“The American press is extraordinarily free and vigorous, as it should be. It should be, not because it is free of inaccuracy, oversimplification and bias, but because the alternative to that freedom is worse than those failings.”
— Judge Robert Bork, New York Times, April 11, 1985
Year: 2017
Truth, Lies and Spooks
It is now all of twenty-five days into the Trump Presidency. Last night, Gen. Michael T. Flynn (ret.) resigned — or was pushed out — from his position as National Security Advisor amid a cloud of accusations that he had discussed the sanctions that the Obama Administration had just levied against Russia with the Russian ambassador to the United States, that he had lied about that conversation to the vice president, and that he may have received payments from Russia in 2015, in violation of the Emoluments Clause to the U.S. Constitution.
It is now emerging that Sally Yates, the Justice Department official who was fired by Pres. Trump for refusing to defend Trump’s unconstitutional ban on Muslim immigration, warned the White House Counsel in late January that Flynn has misled Administration officials and was vulnerable to Russian blackmail. That leads to obvious, and so-far unanswered, questions about why the president kept Flynn in office despite his questionable and potentially illegal conduct.
But perhaps most remarkable was the defense mounted by Kellyanne Conway, a White House counselor and Trump mouthpiece. She claimed that Flynn resigned not because of his communications with the Russians, or his undermining of U.S. foreign policy under Pres. Obama, or the risk that he might be leaking national security secrets to Russia. No, that was not the reason, she claimed! Instead, she said he resigned because he had lied to Vice President Pence.
When, exactly, did truth become a virtue in this Administration? Donald J. Trump has lied to the American people on hundreds of occasions. Or, to put it more charitably, he has made untrue statements hundreds of times. He might actually believe those statements, although that would also mean that he is so detached from reality that he is unable to distinguish fact from fiction.
It is not too much to ask that the Trump Administration adhere to the truth in the way that it claims that Gen. Flynn was required to act when he spoke to other Administration officials. Truth is a universal virtue. No one can credibly insist that others tell the truth to him or her, and then tell lies to everyone else. That includes the President of the United States. In fact, it is particularly true of the President of the United States, or of any world leader to the citizens of that leader’s country.
The truth shall set you free, but a lie will trap you. I hope it is not too late for this Administration to learn that, yes, simple truth.
Quote of the Day, Feb. 14, 2017
“No woman ever falls in love with a man unless she has a better opinion of him than he deserves.”
— Ed Howe
Class Action Bans and Protected Concerted Activity (Part IV)
There are very straightforward reasons that labor unions and their members have argued that employees, whether they belong to a labor union or not, engage in protected concerted activity when they attempt to join together in a putative, or proposed, class action or collective action in connection with workplace disputes.
Some of those workplace disputes involve allegations that the employer has violated the Fair Labor Standards Act (“FLSA”) by not paying overtime and/or the minimum wage to employees who should have received those payments. Or employees might bring a discrimination lawsuit based on conduct that applies to a group of employees.
Class actions or collective actions (the latter includes FLSA and federal age-discrimination claims) can be brought more efficiently, at less expense, than the same claims in multiple lawsuits. In addition, the employer’s liability exposure is higher in a class or collective action. Of course, that is why employers want to prevent employees from filing those lawsuits. But no matter how understandable those employers’ motives may be, that does not justify their efforts to prevent employees from exercising their statutory right to engage in concerted activity for their mutual benefit.
That is why the three cases that the Supreme Court has decided to review are so important. We do not know whether the employees’ position will win a majority of the Court, or whether a majority will find for the employers, or whether these cases will be affirmed on a 4-4 split vote.
In the meantime, Rep. Goodlatte has introduced HR 985, which has the ostensible purpose to “amend the procedures used in Federal court class actions and multidistrict litigation proceedings to assure fairer, more efficient outcomes for claimants and defendants, and for other purposes.” The full text of that bill is not available on the Library of Congress Web site. However, I have seen a draft of that bill. That draft contains provisions that would limit the plaintiffs who could file class actions, impose burdensome new limits on the distribution of money in class actions, and restrict the amount of attorneys’ fees that could be recovered in class actions, among other things.
The right of the people to join together in class actions is under attack. Keeping existing rights, and protecting employees from one-sided, unilaterally imposed limits on their ability to join together, will require hard work and pressure on Congress. We can win this fight, but it won’t be easy.
Quote of the Day, Feb. 13, 2017
JOHN DICKERSON: “When I talked to Republicans on The Hill, they wonder, what in the White House — what have you all learned from this experience with the executive order?”
STEPHEN MILLER: “Well, I think that it’s been an important reminder to all Americans that we have a judiciary that has taken far too much power and become in many case a supreme branch of government. One unelected judge in Seattle cannot remake laws for the entire country. I mean this is just crazy, John, the idea that you have a judge in Seattle say that a foreign national living in Libya has an effective right to enter the United States is — is — is beyond anything we’ve ever seen before.
“The end result of this, though, is that our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”
— Stephen Miller, senior policy advisor to Pres. Trump, on Face the Nation, Feb. 12, 2017
The Rule of Law (Part II)
I’ve written here about the rule of law recently. Because of recent events, I have decided to revisit that topic.
On Jan. 27, 2016, Pres. Trump issued an executive order on immigration. That executive order led to widespread protests and to numerous lawsuits, challenging it on both statutory and constitutional grounds. At this moment, Judge James T. Robart, a federal district judge in the Western District of Washington, has issued a temporary restraining order, at least temporarily barring enforcement of that executive order. The Justice Department has appealed that TRO to the U.S. Court of Appeals for the Ninth Circuit.
None of this is remarkable. For example, 113 Congressional Republicans, in 2013, joined in a lawsuit filed by the attorneys general of 26 states, challenging Pres. Obama’s executive orders that created the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) and that expanded his earlier Deferred Action for Childhood Arrival (“DACA”) programs. Speeches were made for and against those programs, and the White House defended them. A federal district judge in Texas granted a preliminary injunction against enforcement of DAPA. That preliminary injunction was affirmed by the Fifth Circuit and by an evenly divided Supreme Court. However, no final injunction or final judgment has yet been issued.
What is unusual about the current lawsuit against the Trump executive order has been the President’s tweets about the district judge and about the lawsuit. Among other things, he has referred to Judge Robart as a “so-called judge”; told his followers to “blame [the judge] and court system” if “something happens”; and used the word “Politics!” as an apparent explanation if the Administration were to lose that lawsuit. Those tweets, and especially the “so-called judge” tweet, have drawn widespread criticism.
Pres. Trump not only made a patently false ad hominem attack on a sitting federal judge, who happens to have been appointed by a Republican, but he also preemptively blamed the entire federal judiciary if “something happens” in the future. And after his nominee to the Supreme Court, Judge Neil Gorsuch, told Sen. Blumenthal of Connecticut that he was “disheartened” by those “demoralizing” comments — a statement that was corroborated by a staffer who was assisting Judge Gorsuch in the confirmation process — Pres. Trump accused Sen. Blumenthal of lying.
These developments are profoundly troubling. It is true that prior Presidents have criticized court rulings. Some Supreme Court Justices decided not to attend Pres. Obama’s State of the Union address because of his public criticisms of that court’s decision in Citizens United. But criticism of a decision is very different from criticism of a judge. And blaming the judiciary if “something happens” (whatever that means) is a way to discredit a negative decision before that decision is even handed down.
This may not make any difference in the short term. Federal judges hold their positions for life. The President can’t remove a judge, and even Congress can’t remove a judge just because a majority in the Senate doesn’t like that judge’s opinions. But this kind of highly personalized attacks could have a real impact if, for example, a federal jury were called on to decide the guilt or innocence of an alleged terrorist. The President’s loose lips, or hyperactive twitter fingers, could so inflame public opinion that it could become impossible to find an impartial jury.
The Presidency is very different from a political campaign. A campaigner might or might not get heard, and usually speaks as a part of a competitive contest in which the campaigner is not the only one speaking. The President commands an international audience. His words, and even his tweets, are preserved for posterity. His followers, including every member of his political party, might follow his words blindly. What the President says has real consequences, both in the short term, for the particular dispute at hand, and in the long term, by destroying respect for the judiciary and the entire court system.
Pres. Trump has shown an alarming disrespect, if not contempt, for the rule of law. Only time will tell whether he will change his tune. If not, we may be suffering the effects for decades.
Quote of the Day, Feb. 9, 2017
“The rule of law can be wiped out in one misguided, however well-intentioned generation. And if that should happen, it could take a century of striving and ordeal to restore it, and then only at the cost of the lives of many good men and women.”
— William T. Gossett, president, American Bar Association, Aug. 11, 1969
Class Action Bans and Protected Concerted Activity (Part III)
The principal arguments for the Fifth Circuit’s position that the Federal Arbitration Act (“FAA”) preempts the National Labor Relations Act (“NLRA”) in this area are contained in that court’s earlier decision in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). Those arguments are that a prohibition on class-action waivers would discourage arbitration, contrary to the purpose of the FAA; that the NLRA does not expressly state that it overrules the FAA; and that modern class action practice began in 1966, more than 30 years after Congress enacted the NLRA.
That analysis ignores the fact that protection of employees’ right to engage in concerted activity is at the very heart of the NLRA. The specific prohibitions in section 8(a) of the NLRA, 29 USC sec. 158(a), are based on the right to engage in concerted activity set forth in section 7 of the Act, 29 USC sec. 157. The specific forum in which these employees want to engage in that concerted activity is different from the workplace settings specifically considered when Congress enacted the NLRA in 1935. But the fact that the current struggles occur in a legal setting, rather than on the picket line, and use motions and briefs, not strikes, should make no difference.
The issue of class actions, in contrast, is peripheral to the FAA. Many arbitration cases right now are class arbitrations. A class arbitration takes more time and is procedurally more complex than an individual arbitration. But a class arbitration for, say, 50 employees is more efficient than 50 individual arbitration cases.
The fact that the the text of the NLRA does not contain an explicit override of the FAA should make no difference. Congress can be forgiven for not including any such provision in the NLRA, since the FAA states that it does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 USC sec. 1. It is likely that Congress did not think the NLRA conflicted with a statute that said it didn’t apply to these contracts of employment.
In addition, labor unions and employers have long used arbitration as a means of resolving disputes under collective bargaining agreements. However, those arbitration cases can involve what essentially are class claims, such as a dispute over an employer’s alleged failure to pay contractual wages to tens, or hundreds, or thousands of union member-employees. It is disingenuous to claim that an employer can prohibit employees from filing a class arbitration, even while it participates in class arbitrations filed by those same employees’ labor union.
The fact that Rule 23 of the Federal Rules of Civil Procedure, which sets forth the procedures for class actions, did not contain those procedures until 1966 should make no difference. That would be like arguing that the NLRA cannot prohibit an employer from forbidding its employees to discuss workplace issues via e-mail, since e-mail did not exist in 1935. The specific method of concerted activity might be new, but the protections for concerted activity have been central to labor law for more than 80 years.
A fair reading of these two statutes should support the NLRB’s decisions in these cases. However, it is not clear that such a fair reading will receive the approval of a majority of the current eight-justice Supreme Court. And it is not clear just how any new Justice on that Court, whether it is Judge Neil Gorsuch or anyone else, would rule in these three cases.
Why is this important? Tune in for Part IV.
Quote of the Day, Feb. 8, 2017
“The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as his liberator, while the wolf denounces him for the same act as the destroyer of liberty.”
— Abraham Lincoln
Class Action Bans and Protected Concerted Activity (Part II)
What does the National Labor Relations Board (“NLRB or “the Board”) have to do with bans on class actions, created through agreements that some employers have imposed unilaterally on their employees? The answer is quite a lot.
Section 7 of the National Labor Relations Act (“NLRA”), 29 U.S.C. sec. 157, prohibits employers from interfering with, coercing or restraining their employees from engaging in “concerted activities for the purpose of … mutual aid or protection.” Those protections are not limited to just unionized employees or to employees’ activities in the workplace. In a series of cases, federal appeals courts have held that sec. 7 also grants employees the right to band together to file a lawsuit to achieve more favorable terms or conditions of employment.
The NLRB decided, during the Obama Administration, that class action bans — which require covered employees to file employment-related lawsuits individually, rather than filing cases with multiple plaintiffs or class or collective actions — violate sec. 7 of the NLRA. The Supreme Court has decided to hear three cases that raise that issue. Those cases are NLRB v. Murphy Oil USA, Inc.; Epic Systems Corp. v. Lewis; and Ernst & Young LLP v. Morris. The appeals court decisions in those cases are split. The Seventh and Ninth Circuits upheld the Board’s position in the Epic Systems and Ernst & Young cases, while the Fifth Circuit ruled for the employer in the Murphy Oil case.
The Murphy Oil decision doesn’t contest the logic that a ban on class actions interferes with employees’ right to engage in concerted activity. Instead, its decision is based mainly on those judges’ conclusion that the NLRA is not different in kind from other statutes, such as the Age Discrimination in Employment Act at issue in Gilmer, “that that have been found to give way to requirements of arbitration.” That decision viewed the right to file a class action, or the similar procedure of a “collective action” in wage/hour or age discrimination cases, is just a “procedural device,” not a substantive right.
The Supreme Court granted certiorari — that is, it decided to review — these three cases on Jan. 13, 2017. Even if Judge Gorsuch is confirmed as a Supreme Court justice, it is not clear whether he would be able to participate in the oral argument and in the decision in these cases. In the next part of this multi-part post, I will discuss the reasons why I believe that the Court should affirm the NLRB’s decisions in these cases.