- “For years, a Texas electric utility company and its union feuded over the installation of automated smart meters; the company wanted them; the union didn’t, fearing they would put meter-readers out of work. A repairman for the company testifies to state legislators that the smart meters are combustion prone and damaging homes. Company: Which isn’t true. You’re fired. NLRB: Can’t fire him. His testimony was protected union activity. D.C Circuit: Maybe not. We’re very deferential to the Board, but even so, the NLRB’s reasoning here is ‘too opaque.'” [John Kenneth Ross, Short Circuit, on Oncor v. NLRB]
- May Day replay: What happened at the Haymarket Affair? [John J. Miller] A Wikipedia footnote [Timothy Messer-Kruse, Chronicle of Higher Education]
- Decline in number of U.S. manufacturing jobs is not owing to decline in unionization [Colin Grabow, Cato]
- More for the “I thought contractual non-union arbitration was just a racket to benefit employers” files [Eric B. Meyer, Employer Handbook (prospective “tsunami” of arbitration claims against chain restaurant); Daniel Schwartz (exotic dancers win big in private arbitration)]
- “Regulating the Modern Workforce,” Federalist Society Regulatory Transparency Project symposium video with James C. Cooper, Clark Neily, Ryan Nunn, Gabriel Scheffler, John Yun;
- “Consumers do not have the option of abandoning unionized public services if they become too expensive and inefficient, as they can do with unionized services in the private sector.” [Chris Edwards, Cato on Janus v. AFSCME]
In the pending Janus case, the Supreme Court may recognize a First Amendment right of government workers not to be obliged to pay mandatory union dues as a condition of employment, while not disturbing the situation for private sector employees, who have no such First Amendment right. Presto, an opening for union subterfuge involving pretend privatization of the government jobs:
The unions’ version is to create and insert between government and employees sham “private” units to handle human resource and payroll functions and, thereby, assume the role of “legal employer.”
Ironically, some of the first groups of unionized employees to be targeted for such a strategy are in sectors where public-employee status had itself been a subterfuge: independent home health care workers paid with state moneys who had only been declared public employees in the first place as a way to herd them into unions. With the new twist, these independent workers could thus have been reclassified twice: first from private to public so as to allow the fiction of a single employer and coverage by pro-union state policy, and then from public to private to avoid the constitutional protections that would ordinarily accompany work for a public employer. [Red Jahncke, New London Day and earlier The Hill.)
- Eighth Circuit Cato amicus defends right of videographer couple in Minnesota not to film same-sex weddings for hire if they don’t care to [Ilya Shapiro and Reilly Stephens] Meanwhile: “California Court Upholds First Amendment Right Not to Bake Cake for Same-Sex Wedding” [Eugene Volokh, who takes a different side from Cato on expressive status of cake creation]
- “It’s all about the shared love for Disney.” Is that why they’re suing? [Hugo Martin, Los Angeles Times]
- “Whistleblower Lawyers See a Growth Area: Customs Fraud” [Henry Cutter, WSJ]
- Supreme Court hears oral argument in Janus, the public employee union fees First Amendment case [Ilya Shapiro/Washington Examiner, SCOTUSBlog coverage by various authors, Amelia Thomson-DeVeaux/538, earlier]
- Copyright: “US Judge dismisses Taylor Swift ‘haters’ case as too ‘banal'” [Mark Savage, BBC]
- Dangerous for an advice letter from an NLRB lawyer to say that references to gender-based differences in James Damore memo “were discriminatory and constituted sexual harassment” Ken at Popehat, Robert VerBruggen/NRO, Jerome Woehrle]
- Striking expose of why subway construction costs so much more in New York City than in other cities like Paris and Hong Kong [Brian M. Rosenthal, New York Times]
- “The Myth of Public-Sector Unions’ ‘Free Rider’ Problem” [Trevor Burrus and Reilly Stephens, Cato, on Janus v. American Federation of State, County, and Municipal Employees, Council 31, earlier here, here, and here]
- Ray of hope on Golden State finances: Gov. Jerry Brown says absurd “California Rule” on pensions must yield [Nick Gillespie] “The Legalities of Pension Reform: How Do You Get There From Here?” [Alexander Volokh, Reason Foundation]
- “Battling treacherous office chairs and aching backs, aging cops and firefighters miss years of work and collect twice the pay” [Jack Dolan, Gus Garcia-Roberts and Ryan Menezes, L.A. Times]
- Politicized pensions: NYC’s scheme to divest from oil companies is unlikely to accomplish goal but does put funds’ investment performance at risk [James Copland, New York Daily News]
Annual survey of more than 280 state-administered public pension plans finds trouble ahead [Thurston Powers, Elliot Young, Bob Williams & Erica York, ALEC]
- “The missile employee messed up because Hawaii rewards incompetence” [Gene Park, Washington Post]
This could be major: President Trump may be set to propose the biggest civil service changes in 40 years, with goals of flushing underperformers in the federal workforce and boosting pay-for-performance. “Trump is using the VA Accountability Act, which gave the Secretary of Veterans Affairs greater authority to fire and discipline workers, as a model. The White House says that law has resulted in the dismissal of 1,470 employees, the suspension of 443, demotions for 83 others last year.” The head of the American Federation of Government Employees charged that Trump was “interested in political revenge by firing people” and that his proposal “wipes out due process rights for employees.” Currently 99.7% of federal employees get the satisfactory rating (“fully successful”) needed to qualify for stepwise pay increases as well as cost-of-living. [Gregory Korte, USA Today] My City Journal take on the perennial challenge of civil service reform, back when, is here.
New York City police union argues that a (ridiculously broad) New York labor law may forbid public release of bodycam footage in misconduct cases [Ed Krayewski. Reason]
- Spotted in Senate tax bill: what sounds like an excellent proposal to cut off worker-classification lawsuits [Shu-Yi Oei and Diane M. Ring (who take a very different view of the provision) via Caron/TaxProf]
- Federalist Society convention video on future of federal workplace agencies with Alex Acosta and Nicholas Geale of DoL, Victoria Lipnic of EEOC, Philip Miscimarra of NLRB;
- “‘Mistake’ in Pennsylvania homecare contract would have helped unions in fight over healthcare workers” [Sean Higgins, Washington Examiner; Cato podcast with David Osborne and Caleb O. Brown]
- Automatically worth reading, Claudia Goldin on gender pay gap [New York Times]
- Public sector unions rule in California politics, and pension-spiking is just one of the results [Steven Greenhut] “California Union Bill Looks to Ban Outsourcing Public Services” [same]
- New report from Dana Berliner, Clark Neily al., “Occupational Licensing Run Wild” [Federalist Society Regulatory Transparency Project]
- Sending a letter to your employees informing them of a pending EEOC investigation might itself violate discrimination laws [Jon Hyman] More: Jerome Woehrle;
- As its fiscal year 2017 closes, a “return to frantic filing” at the EEOC [Matthew J. Gagnon, Christopher J. DeGroff, and Gerald L. Maatman, Jr., Seyfarth Shaw]
- Once occupational licensure is in place, it’s hard to pry off established interests that grow up around it [Steve Bates, Society for Human Resource Management, and thanks for quotes]
- Nassau’s labor unions say it’s “impossible” to summarize their contracts with county, as financial control board would like [Robert Brodsky, Newsday]
- “Michigan’s pension reforms are kind of a big deal” [Eric Boehm, Reason] “State Police Pay 43 Officers Over $300k Each To Not Retire” [Evan Carter, Michigan Capitol Confidential]
- “Organized Labor Wants to Push Out Local Restaurants and Raise Prices at Portland International Airport” [Nigel Jaquiss, Willamette Week]
A 1977 Supreme Court decision, Abood v. Detroit Board of Education, upheld the constitutionality of forcing public employees to fund (through union dues) advocacy they might not like. More recently the Court has questioned the reasoning of Abood in Knox v. SEIU (2012) and Harris v. Quinn (2014), although the trend stalled in last year’s 4-4 split in Friedrichs v. California Teachers Association. Now the Court could revisit the issue by agreeing to review a Seventh Circuit case from Illinois, Janus v. AFSCME [Ilya Shapiro and Frank Garrison, Cato]
George Leef reviews James W. Ely, Jr., book The Contract Clause: A Constitutional History. The clause, part of Article I, prescribes that no state shall pass any law “impairing the obligation of contracts”:
By the end of the Marshall era, the Contract Clause provided a firm defense against legislative interference for rights under public and private contracts. That would be its high-water mark. Soon state and federal courts began to whittle away at it….
The 1934 Supreme Court case of Home Building and Loan v. Blaisdell is often cited as a turning point in the clause’s demotion, but the stripping away of protection against such laws has continued into more modern times.
Thus, state governments now have nearly unlimited power to tamper with contractual obligations and the reliability of a contract depends upon how judges might weigh several vague factors. Where the Founders wanted certainty, we now have a great deal of uncertainty.
Ely concludes by taking us into recent cases where the clause has been resurrected in efforts by public employee unions to prevent legislatures from whittling away any of their promised benefits through efforts to lower budget deficits.
These may sometimes prevent even laws aimed at reducing “unearned” future benefits arising from public-sector work that has not yet been performed. Even as some courts render such benefits provisions constitutionally binding on subsequent legislatures, they show little interest in reviving the clause’s old scope so as to bar legislation that impairs the obligation of existing private contracts.