Employment Law

80th Anniversary of the National Labor Relations Act & Congressional Action - Event Audio/Video

2015 National Lawyers Convention
Richard A. Epstein, John N. Raudabaugh, Bill Samuel, Mark Schneider, Joan Larsen November 17, 2015

Our nation's private sector labor law is a product of the New Deal and the industrial age. In its first edition, the 1935 Wagner Act, employee rights to organize were recognized and employer unfair labor practices were defined. Twelve years later, the pendulum swung and union unfair labor practices were added to the Act. To address corruption, the 1959 Landrum-Griffin Act was enacted to require labor organizations, employers, and labor relations consultants to file annual reports, and union members were granted a Bill of Rights. The NLRA was last amended in 1974, addressing the health care industry.

Over the past 80 years, our nation's economy, indeed, the global economy, has changed significantly. While some efforts have been made over the last four decades to amend federal labor law, none have succeeded. To fill the vacuum, the National Labor Relations Board has stepped in as what some would describe as a quasi-legislature, issuing decisions and rules reflecting the Board's political majority's bias to circumvent Congressional deadlock.

Should labor law be viewed as a vehicle to restore organized labor's density of 60+ years ago or to ensure employee rights to join or not join a labor union? Or, should labor law be overhauled to ensure labor unions' presence globally and to empower organized labor to affect or determine global work standards and business models generally? And, should labor law be politically aligned with one party? Is labor law about the American citizen/worker or about organized labor's institutional survival?

Labor & Employment: 80th Anniversary of the National Labor Relations Act & Congressional Action
2:00 p.m. – 3:30 p.m.
Grand Ballroom

  • Prof. Richard Epstein, Laurence A. Tisch Professor of Law. Director, Classical Liberal Institute, New York University School of Law
  • Hon. John N. Raudabaugh, Reed Larson Professor of Labor Law, Ave Maria School of Law
  • Mr. Bill Samuel, Director of Government Affairs, AFL-CIO
  • Mr. Mark Schneider, General Counsel, Int'l Association of Machinists and Aerospace Workers
  • Moderator: Hon. Joan L. Larsen, Associate Justice, Supreme Court of Michigan

The Mayflower Hotel
Washington, DC

Trial by Formula & Class Action Lawsuits

Short video featuring Anastasia Boden discussing Tyson Foods, Inc. v. Bouaphakeo
Anastasia Boden November 09, 2015

Attorney Anastasia Boden of the Pacific Legal Foundation previews the upcoming Supreme Court case Tyson Foods, Inc. v. Bouaphakeo. In the case, workers sued Tyson Food for not paying them for time spent taking on and off their work equipment.  Since no time records for such activity were kept, the lower court allowed damages to be determined based on an average time for class members and then applied it to the entire remaining class.  Ms. Boden explains the concept of “Trial by Formula” and its implications in this case. The Pacific Legal Foundation filed an amicus brief  co-authored by Ms. Boden in support of the petitioner Tyson Foods.

Friedrichs v. California Teachers Association - Podcast

Labor & Employment Law Practice Group Podcast
Erwin Chemerinsky, William Messenger August 27, 2015

On June 30, 2015, the Supreme Court decided to revisit whether the First Amendment permits the government to compel its employees to financially support a union by granting certiorari in Friedrichs v. California Teachers Association, No. 14-915. In Friedrichs, the Court will consider whether to overrule Abood v. Detroit Board of Education (1977), which held that public employees can be compelled to financially support union collective-bargaining with government, but not union political activities.

The Court’s grant of certiorari in Friedrichs comes on the one-year anniversary of its decision in Harris v. Quinn, where Court criticized Abood’s rationales, but did not overrule Abood after finding it inapplicable to the non-employee Medicaid providers who brought the case. Unlike Harris, Friedrichs squarely presents the issue decided in Abood—whether public school teachers can be required to pay compulsory union fees as condition of their employment.       

The Friedrichs petitioners argue that Abood should be overturned because there is no distinction between bargaining with government and lobbying government—both are political speech. The respondent California Teachers Association, however, counters that union bargaining with government is akin to bargaining with a private employer, and that it wrongful for teachers to get a so-called “free ride” on union bargaining efforts.

Is the Court likely to overrule Abood? And what will be the implications if it does?         

  • Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine
  • William Messenger, Staff Attorney, National Right to Work Legal Defense Foundation, Inc.

Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores - Post-Decision SCOTUScast

SCOTUScast 6-16-15 featuring Michael Rosman
Michael E. Rosman June 16, 2015

Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc, decided on June 1, involves Title VII of the Civil Rights Act of 1964, which prohibits a prospective employer from (among other things) refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship.  The question here is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation. The Tenth Circuit had ruled in favor of Abercrombie, concluding that an employer could not be held liable until an applicant (or employee) provided the employer with actual knowledge of her need for an accommodation.

In an opinion delivered by Justice Scalia, the Supreme Court reversed the decision of the Tenth Circuit by a vote of 8-1 and remanded the case for further proceedings.  A request for accommodation, or the employer’s certainty that the practice at issue exists, the Court explained, may make it easier to infer the requisite motive, but it is not a necessary condition of liability under Title VII.

The Chief Justice and Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan joined Justice Scalia’s majority opinion. Justice Alito filed an opinion concurring in the judgment.  Justice Thomas filed a dissenting opinion.

To discuss the case, we have Michael Rosman, who is General Counsel at the Center for Individual Rights.

Religious Accommodation in the Workplace: EEOC v. Abercrombie & Fitch Stores - Podcast

Labor & Employment Law and Religious Liberties Practice Groups Podcast
Michael E. Rosman June 04, 2015

When is an employer liable or not liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice?”  We discussed the case decided on June 1, 2015 by the U.S. Supreme Court.on this Courthouse Steps Teleforum conference call.

  • Michael E. Rosman, General Counsel, Center for Individual Rights