- Curtis Dubay, The Heritage Foundation
The Honorable Eileen J. O’Connor, partner at Pillsbury Winthrop Shaw Pittman LLP, explains the impact of the Affordable Care Act’s contraceptive mandate on the Little Sisters of the Poor. In Little Sisters of the Poor v. Burwell, the sisters have petitioned the Supreme Court for a writ of certiorari because they believe that following the accommodation offered by HHS violates their Freedom of Religion. The government argues that the accommodation HHS designed relieves the Little Sisters of complicity in the provision of contraceptives, and therefore their religious liberty is not implicated.
In what is being described as a "landmark" ruling by the National Labor Relations Board, a divided NLRB has changed a decades-long approach and made it easier for contract and temporary workers to unionize. The NLRB decision expands the traditional definition of "employee" to include shift workers, contract workers, and other temporary employees. What will the decision mean for workers and employers? Will it impact franchisers? Will it lead to more contested matters, as the NLRB has suggested that it will make further determinations on a case-by-case basis? These and other questions, including questions from the audience, were be addressed on our Teleforum call.
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?
July has been a busy month for the Department of Labor (DOL). On July 6th, DOL published proposed revisions to the “white collar” overtime regulations which would more than double the minimum salary level required for exemption. On July 10th, DOL defended its 2011 tip credit regulations before the Ninth Circuit in Oregon Restaurant & Lodging v. Perez. Last week, on July 15th, DOL issued new guidance – an “Administrator’s Interpretation” – concluding that “most” workers are employees, not independent contractors. A decision on the validity of DOL’s home care worker regulations is expected any day from the D.C. Circuit in Home Care Association v. Weil, and in August, DOL is expected to issue a request for information on the use of electronic devices by overtime-protected employees outside of scheduled work hours. In this teleforum, the Bush Administration’s wage-hour team at DOL provided a briefing on these developments and discussed what else we can expect from DOL over the next 18 months.