizing model, we might get decimated,” said Jeff Adkins-Dutro, a Peoria English teacher who also serves as the local union president. “In my opinion, this is really going to strengthen our union.”

The transition requires a change in thinking and a lot of legwork. That’s why teachers like Innis and Grace gave up some of their summer break, taking part in an internship program organized by unions and a community group. They sat through seminars run at their local union hall across from the Illinois River, then hit the pavement to speak with teachers about school funding and whatever else they had on their minds.

Organize, organize, organize.

This blog was originally published at Daily Kos on October 6, 2018. Reprinted with permission.
About the Author: Laura Clawson is labor editor at Daily Kos.

Court Orders EPA To Implement Chemical Plant Safety Rule

Tuesday, August 21st, 2018

In a stinging rebuke to the Environmental Protection Agency, a federal court has called EPA’s delay in implementing the Obama administration’s chemical disaster rule “arbitrary and capricious” and told the agency to implement the rule.

EPA had argued that delaying the rule would reduce industry confusion while it figured out whether it wanted to modify or rescind the rule. The court, noting that the Clean Air Act clearly limits such delays to three months, rejected the EPA’s reasoning. The decision means that EPA can no longer delay enforcement of the rule. So far, only provisions regarding local emergency-response coordination requirements are in effect, while other provisions come into effect in 2021.

We have written frequently here about how issuing standards and regulations designed to protect workers, consumers and the environment is a long and difficult process.  Rescinding or even delaying these legal protections is also difficult because an agency is required to justify its actions and provide evidence showing why the previous regulations are no longer needed. And despite all the fanfare that former EPA administrator Scott Pruitt received for being the deregulator-in-chief, the corners he cut have come back the haunt the Trump Administration’s efforts to undermine the laws that Congress passed to protect people from preventable workplace and environmental hazards.

According to Mike Wright, Director of Health, Safety and the Environment for the United Steelworkers union, who successfully sued the agency, “The decision clearly shows that EPA – and by implication OSHA and other federal agencies – can’t just delay a rule protecting the American people on a whim, or to do the bidding of some outside group.”

Background

Following a number of chemical plant disasters, including the 2013 explosion at West Fertilizer that killed 15 people and destroyed much of the town of West, Texas, President Obama issued an Executive Order that, in part, ordered EPA to reconsider its Risk Management Program (RMP). In January 2017, EPA issued a revised RMP regulation that enhanced requirements related to emergency response, provision of chemical hazard information, and requirements for facilities to consider inherently safer processes, as well as post-accident investigations, more rigorous safety audits and improved training.

“The decision clearly shows that EPA – and by implication OSHA and other federal agencies – can’t just delay a rule protecting the American people on a whim, or to do the bidding of some outside group.” — Mike Wright, USW Director of Health, Safety and the Environment

Provisions of the 2017 rule related to clarifying regulatory definitions were scheduled to come into effect on March 14, 2017. Other provisions, including most local emergency-response coordination requirements, were supposed to become effective on March 14, 2018. The requirements for emergency response exercises, public information-sharing and post-accident public meetings, third-party audits, more rigorous post-incident analyses, and safer technology requirements are not scheduled to become effective until March 15, 2021.

The Trump administration, under then EPA Administrator Scott Pruitt, delayed enforcement of the rule three times, the last time by issuing the “Delay Rule,” which delayed enforcement of the rule for 20 months while the agency decided whether to modify or rescind the Obama rule. (The EPA did, in fact, issue a proposal to rescind most provisions of the Obama rule last May. That process is not affected by this decision.) A number of organizations, including the United Steelworkers union, sued EPA, arguing that “The Clean Air Act (CAA) is explicit that reconsideration ‘shall not postpone the effectiveness of the rule,’ beyond a three-month period.” A number of other environmental and community groups joined in challenging the delay, along with a number of states.

A Mockery of the Statute

The court found that EPA’s delay rule “makes a mockery of the statute” because it  violates the paragraph in the Clean Air Act that requires EPA rules to “have an effective date, as determined by the Administrator, assuring compliance as expeditiously as practicable.” The court writes that “The Delay Rule does not have the purpose or effect of “assur[ing] compliance”; it is calculated to enable non-compliance.” And the EPA did not consider the delay’s effect on the requirement to “prevent accidental releases,” to “minimize . . . consequences of any such release,” to “protect human health and the environment,” and “to include procedures and measures for emergency response after an accidental release.”

The court criticizes EPA for basing the delay on a bunch of “alleged ‘security risks’ and other hypotheticals raised by industry” without actually explaining why the implementation delay was necessary.

The court also mocks EPA’s explanation that the delay is intended to avoid confusion among the regulated community and local responders who would have to comply with a rule that might later be changed, when it is actually EPA that’s causing confusion “by the almost two-years’ reconsideration it desires in order to decide what it wants to do.”

EPA is also ignoring the express interest of Congress Congress which expressly stated that it wants compliance with rules “as expeditiously as practicable” and therefore  provided “a strict limit of three months on stays of effective dates pending reconsideration” in order to keep any reconsideration from delaying a final rule.

Arbitrary and Capricious

The court found the EPA’s delay rule to be arbitrary and capricious first, because it didn’t explain why it couldn’t revise (or rescind) the rule while the rule was in effect. Second,the Delay Rule didn’t provide a “reasoned explanation” why the original effective date and compliance dates were unjustified, despite the fact that the EPA in the original Obama rule had gone to great lengths to justify the compliance dates and consider comments from the public. EPA also failed to explain “why the detailed factual findings [in the Obama rule] regarding the harm that would be prevented upon implementation of the Chemical Disaster Rule are now only ‘speculative.’”

The third reason the court found the Delay Rule to be arbitrary and capricious is a favorite of mine. The court found that the EPA’s justification of the delay on “‘the timing’ of a finding by the Bureau of Alcohol, Tobacco, and Firearms . . . that the West Fertilizer explosion was caused by arson’ rather than an accident…is not a reasoned basis for delaying the entire Chemical Disaster Rule.”

As readers of Confined Space are aware, in 2016 — days before the end of the RMP rule comment period — the Bureau of Alcohol, Tobacco and Firearms (BATF), found that the fire that led to the catastrophic explosion at West was intentionally set.  (The Bureau used a highly criticized investigative process to make that doubtful finding, but that wasn’t the reason for the Court’s decision.)

The EPA partially based the Delay Rule on arguments made in chemical industry petitions to the EPA stating that they did not have enough time to comment on the BATF finding and if the cause of the fire was actually arson, that might have affected their comments and the final outcome of the rule, especially in the area of emergency response and provision of chemical information to responders and the public.

But the court rejected EPA’s reasoning — particularly as the argument impacted the emergency-response and information-sharing provisions of the Obama regulation:

Even were the court to agree for purposes of argument that the cause of the West, Texas disaster being arson is relevant to some of the accident-prevention provisions of the Chemical Disaster Rule, it is irrelevant to the emergency-response and information-sharing provisions, including those that have indisputably been delayed from the original March 14, 2018 effective date. Given that twelve of the fifteen fatalities in the West, Texas disaster were local volunteer firefighters and other first responders, this would be a fairly weak explanation for delaying provisions that EPA previously determined would help keep first responders safe and informed about emergency-response planning. (emphasis added)

The court also noted that the West disaster was not the only chemical plant incident that EPA cited to justify the original regulation, citing incidents in Hawaii, Colorado, Washington, California, Louisiana and the 2005 BP refinery explosion in Texas City, Texas.

Standing

One other feature of the court decision was that it granted “standing” to the United Steelworkers Union, allowing the union to sue the agency on behalf of its members who work in chemical facilities and live in communities surrounding the plants. As Wright explained,

The Court’s decision on the USW’s standing is especially important. The ruling clearly shows that unions have the right to defend their members, not only in the workplace, but in the broader community. And that’s a right the labor movement should always be exercising.

One final note. The decision notes that Supreme Court nominee Judge Brett Kavanaugh was a member of the judicial panel at the time the case was argued but did not participate in this opinion.

This blog was originally published at Confined Space on August 17, 2018. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

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.

Kavanaugh: Threat to Workers and to OSHA

Wednesday, July 11th, 2018

While most of the discussion of President Trump’s nomination of Brett Kavanaugh to the Supreme Court focuses on the possibility that he will be the deciding vote to repeal Rowe v. Wade or that the will bend over backwards to help Trump out of the Russia investigation, there is clear evidence that Kavanaugh is overly friendly to corporate America, and hostile to workplace safety, the Occupational Safety and Health Act and the environment.

In 2010 a killer whale dismembered and drowned a Sea World trainer, Dawn Brancheau, in front of hundreds of horrified men, women and children looking forward to a day of fun and frolic with sea animals. The whale that killed Brancheau had been implicated in three previous human deaths.

OSHA issued a $70,000 willful General Duty Clause Citation against Sea World and ordered the company to reduce the hazard by physically separating trainers from the whales. OSHA proved that Sea World and its employees knew from previous incidents and close calls that the all of its killer whales were dangerous, and that Tilikum, the whale that killed Brancheau, was particularly dangerous.  Experts also described a feasible means of protecting employees — actions that Sea World in fact implemented following Brancheau’s death.

The Occupational Safety and Health Review Commission upheld OSHA’s citation, and Sea World appealed to the Court of Appeals. The D.C. Circuit court decided 2-1 in favor of OSHA. The Court found that  “There was substantial record evidence that Sea World recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable,” and that there was substantial evidence that there were feasible means to protect employees without impacting the business. The majority opinion upholding OSHA’s action was written by Circuit Judge Judith Rogers. Also supporting OSHA was Chief Judge Merrick Garland.

The lone dissenter, opposing OSHA’s citation, was Circuit Judge Brett Kavanaugh.

According to former OSHA Assistant Secretary David Michaels, “In his dissent in the Sea World decision, Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.”

Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.  —  David Michaels

Garland, as you may remember was nominated to the Supreme Court in 2016, following the death of Supreme Court Justice Antonin Scalia. Republicans, led by Senate Majority Leader Mitch McConnell, infamously refused to consider Obama’s nomination, allowing Trump to appoint Neil Gorsuch to the Court. And the lead attorney representing Sea World was Eugene Scalia, son of deceased Justice Antonin Scalia.

Are Whale Shows A Sport Like Football?

Kavanaugh calls OSHA’s action “arbitrary and capricious” because regulating the safety of killer whale shows is allegedly no different than regulating the safety of tackling in football, or speeding in sports car racing, or punching in boxing — things in which OSHA has never involved itself.  And just as you’d have no football if you didn’t have tackling, or no sports car racing if you didn’t have speeding, there would allegedly be no Sea World if there was no close human contact with killer whales.

One problem with this argument, as Rogers points out, is that no one — except Kavanaugh — claims that whale shows are a sport where you are there to see who “wins.”

Or, to put it more bluntly, people go to boxing matches to watch people punch each other, and go to football games to watch one team physically stop the other from scoring. But tourists — including small children — go to Sea World to watch attractive trainers lovingly interact with adorable sea creatures. Killer whale shows are not supposed to be modern gladiatorial contests where the audience looks forward to seeing whether the trainers will successfully keep their limbs attached or finish the show bleeding and dead at the bottom of a pool.

Not even Sea World made the football/car racing/boxing analogy, Rogers and Garland point out. By making that argument, Kavanaugh is just makin’ stuff up — adding his own opinions on matters that weren’t even part of the case.

Second, as the majority opinion points out, “physical contact between players is ‘intrinsic’ to professional football in a way that it is not to a killer whale show.” Spectators can take pleasure from a whale jumping out of the water and doing back flips even without close personal contact with a human trainer.

In fact, the show went on even after the OSHA citation. Following Brancheau’s death, Sea World implemented many of the controls that OSHA recommended in its General Duty Clause citation — and still managed to attract customers to the park — and even to the killer whale shows — without the close personal contact.

Hostility Toward OSHA

Kavanaugh’s dissent drips with hostility toward OSHA and a basic misunderstanding of the act and the principles — and law — behind it. Comparing killer whale shows to football, boxing, car racing, as well  as other “extremely dangerous” sports such as “Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per hour fastball….” etc., etc., Kavanaugh objects to OSHA’s “paternalistic” intervention because “the participants in those activities want to take part.”

And then goes on to state (cue the heroic music)

To be fearless, courageous, tough – to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk – is among the greatest forms of personal achievement for many who take part in these activities. American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so.

He then asks:

When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?

Not “the bureaucracy at the U.S. Department of Labor,” according to Kavanaugh.

Happily, Garland and Rogers were more knowledgeable about the Occupational Safety and Heath Act than Kavanaugh. They point out that the OSHAct puts the duty on the employer to create a safe workplace, not on the employees to choose whether or not they want to risk death — especially when the employer can make the workplace safer.

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.  Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had “assumed” the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.  Maybe the worker even liked doing dangerous work.  Employers also escaped responsibility by showing that the worker was somehow negligent. (Interestingly, Sea World originally blamed Brancheau for her own death because she hadn’t tied her hair back.)

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.

Rogers and Garland were forced to remind Kavanaugh that the employer’s duty under the OSHAct isn’t reduced by “such common law doctrines as assumption of risk, contributory negligence, or comparative negligence.”

Workers Comp laws, originally passed in the early 20th century, were supposed to be no-fault. It didn’t matter who was at fault, if the worker was hurt, the worker got compensated.  And the OSHAct, passed in 1970, further states clearly and unequivocally that the employer is responsible for ensuring that the workplace is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” and sets up a mechanism to enforce the law and penalize employers who violated it.  Even if the macho employee wants to defy death, the law states that the workers may not work at heights without fall protection or go down into deep trenches without shoring. And it’s the employer’s job to make sure that employees are not endangered.

Did Brancheau enjoy her job? Undoubtedly.

Did she “willingly accept the risk of violent death as part of their job?”  Unlikely. And legally irrelevant.

Did she deserve a safe workplace? Absolutely.

Nothing New Under the Sun?

Kavanaugh also objected to OSHA’s citation because the agency allegedly “departed from tradition and stormed headlong into a new regulatory arena.”

Well, first, Congress put the General Duty Clause into the OSHAct to address “unique” recognized hazards for which there is no OSHA standard.

Second, objecting to OSHA “storming into a new arena” brings back memories of the arguments used by previous OSHA heads, politicians and the health care industry when unions petitioned the agency in the late 1980’s for a bloodborne pathogens standard to prevent HIV infection and over 300 health care worker deaths a year from hepatitis B. At that time, infectious diseases were “a new regulatory arena.” Thankfully, Judge (or Justice) Kavanaugh wasn’t around then to rule on that standard. Thousands of health care workers owe their lives to OSHA’s move into the “new regulatory arena” of infectious diseases.

Bad for the Environment

Ken Ward of the Charleston Gazette-Mail reminds us that Kavanaugh is not only anti-worker (and anti-OSHA), but also anti-environment (and anti-EPA). In 2011, Kavanaugh was the lone dissenter in a case where Arch Coal had challenged the Environmental Protection Agency’s authority to cancel a mountain-top removal permit that had been issued by the U.S. Army Corps of Engineers. The 2,300-acre Spruce operation that would have buried more than seven miles of streams.  “The EPA cited the growing scientific evidence that mountaintop removal mining significantly damages water quality downstream and noted an independent engineering study that found Arch Coal could have greatly reduced the Spruce Mine’s impact.”

Kavanaugh’s argument is that EPA didn’t do a proper cost benefit analysis. Suddenly becoming a champion of working people and unions (at least when it benefits the company), Kavanaugh argued that EPA had failed to factor in the costs of  putting more than 300 United Mine Workers union members out of work.  Once again, Kavanaugh was making stuff up (legally). Arch Coal hadn’t even made that argument.

Kavanaugh also criticized the agency’s examination of potential damage to aquatic life as an “utterly one-sided analysis.” Perhaps the fish had also “accepted the risk” of living in streams near coal deposits.

One of the judges in the majority was an Ronald Reagan pick, and the other was appointed by President Obama.

Conclusion

Kavanaugh stated at last night’s press conference that one of his legal principles is that “A judge must interpret statutes as written.”  He might have added that to interpret the law as written, one must first read and understand the law.

He also warmly told the world that his mother was a prosecutor whose trademark line was: “‘Use your common sense. ‘What rings true? What rings false?’ That’s good advice for a juror and for a son. ”

Indeed it is. And maybe he could explain to the parents and husband of Dawn Brancheau why it rings false to him that the company responsible for their daughter’s safety should be held responsible for her death —  and held to the same standard as every other employer in the country.

Until he does that, he doesn’t belong on the Supreme Court.

This blog was originally published at Confined Space on July 10, 2018. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

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. 

Stop Calling It an Arbitration Agreement—Employers Are Forcing Workers to Give Up Their Rights

Thursday, May 24th, 2018

Trump-appointee Justice Neil Gorsuch begins his decision for the majority in Epic Systems v. Lewis, the landmark arbitration case decided Monday at the Supreme Court, with a simple set of questions: “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?” Justice Gorsuch and the rest of the five-Justice conservative majority answered the first question in the affirmative and the second question in the negative. In so doing, the Supreme Court has ushered in a future where almost all non-union private sector workers—nearly 94 percent of the private sector workforce—will be barred from joining together to litigate most workplace issues, including wage theft, sexual harassment and discrimination.

The decision incorrectly holds that because the Federal Arbitration Act requires courts to treat arbitration agreements on equal footing with other contracts, the National Labor Relations Act, which explicitly protects workers who engage in concerted activity for mutual aid or benefit, does not protect workers’ rights to litigate claims at work. But the problem with the ruling goes much further: The entire decision is premised upon a massive fiction: that these arbitration agreements, wherein the worker loses all access to court to bring a collective action with her fellow workers, are the result of an agreement between the workers and the employer. In reality, arbitration agreements are mandatory rules imposed unilaterally by the employer—not two-sided agreements.

On April 2, 2014, Jacob Lewis, who was a technical writer for Epic Systems, received an email from his employer with a document titled “Mutual Arbitration Agreement Regarding Wages and Hours.” The document stated that the employee and the employer waive their rights to go to court and instead agreed to take all wage and hour claims to arbitration. Furthermore, unlike in court, the employee agreed that any arbitration would be one-on-one. This “agreement” did not provide any opportunity to negotiate, and it had no place to sign or refuse to sign. Instead, it stated, “I understand that if I continue to work at Epic, I will be deemed to have accepted this Agreement.” The workers had two choices: immediately quit or accept the agreement. This is not the hallmark of an agreement; it is the hallmark of a mandatory rule that is unilaterally imposed.

When Lewis tried to take Epic Systems to court for misclassifying him and his fellow workers as independent contractors and depriving them of overtime pay, he realized that by opening the email and continuing to work, he waved his right to bring a collective action or go to court. It is estimated that approximately 60 million Americans have already been forced to sign such individual arbitration agreements, and with Monday’s decision, they are certain to spread rapidly.

From the opening questions of the decision to the subsequent analysis, Justice Gorsuch and the conservative majority completely paper over the forced nature of these “agreements.” Gorsuch describes the facts of this case thusly: “The parties before us contracted for arbitration. They proceeded to specify the rules that would govern their arbitrations, indicating their intention to use individualized rather than class or collective action procedures.” In addressing why it is necessary to honor the waiver of class or collective action, he writes, “Not only did Congress require courts to respect and enforce agreements to arbitrate; it also specifically directed them to respect and enforce the parties’ chosen arbitration procedures.”

But the workers in this case had no meaningful input or opportunity to negotiate the issue of arbitration. Describing the worker’s decision to open an email and not quit his job immediately in this manner is at best delusional and at worst deceitful.

The entire structure of the Supreme Court’s modern jurisprudence on arbitration agreements and class-action waivers is built on the idea that it is proper, appropriate and preferred for those in power to force others to waive their rights. But it wasn’t always this way. In 1925, Congress passed the Federal Arbitration Act (FAA), which sought to address the animosity some judges had towards arbitration, by requiring judges to treat arbitration agreements like other contracts. A 2015 Economic Policy Institute report describes the FAA as something that was  originally intended to be applied “to a narrow set of cases—commercial cases involving federal law that were brought in federal courts on an independent federal ground.” In essence, the FAA was designed so that businesses that negotiate contracts with each other can choose have their claims heard by an arbitrator of their choosing. “But,” the report explains, “in the 1980s, the U.S. Supreme Court turned the FAA upside-down through a series of surprising decisions. These decisions set in motion a major overhaul of the civil justice system. It is no exaggeration to call the Supreme Court’s arbitration decisions in the 1980s the hidden revolution of the Reagan Court.”

The modern case that opened the door to the flood of arbitration agreements was a 2011 Supreme Court case involving a couple that wanted to bring a consumer class action against AT&T to challenge a practice where cell phone companies offered “free” phones, but then charged customers the sales tax on the full value of the phones. Justice Scalia, writing for the five-Justice majority, treated the cell phone contract as something negotiated by the parties. He extolls the virtues of allowing these types of agreements because “affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute.” Scalia finds no issue with the fact that only one party here had power, and that it can be said with certainty that in the history of the world, no one has ever negotiated a cell phone contract with a carrier.

Now, to engage in most activities, from signing on to social media to buying a phone or airline ticket to putting a relative in a nursing home, one is provided a forced contract with an individual arbitration clause hiding inside. After Monday’s decision, it will be unlikely that many will be able to accept or remain at their jobs in the private sector without similarly waiving their right to go to court or act collectively to redress their rights.

This piece was originally published at In These Times on May 23, 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.

The sinister history underlying Neil Gorsuch’s decision lashing out at American workers

Wednesday, May 23rd, 2018

The ink was barely dry on Neil Gorsuch’s opinion in Epic Systems v. Morris before Ogletree Deakins — a management-side employment law firm that earned nearly three-quarters of a million dollars in profits per equity partner last year — started hawking an “innovative new product” that would enable employers to enrich themselves at the expense of their most vulnerable workers.

Epic Systems held that employers may force their employees, under pain of termination, to sign away their right to bring a class action lawsuit against their employers. It is an invitation — if not an incentive — for wage theft, as class actions are often the only recourse available to someone robbed of a few hundred, or even a few thousand, dollars by their boss.

Employment lawyers have known this decision was coming for months. And many of them are going to cash in.

Yet, while this Epic Systems decision became inevitable the minute Gorsuch claimed ownership of a Supreme Court seat that Senate Republicans held open more than a year until Donald Trump could fill it, the Court’s decision would shock the lawmakers who actually enacted the laws at issue in this case.

Gorsuch’s opinion is a mix of willful historical ignorance, ideological blindness, and a smug insistence that he has a special window into the law that many of his more experienced colleagues lack. Now, it threatens to revive one of the Supreme Court’s most disgraceful chapters.

The new Lochnerism

The conceit of Gorsuch’s Epic Systems opinion is that workers and their bosses sit down like equal bargaining partners to hash out their terms of employment. “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?” Gorsuch begins his opinion with a question framed as if it could only have one answer. “Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?”

In reality, the facts of Epic Systems bear little resemblance to the civilized negotiation presented by Gorsuch. Workers at one of the companies at issue in this case received an email one day informing them that they must give up their right to bring class actions. Employees who “continue[d] to work at Epic,” according to the email, would “be deemed to have accepted” this agreement. A similar email was sent to the employees of one of the other companies that prevailed in Epic Systems.

These employees, in other words, only “agreed” to the terms proposed by their bosses in the same sense that a person accosted by a gunman in a dark alley “agrees” to give up their wallet. Their choice was to give up their rights or to immediately lose their jobs.

This is not the first time the Supreme Court ignored the fairly basic fact that employers typically have far more bargaining power than their workers — and can use this greater share of power to exploit their employees.

In its anti-canonical decision in Lochner v. New York, the Supreme Court struck down a late nineteenth century law prohibiting bakeries from overworking their bakers. Such a law, Justice Rufus Peckham wrote for the Court, “interferes with the right of contract between the employer and employes [sic],” adding that “there is no contention that” bakery workers were unable “to assert their rights and care for themselves without the protecting arm of the State.”

In reality, bakers faced horrific working environments before the “protecting arm of the State” intervened to improve these conditions.

At the time, the overwhelming majority of New York City bakeries were basement operations located in the same tenements in which their customers lived. “’Filth, cobwebs and vermin’ filled these basements,” according to a city inspector’s report. Sewer pipes ran through many such bakeries, leaking their raw contents onto the workers, their workplaces, and the dough. In one such bakery, “’the water closet walls were literally black’ with roaches from floor to ceiling.”

Bakeries often had no windows and little ventilation, filling the air with irritating flour dust and fumes. Ovens heated the workplaces into infernos. Low ceilings required many workers to crouch, and the floors were typically either dirt or rotten wood filled with rat holes.

The average bakery worker labored at least 13 hours a day in these conditions, though some worked as much as 126-hours a week. Workers, moreover, were often required to sleep on the very same tables where they prepared the dough, and the cost of these makeshift beds were then deducted from their wages.

These were the sorts of conditions that the free market offered workers who, without the law to protect them, were forced to bargain alone with their employers. Perhaps, in some narrow sense, these workers “agreed” to work countless hours among the roaches, the heat, and the raw sewage. But only a judge blinded by their own ideology could conclude that these workers had any real choice in the matter.

“Concerted activities”

By the mid 1930s, Congress understood what men like Peckham and Gorsuch refused to see. As Justice Ruth Bader Ginsburg explains in her Epic Systemsdissenting opinion, Congress enacted the National Labor Relations Act (NLRA) on the premise that “employees must have the capacity to act collectively in order to match their employers’ clout in setting terms and conditions of employment.”

The law may not have the power to equalize bargaining power between workers and their bosses, but, by enabling those workers to join together, it could give them a fighting chance.

One provision of the NLRA — a provision that Gorsuch refused to honor in his Epic Systems opinion — 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.” Class actions are precisely this — a form of “concerted activity” that workers may use for their own “mutual aid or protection.”

The idea behind a class action is that multiple workers with the same legal claim against their employer can join together under a single lawsuit. Such concerted activity is necessary for the simple reason that litigation is often prohibitively expensive. As Ginsburg notes in her dissent, employers at one of the companies at issue in Epic Systems “would likely have to spend $200,000 to recover only $1,867.02 in overtime pay and an equivalent amount in liquidated damages.”

Only a truly fanatical worker — and one with very deep pockets — might be willing to spend such an exorbitant sum for such a small amount of money. The only real hope for such a worker is to join a class action lawsuit with colleagues who were also cheated out of their fair pay.

Except that workers will soon be unable to seek this remedy. An estimated “23.1% of nonunionized employees are now subject to express class-action waivers in mandatory arbitration agreements,” according to Ginsburg’s dissent. Now that the Supreme Court has endorsed such illegal agreements, this number will skyrocket. Law firms are already lining up to show employers how to draft such agreements, and workers throughout the country will soon be left powerless against wage theft.

Twisted commerce

Gorsuch concludes his Epic Systems opinion with a flourish. “The policy may be debatable but the law is clear,” Trump’s Supreme Court nominee claims. “Congress has instructed that arbitration agreements like those before us must be enforced as written.”

As it turns out, Gorsuch is half correct. The law is, indeed, clear. It just doesn’t say what he wants it to say.

The contracts at issue in Epic Systems are “forced arbitration” contracts, meaning that they not only strip employees of their right to bring a class action, they also require employment disputes to be resolved in a privatized arbitration system that tends to favor employers more than real courts of law. Though a law known as the Federal Arbitration Act protects arbitration agreements in certain contexts, that very same law explicitly exempts employment contracts.

Nevertheless, in its 2001 decision in Circuit City v. Adams, the Supreme Court wrote this safeguard for workers out of the law.

Circuit City turned on two interlocking provisions of the Federal Arbitration Act. The first provides that “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable” except under limited circumstances. The second exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

To understand the scope of these two provisions, it’s important to understand some of the history surrounding the Federal Arbitration Act, which was enacted in 1925.

In the late nineteenth and early twentieth century — the same period when the Court handed down Lochner — the Supreme Court also imposed strict limits on Congress’ constitutionally granted power to “regulate commerce with foreign nations, and among the several states.” During this period, the Court defined the word “commerce” narrowly, to encompass little more than the transit of goods across state lines. Manufacture of goods to be sold, mining of raw materials, and the farming of commodities were all deemed to be beyond Congress’ power to regulate.

Among other things, the Court relied on this stingy definition of the word “commerce” to strike down a federal law banning the interstate sale of goods manufactured by child labor.

In the 1930s, a little more than a decade after the Federal Arbitration Act became law, the Supreme Court abandoned this narrow understanding of Congress’ power to regulate commerce. Under modern precedents, Congress’ power over “commerce” now includes broad authority to regulate economic matters of nearly all kinds.

Which brings us back to the text of the Federal Arbitration Act. When Congress wrote this law, it understood phrases like “a transaction involving commerce” or “any other class of workers engaged in foreign or interstate commerce” to use the narrow, pre-New Deal understanding of the word “commerce.” As the law was originally understood, it only protected arbitration agreements involving the transit of goods for sale.

Contracts involving manufacture, mining, or agriculture were beyond the scope of Congress’ authority, according to the Supreme Court at the time, and therefore beyond the scope of the Arbitration Act. Similarly, when the Act exempts “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” Congress sought to exempt all employment contracts that it believed that it had the power to regulate at the time.

Of course, the Arbitration Act could also be read anachronistically. If the modern definition of the word “commerce” is inserted into the law, that would mean that nearly all contracts are governed by the law, but all employment contracts are exempt. Thus, under either plausible reading of the statute, contracts between workers and their employers are exempt.

Circuit City, however, read the statute a third way. It reads the phrase “a transaction involving commerce” using the modern definition, while reading the phrase “any other class of workers engaged in foreign or interstate commerce” using the 1925 definition. Thus, the policy favoring forced arbitration is given the broadest scope, while the exemption favoring workers is read exceedingly narrowly.

It’s a sick double-standard — the kind that should make anyone who reads the Court’s Circuit City opinion doubt the good faith of the justices in the majority.

Without Circuit City, there could not be a decision like Epic Systems. Gorsuch’s opinion builds upon Circuit City‘s holding that the word “commerce” can mean one thing in one provision of the law and something completely different in another provision of the same law. Circuit City is one of the Supreme Court’s greatest sins against the English language, and the text of the law itself is entirely at odds with Gorsuch’s claim in Epic Systems that “Congress has instructed that arbitration agreements like those before us must be enforced as written.”

So the law, as Gorsuch condescendingly asserts, is indeed clear. The Federal Arbitration Act exempts all employment contracts, and any claim to the contrary requires the Court to turn a blind eye to history.

Which, of course, is exactly what Gorsuch did in Epic Systems. He ignored the way the law was originally understood, ignored the text of the National Labor Relations Act, ignored the law’s hard-won understanding that employees and employers do not have equal bargaining power, and ignored Congress’ explicit efforts to strike a different balance of power between workers and their bosses.

It is a great day for law firms that profit off the exploitation of workers. And it is an even greater day for their clients.

The rest of us can either sign away our rights or lose our jobs.

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.

This article was originally published at ThinkProgress on May 23, 2018. Reprinted with permission.

The Supreme Court’s Latest Anti-Worker Decision Deals a Major Blow to the #MeToo Movement

Tuesday, May 22nd, 2018

After months of sustained public pressure targeting sexual harassment in workplaces across the United States, the U.S. Supreme Court on Monday significantly undermined the power of workers to collectively challenge discrimination and abuse at the hands of their employers. In a 5-4 decision on the Epic Systems Corp. v. Lewis casethe Court ruled that private-sector employees do not have the right to enter into class-action lawsuits to challenge violations of federal labor laws.

“[T]he Supreme Court has taken away a powerful tool for women to fight discrimination at work,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center, in a press statement. “Instead of banding together with coworkers to push back against sexual harassment, pay discrimination, pregnancy discrimination, racial discrimination, wage theft and more, employees may now be forced behind closed doors into an individual, costly—and often secret—arbitration process. This will stack the deck in favor of the employer.”

The case concerns tens of thousands of employees at three companies—Epic Systems Corp., Ernst & Young LLP and Murphy Oil USA Inc.—who were forced to sign away their right to join class-action lawsuits against their employers as a precondition to being hired.

The workers argued that their right to file class-action lawsuits over alleged wage and hours violations is protected by the National Labor Relations Act (NLRA), which was passed in 1935 to offer employees greater leverage to collectively challenge unjust treatment on the job. But, echoing the employers’ arguments, Justice Neil Gorsuch—who was appointed by Trump—wrote in the majority opinion that the 1925 Federal Arbitration Act supersedes the NLRA.

The ruling means that workers do not have the right to take bosses to court over alleged violations of federal labor laws. It also means bosses can force workers to arbitrate complaints individually instead of collectively, which overwhelmingly slants in favor of employers. This ruling is poised to impact a large swath of the U.S. workforce, where 41 percent of private-sector employees have already signed away their right to class-action legislation.

These workers include those who are pushing against wage and hour violations, as well as fighting patterns of racism, sexism and other forms of harassment in the workplace. Workers’ rights advocates say they are concerned that the ruling could potentially be detrimental to the #MeToo movement, which has relied on power in numbers to confront sexual assault in workplaces from Hollywood to tomato fields. Some warn that, for those facing sexual harassment in the workplace, the choice between employer-controlled arbitration or continuing on in silence is a choice between two bad options.

“#MeToo has shown us that the abuse of power is not one ‘rotten apple in a barrel’: It is widespread and systemic, especially in low-wage industries,” Palak Shah, social innovations director for the National Domestic Workers Alliance, told In These Times. “We need checks on power—like collective action—to counter abuses of power when they happen. While unchecked power imbalances exist between employers and workers, we can be sure abuses like sexual harassment will continue.”

Arbitration is often kept secret and, employees frequently foot the bill for the arbitration process. Experts warn that this secrecy would protect employers responsible for harmful work environments by not allowing space for workers to collectively address widespread patterns of harassment.

“In the case of sexual harassment, say there was a group of employees who claimed that they’d been sexually harassed, they can’t proceed together. They’d have to go individually [to arbitration] and they can’t go to court,” Alexander Colvin, a labor relations scholar at Cornell University, told In These Times.

According to Graves, the stakes are “particularly high” for women who “often face discrimination that is difficult to detect, like pay discrimination, or suffer from sexual harassment and face retaliation for reporting it.”

Writing the dissenting opinion, Justice Ruth Bader Ginsburg argued that the 1925 law exemplified a different age for labor relations, and that employees should not be forced into “take-it-or-leave-it” agreements in order to find gainful employment.

The case is one of several currently being considered by the Supreme Court that could severely undermine workers’ rights. Much like the pending decision in Janus v. AFSCME, which could prevent unions from collecting union dues from non-union members, it furthers the ongoing anti-worker agenda pushed by the Trump administration.

“As mandatory arbitration is forced on growing numbers of employees as a condition of employment,” Graves added, “the Supreme Court should strengthen rather than undermine the rights of workers to challenge insidious and often widespread civil rights violations.”

 About the Authors: Rima Parikh is a summer 2018 editorial intern at In These Times and an incoming MSJ candidate at Northwestern University. Tanner Howard is a freelance journalist and In These Times editorial intern. They’re also a member of the Democratic Socialists of America.
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