Category Archives: Courts

Reconciling Agency Fee Doctrine, the First Amendment, and the Modern Public Sector Union

Source: Courtlyn G. Roser-Jones, University of Wisconsin, Legal Studies Research Paper No. 1423, Last revised: September 14, 2017

From the abstract:
Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay “fair share,” or “agency” fees. In public unions “when the employer is the government” this arrangement creates tension between two important values: the First Amendment’s protection against compelled expression, and the collective benefits of worker representation. When confronted with this tension nearly forty years ago in Abood v. Detroit Board of Education, the Supreme Court struck an uneasy compromise, allowing public sector unions to recoup expenses for collective bargaining, but not for political activity. For decades, the decision has been a lightning rod, with some scholars calling for its reversal and others insisting on its preservation. In the meantime, the realities of modern public sector collective bargaining have changed, and First Amendment jurisprudence has evolved. The Supreme Court has recently signaled an interest in revisiting the issue, and test cases are making their way through the circuit courts. The time has come to reconsider Abood’s fragile compromise. This Article offers a new way forward within the First Amendment, one that honors the importance of both union activity and free expression. It proposes a way to reconcile these twin interests while also updating the doctrine to account for state legislative efforts, modern union realities, and First Amendment jurisprudential developments. Specifically, the Article argues that agency fees should be brought into step with current political contribution and campaign finance jurisprudence. Under this approach, some agency fees “but only those that are “closely drawn” to avoid unnecessary expressive infringement” will remain lawful. This approach, a middle ground, may not satisfy those who ardently oppose agency fees of any kind, or those who want Abood’s rule fully upheld. Still, it emerges as the best way forward through a difficult terrain: It avoids the false dichotomy between union and political activities, respects state legislatures that craft innovative collective bargaining statutes, and grounds public sector agency fees with other coherent aspects of First Amendment jurisprudence.

Is it Time for a New Free Speech Fight? Thoughts on Whether the First Amendment is a Friend or Foe of Labor

Source: Catherine Fisk, University of California, Berkeley – UC Irvine School of Law, Research Paper No. 2017-27, May 30, 2017

From the abstract:
The First Amendment, at least in the Supreme Court, hasn’t been much of a friend to labor unions. Among the few First Amendment rights that the Supreme Court has expanded in the labor union context recently is the right of union represented employee to refuse to pay fees to the union that represents them. Notwithstanding reasons to believe the contemporary First Amendment is more likely to be foe than friend of labor, history suggests the contrary. This essay explains why, making three arguments. First, social movements exist only where and when there is a robust commitment to free speech, and workers have real power only when labor has the capacity to be a social movement. Second, labor gained power as a social movement by engaging in protest and it started down the path to losing power when, in a series of cases decided between 1941 and 1960, the Supreme Court largely eliminated constitutional rights to picket and boycott. In the early 1960s, just when the Court finished creating the labor protest exception to the free speech clause, it extended First Amendment protection to civil rights and antiwar protest. Just as civil rights protesters drew on the sit down strike pioneered by labor in the 1930s, the Supreme Court found a First Amendment right to engage in civil rights protest by drawing on the cases that labor unions had won in 1939 and 1940. Third, the literature on the role of lawyers for social movements between the 1930s and now suggests the importance of law to how lawyers advise their clients. The only hope for the future of the labor movement is in cultivating a spirit of protest. Without the right to engage in robust protest, labor lawyers are in a difficult place when they advise their clients, and can do little to create the legal space to enable workers and social justice activists to launch a new round of free speech fights of the sort that brought the labor movement into power in the 1930s.

Friedrichs v. California Teachers Association

Source: Diana Liu, Berkeley Journal of Employment & Labor Law, Volume 38 Issue 2, 2017

During the 2016 term, the Supreme Court heard Friedrichs v. California Teachers Association, which presented two questions to the court. First, should public sector “agency shop” arrangements be invalidated under the First Amendment? Second, does requiring public employees to affirmatively object, rather than affirmatively consent, to subsidizing nonchargeable speech by public-sector unions violate the First Amendment? In a non-precedential per curiam opinion that offered no explanation on the merits of the argument, the evenly-split Court affirmed the decision of the Ninth Circuit. The subsequent rehearing petition was denied, leaving the Ninth Circuit decision to stand.

In affirming the Ninth Circuit’s decision, the Supreme Court left in place its previous decision in Abood v. Detroit Board of Education. In Abood, the Court upheld the constitutionality of compelling employees to pay agency fees to their collective bargaining representative. As a result, “agency shop” arrangements remain valid under the First Amendment. The Court also upheld the constitutional validity of requiring public employees to affirmatively object to funding non-collective bargaining related activities. With the divided Court’s per curiam opinion, Friedrichs has for now reaffirmed the controlling power of Abood, leaving undisturbed the future abilities of public employee unions to raise funds to support their collective bargaining activities. ….

Public Defenders Fight Back Against Budget Cuts, Growing Caseloads

Source: Teresa Wiltz, Stateline, November 21, 2017

Public defenders have complained for decades they’ve got too many cases and not enough money — or time — to do their clients justice.

Now, more public defense advocates are suing states for more funding. Overwhelmed public defenders also are increasingly trying other tactics: refusing to take on new cases, raising money through crowdfunding, even trying to assign a case to a sitting governor….

….With declining budgets and crushing caseloads, juggling clients has become a Sisyphean task, public defenders say. In New Orleans, for example, 60 public defenders manage roughly 20,000 cases a year. And overburdened public defenders, they argue, can’t mount a vigorous defense for their clients…..

Agency Fees and the First Amendment

Source: Benjamin I. Sachs, Harvard Law Review, Forthcoming, Date Written: September 22, 2017

From the abstract:
Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of compelled speech and association and may soon invalidate them entirely. The Court – and the scholarship on agency fees – proceeds from the assumption that such fees are employees’ money that employees’ pay to a union. This article argues, however, that this is the wrong way to understand agency fees and for two sets of reasons. One, the Court treats agency fees as employees’ money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysis. Instead, under the First Amendment, agency fees are – and must be treated as – payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated – under the Court’s own cases – as the property of the union that secured them. The article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees.

Janus, Agency Fees and the First Amendment
Source: Benjamin Sachs, On Labor blog, October 5, 2017

The Supreme Court’s Quiet Assault on Civil Rights

Source: Lynn Adelman, Dissent, Fall 2017
(subscription required)

It is a little-known and disturbing fact that the Supreme Court is in the process of gutting what may be the most important civil rights statute Congress has ever passed. It is particularly distressing that the harm is being done by a largely unanimous court—and that, other than a few legal scholars, no one seems to be paying any attention.

The statute in question is Section 1983 of the United States Code, which was enacted in 1871 as part of Reconstruction. Section 1983 enables people to bring suits in federal court to enforce the rights created by the Fourteenth Amendment—which, among other things, prohibits state officials from depriving persons of due process and equal protection of the law. The law was designed to provide a federal remedy against officials who violated the rights of the newly freed slaves or who stood by while others, like the Ku Klux Klan, did so. Specifically, it authorizes individuals to sue in federal court “any person who under color of law” violates their constitutional rights. The purposes of the law are to compensate persons whose constitutional rights have been violated and to deter future violations. Actions brought under Section 1983 are known as constitutional tort suits.

After Congress enacted Section 1983, the law lay largely dormant for some ninety years. In 1961, however, in Monroe v. Pape, the Warren Court breathed life into the statute. The plaintiff in Monroe alleged that thirteen Chicago police officers broke into his home in the early morning without a warrant, made his family stand naked, and interrogated him under physical threat. The Supreme Court upheld the plaintiff’s claim for damages under Section 1983 and interpreted the “under color of law” requirement to include actions by government officials taken under the badge of their authority even if the actions exceeded what they were permitted to do under state law. A police officer who used excessive force—as in the Monroe case—would be a prime example.

As the result of Monroe, Section 1983 became the primary vehicle for enforcing constitutional rights in the United States, and that remains true to this day. As Professor Lynda Dodd of the City University of New York (CUNY) has shown, although the statute has never received as much attention as some of the 1960s-era statutes such as the Civil Rights Act of 1964, Section 1983 has served as a central pillar of civil rights work for more than half a century. It is the means by which plaintiffs challenge the use of excessive force by police officers, race-based patterns of stop and frisk, unconstitutional conditions of confinement, wrongful convictions, and other kinds of official misconduct…..

Coverage on Janus Cert. Grant

Source: Maddy Joseph, On Labor blog, September 29, 2017

The Supreme Court decided yesterday to hear Janus v. AFSCME. The Court seems poised to hold that agency-fee agreements for public sector workers are unconstitutional. Since the order, reports and commentaries have analyzed Janus‘s threat to public sector workers, and its stakes for U.S. organized labor.

The Chicago Tribune explains that the case began when Illinois’ Republican Governor Bruce Rauner, a former private equity executive, attempted to stop the state from dispensing agency fees to unions, clashing with the state’s Attorney General. The Governor eventually filed the suit that would become Janus, asking a federal court to rule that his actions were valid and that fair-share agreements are unconstitutional. When Gov. Rauner was dropped from the case, Mark Janus and other state employees took over as plaintiffs. The Tribune also has an editorial that supports the union’s argument only on the “narrow” point that “[s]omeone who benefits from a union’s contract negotiations should pay for collective bargaining activities, if not for the union’s political activities.” It notes that an AFSCME loss in Janus would lead to a decline in union membership, like the decline seen “in Wisconsin, with Gov. Scott Walker leading the charge.” ….


Janus and the Private Sector
Source: Benjamin Sachs, On Labor blog, September 29, 2017

Maddy’s excellent wrap-up of yesterday’s Janus news includes a clip from Slate’s piece “Solidarity’s End.” There, Mark Joseph Stern provides a very useful synopsis of agency fees law, but he also suggests that a Janus decision finding agency fees unconstitutional could easily be exported to the private sector. Here’s how he puts it:

One last point: Janus involves only public-sector unions, or unions composed of state employees. But there is no obvious reason why its logic should not apply to private-sector unions as well.

But of course there is a very obvious reason why the logic of a public-sector holding would not apply to private-sector unions: that logic is the state action doctrine, which limits constitutional restrictions to state actors….

A Primer on the Supreme Court Case That Teachers’ Unions Have Been Fearing
Source: Liana Loewus, Ed Week blog, September 28, 2017

Today, the U.S. Supreme Court officially agreed to review a case on public-employee union fees that could potentially deliver a harsh blow to the nation’s teachers’ unions. You may find yourself asking: Wait, haven’t we been through this? Wasn’t someone named Friedrichs involved? And why is this coming up again? All good questions. Let’s take a look at what’s at stake, and how we got here. ….

Janus v. American Federation of State, County, and Municipal Employees, Council 31
Source: SCOTUSblog, 2017

Issue: Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment…..

Judgment Day for Public Unions
Source: Matt Ford, The Atlantic, September 28, 2017

The U.S. Supreme Court has agreed to hear a case that could deal a serious blow to American organized labor.

Neil Gorsuch Has Web of Ties to Secretive Billionaire
Source: Charlie Savage, Julie Turkewitz, New York Times, March 14, 2017

….With the Senate Judiciary Committee set to take up Judge Gorsuch’s nomination next week, Democrats have based much of their criticism of him on the argument that his judicial and economic philosophy unduly favors corporations and the wealthy. But his relationship with Mr. Anschutz, 77, whose fortune is estimated by Forbes to be $12.6 billion, has received scant attention. The Federalist Society and the Heritage Foundation, which developed the list of potential Supreme Court nominees from which Mr. Trump selected Judge Gorsuch, receive funding from Mr. Anschutz. ….

Bradley Foundation Bankrolls Attacks on Unions
Source: Mary Bottari, Center for Media and Democracy, May 8, 2017

Documents examined by the Center for Media and Democracy (CMD) expose a national effort by the Milwaukee-based Lynde and Harry Bradley Foundation to defund and dismantle unions, the most significant force for higher wages and better working conditions in America. Publicly, the Bradley Foundation spins this agenda as “employee rights.” Behind the scenes, newly disclosed Bradley documents detail an aggressive political agenda….

Gorsuch speech at Trump hotel attracts protests
Source: Josh Gerstein, Politico, September 28, 2017

….Gorsuch spoke as part of a 50th anniversary celebration for the Fund for American Studies, a charitable group that sponsors scholarships and study programs. The organization’s goal, according to its website, is “to win over each new generation to the ideas of liberty, limited government and free markets.” The fund is supported by a wide array of foundations, most of them with a conservative or libertarian bent, including the Lynde and Harry Bradley Foundation and the Charles Koch Foundation…..

The Supreme Court’s Anti-Democratic Feedback Loop
Source: Scott Lemieux, The Atlantic, September 29, 2017

The GOP installs Supreme Court justices over the will of voters. The Supreme Court helps the GOP remain in power. Rinse, repeat.

Will the Supreme Court Ignore Pleading Rules in Janus?

Source: Andrew Strom, On Labor blog, September 7, 2017

Many Court watchers think it is a foregone conclusion that the Supreme Court will grant the cert petition in Janus v. AFSCME, and then overturn the forty-year old decision in Abood v. Detroit Board of Education. While I’m not willing to bet against that, it’s worth noting that to reach that result the Court would need to ignore a series of recent cases requiring plaintiffs to plead facts rather than conclusory assertions….

….In recent years, the Supreme Court has made it easier for defendants in lawsuits to file motions to dismiss. In two cases, Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal, the Court has stated that to survive a motion to dismiss “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” The Court has further explained that “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” When workers have sued their employers, lower courts have often relied on Twombly and Iqbal to dismiss the workers’ claims without allowing any discovery….

….When public employees have sued their employers, the Supreme Court has been quick to assert that it does not want to “constitutionalize the employee grievance.” Yet this seems to be exactly what Janus is asking the Court to do. Janus complains that he does not want to fund AFSCME’s actions as the bargaining agent for him and his fellow employees. But, undoubtedly the great bulk of any agency fees he objects to are spent on those very same employee grievances that the Court has said it does not want to “constitutionalize.” At a minimum, the Court should not allow conclusory pleadings in a bare-bones complaint to form the basis for a decision overturning long-settled law…..

2017 Supreme Court Commentary: Employment Law

Source: Jonathan Ross Harkavy, Patterson Harkavy LLP, August 15, 2017

From the abstract:
This article, the author’s longstanding annual review of the Supreme Court’s work in the employment area, examines in detail every decision of the 2016-2017 term relating to employment and labor law, with commentary on each case and additional observations about the Court’s work in this term and the upcoming one. In particular, the author uses the latest term’s decisions as a lens for examining broader aspects of the Court’s jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself