- Mach Mining v. EEOC: unanimous SCOTUS, Kagan writing, agrees courts can hold EEOC to legal duty of pretrial conciliation, but prescribes narrower review than employer asked, with no commission duty of good-faith negotiation [Maatman et al; earlier on case here, here, and here; earlier from me on EEOC record of frequent losses in court]
- New “ambush election” rules: “Your Privacy Has Just Been Compromised, Thanks To Obama’s NLRB” [Labor Union Report]
- U.K. controversy parallels ours: “Banning unpaid internships will harm, not help, the disadvantaged” [Andrew Lilico, IEA]
- “U.S. signed agreement with Mexico to teach immigrants to unionize” [Sean Higgins, Washington Examiner]
- Another view on bias-law “Utah compromise” [Dana Beyer, Huffington Post; my critical view]
- Advice to employers: “OSHA is not your friend. It is not there to give you an atta-boy on workplace safety. It is there to find violations and levy fines to make money for OSHA.” [Jon Hyman]
- “CA: Failing to Pay Prevailing Wages May Be Intentional Interference with Prospective Economic Advantage” affording competitors a cause of action [Garret Murai via TortsProf]
With no statutory authorization or track record of earlier Department of Labor involvement — not that that’s stopped them in the past — the Obama Administration’s hyper-activist Wage and Hour Division may be exploring ways to deploy the New Deal-era Fair Labor Standards Act to develop a new set of employer obligations to avoid unpredictable scheduling demands on employees, the better to pursue work-life balance [Doug Hass, Wage and Hour Insights] Earlier on wage and hour law here.
I’ve got a new piece at Reason on how the U.S. Department of Labor stepped over the line when — relying on an obscure “hot goods” provision of the 1938 Fair Labor Standards Act — it slapped an order on two Oregon blueberry growers forbidding them from selling their crop until they settled a (dubious) DoL demand for back pay for workers. Having no choice in this forfeiture-like situation, the growers went along, but when things were brought to a federal court’s attention, the Obama administration got slapped down hard. Further observations at Cato at Liberty.
We mentioned the case in October, and developments last year drew coverage critical of the Administration’s tactics from a Wall Street Journal editorial, Jared Meyer at Economics 21, and George Leef at Forbes. For contrary views, see Catherine Ruckelshaus of the National Employment Law Project in Salon, with typical let-us-reason-together Salon framing (“lies… disingenuous… lost its mind”); Fair Warning; and Sachin Pandya, Workplace Prof. More coverage of the recent settlement and dropping of charges: AP, Oregonian, Fair Warning, and Trey Kovacs/WorkplaceChoice.org. More: Daniel Schwartz noting October 2014 DoL fact sheet.
- Obama wants Hill to force paid leave on employers. What, his rule-by-decree powers didn’t stretch that far? [RCP, USA Today] Department of Labor, using funds taxed from supporters and opponents alike, happy to act as frank advocate for legislation [its blog]
- Employers brace for salaried-overtime mandate, wrought by unilateral Obama decree [KSL, earlier at Cato]
- Related: “Employers To Face More Litigation In 2015 As Plaintiff Lawyers Swoop In” [Daniel Fisher on Gerald Maatman/Seyfarth Shaw report] Here come more NLRB decisions too [Tim Devaney, The Hill]
- Krugman on minimum wage: two economists in one! [Donald Boudreaux, Cafe Hayek via Coyote, @Mike_Saltsman (“Min wage in France is closer to $12/hr US. But Krugman still being inconsistent bc he’s also backed $15 US minimum”)]
- Five pro-de Blasio unions — SEIU/1199, teachers, hotel workers, doormen/building staff, CWA District 1 — help enforce NYC mayor’s agenda [NYDN]
- Testimony: “worst-kept secret” in Philly ironworkers’ union was that you could get ahead through violent “night work” [Philadelphia Inquirer; earlier on Quaker meetinghouse arson here and here, related here]
- Loads of new compliance burdens: “Changes in California Employment Law for 2015″ [Baker Hostetler] And it wouldn’t be California without many more employer mandates pending in legislature [Steven Greenhut]
- Perez v. Mortgage Bankers: can agency escape notice-and-comment requirements for new rulemaking by couching edict as other than a rule? [The Hill]
- Contrary to imaginings in some quarters, anti-business side doesn’t lack for access to front-rank Supreme Court advocates [Tom Goldstein, SCOTUSBlog]
- Speaking of which, Alison Frankel’s profile of Prof. Samuel Issacharoff’s work on behalf of class actions illuminates little-seen world of cert practice [Reuters]
- After two near misses, it’s time for Justices to turn thumbs down on housing disparate impact theory [Ilya Shapiro and Gabriel Latner, Cato]
- Integrity Staffing v. Busk: Court unanimously rules Fair Labor Standards Act does not require overtime pay for security screening after work [SCOTUSBlog, Michael Fox, On Labor, Daniel Fisher, Dan Schwartz]
- “Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution” [Cato panel discussion with Roger Pilon, Ilya Shapiro, Randy Barnett, David Gans]
- Some local governments presume to license local tour guides, which amounts to requiring a license to speak [Shapiro and Latner, Cato]
- More: 1997 flap over sculpture of Muhammad in Supreme Court building mostly subsided after Islamic scholar interpreted it as gesture of goodwill [Jacob Gershman, WSJ Law Blog]
A “thinly-veiled effort to do through regulation” what Congress had refused to do, according to federal district judge Richard Leon, who struck it down in a victory for the interests of elderly and disabled persons in need of care, not to mention the interests of taxpayers and liberty [Bloomberg Business Week] Earlier on the regulations here, here, here, here, here, here, here, here, etc.
Almost all government restrictions on our freedom are indirect. They are imposed on us by way of some business. In fact, laws that directly restrict the freedom of the individual are rare and almost always controversial….
But the vast majority of government encroachments on your freedom of action come about through laws that constrain an employer or a seller – without much controversy. …
After proceeding through examples from workplace safety regulation, liquor control, medical device regulation, occupational licensure, and other areas, Goodman adds:
Let’s take one more example from the health care field. The Obama administration is about to impose new regulations affecting home health care workers. They must receive minimum wages and overtime pay. But as far as I can tell, this rule applies only to workers who are employed by agencies and not to workers who are directly hired by an elderly or disabled patient. No matter how they are employed, the economic effects will be the same – a blow to the seniors and people with disabilities. In one case the effects would be visible; in the other they would be invisible. It’s hard to avoid the conclusion that if there were no agencies in home health care, there would be no new regulations.
The growth of the firm may be inevitable, desirable, or both for separate reasons, but it also makes regulation more feasible by generating an entity more suitable for bearing the regulatory harness. Incidentally, is blocking the Obama home health carer overtime regulations a high priority for the incoming Republican Congress, and if not, why not?
The website of Morgan & Morgan, the large personal injury firm headed by politically active Orlando attorney John Morgan (“For the People”), announces the firm’s interest in handling cases alleging overtime infractions and other wage and hour violations under the Federal Labor Standards Act (FLSA), and boasts that its client recoveries in employment cases have exceeded $50 million. Not mentioned is a recent case in which Morgan & Morgan is reported to have “reached a settlement meant to resolve a former field investigator’s allegations that he was not properly paid overtime, according to [an October] filing in Florida federal court.” [Scott Flaherty, Law360] According to an article last year on the dispute, Christopher Hranek “was a field investigator for Morgan & Morgan from June 2008 until he was ‘terminated’ by mail in August 2012 while on Family Medical Leave Act leave, according to the lawsuit. He alleged that he routinely worked more than 40 hours a week and sometimes up to 70 hours weekly, using his 1999 Ford to drive to various locations in the state as the firm’s preliminary contact with injured people or potential clients, but did not receive overtime compensation.” The firm denied the allegations and said it had paid Hranek appropriately. [Jane Meinhardt, Tampa Bay Business Journal; earlier]
- Sorry, National Review, but the marriage rulings are really nothing at all like Dred Scott [my new piece at The Daily Beast] Or Roe v. Wade either [Dale Carpenter, Ilya Shapiro, Charles Lane]
- Ninth Circuit won’t get the message about not expropriating raisin farmers and it’s time for the Court to remind it again [also Ilya Shapiro, earlier]
- Private businesses, even those that are quasi-public like Amtrak, shouldn’t be delegated the right to regulate their competitors [Ilya Shapiro yet a third time]
- “Supreme Court takes case on duration of traffic stops” [Orin Kerr, Rodriguez v. United States]
- Housing disparate impact theory, dodged by administration last time around, returns to Court [Bloomberg, Daniel Fisher; Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; earlier]
- Noteworthy feature of just-argued wage-and-hour case is that Obama Department of Labor is taking the employer side [Denniston, SCOTUSBlog; Integrity Staffing Solutions v. Busk]
- “Supreme Court to hear case on right of Maryland to tax out-of-state income” [Ashley Westerman, Capital News Service]
- Mark your calendar if in D.C.: I’ll be moderating a Nov. 3 talk at Cato by Damon Root about his new book Overruled: The Long War for Control of the U.S. Supreme Court, with commentary from Roger Pilon and Jeffrey Rosen [Reason]
- Posner smacks lawyers, vindicates objectors in Radio Shack coupon settlement [CCAF, Fisher, more]
- “Germany To Consider Ban On Late-Night Work Emails” [Alexander Kaufman, Huffington Post]
- 7th Circuit overturns Wisconsin John Doe ruling, sends back to state judges [Milwaukee Journal-Sentinel, ruling; more, Vox] John Doe case prosecutor John Chisholm, via columnist Dan Bice, strikes back against source in office who talked to Stuart Taylor, Jr. [Taylor, Althouse]
- Trial lawyer/massive Democratic donor Steve Mostyn also dabbles in Texas Republican primaries [Robert T. Garrett, Dallas Morning News; Mostyn’s national spending from Florida and Arizona to New Hampshire and Minnesota]
- Sad: immigration lawyer known for Iraqi Christian advocacy faces asylum fraud charges [Chicago Tribune]
- Might have been entertaining had Bruce Braley opponent Joni Ernst in Iowa argued in favor of nullification, but that’s not what evidence shows [Ramesh Ponnuru]
- California hobbles insurers with diverse-procurement regulations [Ian Adams, Insurance Journal]