Category Archives: Public Sector

What Will Become of Public-Sector Unions Now?

Source: Charlotte Garden, The Atlantic, February 16, 2016

With the death of Supreme Court Justice Antonin Scalia, organized labor may be spared—for a little while….
Related:
Friedrichs Is Dead; Labor’s Crisis Is Not. The ‘Scalia Dividend’ Is a Rare Opportunity for Unions.
Source: Shaun Richman, In These Times, February 16, 2016

The Friedrichs vs. CTA Supreme Court case, a nakedly partisan assassination attempt on the labor movement, has died with Justice Antonin Scalia. What cannot die with it is the sense of existential crisis within the labor movement. We need a far-reaching conversation about the pathway back to increased activism, membership and power…..

Menu of coverage about Justice Scalia
Source: Andrew Hamm, SCOTUSblog, February 16, 2016

Justice Antonin Scalia was found dead Saturday at a ranch in Texas, after apparently having died in his sleep. Here is a collection of our coverage:….

How Scalia’s death may save teachers unions — for now
Source: Howard Blume, Los Angeles Times, February 14, 2016

….In Friedrichs vs. California Teachers Assn., many court watchers had expected Scalia to deliver the deciding vote against unions, limiting their ability to collect membership dues and other fees. Without Scalia, a 4-4 split is considered likely. That would maintain the status quo — a huge win for unions, at least for now. Though union opponents could mount a new case, that would probably take at least another year, said Jeffrey H. Keefe, a research associate at the liberal-leaning Economic Policy Institute…..

Scalia’s death and Friedrichs
Source: Brian Mahoney, Politico, Morning Shift, February 16, 2016

….Morning Shift guesses (though of course we can’t be certain) that an Obama appointee to the court — were he or she to win Senate confirmation — would vote against the Friedrichs plaintiffs, if only to avoid overturning a 1977 Supreme Court precedent. Were that to occur, the re-hearing’s practical result for public employee unions — continued collection of fair share fees — would be the same as an inconclusive 4-4 ruling this term. It would just take longer to resolve itself … during which time the unions would continue to collect fair share fees. http://bit.ly/1Pzq7au…

Commentary: Unions could still lose Friedrichs – even if we win
Source: Dave Kamper, Workday Minnesota, February 14, 2016

….Unions can still lose, but the important point is that losing doesn’t depend on what the Court does. We will lose if we fail to learn the lessons of these few months of panic, a panic that has shown both the depths of strength and the glaring weaknesses in the American labor movement. Three lessons stand out….

The most significant Supreme Court case that could be immediately affected by Scalia’s death
Source: Lydia DePillis, Washington Post, Wonkblog, February 13, 2016

A grave threat to public sector unions may have been averted — for now….So now, all signs point to the court deadlocking 4-4. In that scenario, the decision of the lower court — rejecting Friedrichs’ argument — would be affirmed. That decision would carry no precedent, so the court would be free to accept another case with a similar fact pattern, and rule the other way. But that would take at least another year, probably more….

The Labor Prospect: What Scalia’s Death Means for Unions
Source: Justin Miller, American Prospect, February 16, 2016

The impact of Scalia’s death goes way beyond Friedrichs, plus West Virginia goes right-to-work, and Minneapolis moves toward mandatory sick leave.

Justice Scalia’s Death: This Changes Everything
Source: Roger Parloff, Fortune, February 13, 2016

….On our closely divided Supreme Court, which sooner or later seems to decide all of the most emotionally freighted political questions of the day—affirmative action, abortion, gun rights, gay rights, labor and employment issues, immigration, Obamacare, the death penalty, and on it goes—a decisive, conservative 5-4 majority has just been shaved to a 4-4 toss-up……

Scalia’s Death Probably Flips Big Cases
Source: Noah Feldman, Bloomberg View, February 16, 2016

….How will the death of Justice Antonin Scalia affect the major cases before the U.S. Supreme Court this term, all of which are expected to be decided by the end of June? The answer doesn’t depend entirely on how Scalia would’ve voted. It also depends on a necessary rule of procedure: When the Supreme Court is divided equally, it upholds the decision below. Applying this dual analysis to five major cases in the pipeline yields some surprising results. The issues involved are: fees in lieu of union dues for nonunion workers, the University of Texas’s affirmative-action admissions program, Texas’s restrictive abortion law, President Barack Obama’s executive action on immigration, and a group of nuns’ demand to be exempted from filing a certificate so they won’t have to pay for employees’ contraceptive insurance under the Affordable Care Act….

When Scalia Died, So Did ‘Friedrichs’—And an Even Grander Scheme To Destroy Unions
Source: Moshe Z. Marvit, In These Times, February 15, 2016

….Last week, in a little-noticed case called D’Agostino v. Baker, the National Right to Work Legal Defense Foundation lost at the First Circuit in their attempt to argue that the First Amendment does not allow exclusive representation of home healthcare workers. This case sought to expand the Harris holding by arguing that the First Amendment prohibits home healthcare unions not only from collecting fees from workers who don’t want to pay, but also from bargaining on behalf of any worker who doesn’t opt to be a member. Former Supreme Court Justice David Souter wrote the decision for the First Circuit in D’Agnostino, relying heavily on Abood and its progeny. If history is any indication, National Right to Work was planning on appealing this case to the Supreme Court. The case provided a glimpse of what the likely post-Friedrichs plan of attack would have been: After you win on the dues front, go after membership. In addition, other cases, such as Bain v. CTA, that attacked the membership rights of unions but had been thrown out by lower courts, were likely to reappear…..

Here Are Six All-Important Cases Now Pretty Much Decided After Scalia’s Death
Stephanie Mencimer, Mother Jones, February 13, 2016

….Because of the polarized nature of the court, Scalia’s death makes it all but certain that in most of those cases, the votes will result in a 4-4 tie, which means that the decision of the lower courts will likely stand unless one of the justices goes off the reservation and votes with the opposite side. That means we can probably predict the outcome of several key cases without having to wait until June.
The results are a mixed bag. The Obama administration is likely to lose an important fight over immigration. Unions win. Reproductive rights for women could suffer. And challenges to redistricting are likely to founder.

Here’s a rundown of how six of those cases are likely to unfold:
Friedrichs v. California Teachers Association: Perhaps the biggest beneficiaries of Scalia’s death are public sector unions. This case, which produced one of the more contentious oral arguments of the term, was headed towards a 5-4 decision in favor of Rebecca Friedrichs and the other plaintiffs who were challenging the California’s teachers’ union’s right to charge public school employees fees to cover the costs of the collective bargaining it did on their behalf, even though they aren’t members of the union. The case was teed up by conservative Justice Samuel Alito, and labor supporters feared a ruling against the union could devastate what’s left of labor’s power. The lawyers for Friedrichs asked the lower court to rule against them to hasten the case’s arrival at the Supreme Court. The Ninth Circuit Court of Appeals complied, and now that decision is likely to stand if the liberal-conservative split on the court delivers a 4-4 vote. Labor wins…..

The untimely death of Justice Antonin Scalia will likely decide several hot-button cases.
How Scalia’s Death Will Affect Pending Cases Before the Supreme Court
Source: Massimo Calabresi, Time, February 13, 2016

….When the Supreme Court justices split evenly on how to rule, the decision of the lower court stands. This can happen when a justice is recused from a case, or when there is a vacancy on the court. Scalia represented the fifth vote for conservatives on the court and in those cases that were expected to split 5-4 along ideological grounds, his death may affect the outcome. In the event of a tie among the justices, the Supreme Court effectively upholds the lower court’s ruling and any opinions issued are considered non-binding. The most likely case currently before the court to be affected by Scalia’s death is a union case, Friedrichs v. California Teachers Association, which could have restricted unions’ ability to collect fees from non-members for collective bargaining. If the court issues a ruling this year, it is unlikely to break with the settled constitutional interpretation that unions can do so…..

How Scalia’s Death Affects This Term’s Biggest Supreme Court Cases
Source: Jordan Weissmann, Slate, February 13, 2016

Here’s a brief rundown of how Scalia’s passing will (or won’t) affect the biggest cases of this term…..
Case: Friedrichs v. California Teachers Association
Issue: Public sector union rights
Outcome in a split: The liberals win.
Not to be too blunt, but presenting this case before a post-Scalia court is an enormous break for American labor unions. In Friedrichs v. California Teachers Association, the court is considering whether public servants can be forced under “fair share” laws to pay fees to unions in order to cover the cost of collective bargaining on their behalf, even if they’re not members. A ruling against the teachers’ unions would effectively extend right-to-work laws to government employees across the nation and significantly cut into public-sector union revenue. And as of oral arguments, it looked as if that was about to happen. But with Scalia no longer on the court, the decision by the U.S. Court of Appeals for the 9th Circuit, which upheld fair share rules, may still stand…..

Friedrichs v. California Teachers Association et al.
Source: The Center for Individual Rights, February 17, 2016

….If these predictions are correct, then the current panel of eight Justices would result in a 4-4 decision which would not settle the question of whether compulsory dues are constitutional. If the Court were to issue such a decision, the lawyers for Rebecca Friedrichs and the nine other plaintiffs will file a motion for rehearing….

Labor Movement Needs to Organize Against Friedrichs vs. California Teachers Association

Source: Shamus Cooke, Speakout, February 10, 2016

…..Every historic victory of organized labor was won with “no justice, no peace” at its foundation, and every other organized group of oppressed people used the same approach to win power.

This is the only way to fight Friedrichs, since it was how unions won the decision that Friedrichs seeks to destroy. When unions won Abood v. Detroit in 1977, it was the culmination of years of mass strikes in the public sector, where public transportation grinded to a halt and teachers shut down school districts, demanding the dignity that comes with strong unions.

The pro-union Abood decision wasn’t a gift from the Supreme Court, but a recognition of the existing power that unions were actively expressing. The 1977 Supreme Court said publicly that the Abood decision was, in large part, motivated in order to deliver “social peace.” And after the court gave the unions justice, the unions gave the government peace.

Unions are under attack now precisely because they aren’t viewed as a potential threat. But there is still time to show that the court has misjudged union power. The court will not decide Friedrichs until June, and until then, labor remains on the battlefield. If unions engage and mobilize their memberships to strike preemptively, it may lessen the blow of Friedrichs, while a powerful strike could avoid the blow completely…..

Can Renewal Emerge from Destruction? Crisis and Opportunity in Wisconsin

Source: Don Taylor, Labor Studies Journal, Vol. 40 no. 4, December 2015
(subscription required)

From the abstract:
This article explores public sector labor relations in Wisconsin after the 2011 “uprising” and subsequent attempts to recall public officials, including the governor. While unions there have faced catastrophic setbacks and confront an uncertain future, the potential exists for Wisconsin to forge a new approach to escape the confines of the “service model,” which has left unions as “houses of straw.” If Wisconsin public sector unions can combine lessons from history and nonbargaining states with comprehensive plans for organizational culture change, a crucially important model could take shape for the entire U.S. labor movement.

Public Employees and Performance Appraisal: A Study of Antecedents to Employees’ Perception of the Process

Source: Taehee Kim, Marc Holzer, Review of Public Personnel Administration, Vol. 36 no. 1, March 2016
(subscription required)

From the abstract:
There is considerable agreement that organizations can benefit from using performance appraisal. Nevertheless, some studies find that both supervisors and employees have negative reactions to the process. This article addresses this contradiction by emphasizing the importance of cognitive aspects of performance appraisal. Without understanding individual employees’ reactions to performance appraisal and its supportive organizational context, it is less likely for performance appraisal to be used for its original objective, which is performance improvement. Given the importance of employee acceptance of a performance measurement system, this article attempts to identify key factors which can heighten employee acceptance of performance appraisal using data from the 2005 Merit Principles Survey. The findings indicate that the developmental use of performance appraisal, employee participation in performance standard setting, the quality of the relationship they have with their supervisors, and employee perceived empowerment are positively associated with employee acceptance of performance appraisal.

Federal Employees Health Benefits (FEHB) Program: An Overview

Source: Kirstin B. Blom, Ada S. Cornell, Congressional Research Service, CRS Report, R43922, February 3, 2016

The Federal Employees Health Benefits (FEHB) Program provides health insurance to federal employees, retirees, and their dependents. This report provides a general overview of FEHB. It describes the structure of FEHB , including eligibility for the program and coverage options available to enrollees, as well as premiums, benefits and cost sharing, and general financing of FEHB. The report also describes the role of the Office of Personnel Management (OPM) in administering the program. Eligible individuals include federal employees, retirees, an d their family members. As of calendar year 2014, Members of Congress and certain congressional staff are no longer eligible to enroll in plans offered under FEHB as employees but may be eligible to enroll in retirement. Coverage options available to eligible individuals include individual or family coverage in an approved health benefits plan. Beginning in calendar year 2016, individuals have a third coverage option: self plus one coverage for themselves and one eligible family member. Generally, available health benefits plans fall into two broad categories: fee-for-service (FFS) or health maintenance organizations (HMOs). FFS plans tend to be available nationwide, and HMOs tend to be locally available. Premiums are shared between the federal government and the employee or retiree. Benefits and cost sharing vary among FEHB plans, but all plans must cover basic services such as hospital and physician care and may require cost sharing in the form of deductibles, co-payments, or coinsurance. FEHB financing includes government contributions to premiums, contingency reserves in the U.S. Treasury to offset unexpected increases in costs, and administrative expenses incurred by OPM. The report also discusses how FEHB interacts with the United States Postal Service (USPS) and with Medicare as well as the impact of the Patient Protection and Affordable Care Act (ACA; P.L. 111-148, as amended) on FEHB….

Are California Teachers Better off with a Pension or a 401(k)?

Source: Nari Rhee and William B. Fornia, University of California – Berkeley, Institute for Research on Labor and Employment, Center for Labor Research and Education, February 2016

Pensions form a significant part of public school teacher compensation, and provide the primary source of retirement security for teachers, many of whom are not included in Social Security. While most private sector employers have shifted the retirement benefit costs and risks to employees by switching to 401(k) style plans, most public school teachers are still covered by defined benefit pensions that provide guaranteed retirement income and reward long service. While 401(k) plans have the advantage of portability for a mobile workforce, defined benefit pensions provide greater retirement income security and reduce turnover. Given the role of retirement benefits in meeting both employer goals for workforce retention and employee goals for retirement income security, this study examines the suitability of defined benefit pensions for California teachers compared to alternative retirement benefits.

Overall, we find that the CalSTRS pension benefit structure—which is designed to reward teachers who stay until at least early retirement age—is better matched to the needs of the active teaching workforce than 401(k) or cash balance plans. Although early career turnover is high, most of the teachers that a student will have during their K–12 education journey in California will have served 20 to 30 years or more before they leave public education in the state. Thus, the vast majority of the educators currently serving in California public schools can expect to collect pension benefits under CalSTRS that are superior in value and security to what they could receive under an ideal 401(k)-style plan. The CalSTRS pension system also offers significantly higher benefits compared to a generously modeled cash balance plan for a large majority of active teachers. Ultimately, switching to an account-based retirement system—such as a 401(k) or cash balance plan—would sharply reduce the retirement income security of teachers who account for a large majority of educational labor in California.
Related:
Press Release
Fact Sheet

Defamation and the Government Employee: Redefining Who Constitutes a Public Official

Source: Jeffrey Omar Usman, Loyola University Chicago Law Journal, Vol. 47 No. 1, 2015

From the abstract:
This Article embraces neither the narrow nor broad conceptualization of a public official employed currently by state and lower federal courts but instead suggests revisiting the Rosenblatt formulation and the one clear limitation set forth by Hutchinson that whatever the scope of public officialdom may be “it cannot be thought to include all public employees.” Though not all speech about government employees should be deemed to be related to their official capacity, all government employees should be considered public officials, and speech related to their official conduct should be safeguarded by the actual malice standard. To explain and support this contention, this Article in Part II delineates the Supreme Court’s constitutional framework for categorizing plaintiffs in defamation cases. In Parts III and IV of the Article, the three principal arguments for not applying the actual malice standard to lower-level government employees and why those arguments are ultimately unavailing are explored. More precisely, Part III of the Article addresses the contention that speech about lower-level government employees is unimportant to democratic self-governance. In responding to this argument, Part III seeks to demonstrate that speech about the actions of lower-level government employees who are acting in their official capacity is political speech that is critical to democratic self-governance. The Article in Part IV sets forth the opposing argument that the actual malice standard should not be applied to lower-level government employees because of their lack of access to media for purposes of self-help and because they have not voluntarily submitted to such scrutiny. These rationales for not protecting speech relating to the official conduct of lower-level government employees arise from the Supreme Court’s 1974 decision in Gertz v. Robert Welch, Inc. Part IV delves into the manner in which four decades of societal and technological change since Gertz have significantly diminished the persuasiveness of the lack of access to media rationale. Part IV also examines how the jurisprudential transformation in the concept of voluntariness in the years after Gertz has rendered the voluntariness rationale unavailing as a basis for not applying the actual malice standard to lower-level government employees. The Article in Part V explores the First Amendment jurisprudential dissonance created by failure to afford greater protection to speech about the official conduct of lower-level government employees. Ultimately, the Article seeks to explain, in contradistinction with Rosenblatt and Hutchison, why all government employees should be deemed public officials, and why speech related to their actions within their official capacity should be protected by the actual malice standard.

Public Employee Unions and Pensions

Source: Posted on January 22, 2016 by Catherine Fisk and Brian Olney, OnLabor blog, January 22, 2016

Advocates of weakening public sector unions, both some who have filed briefs in the Friedrichs case and others who support anti-union legislation in Wisconsin and other states, assert that public sector unions contribute to state budget deficits and that public employee pensions are a main culprit. The truth is more complicated. Unionization doesn’t cause either budget deficits or unfunded pension liabilities. Bad governance does. Some unions may contribute to bad governance but they are not the sole cause, and unions can help solve the problem.

Although labor costs consume a relatively larger share of revenues in the public sector than in the private sector, studies show this is because government tends to provide more labor-intensive services, and also services that require a higher level of education and training (e.g., teachers and public health workers). Collective bargaining, in the states that allow it, is only one aspect of a complex web of law that, in every state, regulates compensation and working conditions for public employees. A bewildering array of state and local constitutional or charter provisions, statutes, and administrative rules specify pay, benefits, and pensions for government workers by job category. Elimination of collective bargaining will not eliminate the budget or pension funding deficits that exist. But it may eliminate the last defined benefit pension plans, which would be bad for workers and bad for the economy as a whole…..

GASB 68: How Will State Unfunded Pension Liabilities Affect Big Cities?

Source: Alicia H. Munnell, Jean-Pierre Aubry, Center for Retirement Research at Boston College, SLP#47, January 2016

From the key findings:
– New accounting provisions – GASB 68 – require localities in state cost-sharing plans to report their share of the plan’s unfunded liability on their books.
– This change severely increases the unfunded liabilities of the affected cities, though the states’ unfunded liabilities drop by a corresponding amount.
– The impact on our full sample of 173 cities is much more modest, because the 92 affected cities are small.
– The big question is whether cities with a portion of the state plan’s burden on their books have a greater interest in reducing the unfunded liabilities.