In the new issue of Take 5, our colleagues examine five employment, labor, and workforce management issues that will continue to be reviewed and remain top of mind for employers under the Trump administration:
As expected, the last day of the Supreme Court’s term proved to be an incendiary one with the recent spirit of Court unanimity broken by two 5-4 decisions in highly-controversial cases. The media and various interest groups already are reporting the results and, as often is the case in cause-oriented litigation, they are not entirely accurate in their analyses of either opinion.
In Harris v. Quinn, the conservative majority of the Court, in an opinion written by Justice Alito, held that an Illinois regulatory program that required quasi-public health care workers to pay fees to a labor union to cover the costs of wage bargaining violated the First Amendment. The union entered into collective-bargaining agreements with the State that contained an agency-fee provision, which requires all bargaining unit members who do not wish to join the union to pay the union a fee for the cost of certain activities, including those tied to the collective-bargaining process.
The Court below had agreed with the State that agency fees were justified under the Court’s earlier precedents, particularly Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977). However, the Supreme Court’s majority, besides noting what it finds to be the weakness of Abood, focused particularly on the fact that the employees in question were not really public employees. Other than the fees paid to them, all of the indicia of employer status inured to the covered patients who had complete control over the selection of the workers and their conditions.
Justice Kagan, writing for the four liberal dissenters, sees the matter as allowing the straightforward application of Abood to the “fair share” provision at issue here that she argues covers all public employees. This, of course, was not the majority view. However, before proclaiming public employee unionization as seriously imperiled, as some commentators already have, please note that the majority criticized, but did not overrule, Abood. And, I’d suggest that that isn’t likely to happen anytime soon because I believe that the Chief Justice, who has attempted to be a moderating force on the Court, going back at least to the Affordable Care Act decision, and Justice Kennedy, as well, are just not going to go there. They are strong supporters of stare decisis, and they will stay that way.
An even more controversial decision is the long-awaited holding in Burwell v. Hobby Lobby Stores, Inc. Headlines already are blasting out the breaking news that “Justices Say For-Profits Can Avoid ACA Contraception Mandate.” Well, not exactly.
Over a lengthy and impassioned dissent by Justice Ginsburg, writing for the four liberals (herself and Justices Breyer, Kagan and Sotomayor), the majority, again led by the opinion of Justice Alito, held that the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion prevented the application to closely-held (non-public) corporations of the Affordable Care Act provision requiring that employers offer birth control coverage to their employees. The Court held that closely held for-profit corporations are entitled to religious freedom protections and, in contravention of RFRA, the government did not demonstrate that the mandate was the least restrictive means of furthering a compelling government interest.
Both sides of the discussion are hailing Hobby Lobby as a landmark in the long standing public debate over abortion rights. It is not EBG’s role to enter that debate or here to render legal advice, but we respectfully suggest that the decision’s reach is already being overstated by both sides. In the first place, the decision does not allow very many employers to opt out of birth control coverage – only closely-held for-profit companies that have a good-faith ideological core, as clearly was the case for Hobby Lobby. That renders such companies functionally the same as non-profits that are exempted from the mandate by the government. Publicly-held companies are not affected by the decision (though some are likely to argue that Citizens United might require such an extension. Nor are privately-held companies that can’t demonstrate an ingrained belief system.
Moreover the decision implies a number of significant qualifications. For example, RFRA doesn’t shield employers who might cloak illegal discrimination (e.g., against gay people or racial minorities) as a religious practice. Moreover, the decision concerns only the contraceptive mandate and doesn’t necessarily mean that all mandates must fail if they conflict with an employer’s an employer’s religious beliefs. Importantly, Justice Kennedy’s concurring opinion suggests that the government could pay for the coverage itself, so that women receive it. It is not unlikely that the Obama administration will seek to do just that. In any event, per the majority, the government’s shortcoming was that it hadn’t shown that the mandate was the least restrictive means to accomplish its end.
Not only did Justice Kennedy concur in a manner overtly respectful of the dissent, but the fact that Chief Justice Roberts didn’t assign the opinion to himself strongly suggests that he is not prepared to stand in a position of strong conflict with the Court’s liberals but instead to be a mediating figure.
The number of unanimous opinions of the Court this term has been the highest in recent years. Notwithstanding the inherently divisive nature of the two controversial opinions decided today, one thinks that it is not unlikely that greater concord will be the hallmark of the Roberts Court as it was for the Warren Court in earlier times.