Much at stake for workers in federal appeals courts

WASHINGTON —If there ever were six months which proved the importance of federal appeals courts to workers, the first half of 2020 was it.

Both for, and often against, those judges, especially on the U.S. Court of Appeals for the District of Columbia, determined workers’ fate, even more so than the U.S. Supreme Court or the laws and rules those jurists tackled.

That’s because the High Court takes few cases, though several of those they decided were vital to workers this year.

Barring businesses from discriminating against lesbian-gay-bisexual-transgender-queer workers comes to mind. LGBTQ workers won, in legal terms. On the job is another matter.

So does the justices’ ruling letting the 700,000 Deferred Action for Childhood Arrivals (DACA) beneficiaries stay in the country, at least for now, despite GOP President Donald Trump’s constant campaign to throw them out. Despite the decision, he’s still trying including with his attempt to ram through another appointment in the wake of the death of Ruth Bader Ginsburg.

The DACA recipients, brought to the U.S. as young kids without papers, are among the nurses, EMTs and other first responders to the coronavirus pandemic, have graduated from college into responsible jobs, or serve in the military.

On the other hand, workers lost when the justices ruled that religious schools could arbitrarily fire people by using the “pastoral exception” to workers’ rights laws to can personnel–in this case, teachers–who bosses felt didn’t adhere strictly enough to dogma. That rule could be extended to teachers from other religions in those schools.

Women workers in particular lost on the last day of the High Court’s term. That’s when the justices ruled, 7-2, in cases involving the Little Sisters of the Poor, the Trump regime, and the Affordable Care Act, that employers with “sincerely held” religious or moral beliefs could use ACA’s religious exemption to ban all contraceptive coverage for female workers.

“Concerns the exemptions thwart Congress’s intent by making it significantly harder for interested women to obtain seamless access to contraception without cost-sharing cannot justify supplanting the text’s plain meaning. Even if such concerns are legitimate, they are more properly directed at the regulatory mechanism that Congress put in place” under the ACA, Justice Clarence Thomas wrote for the court’s majority.

Workers also lost when the majority tossed Montana’s ban on taxpayer-funded vouchers going to parents of private school students. That effectively deprives public schools, their students and teachers, of funds. It also opens the way for a top right-wing cause nationwide.

Appeals courts have big impact

But the Supreme Court decides relatively few cases each year, meaning federal courts of appeals, especially the one in D.C., which handles most federal agency rulemaking cases and challenges, often have the last word on workers’ rights and protections. Most of its rulings involve single firms or workers. Some are like those of the High Court, with national impact.

That was never more apparent than after the coronavirus pandemic hit. Fed up with Trump Occupational Safety and Health Administration (OSHA) refusal to enforce job safety and health law against firms that don’t protect their workers from the pandemic, and its refusal to produce an emergency standard to force those firms to act immediately, the AFL-CIO and National Nurses United sued OSHA to try to get it to move. They wanted a quick decision, too.

“In the face of an impending pandemic, OSHA’s evolving voluntary guidance to the employer community was no substitute for the immediate imposition of mandatory, legally-enforceable, COVID-19-specific duties on employers to protect workers from this grave danger,” the federation told the judges, using the official name for the virus.

“COVID-19’s toll in mortality and morbidity among workers and the public has exceeded the expectations of many prognosticators. Yet in a stunning act of agency nonfeasance in the midst of a workplace health emergency of a magnitude not seen in this country for over a century (if ever), OSHA has neither responded directly to, nor taken formal action on, either of the two pending emergency temporary standard petitions, nor has it shown any inclination to adopt mandatory, legally-enforceable, COVID-19-specific rules to protect workers.”

The three-judge panel of the U.S. appeals court turned both cases down, in an opinion federation President Richard Trumka said was the size of a post-it note.

“We are very disappointed three judges did not deem the lives of America’s workers worthy of holding an argument or issuing a full opinion,” Trumka, who has a law degree, said.

The court’s “post-it-length response to our petition acknowledges the ‘unprecedented nature of the COVID-19 pandemic’ but repeats the false claim by Big Business that OSHA already has done what is needed to protect workers.”

“In fact, none of the other ‘regulatory tools’” the judges cited, “except for an emergency standard, require employers to do anything at all.”

Workers, individually, are still trying to get OSHA to move. Three meatpackers sued the Labor Department, in U.S. District Court in Harrisburg, Pa., to get it to force their employer, Maid-Rite, to protect its employees. There’s been no hearing or ruling on that case yet.

There have been rulings on other cases, with a mixed record for workers. Except for D.C. Circuit decisions, each ruling technically applies only in the circuit involved.

But as a practical matter, attorneys both for and against workers will cite decisions from, say, the Chicago-based 7th Circuit, when arguing cases in, say, the San Francisco-based 9th Circuit, and vice versa. So what follows is a selection of appellate and/or state Supreme Court rulings that affect workers now and in the future:

If the company controls almost all of a “gig economy” worker’s conditions, the worker is an employee, protected by labor law.

California’s Supreme Court said so several years ago. Now, New York State’s highest court, the Court of Appeals, agreed. It ruled for Luis Vega. He sued for jobless benefits after his former employer, the Postmates courier service, effectively sacked him by barring him from using their app to take assignments after he was accused of fraud. Postmates did not prove its case to state officials. Vega won, but on the law.

The key question for the judges was who ruled the terms and conditions of Vegas’s employment. If he did, he was an “independent contractor,” and couldn’t get jobless benefits because Postmates, calling all its couriers contractors, never paid a penny covering their unemployment insurance. But if Postmates ran the show—and the justices ruled in March that it did—he was an “employee” eligible for jobless benefits. So are the other Postmates couriers.

“Postmates exercises more than ‘incidental control’ over its couriers—low-paid workers performing unskilled labor who possess limited discretion over how to do their jobs,” the New York court said. “That couriers retain some independence to choose their work schedule and delivery route does not mean they have actual control over their work.” Postmates, the judges said, “dominates” everything else, including assigning customers, telling them when to deliver packages, and keeping 20% of a client’s payment for delivery.

Can an aircraft crew member–a pilot or a flight attendant–sue for California’s higher wages even if the attendant does most of her work outside California?

The answer on June 29, from the California Supreme Court, after the 9th Circuit sent two class-action cases back down to it for judgment, was “no.”

California has a higher minimum wage than other states that United and Delta flight attendants serve. Delta attendants, even those based in California, are at a particular disadvantage because that carrier is the only one of the U.S.’s Big Four that is mostly non-union. Contracts cover United flight attendants, other workers, and pilots, but only Delta’s pilots. But pilots and attendants worked only episodically—a day at a time or less—in California. The attendants also charged Delta didn’t pay them for time spent in ground chores.

Lower courts sided with the airlines. So did the state Supreme Court. “Consistent with our holding in (prior) cases, we conclude California’s wage statement laws apply only to flight attendants who have their base of operations in California, and the same is true of California laws governing the timing of wage payments,” every two weeks, the judges said in the Delta case. And, they added, Delta’s pay scheme also followed California’s minimum wage law when the attendants were on the ground, not in the air. Same thing for United’s workers, they said.

Can you fire a whistleblower if he’s also a threat to other workers on the job?

“Yes,” the U.S. Court of Appeals for the Federal Circuit—a court that handles specialized federal agency worker cases—ruled in June. That’s what the VA Medical Center did in 2007 to Sean Higgins. It admitted he was a whistleblower, and whistleblowers are protected by law. Further, Higgins claimed he had PTSD, but offered no medical proof. Citing a long series of incidents, threats of violence, vows to pursue supervisors with a gun, and so on, the judges ruled the VA had enough reason, whistleblower or not, to fire Higgins.

Can OSHA apply a safety standard to an industry unmentioned when it issued the rule?

OSHA said “yes,” the Occupational Safety and Health Review Commission—which judges corporate appeals of OSHA fines and rules—said “no.” D.C. Circuit Judge Karen LeCraft Henderson sided with OSHA and workers, and against Kiewit Power Constructors.

Kiewit challenged a $3,400 OSHA fine in 2011 for not providing “quick-drenching eyewash facilities” for workers “exposed to corrosive materials.” When OSHA first adopted the rule, months after the agency was established in 1970, it applied to “manufacturers and suppliers,” especially those with federal contracts. In 1993, the Labor Secretary extended coverage to construction firms. Even before then, it was universal for the other companies.

When OSHA hit Kiewit with the fine for the serious violation, Kiewit argued the rule doesn’t cover construction, because there were no notices and hearings before the secretary’s decision to cover those firms. The commission sided with Kiewit. The judges sided with workers and OSHA. The secretary’s decision was “reasonable and therefore entitled to deference from the commission,” Henderson wrote in the unanimous decision on May 15.

Can a “reasonable and necessary” government action override a U.S. constitutional claim?

The 2nd U.S. Circuit Court of Appeals in Manhattan said it can, in a case pitting unions for Nassau County, N.Y., workers against the county government and a special board it set up, using state law, to try to dig Nassau out of a fiscal hole.

The unions told the court that “in 2011, the defendants—several county leaders as well as the Nassau County Interim Finance Authority (“NIFA”) and its members—froze wages for county employees in violation of the contracts clause of the United States Constitution,” Judge Guido Calabresi explained. That clause bars states, and by implication government units they set up, such as counties, from enacting “any laws impairing the obligation of contracts.”

The unions, which represented sheriffs’ officers, police, and Civil Service Employees Association/ AFSCME Locals 830 and 1000, argued the board enacted “legislation” to override the contracts and freeze their pay, and that’s unconstitutional. The county shot back the board’s pay freeze decision was “administrative,” carrying out New York’s law.

Speaking for the court’s three-judge panel on May 13, Calabresi admitted the board acted legislatively, but then said its wage freeze was “reasonable and necessary” to stanch the county’s red ink. The county government, separately, fired 1,000 workers, almost all from CSEA locals. Contracts protected the sheriffs’ officers and police from firings.

“NIFA did not impose the wage freeze ‘for the mere advantage of particular individuals,” Calabresi wrote. “Instead, NIFA froze the wages ‘for the protection of a basic interest of society.’…The key to all this—we repeat—is to determine whether the state in breaching a contract is acting like a private party who reneges to get out of a bad deal, or is governing, which justifies its impairing the plaintiffs’ contracts in the public interest.” Calabresi said the public interest ruled in Nassau’s case.

The issue is important, Calabresi added, because other states have set up similar boards or overseers with wide-ranging powers to cut pay, cancel contracts, slash pensions, and the like in efforts to pull local governing bodies out of financial holes. Calabresi specifically cited Michigan’s financial “czar” law, without noting that the state-named czar in Flint was responsible for the decision six years ago that put lead into the city’s drinking water.

If your boss pays you overtime in cash and doesn’t pay taxes on the overtime, can you sue the boss for racketeering?

The answer, involving Emilio Torres, a longtime worker for the Vitale’s Italian Restaurant chain in western Michigan, is “yes.”

The federal Fair Labor Standards Act mandates bosses pay qualifying workers time-and-a-half for any work beyond 40 hours a week. For years, Vitale’s didn’t, Torres testified. It would pay the 40-hours straight pay by check, and the extra, also straight pay, by cash, especially after a customer in 2018 threatened to blow the whistle on all of this to the IRS. The Fair Labor Standards Act is the remedy for such wage theft, Sixth U.S. Court of Appeals Judge John Bush noted in his March 31 decision.

But Vitale’s also didn’t withhold and pay taxes on the overtime cash, and Torres sued the firm not just for breaking the FLSA, but for racketeering. The Racketeer Influenced and Corrupt Organizations (RICO) Act is a lot broader than the FLSA. Bush—reversing the lower court’s decision for the restaurant chain–said Torres could sue Vitale’s for the unpaid taxes because otherwise, Torres would get stuck with the bill.

“Because the FLSA does not preclude RICO claims when a defendant commits a RICO offense giving rise to damages distinct from the lost wages available under the FLSA, we REVERSE” the lower court’s ruling against “Torres’s claim that Vitale’s is liable under RICO for failure to withhold taxes, and we REMAND to determine if Torres adequately pleaded a RICO claim that resulted in damages other than lost wages,” Bush wrote (his emphasis).