The US Supreme Court heard arguments on Monday in the case of Janus v. American Federation of State, County and Municipal Employees, in which the court appears poised to strike a blow to organized labor by cutting off a major source of revenue for unions representing public sector employees. The plaintiff, Illinois state employee Mark Janus, is not an AFSCME member but pays “agency fees” to the union in return for benefiting from its collective bargaining activities—a practice allowed by the court in the 1977 case Abood v. Detroit Board of Education. Janus, represented by the anti-union National Right to Work Committee, contends that these fees violate his First Amendment rights by forcing him to fund an organization that engages in political activities with which he may disagree.
The Supreme Court came close to striking down Abood in a separate case in 2016, but deadlocked 4–4 after the untimely death of Justice Antonin Scalia that February left its conservative wing without a fifth vote. Now, with the conservative Justice Neil Gorsuch filling its ninth seat, the court is widely expected to rule in Janus’s favor, NPR’s Nina Totenberg explains:
To get a feel for the court’s thinking, take a glance back to the argument in 2016. The teachers union, joined by the state of California, contended that fair-share arrangements prevent strikes and internal strife by providing a single elected union for the state, acting as employer, to deal with, as opposed to competing unions and groups of employees.
In many close controversies, Justice Kennedy is the justice most likely to be open to persuasion, but he is something of a purist on First Amendment free speech questions. Two years ago, he disputed the characterization of those who didn’t want to pay partial union fees as “free riders.” Rather, he said, the union was making them into “compelled riders.”
In his first official act since taking office on January 16, New Jersey Governor Phil Murphy has issued an executive order barring state entities from asking job candidates for their salary histories. Murphy’s order is the beginning of what he says will be a series of efforts to address gender pay disparities in the state, Porzio Bromberg & Newman attorneys Kerri A. Wright, David L. Disler, Richard H. Bauch, and James H. Coleman, Jr., report at Lexology:
The Executive Order is scheduled to take effect on February 1, 2018. It prohibits State entities from inquiring into a job applicant’s current or previous salaries, until the entity has made a conditional offer of employment and provided its compensation package. It further prevents the employer from searching public records databases to ascertain an applicant’s salary history and requires the employer to take all reasonable measures to avoid inadvertently discovering a potential employee’s salary history. However, nothing in the law prevents job applicants from volunteering previous compensation information, at which point, public entities may verify this information.
The order only affects institutions under the direct control of the executive branch of New Jersey’s state government—i.e., those over which Murphy himself presides—as only legislative action can institute a broader prohibition. Local governments and private employers are not affected. However, Murphy said the order was his “first meaningful step towards gender equity and fighting the gender pay gap,” and that he intends to sign legislation that would ban salary histories throughout the state.
Kara Jade Quan-Montgomery/Shutterstock
In an executive order issued on Friday, New York Mayor Bill de Blasio barred city agencies from asking job candidates for their salary histories, describing the ban as a move to address gender and racial pay gaps in the city’s 300,000-strong public sector workforce. While 90 percent of those employees are union workers whose salaries are set in collective bargaining, the order’s main impact will be on non-union managerial positions, Nathan Tempey reports at Gothamist:
The announcement touts the order as a model for employers everywhere. The order goes into effect in 30 days, and specifically, it says that city agencies cannot seek salary history information by questioning or research prior to making a conditional job offer. After extending an offer, agencies will be allowed to look into salary history, but only as far as it comes up in verifying past employment, and they will not be allowed to consider it in setting pay. …
According to a recent study by the Public Advocate’s Office, women working full time in New York state make 87 cents for every dollar earned by a man. In New York City, this has a pronounced racial disparity as well, with Hispanic, African-American, and Asian-American women making 54, 45, and 37 percent less than white men, respectively—divides that are more pronounced than the rest of the country. The divide is also worse in New York’s city government than the private sector, with women working for the city making 18 percent less than their male counterparts, compared to a 6 percent gap in for-profit businesses.
The de Blasio administration hopes to make this new rule apply to private employers. Public Advocate Letitia James submitted a bill to the New York City Council in August that would enact a broader ban on salary histories.
This year’s edition of The State of the State, an annual report on the UK public sector produced by Deloitte, includes findings from some recent research the advisory firm conducted with Oxford University looking at the effects of automation on the civil service job market. The study found that more than 850,000 public sector jobs—a full sixth of the UK’s government workforce—are at risk of being automated within the next decade and a half. The Guardian digs deeper into the findings:
The report said many roles would be relatively protected, especially in education, the NHS and care industries, along with jobs that require interaction with the public. But automation will be an attractive option for cost-conscious public sector management after the report found it could shave £17bn off the public sector wage bill by 2030. There is a 77% probability of 1.3m “repetitive and predictable” administrative and operative roles being automated. In local government this would mean the number of admin roles – which have fallen from 99,000 in 2001 to 87,000 in 2015 – tumbling to 4,000 by 2030.
Interactive roles, which require “a high degree of personal interaction, including jobs such as teachers, social workers and police officers”, face a 23% chance of automation. Among senior staff in “cognitive roles that mostly require strategic thinking and complex reasoning, including finance directors and chief executives”, 14% have a chance of being automated. There are a million staff – 20% of the workforce – in these jobs, the report said.
This challenge is by no means exclusive to the public sector. Previous research from Deloitte found that a majority of jobs in manufacturing, logistics, and retail and wholesale trades carried a high risk of being lost to automation as well. Peter Cheese, the CEO, of the CIPD, also underscored this issue in his keynote talk at CEB’s ReimagineHR event in London on Wednesday, in which he pointed to projections from the British Retail Consortium that a full third of jobs in that sector, which employs one in every six UK workers, will likely disappear within the next five years.
Permanent, Non-Senior Executive Service Employee Performance Rating Outcomes (All Rating Systems,
Calendar Year 2013) (GAO.gov)
Lisa Rein at the Washington Post examines a new report from the Government Accountability Office finding that the federal government has either a superhumanly high-performing workforce or—more likely—a broken performance management system:
In the ranks of the federal government, 99 percent are really good at their jobs — and almost two-thirds exceed expectations or do outstanding work. … [The report] also found that 78 percent of high-level civil servants — those in GS grades 13 through 15 — were given top performance scores of outstanding or fully successful. Senior executives were not covered in this data. The glowing picture of everyone in calendar year 2013, the most recent data available to auditors, is, on one level, good news for federal agencies. But it underscores a more likely reality to many in and outside of government. Rather than so many federal workers being exceptional, the system for rating them isn’t working right.
The Supreme Court issued no ruling in Friedrichs v. California Teachers Association on Tuesday, due to a 4-4 split caused by the death of Justice Antonin Scalia in February. A group of California teachers had sought to prevent the union from charging them “agency fees,” claiming these fees violated their First Amendment rights. The Washington Post’s Robert Barnes has the full story:
The case involves only public-employee unions — not those of private workers — but those unions are the strongest segment of an organized-labor movement that is increasingly tied to the Democratic Party. At the same time, Republican governors across the nation have become embroiled in high-profile battles with the public-employee unions in their states.
Conservative groups directly asked the court to overturn the 1977 decision in Abood v. Detroit Board of Education, which favored the unions. That ruling said states could allow public-employee unions to collect fees from nonmembers to cover the costs of workplace negotiations but not to cover the union’s political activities. More than 20 states allow the fees. During oral arguments, it appeared that the conservative groups would get their wish. Scalia had actually been the best hope for unions beyond the four liberal justices. But his questions seemed to make clear that he sided with the challengers.
When the court is evenly split on a case, it affirms the decision of the appeals court that considered the case. In this case, the U.S. Court of Appeals for the 9th Circuit said it was bound by the Abood decision and turned down the challenge.
At SCOTUSblog, Lyle Denniston explains how the plaintiffs might proceed from here:
The Democrat-sponsored bill that just passed the Republican-controlled House (and seems likely to make it through the Senate as well) extends the anti-discrimination protections of the Civil Rights Act to unpaid interns in the federal government, the Huffington Post reports:
Current law does not acknowledge unpaid interns as employees, leaving them without remedies if they encounter discrimination based on race, sex, age or religion. The proposed legislation would allow unpaid interns to sue the government in federal court if their rights were violated. …
The bill is one of a trio introduced by Democrats looking to extend civil rights protections to unpaid interns in all U.S. workplaces. The other two would apply to unpaid interns working in congressional offices and to the private sector at large. … The legislation aimed at private businesses would clearly have the biggest impact, as well as the tallest hurdles to overcome. Republicans in both chambers have been reluctant to impose any new regulations on businesses, particularly ones that can lead to lawsuits from workers.