What Scalia’s Replacement Could Mean for Workers

Catherine Fisk

Catherine Fisk is the Barbara Nachtrieb Armstrong Professor of Law at UC Berkeley Law, where she teaches and writes on the law of the workplace, legal history, civil rights and the legal profession. She is the author of dozens of articles and four books, including the prize-winning Working Knowledge: Employee Innovation and the Rise of the Corporate Intellectual Property, 1800-1930, and Labor Law in the Contemporary Workplace. Her research focuses on workers at both the high end and the low end of the wage spectrum.  She has written on union organizing among low-wage and immigrant workers as well as on labor issues in the entertainment industry, employee mobility in technology sectors, employer-employee disputes over attribution and ownership of intellectual property, the rights of employees and unions to engage in political activity, and labor law reform.  She is the co-author, with UCI Law Professor Ann Southworth, of an innovative interdisciplinary casebook, The Legal Profession. Her current public service includes membership on the SEIU Ethics Review Board, the Board of Directors of the Wage Justice Center, and committees of the Law & Society Association.  Prior to joining the founding faculty of UC Irvine School of Law, Fisk was a chaired professor at Duke Law School, and was on the faculty of the University of Southern California Gould School of Law and Loyola Law School in Los Angeles.  She practiced law at a boutique Washington, D.C. firm and at the U.S. Department of Justice.  She received her J.D. at UC Berkeley, and an A.B., summa cum laude, from Princeton University.

If Justice Scalia’s replacement is progressive, the Supreme Court will have a five-Justice liberal majority for the first time in decades.  Given the significant number five-to-four decisions limiting the rights of and protections for workers, the importance of confirming a progressive is enormous.  Most of the attention has understandably focused on Friedrichs v. California Teachers Association, and for good reason.  Without Justice Scalia, the Court appears to lack the fifth vote necessary to eliminate fair share fees in public sector labor agreements.  And Scalia’s death should put the brakes on National Right to Work’s effort to speed a case to the Court asking it to eliminate exclusive representation for home care workers or, perhaps, even for all public sector workers.  Not only that, but a newly-constituted Court might decide that Harris v. Quinn was wrong to eliminate fair share fees for home care workers and that Knox v. SEIU Local 1000 was wrong to prohibit unions from charging nonmembers for mid-term assessments.

But an astonishingly large number of cases limiting rights and protections for workers were also decided five-to-four with Justice Scalia in the majority.  Here are some cases that warrant reconsideration by a Court with a liberal majority.

NLRA Cases

Many of the Supreme Court’s decisions interpreting the NLRA in a way that limited workers rights were split five-to-four on ideological lines.  Both of the Court’s decisions rejecting the NLRB’s narrow definition of supervisors exempt from the NLRA protections were five-to-four.  NLRB v. Health Care & Retirement Corporation (1994) and NLRB v. Kentucky River Community Care (2001), both involving nurses, rejected an NLRB rule that would have held fewer employees to be supervisors.  A broad definition of supervisors poses a threat to the ability of employees to unionize, particularly in workplaces with flat hierarchies, because many relatively low-level workers who would benefit from collective bargaining have some supervisory authority.

In contrast, a broad definition of supervisor under other statutes, notably Title VII, is more employee protective, as employers are vicariously liable for workplace harassment by supervisors (subject to an affirmative defense), but if the harasser is a co-worker, the victim must prove that the employer is at fault for failing to prevent the harassment.  Yet, although the five conservative justices thought Congress wanted a broad definition of supervisors under the NLRA, they thought Congress wanted a narrow definition under Title VII.  Thus, in Vance v. Ball State (2013), the five conservatives made it harder for plaintiffs to prevail in harassment cases by narrowly interpreting supervisor under Title VII.

NLRB v. New Process Steel, which held that the NLRB cannot act without three members, and which therefore allowed the Board to languish without power for 27 months because Republican senators refused to confirm nominees, was five to four.  As I have said elsewhere, New Process Steel is a powerful weapon for Senators who want to kill an agency by refusing to confirm nominees.

While recent attention on the effect of the Scalia vacancy has focused on whether there are still five votes to reject President Obama’s executive action on immigration, it’s worth remembering that Hoffman Plastic Compounds, Inc. v. NLRB (2002) was also decided 5 to 4 with the conservative-liberal split.  A progressive majority might decide not only that President Obama can exercise prosecutorial discretion not to deport families and children, but also that undocumented workers are entitled to full remedies under the NLRA.

Arbitration Agreements

Ever since the Court (5-4, with Scalia in the majority) upheld mandatory pre-dispute arbitration agreements for employees in Circuit City Stores, Inc. v. Adams in 2001, the Court has steadily expanded the enforcement of such contracts.  Almost all of those decisions were 5-4.  Most recently, in opinions by Justice Scalia in ATT Mobility v. Concepcion and American Express v. Italian Colors Restaurant, the Court held that arbitration agreements are enforceable even if they effectively prevent consumers (and, presumably, employees) from bringing claims.  The Court’s mandatory arbitration cases have been almost uniformly condemned by scholars, who point out that the Court’s interpretation of the Federal Arbitration Act is inconsistent with the language and history of the statute and that enforcing arbitration agreements that effectively preclude vindication of claims is a perversion of arbitration.

A related strand of cases has limited the ability of employees and consumers to bring class actions even in court.  These decisions, too, were conservative-liberal 5-4 splits.  In Wal-Mart Stores v. Dukes (2011), for example, Justice Scalia wrote an opinion for the five conservative members of the Court dramatically limiting the ability of employees to bring class actions.

First Amendment Rights of Workers

Apart from the rights of public employees who refuse to pay union dues, a line of cases that may stop with Harris v. Quinn, the Court’s decisions on free speech rights of government workers gave government employees no First Amendment protections.  In Garcetti v. Ceballos (2006), the five conservative justices held that a deputy district attorney was not protected by the First Amendment for blowing the whistle to a supervisor about police or prosecutorial misconduct.0  The extremely broad rule articulated in Garcetti that government employees have no constitutional protection for speech except as citizens was scaled back slightly in a recent case in which the Court held that the First Amendment does protect a government employee who was retaliated against for testifying truthfully pursuant to a subpoena.  But as reports of shocking police and prosecutorial misconduct continue to surface, it is more important than ever that the Court re-examine Garcetti so that government employees have some protection against retaliation when they report misconduct by the government.

And, of course, in thinking about the Court and the freedom of speech and religion, it is worth noting that the five conservative justices decided in Burwell v. Hobby Lobby (2014) that a privately-held for-profit corporation could refuse to comply with the contraceptive mandate of the Affordable Care Act because to do so would infringe the corporation’s owners’ religious liberty.  (Hobby Lobby interpreted the statutory protection for religious exercise, not the First Amendment.)  While the immediate impact of Hobby Lobby would not by itself deny female employees access to contraception because the ACA provides for government funding, it launched the five Catholic men in the majority on a path of deciding that some forms of legally required financial subsidies compel employers to become complicit in female employees’ family planning decisions.

It is difficult, to say the least, to discern when paying fees to a union compels speech or providing a comprehensive health insurance coverage compels complicity, if paying taxes doesn’t make pacifists complicit in wars or paying a salary doesn’t make an employer complicit in how the employee spends the money.  Justice Scalia’s passing may have saved the Court from going down that rabbit hole.  Unless, of course, someone who shares his views is confirmed to replace him.

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