Category Archives: Labor Laws/Legislation

Will the Supreme Court deal a blow to trade unions?

Source: S. M., The Economist, Democracy in America blog, February 1, 2018

The court will consider whether unions can require non-member workers to help pay for collective bargaining.

OF ALL the blockbuster cases at the Supreme Court this year, Janus v American Federation of State, County and Municipal Employees (AFSCME) is expected to hold the fewest surprises. Janus, which is due to be argued on February 26th, asks whether public employees who choose not to join their designated union may nevertheless be charged “agency fees” to support collective bargaining. Since 1977, when Abood v City of Detroit Board of Education was decided, it has been acceptable to require non-members to subsidise contract negotiations over their salary, benefits and working conditions, but a no-no to make them pay toward a union’s lobbying or political organising. This compromise was teetering on the edge in 2016 when Justice Antonin Scalia died while a case raising the same question, Friedrichs v California Teachers Association, was pending. Bereft of a fifth vote to seal Abood’s demise, the justices split 4-to-4 in Friedrichs and put the 40-year precedent back on life support. 

The man everyone expects to help pull the plug this time is Neil Gorsuch, Donald Trump’s pick to replace Justice Scalia. Observers think Justice Gorsuch will join his four conservative brethren to say that workers should not be compelled to subsidise union negotiations for higher wages any more than they are required to pay for efforts to elect candidates or advocate for political causes. Undoing that distinction may be how Janus is resolved. But a brief from two libertarian legal scholars, alongside a brief submitted by a bevy of eminent economists, supplies a strong case for preserving what unions call “fair-share fees”…..

The Eminent Libertarians Who Might Save Public Sector Unions
Source: Rachel M. Cohen, The Intercept, February 2, 2018

The Supreme Court will hear arguments this month in a case challenging the constitutionality of so-called agency fees, payments that workers represented by a union must pay if they do not wish to be dues-paying members. Conservatives have been crusading against these fees for years on First Amendment grounds, and with Justice Neil Gorsuch on the bench, the labor movement’s odds seem grim.

But last month, unions got a surprising lifeline from an unlikely friend: Two prominent conservative legal scholars filed an amicus brief in Janus v. AFSCME, Council 31 — the case before the court — urging the justices to uphold a 1977 decision that ruled the agency fees constitutional…..

33 prominent economists, 3 Nobel laureates to the Supreme Court: The anti-union position in Janus is simply wrong as a matter of basic economics
Source: Dan Jackson, American Constitution Society blog, January 25, 2018

Thirty-six distinguished economists and professors of law and economics including three Nobel laureates, two recipients of the American Economic Association’s prestigious John Bates Clark Medal, and two past presidents of the American Economic Association filed an amici curiae brief to assist the Supreme Court in understanding the free-rider problem at issue in Janus v. AFSCME….

Janus Should Lose, and the Justices Know It

Source: Andrew Strom, On Labor blog, January 31, 2018

Most of the coverage of Janus v. AFSCME, like this recent piece in USA Today, simply (and perhaps correctly) assumes that the five Republican appointees on the Supreme Court will use the case to overturn Abood v. Detroit Board of Education, the 1977 case upholding fair share fees for public sector workers.  But, now that the briefs have been filed, it is more clear than ever that those five Justices will have to put their thumbs heavily on the scale for the petitioner, Mark Janus, to prevail….

Will Labor Law Prompt Conservative Justices to Adopt a Radical Theory of State Action?

Source: Joseph E. Slater, Nebraska Law Review, Vol. 96, No. 1, 2017

From the abstract:
With the Supreme Court poised to rule that the First Amendment bars all union-security clauses in public-sector collective bargaining agreements, this article addresses the strong implication in the Harris v. Quinn (2014) that such a rule could be extended to the private sector. Remarkably, the five conservative justices in the majority in Harris, seemed open to the idea that a contract clause two private parties voluntarily agreed to governing terms of employment implicated state action sufficient to trigger constitutional rights. A union security clause provides that employees in a union bargaining unit must pay at least some portion of dues to the union that represents them. Prior to Harris, one old Supreme Court case had found state action in such clauses and another old case had used the doctrine of constitutional avoidance in interpreting the relevant statute. More recent cases on the topic, however, have ignored constitutional issues. Thus, Harris revived an outdated and extraordinarily broad theory of state action.

This article argues that the suggestion that private-sector union security clauses implicate the Constitution involves unconvincing and incoherent understandings of “state action” that the Court should explicitly reject. Such clauses are negotiated between two private entities. Relevant labor law statutes permit (and limit) but do not require them, nor do labor statutes reward parties for adopting them. Such clauses would be entirely legal in the absence of statutory authorization, and indeed, they existed prior to these statutes. Harris entertained a theory that would go beyond the Court’s broadest reading of state action, in Shelley v. Kraemer. Notably, while liberals pushed for this broad approach decades ago in an attempt to fight race discrimination by private parties before the era of anti-discrimination statutes, conservatives pushed for an analogous broad approach to state action specifically to attack unions. But in more recent decades, courts have hewed to a narrower view of state action. No current theory of state action could be stretched to include private-sector union security clauses.

This article examines all the proposed justifications for the position that private-sector union security agreements could constitute state action. It describes the development of state action theories in general. It analyzes specific arguments based on old labor cases, arguments “right to work” advocates have made, and analogies to the Keller case on mandatory bar fees. It concludes that there is no plausible argument that private-sector union security clauses involve state action. It then argues that adopting the suggestions in Harris would have radical and undesirable consequences in labor law generally and beyond. It concludes that courts should reject the suggestion that private-sector union security clauses implicate the First Amendment, and it describes a theory of state action consistent with this result and existing precedent.

Law, Organizing, and Status Quo Vulnerability

Source: Benjamin I. Sachs, Texas Law Review, Vol. 96, No. 2, 2017

From the abstract:
In an era of deep economic and political inequality, academics and policymakers are paying renewed attention to the decline of unions and asking how the labor movement might be revived. For legal scholars, the question is how law can facilitate unionization among workers who desire it. This essay aims to expand our understanding how labor law enables union organizing, and, by doing so, to provide insight into both labor law reform and the relationship between law and organizing more broadly. Drawing on social movement theory, the essay shows how law can facilitate organizing by rendering the status quo vulnerable to challenge. In the labor law context, this means that law works to enable unionization by demonstrating to workers that management – and the non-union system of workplace relations it supports – is susceptible to challenge and change. The essay reinterprets a range of labor law rights and remedies through this theory. Having done so, the essay then suggests a different set of reforms for those interested in combating inequality through unionization. It also suggests that law’s ability to demonstrate status quo vulnerability may explain the relationship between law and social movements across contexts.

From the Bargaining Table to the Ballot Box: Political Effects of Right to Work Laws

Source: James Feigenbaum, Alexander Hertel-Fernandez, and Vanessa Williamson, National Bureau of Economic Research, January 20, 2018 (draft)

Labor unions play a central role in the Democratic party coalition, providing candidates with voters, volunteers, and contributions, as well as lobbying policymakers. Has the sustained decline of organized labor hurt Democrats in elections and shifted public policy? We use the enactment of right-to-work laws—which weaken unions by removing agency shop protections — to estimate the effect of unions on politics from 1980 to 2016. Comparing counties on either side of a state and right-to-work border to causally identify the effects of the state laws, we find that right-to-work laws reduce Democratic Presidential vote shares by 3.5 percentage points. We find similar effects in US Senate, US House, and Gubernatorial races, as well as on state legislative control. Turnout is also 2 to 3 percentage points lower in right-to-work counties after those laws pass. We next explore the mechanisms behind these effects, finding that right-to-work laws dampen organized labor campaign contributions to Democrats and that potential Democratic voters are less likely to be contacted to vote in right-to-work states. The weakening of unions also has large downstream effects both on who runs for office and on state legislative policy. Fewer working class candidates serve in state legislatures and Congress, and state policy moves in a more conservative direction following the passage of right-to-work laws.

Democrats Paid a Huge Price for Letting Unions Die

Source: Eric Levitz, New York, January 26, 2018

The GOP understands how important labor unions are to the Democratic Party. The Democratic Party, historically, has not. If you want a two-sentence explanation for why the Midwest is turning red (and thus, why Donald Trump is president), you could do worse than that.

With its financial contributions and grassroots organizing, the labor movement helped give Democrats full control of the federal government three times in the last four decades. And all three of those times — under Jimmy Carter, Bill Clinton, and Barack Obama — Democrats failed to pass labor law reforms that would to bolster the union cause. In hindsight, it’s clear that the Democratic Party didn’t merely betray organized labor with these failures, but also, itself…..

Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part I)

Source: Victoria L. Killion, Congressional Research Service, CRS Legal Sidebar, LSB10042, December 4, 2017

The Supreme Court long ago described the First Amendment’s protection against compelled speech as a “fixed star in our constitutional constellation.” This Term, the Court may decide whether it has steered too far from that shining precept in the area of public employee union dues (or agency fees) in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Specifically, the Court will consider whether to overrule its 1977 decision in Abood v. Detroit Board of Education, in which the Court announced the basic test for determining the validity of “agency shop” arrangements between a union and a government employer. Agency shop arrangements (sometimes called “fair share” provisions) require employees to pay a fee to the union designated to represent their bargaining unit even if the employees are not members of that union. The Abood Court held that these arrangements do not violate the First Amendment insofar as the union uses the fees for “collective bargaining activities” and not “ideological activities unrelated to collective bargaining.” In its October 2015 Term, the full Court heard oral argument on whether to overrule Abood, but ultimately divided four-to-four on this question following the death of Justice Scalia. Now that Justice Gorsuch has joined the bench, it remains to be seen whether a majority of the Court will reaffirm Abood or chart a new course. Part I of this two-part Sidebar provides general background on Abood and the case law leading up to Janus. Part II then discusses the perspectives Justice Gorsuch may bring to Janus and the potential implications of the decision for public sector collective bargaining and compulsory fees more broadly.

Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part II)
Source: Victoria L. Killion, Congressional Research Service, CRS Legal Sidebar, LSB10041, December 4, 2017

As discussed in Part I of this two-part Sidebar, on March 29, 2016, an eight-member Supreme Court divided equally over whether to overrule its 1977 decision in Abood v. Detroit Board of Education and hold that public sector agency fees violate core First Amendment principles (the Court’s “fixed star”). Earlier this Term, the Court agreed to consider the question again in the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31. Part II of this Sidebar begins with a brief summary of the parties’ arguments in Janus. It then highlights some key statements from the prior decisions of Justice Gorsuch, who is likely to be a critical voice in deciding whether to overturn Abood. The post concludes by exploring the potential implications of the Janus decision.

50 Places Raising the Minimum Wage in 2018

Source: Grant Suneson, Michael B. Sauter and John Harrington, 24/7 Wall St., January 9, 2018

Several dozen American cities, counties, and states raised local minimum wages on January 1. In a few California cities, the minimum wage increased by $2.00 or more per hour. In places like Berkeley, San Francisco, and Mountain View — the latter famously home to the headquarters of Google — the minimum wage increased to $15.00 an hour. Workers rights activists frequently target $15.00 as a living wage.

In addition to the 39 states and municipalities that increased the minimum wage on or around New Year’s Day, 11 more plan to raise the minimum later this year, most of them on July 1. Two — Milpitas, CA and Minneapolis, MN — will raise the minimum twice during the year. Some increases are small, automatic raises meant to account for the inflation-driven rising cost of living, but others are part of larger planned increases that will continue in the years to come.

Everything Passes, Everything Changes: Unionization and Collective Bargaining in Higher Education

Source: William A. Herbert, Jacob Apkarian, Perspectives on Work, 2017

From the abstract:
This article begins with a brief history of unionization and collective bargaining in higher education. It then presents data concerning the recent growth in newly certified collective bargaining representatives at private and public-sector institutions of higher education, particularly among non-tenure track faculty. The data is analyzed in the context of legal decisions concerning employee status and unit composition under applicable federal and state laws. Lastly, the article presents data concerning strike activities on campuses between January 2013 and May 31, 2017.