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Tag: Scalia

Supreme Court takes up case that will devastate public sector unions

Posted on by Ian Millhiser
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In what is all but certain to be a terrible blow to organized labor, the Supreme Court announced on Thursday that it will hear Janus v. AFSCME, a case seeking to defund public sector unions. The case presents an issue that was recently before the Court, and where the justices split 4-4 along party lines.

Now that Neil Gorsuch occupies the seat that Senate Republicans held open for more than a year until Donald Trump could fill it, he holds the fifth vote to deliver a staggering blow to the union movement.

The issue in Janus involves what are sometimes referred to as “agency fees” or “fair share fees.” As ThinkProgress explained when this issue was last before the Court:

Unions are required by law to bargain on behalf of every worker in a unionized shop, even if those workers opt not to join the union. As such, non-members receive the same higher wages (one study found that workers in unionized shops enjoy a wage premium of nearly 12 percent) and benefits enjoyed by their coworkers who belong to the union.

Absent something else, this arrangement would create a free-rider problem, because individual workers have little incentive to join the union if they know they will get all the benefits of unionizing regardless of whether they reimburse the union for its costs. Eventually, unions risk becoming starved for funds and collapsing, causing the workers once represented by a union to lose the benefits of collective bargaining.

To prevent this free-rider problem, union contracts often include a provision requiring non-members to pay agency fees.

The plaintiff in Janus asks the Supreme Court to declare these agency fees unconstitutional, at least in contracts involving public sector unions, under what can charitably be described as an aggressive reading of the First Amendment. Indeed, prior to his death, even conservative Justice Antonin Scalia sometimes appeared skeptical of the plaintiff’s legal theory (although he did join an opinionthat embraced much of it).

With Gorsuch on the bench, however, there is little suspense regarding how Janus will come down. Unions will almost certainly be severely weakened by this decision. And, as a benefit to the Supreme Court’s increasingly partisan majority, that will also weaken a key arm of the Democratic party’s political infrastructure, making it more likely that the Court will remain in Republican hands.

This blog was originally published at ThinkProgress on September 28, 2017. Reprinted with permission.

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.


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The Trump administration is quietly making it easier to abuse seniors in nursing homes

Posted on by Ian Millhiser
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The Trump administration is poised to undo rules issued by the Obama administration last year to protect seniors from a common tactic used by businesses to shield themselves from consequences for illegal conduct.

Under these rules, issued last September, Medicare and Medicaid would cut off payments to nursing homes that require new residents to sign forced arbitration agreements, a contract which strips individuals of their ability to sue in a real court and diverts the case to a privatized arbitration system.

But last month, the Trump administration published a proposed rule which will reinstate nursing homes’ ability to receive federal money even if they force seniors into arbitration agreements.

Forced arbitration can prevent even the most egregious cases from ever reaching a judge. According to the New York Times, a 94 year-old nursing home resident “who died from a head wound that had been left to fester, was ordered to go to arbitration.” In another case, the family of a woman who suffered “two spine fractures from serious falls, a large, infected ulcer on her heel that prevented her from walking, incontinence from not being able to get to the bathroom, receding gums from poor hygiene assistance, and a dramatic weigh loss from not being given her dentures,” was also sent to an arbitrator after they sued the woman’s nursing home alleging neglect.

Moreover, as law professor and health policy expert Nicholas Bagley notes, arbitration tends “to favor the repeat players who hire them—companies, not consumers.” Several studies have found that forced arbitration typically produces worse outcomes for consumers and workers. An Economic Policy Institute study of employment cases, for example, found that employees are less likely to prevail before an arbitrator, and that they typically receive less money if they do prevail.

The Obama-era rules were never allowed to take effect. Shortly after the regulations were announced, a George W. Bush-appointed judge in Mississippi issued a decision blocking the rule—although Judge Michael Mills did caveat his order by stating that “this case places this court in the undesirable position of preliminarily enjoining a Rule which it believes to be based upon sound public policy.”

Important parts of Mills’ opinion rely on dubious reasoning. At one point, for example, he cites a doctrine limiting the federal government’s power to use threats of lost funding against state governments in order to impose similar limits on federal efforts to encourage good behavior by private actors.

But let’s be honest. If the Trump administration wasn’t preparing to end the Obama-era rule, conservatives on the Supreme Court most likely would have done so themselves.

Prior to Justice Antonin Scalia’s death, the Supreme Court’s Republican majority took such a sweeping and expansive view of companies’ power to use forced arbitration that it is likely the Obama administration’s rules would have been struck down in a 5–4 decision. Now that Neil Gorsuch occupies Scalia’s seat, Republicans once again have the majority they need to shield arbitration agreements.

In the alternative universe where the winner of the popular vote in the 2016 presidential election was inaugurated last January, Justice Merrick Garland was likely to provide the fifth vote to uphold the Obama-era rule. But we do not live in that universe. And neither do the many elderly nursing home residents who will be worse off thanks to the Trump administration.

This article was originally published at ThinkProgress on July 6, 2017. Reprinted with permission.

About the Author: Ian Millhiser is a senior fellow at the Center for American Progress and the editor of ThinkProgress Justice. He received his JD from Duke University and clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit. His writings have appeared in a diversity of publications, including the New York Times, the Guardian, the Nation, the American Prospect and the Yale Law & Policy Review.


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A Scalia-less, deadlocked Supreme Court spares unions. For now.

Posted on by Laura Clawson
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When Justice Antonin Scalia died, virtually every labor activist in the country thought one thing: “Friedrichs?” Now, the Supreme Court has announced its decision on the case in question—and all those labor activists are breathing a sigh of relief.

In January, the Supreme Court heard Friedrichs v. California Teachers Association, a case brought by anti-union groups to explicitly weaken public sector unions by allowing non-members to refuse to pay a fee for the representation they receive from the union. Longstanding precedent said that these workers did not have to pay for union political activity but did have to pay a fee for collective bargaining and other representation … but opponents of unions calculated that the time had come when the court would overturn that. Scalia himself was seen as a critical swing vote on this issue. He had stood by the precedent requiring fair share fees in the past, but in 2014, he had voted to chip away at the workers covered by that in Harris v. Quinn. The stakes were high:

One brief in the case indicates that in states where teachers are covered by collective bargaining but aren’t forced to pay agency fees, about 34 percent are “free riders.” Moreover, states that have the compulsory fees for workers have much higher union membership in the public sector—an average of nearly 50 percent—compared with states where such fees are banned (17 percent).

Again, we’re talking about workers paying for things unions do that directly benefit them: Bargaining contracts with better pay and working conditions, and representing them in grievances. And where workers don’t have to pay a fee, they still get the same level of representation as their coworkers who are union members. Antonin Scalia seemed prepared to join in Justice Samuel Alito’s anti-worker crusade and dramatically weaken unions by forcing them to represent non-members for free. And then he died, and the decision we get is:

The judgment is affirmed by an equally divided Court.

That means the precedent stands and unions aren’t gutted. At least as long as Scalia isn’t replaced by another hardcore conservative, anti-union vote on the court. That’s our fight now.

Please donate $3 today to help turn the Senate blue. The future of the Supreme Court depends on it.

This blog originally appeared in dailykos.com on March 29, 2016. Reprinted with permission.

Laura Clawson has been a Daily Kos contributing editor since December 2006 and Labor editor since 2011.


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When Scalia Died, So Did â€Friedrichs’—And an Even Grander Scheme To Destroy Unions

Posted on by Moshe Marvit
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Conservatives had a great plan in motion to decimate unions. If Justice Antonin Scalia hadn’t died in his sleep, they almost certainly would have pulled it off.

First they got the Court to rule their way in 2014’s Harris v. Quinn, which targeted home healthcare unions. Like “right to work” laws, the case sought to gut unions’ funding and diminish solidarity by saying that union members can’t be required to pay dues. The Court agreed, holding that the First Amendment does not allow the collection of fair share fees from home healthcare workers. The decision, written by Justice Alito and signed by the Court’s four other conservatives, also not-so-subtly invited further attacks on the funding and membership of unions.

Next came Friedrichs v. California Teachers Association, which sought to expand Harris to impose right-to-work on all public sector employees. The conservative Center for Individual Rights (CIR) rushed Friedrichs to the Supreme Court by essentially conceding at every lower court that under current law, it should lose. Friedrichs could only win if the Supreme Court overturned 39 years of precedent that date back to the 1977 Abood v. Detroit Board of Education decision.

When the Court accepted Friedrichs, there was some hope that Justice Scalia might provide the critical vote to save public-sector unions. This was not because Scalia had any great love for labor—he did not—but because he understood the basic economic theory of free riders: Just like any other enterprise, it can be difficult for a union to get its members to pay dues when they can get all the benefits of the contract for free. Scalia had said as much in a 1991 concurrence-dissent, and many were hoping that he would exercise consistency with Friedrichs.

However, the oral arguments on Friedrichs last month destroyed any such illusions. Justice Scalia, never coy about his beliefs, made it clear that he now believed that fair share fees should be eliminated. Though it’s often difficult to divine the Court’s final decision from oral arguments, it was plain after the Friedrichs arguments that labor would lose.

Accordingly, labor was scrambling to figure out how best to run a union in a post-Friedrichsworld. Meanwhile, conservatives already had a plan in the works to expand what they saw as a certain win.

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 theHarris 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 inD’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.

However, on Saturday it was reported that Justice Scalia had been found dead. With his absence from the Court, conservative plans to attack union dues and membership through Supreme Court challenges may have dissolved for now.

If President Obama can get a new justice confirmed by a Republican-controlled Senate and that justice is permitted to take part in Friedrichs, then the case will likely be decided 5-4 in favor of labor.  If Republicans leaders made good on their vow to thwart any nomination by Obama, or the new justice does not take part in Friedrichs—either because the Court decides not to set it for rehearing or the justice must recuse herself—then all indications are that the case will be decided 4-4. In the event of such a tie, the lower court ruling is upheld—in this instance, the 9th Circuit’s dismissal of the case.

When the Supreme Court ties 4-4, no precedent is set. Anyone in labor worried about that outcome in Friedrichs can rest a bit easier remembering that no precedent is needed here. Aboodcreated the precedent in 1977, and Friedrichs was a shameless ideological ploy to overturn that longstanding precedent. In Friedrichs, the CIR did not present the Supreme Court with the typical grounds for review: either a “a circuit split,” where lower courts issued conflicting decisions, or proof that circumstances had changed so significantly since Abood that the Supreme Court needed to reconsider its ruling. (Justice Stephen Breyer pointed to the absurdity of the Court overruling good case law for no good reason when he asked in oral arguments whether the Court should also revisit its landmark 1803 decision in Marbury v. Madison, which helped set the very terms of judicial review.)

Therefore, unlike other cases on the Court’s docket, if Friedrichs goes away quietly, it will stay gone until there is another conservative majority.

Without a Friedrichs decision that bans fair share fees, it is unlikely the Supreme Court would accept D’Agostino, and even less likely that it would decide against labor in such a case. Other cases attacking the membership rules of unions on specious Constitutional grounds are similarly unlikely to make it to the Supreme Court. With Justice Scalia’s unexpected death, conservatives will have to go back to attacking labor the old-fashioned way: at the state and federal legislatures.

This post originally appeared on inthesetimes.com on February 15, 2016.  Reprinted with permission.

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.

 


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As Long As the Supreme Court Is Setting Labor Policy, the Labor Movement Can Never Revive Itself

Posted on by Joe Burns
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First published at Jacobin.

With the death of leading anti-union reactionary Antonin Scalia, the current docket of Supreme Court cases has been thrown into turmoil.

For the labor movement, Scalia’s departure means narrowly escaping the anticipated anti-union decision in Friedrichs v. California Teachers Association. While most commentators expected a 5-4 anti-union ruling, the most likely result now is a 4-4 decision, momentarily leaving intact the agency shop for public-sector workers and preventing the establishment of a legal beachhead for future attacks.

Contrary to those who saw a silver lining in Friedrichs, judges would never have used the precedent to expand the rights of government workers on free speech grounds. Instead, as Moshe Marvitpoints out, union busters would’ve deployed the rationale in Friedrichs to argue any form of exclusive representation violates public workers’ free speech rights.

This would’ve turned the clock back over 60 years, to a time when all public employee bargaining was suspect precisely because it was deemed political. Additionally, it would’ve only been a matter of time before Friedrichs was applied to the private sector, imposing “right to work” on every workplace in the country.

But for Scalia’s death, a Supreme Court majority would have almost certainly overturned 50 years of settled law. In doing so, five individuals would have substituted their political beliefs for those of elected officials in agency shop states—participating in the broader attack on public employee rights spearheaded by politicians like Wisconsin governor Scott Walker and Illinois governor Bruce Rauner.

All of which is to say that rather than being a body above politics, the Supreme Court reflects the political trends of the day. Take last year’s gay marriage ruling. The words of the Constitution hadn’t changed, nor had some nebulous thing called “the law.” What changed, after decades of grassroots activism, was the political reality. The same forces that prompted the Supreme Court justices to change their view likely prompted establishment politicians such as Hillary Clinton to reverse their own position.

If judges simply interpreted “the law,” the death of a justice would not matter. But it does matter, and so a debate will rage over Scalia’s replacement.

Union activists should have a different discussion. Instead of engaging with the prevailing debate—which will likely consist of whether to appoint an ultra-right Republican or a corporate Democrat—those in and around the labor movement should use the confirmation battle to spark a conversation about the role of unelected judges in setting labor policy.

And we should note the role both parties have played in establishing and maintaining the present system of labor law. Even during oral arguments in Friedrichs, the liberals on the Supreme Court did not mount a rousing defense of public employee unionism. They simply warned the conservative majority about the dangers of overturning settled law—which they worried would threaten the appearance of impartiality the Supreme Court relies on to maintain its legitimacy.

Much of the body of settled law they were keen to defend—and which corporate liberals on the Supreme Court have been key to establishing—blocks effective trade unionism. Judicially created rules hamstringing labor include restrictions on class-wide solidarity and important tactics such as intermittent strikes, the permanent replacement of striking workers, and the use of the business form to evade unionism. Regardless of which candidate is eventually sworn in as Scalia’s replacement, this bipartisan consensus will almost certainly remain undisturbed.

Indeed, nowhere is the need for a Bernie Sanders–style political revolution more apparent than in the selection of Supreme Court justices. Sanders correctly rails against a bipartisan establishment encompassing politicians from both parties, corporate lobbyists and establishment media forces. But the federal judiciary, and in particular the Supreme Court, is perhaps the most quintessentially establishment grouping in American politics.

Which brings us to the bigger question at stake for unions. As long as labor allows nine establishment figures to dictate policy, we will never revive ourselves as a movement. The rules will continue to be stacked against us. Legislative or National Labor Relations Board initiatives, however well intentioned, will be nullified by the courts.

Over 100 years ago, a school of thought called Legal Realism shattered the idea that judicial decisions were anything but political decisions. Led by Oliver Wendell Holmes and firmly situated within the Progressive Movement, the Legal Realists rejected the idea that judges somehow divined decisions from abstract analyses of the law. To study law, they held, was simply to predict what judges would decide. This subversive idea—that there is no such thing as the law independent of actual decisions—proved highly destabilizing to a fundamentally undemocratic judiciary.

Around the same time, the labor movement was agitating against “judge-made law.” Understanding that labor policy was set by elites with no ties to the working class, unionists agitated not just for better judicial decisions but to remove labor policy entirely from federal courts’ jurisdiction.

For conservative unions like the AFL to radical ones like the IWW, defying judicial injunctions was a matter of official union policy. Unionists understood the law was not on their side. The anti-judicial sentiment reached its peak with the 1932 passage of the Norris-LaGuardia Act, which attempted to get federal courts out of the business of making labor policy. (Over the succeeding decades, the act was defanged by the same federal judges it was supposed to protect labor from.)

Today, the labor movement shouldn’t waste time pondering which elite Supreme Court justice will get confirmed, the latest NLRB initiative waiting to be overruled by the federal judiciary, or the newest scheme to revive labor within the confines of an unjust system of labor control. The more important discussion is the one posed by unionists a century ago: how do we break from the constraints of judge-made law?

While there is no easy answer to this question, shedding liberal illusions about the role of the Supreme Court is a start. It is also important to call out the many restrictions on union rights. We can educate, agitate and organize, but if the rules of the game are rigged, we will never succeed.

Winning requires first challenging the rules of the game and the prerogative of elite institutions to govern labor relations. Judicial support for public employee union rights, we shouldn’t forget, was only secured after millions of public-sector workers struck against a bipartisan consensus that rejected those rights.

There are no easy answers about how we knock down the barriers imposed by labor law. But let’s use the death of an arch-nemesis of labor to at least start the discussion.

This blog originally appeared at inthesetimes.com on February 17, 2015. Reprinted with permission.

Joe Burns is a former local union president active in strike solidarity, is a labor negotiator and attorney. He is the author of the book Reviving the Strike: How Working People Can Regain Power and Transform America(IG Publishing, 2011) and can be reached at joe.burns2@gmail.com.

 

 


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Friedrichs Is Dead; Labor’s Crisis Is Not. The â€Scalia Dividend’ Is a Rare Opportunity for Unions.

Posted on by Shaun Richman
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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.

Like few moments before it, the Friedrichs case sparked a broad consensus within labor that our movement faced an existential crisis and that business as usual was a prescription for assisted suicide. Unfortunately, too many union leaders and staff based out of Washington, D.C. are now at risk of being dismissed as a bunch of Chicken Littles who overhyped a sky that never fell by the people who have the greatest ability to determine labor’s future: the local leaders and disengaged members.

It was a mistake to use the Friedrichs case to forge this somewhat rare agreement that labor faces an acute crisis. It seemed like a long shot that the Supremes would even take up the case just a few months after rejecting Justice Alito’s wet dream of a public sector “Right to Work” standard by a 5-4 margin in last session’s Harris vs. Quinn case (I lost a lot of bar bets when they did). Even with the case proceeding to oral arguments, there was always the possibility that the Court would punt on the issue or even rule in favor of the unions for political reasons or that one of these old farts would die and the case would deadlock.

But labor’s crisis predated Friedrichs and will live on after it. The “Right to Work” agenda, and the gutting of public sector collective bargaining laws, will continue to be pressed at the state level. And if the general financial commitment and philosophical approach to new union organizing remains the same, union density will surely continue to decline.

Fortunately, until the Friedrichs case gets re-argued or stalemates in a 4-4 decision, labor remains a bit like Schrödinger’s cat: simultaneously getting murdered by the judiciary and in the midst of a possible resurrection. So there’s still time to harness the sense of crisis into a renewed commitment to radical workplace democracy and activism. And the “rainy day” savings that many unions made in anticipation of an adverse decision can now be used as a “Scalia Dividend” to be invested in new campaigns.

A pragmatic approach to Armageddon

Faced with a potential revenue loss of millions of dollars, international unions focused pragmatically (and conservatively) on cajoling their locals to sign up agency fee payers to full union membership. But that was merely a matter of mechanics—a pragmatic approach to the coming Armageddon. Where workers are exclusively represented by a union and already compelled to pay fees for the benefit of that representation, those that haven’t joined typically haven’t been asked. It is a problem that too many unions don’t make a face-to-face contact to new employees and ask them to join, but it’s hardly labor’s biggest one.

The actual crisis in labor is rooted in a framework that has turned unions into agencies for workers, instead of organizations ofworkers.

The legal obligation of the duty of fair representation forces unions to focus on grievances and contract bargaining while the Taft-Hartley law and contractual no-strike agreements strongly discourage rank-and-file worker protest. Too many members then develop a “what have you done for me lately?” relationship with their union that is vulnerable to a “give yourself a raise” campaign that deep-pocketed right-wing outfits can launch following the loss of agency fee, encouraging union members to stop paying dues or agency fees and gain a bump in their paycheck.

That is the crisis that has been largely unaddressed, or at least unsolved, even while unions have spent two decades genuinely trying to meet the charge from the AFL-CIO to “organize at an unprecedented pace and scale.”

Not to mention, while union supporters were dancing on Justice Scalia’s grave, the West Virginia legislature just voted to become the 26th so-called “Right-to-Work” state. How long can agency fee survive in the other half of the states?

So the crisis still exists in that declining union density leads to declining union power. The billionaire class still wants to kill us, and we don’t make a compelling case about why workers should risk their jobs and relationships to fight with unions that look like ineffective special interests.

One of the under-told stories of the last two decades is how badly, and often how subtly, the organizing model conflicts with unions’ business as usual. In order to win, organizers introduce a radical and inclusive democracy into workplaces. We recruit often large and unwieldy organizing committees of workplace leaders through whom all major decisions about tactics, timing and demands must go for deliberation and approval.

And then we throw these newly radicalized workers into local unions where leadership all too often feel a political need to control bargaining and messaging themselves, going off into backrooms to meet with management and come back with a “win.” This is an unspoken conflict between international unions—who feel the need to “organize or die” more acutely—and locals who too often receive new bargaining units as an unwelcome disruption.

Many organizers wanted to use Friedrichs as an opportunity to work through this conflict. Instead, panicked about potential revenue loss, the leadership of the international unions talked too much about “agency fee conversion” (shop talk for convincing union-represented non-members to join and pay full dues) and a single Court case that is now moot. The organizers caught in the middle could find themselves locked out of further conversations about labor renewal and change with locals that now feel the crisis has passed. They need to broaden the sense of crisis and bring newfound resources to the table.

The “Scalia Dividend”: Labor’s second chance to get it right

Many unions that had Friedrichs’ sword of Damocles over their heads have quietly been squirreling money away, by under-funding or delaying funding new campaigns and not filling vacant staffing positions. Which means those unions now wake up to a “Scalia Dividend”—an unexpected windfall of newly available financial resources for new campaigns and initiatives.

Unions can and should commit resources to comprehensive campaigns for new bargaining units—the kind of campaigns that have quietly ceased in recent years. These organizing campaigns should have an eye towards enhancing density in union strongholds like auto manufacturing, education and retail, but also for big public campaigns that could potentially inspire more non-union workers to take action.

What could go further in inspiring non-union workers to contemplate their power is to build on the internal organizing that’s been going on in anticipation of Friedrichs with contract campaigns. Meaningful member engagement—the kind that can withstand the loss of agency fee—comes from stoking workers’ desires for better pay and working conditions (even their less “reasonable” demands) and extracting sweat equity from them in the form of escalating actions. These campaigns should culminate in a plan to demonstrate, as Chicago Teachers Union President Karen Lewis has said that, “Our ability to withhold our labor is our power.”

We also need a new attempt at labor law reform. The fact that a workers rights bill has less of a chance passing Congress than Obama’s Supreme Court nominee shouldn’t make us say “Why bother?” Instead, it should inspire us to propose big, bold and meaningful reforms. Restoring solidarity rights, rooting unions’ collective actions in the First Amendment, outlawing “Right to Work,” banning permanent replacement of strikers—put it all on the table.

God forbid we do manage to spark the kind of mass strike wave that panics the billionaire class into throwing workers a few bones. What would we win for our effort? Card check? The AFL-CIO should convene an open call for legal reform proposals and put a new “Right To Your Job” bill on the record and on the lips of our members and allies.

The erstwhile House of Labor should also convene a wide-ranging strategic retreat for local leaders, rank-and-filers, staff, academics and activists that treats no idea as unwelcome or unthinkable. The recent petition filed by 106 leading labor scholarsin response to a question on union access to mandatory captive audience meetings left open by the NLRB (and promptly forgotten by union organizers) for 50 years highlights how badly labor needs more and different perspectives brought into the conversation. The poor souls who have spent the last few months poring over organizing databases, wall charts and lit pieces in anticipation of the Friedrichs decision need some fresh air and some new people to talk to.

Unions are no longer facing a multi-million dollar hit in June. We can give the bunker mentality a break, but we can’t pretend that we’re in the clear. There aren’t a lot of second chances in life. Labor must not squander this one.

This blog originally appeared at InTheseTimes.org on February 16, 2016. Reprinted with permission.

Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.


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How Scalia’s Death Affects That Important Public-Employee Union Case

Posted on by Dave Johnson
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dave.johnsonWith the death of Supreme Court Justice Antonin Scalia’s death Saturday, the court’s ideologically conservative 5-4 majority is no more. One big case this affects is Friedrichs v. California Teachers Association, which the conservative ideological majority on the court was prepared to use to bankrupt public-employee unions. Now they can’t do that.

The Friedrichs case involves a lawsuit from anti-union groups that want to stop public-employee unions from collecting dues from non-members, even though they are required by law to provide expensive services. A unanimous 1977 ruling by the Supreme Court, in Abood v. Detroit Board of Education, had said that unions can collect dues from nonmembers for “collective bargaining, contract administration, and grievance adjustment purposes” while those nonmembers are free to choose whether to also pay into union funds used for political purposes. The conservative, anti-union ideologues on this court, which included Scalia, went against precedent and “settled law” in agreeing to hear this case at all.

The post” Why You Should Pay Attention To The â€Friedrichs’ Supreme Court Case explains”:

The Supreme Court has once again decided to reconsider “settled law.” This time it is a case involving the rights of public-employee unions to charge employees a fee for the services the unions are required by law to provide to all employees – even those who are not members of the union. The goal is to bankrupt the unions by denying them the funds necessary to perform the required services.

The argument is that since unions protect working people’s pay and rights, paying fees for union services therefore violates the “free speech” of those who support concentrated wealth and power.

The purpose of keeping unions from collecting dues while requiring them to provide services was clearly to bankrupt the unions. The post “Supreme Court Appears Ready To Bankrupt Public-Employee Unions” looked at the funding behind the case — and behind getting the anti-union ideologues onto the court:

The names Koch, Bradley, Scaife, Olin, Coors, Walton and the others are well known to people who study the massive amount of money behind the so-called “conservative movement” that has helped drive anti-democracy efforts and the resulting inequality in the decades since the 1970s. This small band of wealthy foundations and billionaires are among the same conservative donors who funded the efforts to place the current corporate-conservative majority on the court, and many of the politicians who voted to put them there.

What Now?

Justice Scalia died before the Court decided the Friedrichs case. The court is now evenly divided, with four justices who almost always rule on the side of big corporations and billionaires against unions, environmentalists, consumer groups and all other interests the protect the non-wealthy public in general. The other four justices usually consider the constitutionality, law and merits of the cases before them.

In the Friedrichs case, there is little doubt that the court will now tie 4-4 because of the unanimous Abood precedent. The rules of the legal system say a tie in the Supreme Court means that the ruling of the lower court that advanced the case up to the Supreme Court stays in effect.

In the case of Friedrichs v. California Teachers Association, that lower court is the Ninth Circuit Court of Appeals. That court ruled that the unanimous 1977 Supreme Court ruling in Abood is still settled law and applies, so the California Teachers Association could continue to collect dues from nonmembers.

Put another way, Scalia’s death likely means that public-employee unions will not be forced into bankruptcy by the corporate/billionaire-funded “movement” ideologues on the Court.

This blog originally appeared at OurFuture.org on February 16 2016. Reprinted with permission.

About the Author: Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the U.S.


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Employee Rights Short Takes: Scalia’s Impartiality Questioned, Two Punitive Damage Awards, Disability Discrimination And More

Posted on by Ellen Simon
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Here are a few employee rights Short Takes worth noting:

Scalia Says Due Process Clause Does Not Prohibit Sex Discrimination

For those who may have missed it, Justice Antonin Scalia recently expressed his view that neither women nor gays are protected against discrimination under the 14th amendment of the Constitution. The statement was made in an interview this month published in the California Lawyer.

While it’s newsworthy because of the shock value alone, Scalia has expressed this view before. All one has to do is read the 1996 decision of  United States v. Virginia, in which Scalia was the only justice to dissent from the Supreme Court’s decision to end the Virginia Military Institute’s 157 year old state supported practice of only accepting male students.

Not surprisingly, Scalia’s recent remarks angered liberals and was criticized by many legal scholars. Marcia Greenberger, founder and co-President of the Women’s Law Center, as reported in the Huffington Post, called  Scalia’s comments “shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

Scalia’s comments stem from his view that the 14th amendment , when written, was not intended to ban sex discrimination. As to Scalia’s originalist view, Eric Segall, a professor at Georgia State College of Law, had this to say in his letter to the editor published in the New York Times:

On issues of affirmative action, gender rights, gun control and campaign finance reform, among most other controversial constitutional law questions, Justice Scalia does not truly use an originalist methodology. Much more of his judicial style can be gleaned from looking at the Republican Party Platform than at the drafters of either the original Constitution or the 14th amendment.

For Justice Scalia, it is about results, not process, no matter how much he protests otherwise.

In the same vein, Scalia also also made news with the announcement of his role as a featured speaker at  Michele Bachmann’s tea party / “Constitutional Conservative Caucus” later this month. For more about questions raised regarding Justice Scalia’s impartiality, read Nan Aaron here.

EEOC Settles Disability Discrimination Case For 3.2 Million

Jewel –Osco’s parent company Supervalu  Inc. has agreed to pay $3.2 million to settle a federal lawsuit claiming that the company discriminated against its disabled employees.

The suit, filed by the EEOC, alleged that Jewel-Osco fired employees with disabilities at the end of their leaves rather than bringing them back to work with reasonable accommodations.

According to the EEOC, roughly 1000 employees at Jewel-Osco stores were fired under this policy. One employee who will benefit from the settlement is Rosemary Bednarek who is representative of the class.

Bednarek injured her back lifting boxes of chicken at a Jewel-Osco store in 2004. When she was able to return to work, her doctor advised that she should not lift more than 20 pounds but the company would not accommodate the restriction. Bednarek re-injured her back and was fired a year later.

This is a great settlement that will not only benefit the plaintiffs in the case, but also serve to remind employers of their obligations under the Americans with Disabilities Act (ADA) to accommodate employees with disabilities — including those who are injured on the job.

Two New Decisions On Punitive Damages

We do not often see employment law decisions in which punitive damages are addressed, so to see two in the last few weeks is worth talking about.

Generally speaking, punitive damages are available in some cases in which the defendant engaged in a deliberate or reckless disregard of the rights of others.

The jury, in determining the amount of the punitive damage award, is permitted to consider a number of factors, including a sum of money that would discourage the defendant from engaging in the conduct in the future as well as the income and assets of the defendant. Some large punitive damage awards are challenged on grounds that they violate the Due Process Clause of the Fourteenth Amendment of the Constitution.

Here’s a brief synopsis of the cases:

Hamlin v Hampton Lumbar Mills, Inc.:  Plaintiff Ken Hamlin was injured while working at the Hampton Lumbar Mills. When he was released to return to work, the defendant falsely asserting that he was a “safety risk” and refused to to reinstate him as required by Oregon law.

The case went to trial and the jury awarded lost wages of $6000 and punitive damages in the amount of $175, 000. On appeal, the Court of Appeals held that the punitive damage award was “grossly excessive” under the Due Process Clause of the United States Constitution and reduced it to a sum equivalent to four times the amount of the compensatory damages.

In an instructive review of the case law on punitive damages, the Oregon Supreme Court reversed holding that a punitive damage award may exceed a single digit multiplier of a compensatory damage award without violating due process or being “grossly excessive.”

The case is an excellent reference point for anyone briefing an argument for punitive damages in an employment case.

Claus v. Intrigue Hotel, LLC:  In this age discrimination case, the jury awarded $50,000 in actual damages and $150,000 in punitive damages in a bifurcated trial. The defendant appealed. The Court of Appeals affirmed the verdict in a decision issued late last month.

In brief, Glenda Claus worked for Intrigue Hotels (including its predecessor) since 1984. Her last position was housekeeping supervisor. In 2007, Claus was fired and replaced by a 31 year old employee.

Claus, 63 at the time, testified that she was completely blindsided by the news of her termination. With a record of positive job performance evaluations, a failure to admonish Claus regarding job deficiencies, and replacement with a 31 year old employee with performance issues, the Court of Appeals held that the jury could have rejected Intrigue’s after the fact rationale that Claus was fired for poor performance.

In addition, there was evidence that her new supervisor (Galaviz ) stated he wanted employees who would be at the hotel for the “long haul” and that Claus was “resistant to change.” The Court held that the jury could have reasonably taken these statements to mean that Galaviz did not want older employees and that Claus’s age was a factor in her firing.

The evidence also showed that Galaviz had been engaged as a human resources consultant and had an extensive knowledge of employment law at the time he made these comments and fired Galaviz.

Worth noting is the Court’s statement that the same evidence which supported Claus’s substantive claim for age discrimination also supported her claim for punitive damages  As the Court pointed out,  both Copidas (the owner of the hotel) and Galaviz:

  • knew it was against the law to fire an employee because of age
  • fired a 63 year old employee with a spotless record
  • replaced her with a 31 year old with documented performance problems
  • promoted several younger employees with performance issues
  • altered its rationale for firing Claus several times and created pretextual reasons for firing her

In sum, the Court concluded that the jury’s award of punitive damages was supported by the evidence. The case was remanded to the trial court for an award of reasonable attorney’s fees and costs — a great victory for Claus and her lawyer.

This case is a good example of the kind of evidence which supports a claim for age discrimination as well as a claim for punitive damages. As stated above, since we don’t often see decisions affirming a punitive damage award, these cases are worth noting.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.


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