Labor Law

Unionizing Domestic Workers?: Harris v. Quinn Decided - Podcast

Labor & Employment Law Practice Group Podcast
Samuel R. Bagenstos, Andrew Grossman July 01, 2014

Supreme Court ExteriorIs Harris v. Quinn a landmark in labor law? The case asked the Court to decide whether the First Amendment bars Illinois from compelling personal homecare providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs.

Viewed narrowly, Harris is a challenge to the organization of home-care workers, asking the Court to clarify whether a state's interest in maintaining "labor peace" -- the justification for allowing government to burden workers' First Amendment rights by requiring them to associate with and support a labor union -- is sufficient in these circumstances.

But Harris also asked whether a state ever has an interest sufficiently compelling to require its own workers to speak to it through the intermediary of a labor union. It was only in 1977, in a case called Abood v. Detroit Board of Education, that the Supreme Court held that "labor peace" justifies this imposition on government employees' First Amendment rights. The Harris petitioners contend that Abood was wrongly decided and that governments never have any sufficiently compelling interest to compel their workers to support a labor union. Does the majority opinion's language on Abood signal the Court is ready to reverse it when the right case presents itself?

  • Prof. Samuel Bagenstos, University of Michigan Law School
  • Andrew M. Grossman, Associate, Baker & Hostetler LLP, Adjunct Scholar, The Cato Institute

Lawson v. FMR LLC - Post-Decision SCOTUScast

SCOTUScast 4-15-14 featuring Jessie Liu
Jessie Liu April 15, 2014

Jessie LiuOn March 4, 2014, the Supreme Court issued its decision in Lawson v. FMR LLC. The question in the case is whether the Sarbanes-Oxley Act's retaliation protections for whistleblowers extend to employees of privately owned contractors who are working for public companies.

Justice Ginsburg delivered the opinion of the Court, which held that the Sarbanes-Oxley Act's whistleblower protection does extend to employees of a public company's private contractors and subcontractors. The decision of the First Circuit was reversed and the case remanded for further proceedings. Chief Justice Roberts, Justice Breyer, and Justice Kagan joined the opinion of the Court. Justices Scalia and Thomas joined in principal part. Justice Scalia filed an opinion concurring in principal part and concurring in the judgment, which Justice Thomas joined. Justice Sotomayor filed a dissenting opinion, joined by Justices Kennedy and Alito.

To discuss the case, we have Jessie Liu, who is a partner at Jenner & Block.

Employment Non-Discrimination Act - Podcast

Religious Liberties Practice Group Podcast
David E. Bernstein, William N. Eskridge, Jr. February 21, 2014

Prop 8 flagsA bill to enact the proposed Employment Non-Discrimination Act ("ENDA") was introduced into the 113th Congress and approved by the Senate by a 64-32 vote. The Act would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. Non-profit membership clubs and organizations that are solely religious are exempted, but religiously affiliated organizations (such as hospitals and schools) are not.

Proponents and opponents disagree about whether sexual orientation and gender identity discrimination is widespread and a serious problem. Proponents point, for example, to a field experiment in which job applications with a fictitious resumé including membership in a gay organization in college received substantially fewer invitations for interviews than did applications with a fictitious resumé identical except for the membership. Opponents note studies showing that gays have average or above-average incomes and conclude that discrimination does not seem to have impaired their earning potential.

There is also disagreement about the impact ENDA would have on people of faith. Proponents note that the religious exemptions of ENDA track those of other federal anti-discrimination laws. Opponents point out that disapproval of homosexual acts is a fundamental tenet of Christianity, Judaism, and Islam, as well as of many other faiths, and that ENDA would be the first American federal law to outlaw exercise of a mainstream belief of our major religions.


  • Prof. David E. Bernstein, George Mason University Foundation Professor of Law, George Mason University School of Law
  • Prof. William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School

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Sandifer v. United States Steel Corporation - Post-Decision SCOTUScast

SCOTUScast 2-11-14 featuring Lawrence DiNardo
Lawrence C. DiNardo February 11, 2014

Lawrence DiNardoOn January 27, 2014, the Supreme Court issued its decision in Sandifer v. United States Steel Corporation. The question in this case is what constitutes “changing clothes” within the meaning of Section 203(o) of the Fair Labor Standards Act, which specifies that an employer need not pay for time spent “changing clothes” if that time is excluded under a valid contract with a labor union.

In an opinion delivered by Justice Scalia, the Court held by a vote of 9-0 that the time petitioners spend donning and doffing their protective gear is not compensable by operation of the Fair Labor Standards Act. Chief Justice Roberts, as well as Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan joined in Justice Scalia's opinion. Justice Sotomayor also joined in the opinion, except as to footnote 7.

To discuss the case, we have Lawrence C. DiNardo, who is a partner at Jones Day.