Contributed by Caryl Flannery
The 2012-2013 term of the United States Supreme Court brought some significant employment law decisions, but the 2013-2014 term may find traditional labor stealing the spotlight in the workplace.
Last term, we learned that for Title VII purposes, a “supervisor” is someone with the ability to make significant changes in an employee’s status (Vance v. Ball State) and a Title VII plaintiff must meet a “but for” standard for a successful retaliation claim (UTSMC v. Nassar). The death of DOMA meant that many employers had to revisit their tax, benefits, and leave policies. The rules for pursuing or avoiding class and collective action claims were also solidified. (Comcast Corp. v. Behrend; Genesis Health Care Corp. v. Symczyk).
As the Supreme Court opened its 2013-2014 term, two cases that could make organizing significantly more difficult for labor unions were on the docket.
In United Here Local 355 v. Mulhall, the Court will consider what constitutes “a thing of value” under section 302 of the Labor-Management Relations Act. Section 302 makes it illegal for employers to “pay, lend, or deliver any money or other thing of value” to a labor organization. The purpose of section 302 is to prevent unions from colluding with or coercing employers to benefit the union in ways that undermine employees’ choice of representative and bargaining rights. At issue is an agreement between the Mardi Gras Gaming and Local 355 in which the employer agreed to provide the union with employee contact information and expanded access to employees on the employer’s premises. The union, in turn, supported a proposed gaming law (to the tune of $100,000) which was important to Mardi Gras, and agreed not to engage in disruptive activities like pickets and strikes. The question before the Court is whether this agreement was an unlawful “thing of value” as found by the Eleventh Circuit, or whether it was merely a “neutrality agreement” or a “ground rules” agreement similar to those that have been expressly upheld by the Third and Fourth Circuits. Right to Work supporters and employers who wish to avoid organization dislike these agreements, claiming that employers are coerced into paving the way for a union, thus eliminating employee choice. Unions argue that outlawing neutrality agreements will severely hamper their ability to organize and will ratchet up disruption and animosity during organizing campaigns.
In a late entry to the 2013-2014 docket, the Court has agreed to consider whether workers paid through government-funded programs can be compelled to pay union dues. Harris v. Quinn is receiving close scrutiny because several states currently permit organization of individuals who are not traditional “government employees” on the justification that they are compensated through publicly administered funds. The individuals at issue in Harris are home-based health care aides (some of whom are family members of the person receiving services) who are compensated with Medicare funds. The employees are challenging an Illinois executive order permitting such organization claiming that forcing them to accept and financially support a bargaining representative violates their First and Fourteenth Amendment Rights. Harris impacts labor unions not only in their ability to collect dues under existing agreements but also on their ability to organize publicly-funded workers who operate in arguably private sector jobs.