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Persuader Rule Update - Podcast

Labor & Employment Law Practice Group Podcast
Christopher C. Murray, Karen Harned July 12, 2017

On March 24, 2016 the DOL’s Office of Labor-Management Standards (OLMS) issued the so-called “persuader rule” that would greatly inhibit the ability of businesses to rely on labor experts and the ability of employers to obtain legal advice in responding to union organizing campaigns. For nearly 50 years the DOL has recognized that advice, including legal advice, is excluded from reporting under federal labor law. The new persuader rule would have forced lawyers and law firms that counsel a business on most labor relations matters to disclose not only their work with that client, but also all fees and arrangements for all clients for all labor-relations services.  Several lawsuits were filed challenging this rule on statutory and First Amendment grounds. On June 27, 2016, a district court in Texas issued a preliminary injunction enjoining DOL from implementing the new rule. The district court then made that preliminary injunction permanent in November 2016, and DOL has appealed to the Fifth Circuit.  While DOL’s appeal is pending, on June 12 DOL issued a proposal to rescind the rule.

Christopher C. Murray, a shareholder at Ogletree Deakins, represents some of the business groups in the Texas litigation who sued to stop the “persuader rule” from taking effect. He provided an update on the current state of play with regard to the litigation and proposed rulemaking.

Featuring:

  • Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
  • Moderator: Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center

Statewide vs. Local Right to Work Laws - Podcast

Labor and Employment Law Practice Group Podcast
Andrew R. Kloster, James Sherk, Ariana R. Levinson, Raymond J. LaJeunesse January 06, 2017

In 1957, an article in the Stanford Law Review asked the question: can counties and cities pass right to work ordinances under the Taft-Hartley Amendments to the National Labor Relations Act? The law explicitly allowed states to prohibit "agency-shop" contracts, but did not clearly address subdivisions of states. This question of federal preemption was addressed by courts only three times in more than fifty years. In that time, twenty-six states have passed statewide right to work laws. But recently, Hardin County in Kentucky passed, and the federal Court of Appeals for the Sixth Circuit upheld, a local right-to-work ordinance. Consequently, this sleeper issue may be hugely important in "purple" states across the country.Our panel of labor law and federalism experts talked about the law and politics of local right to work laws.

Featuring:

  • Mr. Andrew R. Kloster, Attorney, Washington, DC
  • Mr. James Sherk, Research Fellow in Labor Economics, The Heritage Foundation
  • Prof. Ariana R. Levinson, Professor of Law, University of Louisville Brandeis School of Law
  • Moderator: Mr. Raymond J. LaJeunesse Jr., Vice President & Legal Director, National Right to Work Legal Defense Foundation

 

The Future of Labor Law under the New Administration - Podcast

Labor & Employment Law Practice Group Podcast
David Fortney, Brent Garren, John S. Irving December 16, 2016

2016 was a big year for labor and employment law. In Friedrichs v. California Teachers Association, a deadlocked Supreme Court allowed a lower court ruling to stand, denying a First Amendment challenge to mandatory union dues. Meanwhile, President Obama’s Department of Labor released a new overtime regulation which would more than double the maximum salary required for exemption from overtime pay. The implementation of the regulation was halted just a few days before going into effect by a nationwide injunction by a federal district court judge.

With 2017 ahead and the general election behind, our experts discussed the future of labor law under the Trump administration.

Featuring:

  • Mr. David S. Fortney, Co-founder,Fortney & Scott, LLC
  • Brent Garren, Deputy General Counsel, Local 32 BJ, Service Employees International Union
  • John S. Irving, Of Counsel, Kirkland & Ellis LLP

The Future of Mandatory Union Dues - Podcast

Labor & Employment Law Practice Group Podcast
Scott A. Kronland, William Messenger July 22, 2016

Friedrichs v. California Teachers Association was anticipated to be one of the most significant cases of the Supreme Court’s term. In Friedrichs, the Court was considering whether to overrule its prior decision in Abood v. Detroit Board of Education (1977), which held that public employees can be required to financially support union collective-bargaining with government, but not union political activities. In 2014, the Court sharply criticized Abood’s rationales in Harris v. Quinn, but stopped short of overruling it. Friedrichs was primed to be the final word on Abood’s continuing validity. However, with Justice Scalia’s passing in February, the Court deadlocked 4-4 in Friedrichs, and Abood remains the law of land.

This Teleforum explored the legal landscape post-Friedrichs. This includes the other cases challenging Abood that are pending in the lower courts, and the legal arguments for and against upholding Abood. It also includes cases that concern related matters, such as whether individuals can be required to affirmatively object to paying “non-chargeable” union dues under Abood, and whether individuals who are not full-fledged employees can be included in systems of exclusive representation in the wake of Harris.

Featuring:

  • Scott A. Kronland, Partner, Altshuler Berzon LLP 
  • William Messenger, Staff Attorney, National Right to Work Legal Defense Foundation, Inc. 

Friedrichs v. California Teachers Association - Post-Decision SCOTUScast

SCOTUScast 4-20-16 featuring Richard A. Epstein
Richard A. Epstein April 20, 2016

On March 29, 2016, the Supreme Court decided Friedrichs v. California Teachers Association. A group of public school employees sued the California Teachers Association and various other entities, arguing that the agency shop arrangement itself--as well as the opt-out requirement--violated the First Amendment. The district court denied their claim and the U.S. Court of Appeals for the Ninth Circuit affirmed based on existing precedent and the 1997 Supreme Court decision Abood v. Detroit Board of Education. The two questions before the Supreme Court were (1) whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

In a one-sentence per curiam opinion, the judgment of the Ninth Circuit was affirmed by an equally divided Supreme Court, a 4-4 split.

To discuss the case, we have Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law, New York University School of Law and Professor Emeritus and a senior lecturer at the University of Chicago Law School.