News & Commentary

July 9, 2020

Maxwell Ulin

Maxwell Ulin is a student at Harvard Law School.

Yesterday, the Supreme Court released two landmark decisions striking at the heart of federal employment law.  In Little Sisters of the Poor v. Pennsylvania, No. 19–431, the Court ruled 7-2 to uphold two Trump administration rules expanding existing religious exemptions to the Affordable Care Act’s (ACA) employer contraception mandate.  Writing for the majority, Justice Clarence Thomas wrote that § 300gg–13(a)(4) of the ACA, requiring coverage “as provided for” by the Health Resources and Services Administration (HRSA), granted HRSA “sweeping authority” to define coverage requirements, and that HRSA was justified in expanding these exemptions in response to the Court’s 2014 decision Burwell v. Hobby Lobby, 573 U.S. 682.  Justices Elena Kagan and Stephen Breyer concurred with the Court’s conservatives in the judgement. 

In the second decision, the Court again ruled 7-2 that the so-called “ministerial exception” to Title VII of Civil Rights Act prevents employees of private religious schools who conduct any religious education from pursuing discrimination claims against their employers.  The two consolidated cases, Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267, and St. James School v. Biel, No. 19-348, were brought by Catholic School teachers in California based on ADA and age discrimination claims.  The ruling, written by Justice Samuel Alito, expanded on the Court’s unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012) by applying the exception based on job duties beyond cases where the employee has a formal religious title or ministerial training.  The decision comes on the heels of another victory for the operators of private religious schools in Espinoza v. Montana Dept. of Revenue, No. 18–1195, which broadened religious schools’ access to charter school funding, and presents limitations to the scope of LGBTQ protections recognized under Title VII in Bostock v. Clayton County.  Together, these cases set up the Court for a potential showdown next year over religious liberty and LGBTQ rights in Fulton v. City of Philadelphia, which regards whether a city can ban a Catholic group from its foster care program for forbidding gay couples from participating.

As many Americans return to work in spite of recent flare-ups, workers across the country have grown increasingly concerned about workplace adherence health and safety protocols.  This issue has been aggravated by a renewed shortage in personal protective equipment (PPE)—not to mention the general unwillingness of the federal Occupational Safety & Health Administration (OSHA) to take steps to protect employees.  Conditions have fed speculation over a potential upsurge in workplace safety lawsuits—actions perhaps made easier by a U.S. Magistrate’s decision this week opening the door to requesting workplace injury, illness, and fatality statistics at certain businesses from OSHA under the Freedom of Information Act (FOIA).  Sounding the alarm, Senate Majority Leader Mitch McConnell (R-KY) has continued to push for business immunity from COVID-related employer liability suits, insisting that some form of liability shield be included in any future coronavirus relief bill.  McConnell’s demands will likely come to a head this month, as the country will face an even more dramatic economic downturn should Congress fail to extend $600 weekly unemployment benefits past July.

As President Trump’s poll numbers continue to slide, the Department of Labor has noticeably sped up the pace of several key rulemaking proposals.  In particular, the Department this week released plans to fast-track a sweeping new rule on independent contractor status, with the hopes of publishing both a proposed and final version within the next six months.  The Labor Department is also seeking notice and comment on new rules regarding paid and unpaid leave provisions of the Family and Medical Leave Act.  Finally, the Federal Labor Relations Authority (FLRA) is set to publish a final rule in the Federal Register today that reverses a longstanding 1981 decision by making it easier for federal workers to opt out of prior agreements to pay union dues a year after signing up. Already, the National Treasury Employees Union (NTEU) has filed a petition for review with the D.C. Circuit challenging the new rule. 

With elections approaching, Democratic leaders have begun forging a policy vision for 2021 and beyond. Yesterday, a joint unity task force assembled by presumptive Democratic presidential nominee Joe Biden and his former primary rival, Sen. Bernie Sanders (I-VT), released a sweeping set of platform recommendations to Democratic National Committee.  Among other progressive proposals, the report calls for the passage of the PRO Act, card-check elections, a ban on right-to-work laws and forced arbitration agreements, and a host of other labor and employment reforms proposed by the Clean Slate Project to expand the power of workers and their labor representatives.  Today, Biden is slated to call for a comparatively moderate approach to reviving the economy in 2021, focusing on incentives to buy American and investments in the green energy sector and so-called “caring economy,” which includes elderly and child care along with domestic work.  This latter investment is likely to prove uniquely critical to the post-pandemic recovery, as child care options for working families have reportedly grown considerably scarcer since the crisis began, leaving many parents without the option of returning to work.

Looking ahead, a national coalition of labor and social justice organizations announced yesterday a nationwide job walkout across 25 cities on July 20 to demand racial justice.  The action, intended as a full-day strike, is being spearheaded by labor groups like the Service Employees International Union (SEIU), the International Brotherhood of Teamsters, the American Federation of Teachers (AFT), the United Farm Workers (UFW), and Fight for $15, along with social and racial justice organizations including March On, the Center for Popular Democracy, the National Domestic Workers Alliance, the Poor People’s Campaign, and the Movement for Black Lives.  Those who cannot participate in the full-day strike have been asked to leave work for around 8 minutes and 46 seconds—roughly the amount of time that Officer Derek Chauvin pressed his knee into George Floyd’s neck as he died.  Strikers are demanding that companies unequivocally declare that Black lives matter and commit to a series of actions to address systemic racism in the economy, such as guaranteeing sick pay, affordable health care, child-care higher wages, and improved health and safety measures, as well as allowing employees to unionize and bargain collectively for better working conditions.  The protest comes at a moment when the role of police unions in both the labor movement and American politics generally is being questioned in unprecedented fashion.

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