On April 10 I participated in a panel discussion sponsored by the Law School Chapter of the Federalist Society. The presentation was entitled “Lawyers, Plaintiffs, and Professors, Oh My!: Janus v. AFSCME.” The other panelists were Adjunct Professor and Director of the Law Library Elana Olson, Alumnus Daniel Suhr from the Liberty Justice Center , and Mark Janus, the name plaintiff in the case of Janus v. AFSCME. What follows are my prepared remarks.
In June of 2018 the United States Supreme Court held, in the case of Janus v. AFSCME, that it is a violation of the First Amendment for State and public sector unions to assess mandatory agency fees to non-consenting employees. The majority of the Court held that forcing non-union workers to contribute money to support non-political activities which benefit all workers violates the Free Speech rights of non-consenting employees.
In so holding, the Court overruled a precedent of over 40 years, Abood v. Detroit Board of Education, a 1977 case that had upheld the practice against a First Amendment challenge.
Opposition to labor unions and collective bargaining rights is a policy choice held by many political conservatives today, but it was not always the position of the Republican Party. One of the early icons of the conservative political movement in the United States, Whittaker Chambers, was himself a union member at times in his career, he was supportive of the labor movement, and his wife and many of his relatives were union members.
This icon of political conservatism in the 1950s and 1960s supported collective bargaining rights so much, that when the parent of the conservative National Review Magazine gave an award named after Whittaker Chambers to our guest Mark Janus, in recognition of his participation in the Janus v. AFSCME litigation, the family of Whittaker Chambers objected to their father’s name being associated with the case. Continue reading “The Costs of Janus v. AFSCME”
Congratulations to the Marquette Law Mock Trial Team who competed at the ABA Section of Labor and Employment Trial Advocacy Competition on November 3, 2018.
The team advanced to the Semi-final round of the competition, placing within the top four teams. Team members include Cole Altman, Katie Dvorak, Dan McCrackin, and Rohit Rangarajan. The team was coached by Katie Halopka-Ivery and Emil Ovbiagele.
Congratulations, Team! We are proud of your hard work and success.
This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 3L Frank Capria.
Labor and employment law is an area of law that is of high importance. However, it gets little coverage or recognition. It does not get the publicity like criminal law does in hit TV shows like “Better Call Saul.” But, the Supreme Court is about to decide Janus v. AFSCME, which could dramatically change the entire public sector and make it right-to-work. This case will have a serious impact on teachers, firemen, police officers, and other public employee union members. If the Supreme Court rules mandatory collection of agency fees is unconstitutional, public sector unions will be weakened.
Right-to-work is a policy that allows dissenting union members to not pay non-political dues, or agency fees, to unions. Because of the exclusivity provision in the National Labor Relations Act (NLRA), unions must still represent these dissenting members when negotiating the collective bargaining agreement or when the member is in an arbitration proceeding. The NLRA permits states to have right-to-work laws. Continue reading “Right-to-Work or Right-to-Free Ride?”
Today was Equal Pay Day, the date that indicates how much longer a woman had to work to earn what a man earned in the previous year. More than 20 years ago, the National Committee on Pay Equity started selecting one day a year—always a Tuesday in April—to highlight the continued disparity between men’s and women’s wages.
Now, you can quibble with me about the precise numbers or you can try to explain to me that there isn’t really a gender gap (both of which have been done and probably will be done again); however, as the Pew Research Center noted last summer, though some groups of women have narrowed the gap, there in fact remains some gap in wages between white men and all groups of women.
Much of that gap in wages can be explained by differing levels of education, workforce experience, or occupation. But even when you control for all of those more concrete and measurable variables, there remains an unexplained gap that may—may not—have to do with gender discrimination. Continue reading “Equal Pay Day, Rhetoric, and Reality”
Marquette’s labor and employment moot court team had an incredibly successful performance at New York Law School’s Wagner Moot Court Competition. On March 24th and 25th, Carly Gerards, Nick Sulpizio, and Corey Swinick competed and performed very well in both their oral advocacy and brief writing.
After the preliminary rounds, the team advanced to the octofinals with the 8th best score of the 40 teams competing. The team then advanced to the quarterfinals and eventually the semifinals–a Final Four team for Marquette.
In addition to advancing to the top four of the entire competition, the team took home the award for best overall Petitioner Brief. The team worked exceptionally hard on the brief and in their advocacy practices, and that hard work paid off. Great job, team!
The team is advised by Professor Paul Secunda and coached by Attorney Laurie Frey.
Although by no means a new question regarding retirement, the noteworthy growth of gig companies in the sharing economy has renewed concerns that even more American workers will lack access to employment-based retirement plans. Although some argue that the gig economy offers workers advantages including more independence and flexibility, company-sponsored retirement saving is not one of them. This is a dangerous state of affairs, as employment-based retirement plans make up a critical part of an individual’s strategy for retirement security.
Such retirement plans, like the nearly-ubiquitous 401(k) plans, provide a necessary bulwark against destitution in old age, especially given that Social Security provides only partial income replacement and few Americans have put away much in private savings. Yet, independent contractors, which is how most gig companies classify their workers, are approximately two-thirds less likely than standard employees to have access to an employer-provided retirement plan.
Much academic and judicial ink has already been spilt over whether Uber drivers and other members of the sharing economy are members of the so-called “contingent” workforce or “precariat” (part-time, leased, temporary, and per diem workers), not entitled to receive retirement benefits as part of their employment. Whether these employees are statutory employees is of utmost importance because it largely determines whether gig workers are covered by employment laws, as most such laws center on the employer-employment relationship.
What all these jobs have in common is that the work activity is happening outside of the traditional safety net of employment and are highly unstable. Whereas statutory employees are covered in the United States by numerous labor and employment law statues that provide security and protection in the workplace, workers in these alternative work arrangements are not. Once stable employment relationships have given way to relationships that are much more arms-length, regardless of whether it is a contractor situation, temporary employment, or a one-time encounter. Continue reading “Uber Retirement”
Well, here we are, January 20, 2017, and Donald J. Trump has been sworn in as this nation’s 45th president, though he achieved that position by losing the popular vote by the widest margin of any winning candidate in recent history (2.9 million more people voted for Democratic candidate Hillary Clinton), and he arrives at his new position with the lowest approval rating of any president in recent history.
As numerous others before me have written, President Trump’s campaign was not traditional in any number of ways, and I expect that his presidency will follow that trend. For some, that’s been the whole point. For others, that’s a less-than-inspiring harbinger. I wrote this summer about my concern about the candidate’s rhetoric, proposed policies, and the rule of law.
Though he has since backed off some of his campaign promises (for example, about having a special prosecutor investigate rival Clinton for her use of a private email server—a favorite chant at his rallies was “Lock her up!”), nothing since that time has changed my view. I continue to believe that the president won’t be appreciably different from the candidate. Continue reading “A New Era: The Rule of Law in the Trump Administration”
Most of us are familiar with wellness programs—programs sponsored by our employer or health plan that try to incentivize us to eat healthier, sleep well, and get more exercise. If you’re anything like me, it helps to have that extra push or incentive, especially around the holidays when sweets abound, to stay on track—or at least, to not stray too far from health goals. Most of these programs have the added advantage of lowering health care costs, both by providing financial incentives to reduce immediate costs to the individual employees and by boosting the overall health of the employees as a whole, which could reduce future health care costs. However, extensive technical regulations and recent litigation by the AARP make implementing health and wellness programs increasingly tricky for employers.
Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) and the regulations promulgated by the U.S. Equal Employment Opportunity Commission (the “EEOC”) thereunder, generally prohibit “an employer [from] request[ing], require[ing], or purchas[ing] genetic information [which includes an individual’s family medical history] with respect to an employee or a family member of the employee.” 42 U.S.C. § 2000ff–1(b). However, there is an exception for wellness programs, as long as employers jump through a set of hoops. 29 CFR § 1635.8(b)(2). While not without its own problems and excesses, the exception in the EEOC regulations at least allows employers to provide incentives to those employees willing to participate in employer-sponsored wellness programs.
The AARP doesn’t like this whole “incentive” idea to begin with. It recently filed a lawsuit against the EEOC in an attempt to vacate the regulations entirely. AARP v. U.S. Equal Employment Opportunity Commission, No. 1:16-cv-02113 (D. D.C. 2016) (hereafter the “AARP Complaint”). This actually might not be a bad idea, except for the fact that the AARP thinks that the regulations do not have enough hoops. In fact, the AARP would prefer that the regulations abolish any permission for any incentives or penalties to induce participation in employer-sponsored wellness programs. The AARP alleges in its complaint that all employer incentives or penalties to induce participation in employer-sponsored wellness programs violate Title I of the ADA and Title II of GINA. AARP Complaint at 3. Continue reading “That Extra Incentive”
The extent to which the Fair Labor Standards Act (FLSA) applies to internships and other similar training programs was one of the cutting edge legal issues argued during last spring’s Jenkins Honors Moot Court Competition. In the months since the Jenkins Competition concluded, both the Second Circuit and the Eleventh Circuit have issued rulings that clarify the legal issues addressed in the Jenkins Competition. The treatment of interns under the Fair Labor Standards Act is once again making news.
The fictitious respondent in the Jenkins Competition was a law student who participated in an unpaid internship at a large, for-profit law firm. As part of this program, the student primarily worked on pro bono matters under the supervision of a senior attorney. The student was also able to participate in a mock trial and attend weekly training lunches. However, the student also volunteered to work on a number of projects that were not attached to any pro bono cases or training. They were more of an administrative or secretarial nature. After an unceremonious dismissal from the program (which was the basis for another claim in the case), the law student brought a suit against the firm, claiming that she was owed compensation for the work she did under her summer internship program because she qualified as an employee under the FLSA. The law firm, as one would expect, challenged this assertion, claiming that the student fell under the “trainee” exception carved out by the Supreme Court in Walling v. Portland Terminal Co. (1947).
The Court in Walling clearly meant to provide an opportunity for individuals to be trained without pay by a for-profit business in an industry the individual hoped to enter later. In its ruling, the Court ruled that the FLSA’s definition of an employee as someone who is “suffer[ed] or permit[ed] to work” was “obviously not intended to stamp all [working] persons as employees.” The Court saw the benefit of internship programs for both those seeking to be trained as well as the businesses seeking to develop their future workforce; classifying all such individuals as employees under the FLSA, and thus requiring payment, would limit training opportunities and hurt both groups. The problem with the Court’s ruling in Walling is that it did not establish a clear test for determining whether an individual is an intern or whether she is an employee covered by the protections in the FLSA. Continue reading “Revisiting the Treatment of Unpaid Internships Under the Fair Labor Standards Act”
Congratulations to 3Ls Angela Harden, Amanda Luedtke, and Samuel Weinberg for reaching the quarterfinals of the 39th Annual Robert F. Wagner National Labor & Employment Law Moot Court Competition in New York this past weekend. The team also took second place for its Respondent’s brief. This year’s competition was comprised of 41 teams.
Professor Paul Secunda served as the team’s faculty advisor, and Attys. and Marquette Law alumni Jesse Dill and Tony Flint coached the team. This year’s Wagner problem involved application of the WARN Act to a plant closing of an oil company (Fazal Oil) after a coup de etat occurred in the country where the oil company was located (San Marcos). Specifically, the problem asked whether the Liquidating Fiduciary, Unforeseeable Business Circumstance and Faltering Company exceptions were able to be claimed by Fazal Oil after they closed the San Marcos oil plant without giving the employees the 60 day notice of closing required under the WARN Act. Congratulations, again, to our Marquette Law School team for their tremendous effort in tackling these complex employment issues.
On Thursday and Friday, Marquette Law School will host an important conference, “Restorative Justice and Human Trafficking — From Wisconsin to the World.” As the title suggests, human trafficking — for sex or labor — is a both a global human rights problem and a significant issue locally. Hundreds of cases have been reported in Wisconsin, mostly in the Milwaukee area. The conference is designed to raise awareness about trafficking and to help concerned citizens get involved in efforts to address the problem.
The Conference kicks off at 4:30 on Thursday with a keynote address by Martina Vandenberg (pictured above), who leads the Human Trafficking Pro Bono Legal Center in Washington, D.C. Vandenberg has worked on cases involving trafficking and other humans rights violations around the world.
On Friday, the Conference will continue with a full schedule of speakers and panels. A panel of victim-survivors will share their experiences. Local leaders and activists will discuss the impact of trafficking and current efforts to help victims. Other speakers will cover the existing legal framework, potential legal reforms, and the international context of trafficking.
The Conference is sold out, but there will be a live feed that can be viewed by clicking on the “Watch Now” tabs in the pages linked to above.
On October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute. The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society. We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn. It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.
This is the third and final blog post on the presentation. Readers can find the first post here, and the second post here. What follows are my prepared remarks on Harris v. Quinn, and also a brief conclusion regarding the three cases. Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.
The case of Harris v. Quinn involved an Illinois law that made home health aides state employees under the Illinois Public Labor Relations Act. As a result of this law, these workers became joint employees of both the private individual who receives the services of the home-health worker and the State of Illinois. The Service Employees International Union (SEIU) represents home health aides under a contract with the State of Illinois and collects mandatory dues from both union and non-union workers, which are called “agency fees.” Persons who have a negative view of organized labor object to agency fees because they compel people to pay money to an organization to which they do not belong. Persons who have a positive view of organized labor support agency fees because they prevent non-union employees from “free riding,” which occurs when non-union employees receive the benefits of union-negotiated employment contracts without contributing to the cost of negotiating them.
Under existing precedent, a government employer who collects agency fees from non-union members does not violate their First Amendment rights because when the government acts as an employer it has a compelling interest in avoiding conflicting demands for wages and employment conditions from competing groups of employees. Abood v. Detroit Board of Education (1977). The plaintiffs in the Harris case wanted to use their lawsuit to overturn the Abood decision, thereby allowing any government employees who are not union members to work for the government without paying agency fees to a public employee union. Continue reading “Supreme Court Roundup Part Three: Harris v. Quinn”