Public sector unions tremble; Friedrichs is coming

. . . and fair share fees are at risk.

Unions collect dues from their members and “fair share” fees from nonmembers that they represent. Nonmembers say that violates the 1st amendment, but the US Supreme Court said it was OK in Abood v. Detroit Bd. of Ed. (US Supreme Court 1977).

Today the Court announced that it will review Friedrichs v. California Teachers Association.

Friedrichs is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an “agency shop” or “fair share” arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.

The Court has already called Abood “something of an anomaly.” And the Court has laid why Abood stands on thin ice:

  1. Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was “thin.”
  2. Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  3. The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
  4. Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  5. Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  6. Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  7. Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  8. The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see US Supreme Court Watch.]

SCOTUS postpones action on public-sector “agency shop” case

Rebecca FriedrichsMy view: If the US Supreme Court agrees to review Friedrichs v. California Teachers Association we should prepare for a sea change in the legality of “agency shop” (aka “fair share”) arrangements in the public sector. As of June 29, 2015 the Supreme Court has not decided, one way or the other, whether it will review this case. Now they’re on recess until October, so let’s wait and see. If the Court does grant certiorari in the fall, that could be the beginning of the end for  Abood v. Detroit Bd. of Ed.

A group of non-union teachers is asking the US Supreme Court to overrule Abood v. Detroit Bd. of Ed. (US Supreme Court 1977) and hold that public-sector “agency shop” arrangements violate the 1st Amendment.

At the Court’s June 25 conference, no action was taken on whether to grant certiorari. So let’s wait for October.

Friedrichs is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an “agency shop” arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.

Five Justices have already made it quite clear that they are ready, willing, and able to overrule Abood. In  Harris v. Quinn (US Supreme Court 06/30/2014) the Court majority wrote out a list of reasons why Abood is now hanging by a thin thread:

  • Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was “thin.”
  • Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  • The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
  • Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  • Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  • Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  • Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  • The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see US Supreme Court Watch.]

DNA sample to find “devious defecator” leads to $2,225,000 verdict

ginaGenetic Information Nondiscrimination Act violation 

My view: Jurors don’t like it when they see a clear-cut and undebatable violation of a clearly-written statute, and then the employer tries to justify that in court. Really, what’s there to like?

Atlas Logistics operates warehouses to store stuff that’s sold in grocery stores. Imagine Atlas’s frustration when a mystery employee began habitually defecating in one of its warehouses. What to do? Atlas requested some employees to submit to a cheek swab (no double entendre intended) to get some DNA to compare to the fecal DNA. 

Two employees sued under the Genetic Information Nondiscrimination Act (GINA), which generally prohibits employers from requesting genetic information from employees. The trial judge granted summary judgment [order] for the employees on the issue of liability, leaving it to a jury to assess damages. 

The jury award: $250,000 to one employees, $225,000 to the other, plus $1,750,000 in punitive damages. Total: $2,225,000. 

By the way, all employees who were tested were cleared. The devious defecator is still at large. If spotted, please call Atlas. 

 Read all about it in the Daily Report.  

Union fair share fees in the crosshairs at Supreme Court

Rebecca FriedrichsBeginning of the end for Abood?

My view: If the US Supreme Court agrees to review Friedrichs v. California Teachers Association we should prepare for a sea change in the legality of “agency shop” (aka “fair share”) arrangements in the public sector.

A group of non-union teachers is asking the US Supreme Court to overrule Abood v. Detroit Bd. of Ed. (US Supreme Court 1977) and hold that public-sector “agency shop” arrangements violate the 1st Amendment.

The Court will have a conference on June 25 to decide whether to grant certiorari. If so, briefs will be filed over the summer, and oral arguments will be scheduled for the fall.

Friedrichs is a head-on challenge of the 1977 Abood decision which upheld a state statute that allows an “agency shop” arrangement, whereby every employee represented by a union, even though not a union member, must pay to the union, as a condition of employment, a service charge equal in amount to union dues.

Five Justices have already made it quite clear that they are ready, willing, and able to overrule Abood. In  Harris v. Quinn (US Supreme Court 06/30/2014) the Court majority wrote out a list of reasons why Abood is now hanging by a thin thread:

  • Abood relied on Railway Employes v. Hanson, 351 U. S. 225 (1956), but Hanson‘s first amendment analysis was “thin.”
  • Abood relied on Machinists v. Street, 367 U. S. 740 (1961), but Street was a private sector case.
  • The Abood Court fundamentally misunderstood Hanson‘s narrow holding.
  • Abood failed to appreciate the difference between public sector union speech and private sector union speech.
  • Abood failed to appreciate the conceptual difficulty in public sector cases of distinguishing union expenditures for collective bargaining from those designed for political purposes.
  • Abood did not anticipate the administrative problems involved in classifying union expenditures as chargeable and non-chargeable
  • Abood did not anticipate the practical problems that arise from the heavy burden facing objecting nonmembers wishing to challenge the union’s actions.
  • The Abood Court’s critical “labor peace” analysis rests on the unsupported empirical assumption that exclusive representation in the public sector depends on the right to collect an agency fee from nonmembers.

[For a list of current employment law cases, see US Supreme Court Watch.]

SCOTUS to decide tribal jurisdiction over intern’s sexual molestation claim

choctawMy view: Why not? The store is on tribal lands.

Dollar General operates a store on the Choctaw reservation. John Doe, a 13-year-old tribe member, was working at the store as an unpaid educational intern. Doe sued Dollar General and its store manager in tribal court, claiming that the manager sexually molested him while he was working there.

The store and the manager went to federal district court seeking an injunction against tribal officials, claiming that the tribal court lacks jurisdiction. The district court held that the tribal court had jurisdiction over Dollar General because it had a consensual relationship with the tribe and with Doe. The court also held there was no tribal jurisdiction over the manager because he personally had no consensual relationship with either the tribe or Doe. The 5th Circuit (2-1) affirmed. [5th Circuit opinion] [Denial of en banc rehearing]

The case is all about tribal sovereignty, and the extent to which a tribal court has jurisdiction over a non-Indian. Its significance is well stated by the dissenting judge:

For the first time ever, a federal court of appeals upholds Indian tribal court tort jurisdiction over a non-Indian, based on a consensual relationship, without a finding that jurisdiction is “necessary to protect tribal self-government or to control internal relations.”

The US Supreme Court granted certiorari to review the 5th Circuit’s judgment. Dollar General Corporation v. Mississippi Band of Choctaw Indians (certiorari granted 06/15/2015). The formal question presented is:

Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members.

Oral argument will be scheduled for the Fall of 2015.

[For a list of current employment law cases, see US Supreme Court Watch.]

OK to fire employee for off-duty state-licensed medical marijuana use

potIt’s still “unlawful” under federal law.

My view:  So your state makes it legal to use marijuana, and your boss fires you for doing so.  Courts haven’t been eager to help employees in that situation. Here’s a recent example:

Colorado has an unusual statute that generally makes it an unfair and discriminatory labor practice to discharge an employee based on the employee’s “lawful” outside-of-work activities.

Brandon Coats is a quadriplegic and has been confined to a wheelchair since he was a teenager. In 2009, he registered for and obtained a state-issued license to use medical marijuana to treat painful muscle spasms caused by his quadriplegia. Coats consumes medical marijuana at home, after work, and in accordance with his license and Colorado state law.

Coats worked for Dish Network, a company that randomly tests employees for drugs. Coats tested positive for THC, and Dish Network fired him.

Coats argued that his use of medical marijuana was “lawful” under state law, so he couldn’t be fired for using it.

Dish Network argued that marijuana was “unlawful” under federal law, so the state statute did not protect him for being fired.

In Coats v. Dish Network (Colorado 06/15/2015), the Colorado Supreme Court unanimously sided with the employer, saying:

Nothing in the language of the statute limits the term “lawful” to state law. Instead, the term is used in its general, unrestricted sense, indicating that a “lawful” activity is that which complies with applicable “law,” including state and federal law.

In most states this is not an issue because most states don’t have Colorado’s outside-of-work statute. If the boss wants employees to be pot-free, then so be it.

Older workers are a bargain

aarp1. More engaged and motivated. 
2. Don’t cost much more. 

An AARP study (of course, consider the source), shows this:

Cost: The incremental cost of getting and keeping more 50+ workers is about 1-2 percent in four key industries: engineering, financial services, health care and retail. Pay scales have moved from tenure-based to performance-based. Retirement plans have shifted from defined benefits to defined compensation. Health care insurance rate increases have slowed. Older workers are less likely to leave, which saves hiring and training costs.

Engagement: Sixty-five percent of 55+ workers are “engaged,” compared to 58-60 percent of younger workers. Not a huge difference, but the study says a 5 percent difference yields a 3 percent increase in revenue growth.

[AARP: A Business Case for Workers Age 50+]

SCOTUS takes another class action case

tysonHow can you have a “class” when individuals’ facts are so different?

Hourly workers at Tyson’s pork processing plant filed a class action claiming unpaid overtime for time spent donning and doffing personal protective equipment. The trial court certified a class, and a jury brought back a verdict for $2,892,378.70. Liquidated damages raised the judgment to $5,785,757.40. The 8th Circuit affirmed in Tyson Foods v. Bouaphakeo (8th Cir 08/25/2014).

The US Supreme Court granted certiorari to review the 8th Circuit’s judgment. Tyson Foods v. Bouaphakeo (Certiorari granted 06/08/2015).

I expect a reversal because individuals’ amounts of overtime varied greatly, the trial court used an “average” based on a sample and applied it to all class members, and hundreds of class members worked no overtime at all.

The certiorari petition raises these two questions:

(1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and

(2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

SCOTUS: Hijab-wearer wins by proving motive, not knowledge

ElaufEmployer suspected, but didn’t know, her scarf was worn for religious reasons.

When Samantha Elauf applied for a job she wore a head scarf, as required by her religious belief. The employer suspected she wore the scarf because of her Muslim faith, but didn’t have actual knowledge of this because she didn’t say so. The employer refused to hire her because wearing the scarf would violate the employer’s dress code.

The EEOC sued the employer, alleging a refusal to hire in order to avoid accommodating a religious practice that it could accommodate without undue hardship.

The employer defended its action by arguing that in order to violate Title VII’s religious accommodation rules an employer must have actual knowledge of a conflict between an applicant’s religious practice and a work rule.

The US Supreme Court held that “an applicant need only show that [her] need for an accommodation was a motivating factor in the employer’s decision.” EEOC v. Abercrombie & Fitch Stores, Inc  (US Supreme Court 06/01/2015).

Some anti-discrimination statutes do include a knowledge requirement. For example, the ADA requires “reasonable accommodations to the known physical or mental limitations” of an applicant. Title VII does not contain such a limitation. “Instead, the intentional discrimination provision [in Title VII] prohibits certain motives, regardless of the state of the actor’s knowledge.”

The opinion adds an interesting observation about how some lower courts err in reading statutes:

Abercrombie urges this Court to adopt the Tenth Circuit’s rule “allocat[ing] the burden of raising a religious conflict.” Brief for Respondent 46. This would require the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress’s province. We construe Title VII’s silence as exactly that: silence.

Movie review: Ex Machina

Ex-Machina★★★★★  Ex Machina: This is sci-fi at its most elegant. Set today, realistic, spellbinding, and without superweapons or masses of uglies.

The pace is an exquisitely timed drip of small twists, all seemingly predictable in hindsight. The set is a low-ceilinged and claustrophobic underground bunker with every imaginable convenience, plus occasional contrasting views of gorgeous natural landscapes. Director Alex Garland’s tiny number of characters blossom in unison as their lives become increasing intertwined.

Caleb is a young programmer, geeky, womanless, and innocent. Nathan lives in the bunker, where he experiments with artificial intelligence. Ava is Nathan’s latest female robot – gorgeous, sensual, intelligent.

Caleb wins a lottery to spend a week at Nathan’s remote estate. Why? To conduct a “Turing Test” – to figure out whether Ava actually behaves like a human and whether she is self-aware. Ava flirts with Caleb, which creates these questions: Is this just a machine-programmed algorithm, or is she really flirting? Or is she actually only pretending to flirt? Whatever the case, Caleb falls for Ava, as did I.

Nathan turns out to be the purest form of evil – the evil that does not even know it is evil. Everything in his life is expendable – including Ava and Caleb. Ava senses this, while Caleb retains a good share of his innocence.

Ava has never been allowed to leave her room in the bunker, and has a fantasy of going to a big city to watch real people (not Nathan) do normal things. She sees Caleb as her key to the outside world, freedom, and a real life. Caleb, star-struck, collaborates.

If you follow Steven Hawking’s predictions about artificial intelligence taking over and consigning humans to the evolutionary scrap-heap, then the ending will not surprise you.

This will be a Movie of the Year nominee. If the “experts” grasp it, it could win.

[Official website]