SCOTUS rules in favor of Janus in Janus v. AFSCME

On June 27th, after months of deliberation, The U.S. Supreme Court has ruled in favor of Mark Janus in Janus v. AFSCME. The decision, which overturns the 1977 precedent set by Abood v. Detroit B.O.E., states that the fair-share fees once paid by non-union employees are a violation of their First Amendment rights.

The case began in February of this year. The lead plaintiff, Mark Janus, took issue with the possibility that he may not have agreed with his unions values and was still mandated to pay for them. Although the precedent set by Abood states that these fees cannot be used for any political or ideological purposes, Janus argued that collective bargaining and the basic operations of a union are political in nature. Union employees who are not dues-paying members will now reap union benefits at the expense of full-dues paying members. Because of this, unions fear a dramatic decrease in membership, since they are now required to represent all employees without the support of fair-share fees.

Proponents of Janus called this the protection of workers’ rights and free speech, while dozens of unions and worker advocates urged the importance of unions and the good they do for their employees and members. Opponents of Janus highlighted the voice that unions give the middle and working class due to the public influence that unions have. Many say the ruling will effectively destroy their public influence, and therefore the voice of the workers they employ. In an article from the Times Herald Online, one of the Court’s Justices spoke out: “In dissent, Justice Elena Kagan wrote of the big impact of the decision. “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law — and its economic life — for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

A majority of U.S. states have banned fair-share fees long before Janus made waves. The 22 states that did not are union powerhouses. As District Council 37 Executive Director Harry Garrido put it, “Today’s decision is appallingly out of sync with both public sentiment and the difficult times now faced by working families”, in a statement on his union’s website. DC 37 is New York’s largest public union, and happens to be a chapter of AFSCME.

New York’s government officials have been staunch supporters of unions and organized labor, and now is no exception. A number of legislative bills added to the 2019 State budget were put in place as safeguards against Janus v. AFSCME, with the aim of narrowing certain services and levels of Union representation to dues-paying members only. Other bills provided further incentives-like making union benefits effective at time of hire and protected benefits during leave-rather than budget safeguards.

This directly effects most of our communities hardest working people-those of who keep our neighborhoods functioning.

Teachers, law enforcement, laborers, healthcare workers, and many more.

MDASR, LLP. stands in full support of New York’s public unions and the labor movement, and has for over 60 years.

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The App-Based Battleground

California and Seattle are the latest battlegrounds for lawsuits involving ride-hailing apps Uber and Lyft. As the gig economy expands, the definitions of job and employee are growing with it. However, the business model of the gig economy can be particularly daunting for their independent contractors-those of who are usually not subject to certain benefits, like workers’ compensation, bargaining rights, unemployment insurance, and the like. The industrys’ near-complete deregulation makes it easy to find work and make money, but consequently makes it hard to be protected from poor business practices.

“Seattle’s law, passed in 2015, requires the city to select a union as the exclusive bargaining representative of the estimated 9,000 drivers in Seattle who work for Uber, Lyft and other services. The law was put on hold pending the outcome of the chamber’s lawsuit”, according to an article on Reuters.com, linked below. While Washington state allows their cities, such as Seattle, to regulate Uber and Lyft, the 9th circuit court took issue with which part of the ride fees were regulated. The courts are allowing the challenge by business groups,

However, in California, the Supreme Court has passed a decision that makes it harder for businesses to “classify workers as independent contractors rather than employees.”, according to the New York Times. The decision could “upend their business models”, mandating minimum wage, overtime, workers’ compensation, unemployment insurance, etc. laws to be followed by companies. The law creates a simpler definition of employee and independent contractor, by way of substituting the current “test” for another, more streamlined one. This test would be based on someone completing tasks relevant to the business of the company, rather than degree of supervision and other contingencies that currently determine employee status. As the New York Times describes this new test;

“By way of an example, the court said a plumber hired by a store to fix a bathroom leak would not reasonably be considered an employee of that store. But seamstresses sewing at home using materials provided by a clothing manufacturer would probably be considered employees.

In addition, a company must show that it does not control and direct the worker, and that the worker is truly an independent business operator, not just classified that way unilaterally.”

On display in either case is the standard mentality of “safety of workers is a hindrance to businesses.” This has been a hot-button labor topic for the past few years: for-hire drivers demanding protection and benefits. New York City’s’ Black Car Fund was established for this very reason. However, this was before the integration of app-based transportation. This is not the first time Uber and Lyft have been at the crux of these issues. A class-action lawsuit that came about in late 2017 stated that Lyft was docking twice the amount of the Black Car Fund fee (2.5%) from for-hire drivers-once for the fee paid by drivers, and once from the drivers’ actual paychecks. The company ultimately settled for $3 million earlier this year.

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Industries with growing union membership

Labor unions have a long history in public works and trades. Typically unions are made up of police officers, fire fighters, sanitation, electricians, construction workers, the health industry, and the like. However, recently there are a variety of industries with employees voting to unionize. Their reasons for voting to unionize are all unique to the industry, but nonetheless highlight the fact that employees want to change their work environment.

Airline crews:

Earlier this month, over half of JetBlue’s 5,000 flight attendants voted to unionize. They are now part of a union that is near and dear to New York’s heart, the Transport Workers Union. This is the second union to be brought in to JetBlue since its first union in 2014, the Air Line Pilots Association.

An article on Bloomberg.com sited job security from mergers as one of the reasons the flight attendants had voted to unionize, as well as having a voice in lobbying matters in the aviation industry. TWU President John Samuelsen said of the vote, “This historic victory is yet another example of the tide turning in America as workers continue to lock arms and fight back to defend their livelihoods,” according to Forbes.

JetBlue is following suit with one of countries most heavily unionized industries, with some airlines having more than 4 unions supporting their employees.

Education:

Student workers, usually holding the title of Adjunct Professor or Research Assistant, have a long history of trying to unionize in private institutions. After taking on the lion’s share of research work and instruction, they are typically left with low wages, heavy overtime and a lack of job security.

Harvard students recently voted to unionize and won the right to bargain with the school. According to the prestigious college’s website, this is the first time in the history of Harvard that the students will have a union. Harvard’s decision to negotiate with graduate student workers is out of step with other ivy league colleges, such as Yale and Columbia, who have refused to do so when their students vote to unionize. The union, HGU, is represented by the United Automobile Workers and is now the HGU-UAW.

Journalists/Freelance Writers:

Several online media publications have voted become members of the Writers Guild of America East. Employees from Thrillist, Vox, Vice, and MTV News make up just a number of the roughly 5,000 union members that WGAE represents. Unique to an industry based in the arts, unionizing also means the protection of the work they generate for the publications-for example, the recent settling of a 17-year-old- class action lawsuit claiming copyright infringement brought forth by 3,000 journalists. Similar to the airline industry, mergers and acquisitions that could put freelance positions at risk are also a reason employees are voted to unionize. Most recently, 85% of employees from the Chicago Tribune have voted to unionize. This is still pending approval from parent company, Tronc according to an article on Politico posted in late April.

For-Hire Transportation:

Not unlike their yellow, green, and livery forefathers, for-hire transportation services have begun to unionize. With the ease of a mobile app, Uber and Lyft created quick income for the drivers and quick transportation for the users. After feeling abused under the employment status of independent contractors, the Independent Drivers Guild was formed for (and by) app-based and for-hire drivers. These were the same drivers initially protected by the IAMAW District 15.

Legislative bills to cushion potential Janus ruling

The 2019 NYS Fiscal Budget was completed two days before its April 1st deadline. While $1 million was allocated to investigate wage theft, new legislation introduced into the budget to soften the blow that the Supreme Court case Janus vs. AFSCME ruling could have.

The budget that was allocated to investigate wage theft is part of a larger goal to return nearly $40 million to individuals who fell prey to poor business practices in in the past two years. The money is meant to expand the DOL’s investigatory staff, according to the Governors website.

The bill meant to act as a safeguard for the potential Janus ruling will narrow some services offered by unions to dues-paying members only. According to an article posted on The Chief Leader, the bill limits representation in arbitration and grievance hearings to union members, and will not be covered under fair-share fees. Originally, these services were covered under fair-share dues-the issue at the heart of Janus. “The lead plaintiff in the case before the high court, Janus v. AFSCME, has contended that because public-employee unions are dealing with government employers, all their activities are political in nature, including wage negotiations and matters involving working conditions.”, noted the article on The Chief Leader, linked below.

About a week after that, Cuomo signed another bill to help New York’s unions. The secondary bill, signed on the 12th, provides incentives rather than budget protection like the legislation signed into the 2019 budget. The perks, according to amNY, require unions to protect member’s benefits during leave, allow members to pay dues electronically, allows a 30-day window for public employees to notify their union of the position they’ve been hired to and to sign up for membership. It also makes all union benefits immediately effective at time of hire. Many union officials, namely leaders from UFT as well as the president of AFL-CIO, came out in support of the bill when it was signed.

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