Category Archives: Labor Laws/Legislation

After Janus

Source: Martin H. Malin, Catherine Fisk, California Law Review, Forthcoming, Date Written: September 6, 2018

From the abstract:
The Supreme Court in Janus v. American Federation of State, County, and Municipal Employees Council 31 upended public sector labor law by finding a novel First Amendment right of public employees to refuse to pay union fees and declaring unconstitutional scores of laws and thousands of labor contracts. This Article assesses the constraints on public sector labor law post-Janus, examines the variety of legislative responses, and proposes a path forward.

Janus makes it difficult to address the collective action problem facing all large groups. Although it is in the interest of every member of a group to engage in collective action to provide common goods, it is also in the each individual’s interest to let others incur the costs of doing so. The Janus Court misstated the nature of the collective action problem when it said the problem was free-riding on union-negotiated benefits. The problem is that, without some way to require all who benefit to share the costs, unions will not negotiate effectively for the benefits in the first place, so there will be no common goods to free ride on.

This Article explains public sector unions’ apparently surprising reluctance to respond to the collective action problem exacerbated by Janus in the way that some scholars and a number of legislatures have proposed. Most proposals and enacted legislation continue union financial solvency in the short-term but sacrifice the fundamental nature of unions as membership organizations governed by and for workers. Some adopt some form of members-only representation, thus abandoning the principles of majority and exclusive representation.

Can Unions Be Sued for Following the Law? Responding to William Baude & Eugene Volokh, The Supreme Court, 2017 Term — Comment: Compelled Subsidies and the First Amendment

Source: Aaron Tang, Fred O. Smith, Harvard Law Review, Vol. 132 no. 2, November 2018
(subscription required)

From the abstract:
Here is a short summary of the right-to-work movement’s legal strategy in the aftermath of its victory in Janus v. AFSCME: If you can’t kick a man when he’s down, when can you kick him? For within weeks of Janus’s pronouncement that the First Amendment forbids public sector unions to collect agency fees from objecting employees, right-to-work groups filed a flood of class action lawsuits seeking the refund of millions of dollars’ worth of fees that were paid in the years before Janus was even decided, when such fees were indisputably lawful. Commentators have observed that these retroactive refund suits threaten to bankrupt unions around the nation.

In Compelled Subsidies and the First Amendment, Professors William Baude and Eugene Volokh argue that “Janus makes it likely” that public sector unions will indeed be liable under 42 U.S.C. § 1983 for refunds of money they collected in years before Janus was even issued. We think otherwise, and this Response explains why.

We start in Part I by presenting a vision of the world as it would exist if Baude and Volokh are right. It turns out that imposing financial liability on public sector unions for conduct that was perfectly lawful when it took place (because both state law and judicial precedent authorized the unions to collect fair-share fees) is a kind of maneuver that cannot be neatly confined to the context of union fee refunds.

In Part II, we explain why this unsavory state of affairs is hardly necessary. In fact, the law requires otherwise. In particular, we describe three legal arguments that should stop the union-refund suits from getting off the ground: careful application of the doctrine of civil retroactivity; defenses that were available against the most closely analogous tort at common law, including that unions acted in good faith reliance on existing law; and ordinary principles of class action certification.

Exaggerating the Effects of Janus: A Reply to Professors Baude and Volokh

Source: Erwin Chemerinsky, Catherine Fisk, Harvard Law Review Forum, Vol. 132, p.42, 2018, Forthcoming

From the abstract:
In Janus v. AFSCME Council 31, the Supreme Court held public employers can no longer require employees to pay fair share fees, i.e., the employees’ fair share of the costs unions incur in negotiating and administering labor contracts on the employees’ behalf. This essay responds to an article by William Baude and Eugene Volokh, who argue that unions are likely retroactively liable for the agency fees that union-represented workers previously paid. We explain that public employee unions, as private membership organizations, are not state actors liable under 42 U.S.C. § 1983. We then show that even if unions were found to be acting under color of law for purposes of section 1983, they would be entitled to qualified immunity as a defense because negotiating for fair share fees did not violate the constitution at the time unions negotiated fair share fee agreements and received fees. At the very least, unions are entitled to the separate defense of good faith immunity available to private actors who are sued under section 1983 for conduct undertaken in good faith in collaboration with government actors. Finally, we show that unions are not liable on state law theories. Qualified immunity is a defense only to claims for damages under federal law, and good faith immunity has likewise been applied only to claims for damages. For that reason, plaintiffs in the post-Janus fee recovery litigation have alleged state law claims and styled them as equitable. Some states (e.g., California) have eliminated such liability through legislation. Even in states that have not enacted such laws, however, we show that well-settled equitable principles foreclose liability. Finally, this essay responds to Baude and Volokh’s argument that Janus endangers other mandatory fees imposed by the government, such as bar dues and public university student activity fees.

We’re Pregnant: New State Law Protections for Pregnant Employees

Source: Theresa A. Kelly and Alba V. Aviles, Employee Benefit Plan Review ,Vol. 72, No. 12, November/December 2018
(subscription required)

Several states across the country (including most recently Connecticut and Massachusetts) have enacted legislation that provides additional protections to pregnant employees. In these laws, pregnancy is broadly defined to include not only pregnancy, but also childbirth and related conditions (such as lactation and expressing milk for a nursing child).

Many of these laws require an employer to reasonably accommodate a pregnant employee unless the employer can demonstrate that doing so would result in undue hardship—a difficult standard to meet. This article provides an overview of the recently enacted legislation in Connecticut and Massachusetts, as well as similar requirements in New Jersey and New York. ….

Labor Law Illiteracy: Epic Systems Corp. v. Lewis and Janus v. AFSCME

Source: Michael J. Yelnosky, Roger Williams University, Legal Studies Paper No. 184, September 4, 2018

From the abstract:
Labor law, both as an academic discipline and a subject of public consciousness, is in decline. The Supreme Court’s recent decisions in Epic Systems v. Lewis and Janus v. AFSCME reflect a notable consequence of this decline – what I am calling labor law illiteracy. The majority in Epic Systems seems to misunderstand one of the basic principles of the National Labor Relations Act, and the majority in Janus based its decision, in part, on a simplistic and one-sided view of the justifications for public sector labor law and collective bargaining.

Addressing Sexual Harassment in the Workplace

Source: Suzanne Hultin, LegisBrief, Vol . 26, No. 17, May 2018

The recent wave of sexual harassment allegations against media, sports moguls, politicians and people of power over the past year has prompted many state legislatures to address how they are protecting their state’s workers. Many state legislatures are looking to go beyond federal regulations to prevent workplace sexual harassment.

The Best States to Work Index: A Guide to Labor Policy in U.S. States

Source: Oxfam America, 2018

From the press release:
The new index, which assesses labor laws and worker protections in all states in the country, puts Washington, DC at the top and Virginia at the bottom

The District of Columbia leads the way in a new ranking of state labor laws and worker protections released by Oxfam America today, while neighboring Virginia comes in last. Washington, California, and Massachusetts also ranked at the top of the first ever Best States to Work Index; Pennsylvania, Montana and Indiana rank in the middle; while Georgia, Alabama, and Mississippi are also at the bottom.

The Best States to Work Index looks at 11 policy areas in three dimensions: wage policies to ensure workers earn as close to a living wage as possible; worker protections so workers can take time off for sickness or pregnancy and have legal protections against sexual harassment; and right to organize policies to protect the rights of workers to find a voice through organizing and sustaining a trade union if they desire.