The Mississippi Workers' Rights Blog
For some time now I’ve been meaning to write about the National Labor Relations Board’s decision in Alstate Maintenance, LLC, 367 NLRB No 68, which came out last year. But I just can’t.
It’s too outrageous. I cannot even fathom how the Board somehow thinks it is free to rewrite Supreme Court decisions. This issue was settled, resolved, completely put to bed by perhaps my favorite case of all time, NLRB v. Washington Aluminum, 370 U.S. 9 (1962).
And the majority doesn’t even mention it. It makes no effort to try to distinguish or explain what it is doing on this backdrop. Almost like the majority is completely unaware of the case. Which they aren’t. Every single one of those guys read this case in law school, I can promise you. And the dissent, in the very first sentence, pointed out the great big Washington Aluminum problem the majority was ignoring.
Thing is, they could confront the issue and explain their reasoning, try to explain why Washington Aluminum proved unworkable, or somehow problematic, and justify a change in the rules. But they cannot just ignore it. They just can’t.
In Washington Aluminum an employee said to his coworkers something to the effect of
it is too cold in this factory with the heaters broken, we can't work in these conditions. Lets get out of here. And they left. This was concerted activity, because they acted together to address an issue at work.
In Alstate Maintenance an employee (a Skycap) said to his coworkers something to the effect of
these guys don't tip, and they are always terrible to work with, let's not serve them. And so they refused them service. The Board said this was not
concerted because... I don't know, um, reasons? I still cannot tell what the actual reasoning is here.
I could see saying what the Skycaps did in Alstate Maintenance was perhaps
unprotected if they crossed the line to inappropriate conduct, but to say it was not CONCERTED? They f....... I mean, they walked off. THEY walked off. As a group. TOGETHER. That’s what
concerted means. It was literally the facts of Washington Aluminum. And it was obviously about the terms and conditions of work. Tips are compensation under the FLSA. To say they are just a matter
between the customer and employee is basically making every customer harassment or mistreatment case outside the purview of the Act. Every single sentence in Alstate Maintenance makes me feel like I’m losing my mind, like somehow maybe I’m the crazy one, as if I’m missing something somewhere. The Board is gaslighting me.
So I guess I’m not going to write a blog post about Alstate Maintenance. I just cannot handle it right now.
Today’s guest post is by James Dillard, a talented calculus teacher and observer of institutions.
One of the things that drew me to teaching was the flexibility it afforded to live and work in many parts of the country. Coming out of college I was eager to see what our country had to offer. I have taught in California, Wyoming, Virginia, and the state of Washington. While I knew each region would have its cultural quirks, I was not expecting the difference a union makes in the school.
Martyr: the mindset and experience of the non-union teacher
During what I would call my formative years as a teacher, I worked at a non-union high school in the densely populated DC suburb of Woodbridge, Virginia. When I first arrived at the school, I was starting my third year as a math teacher and was just beginning to get comfortable with my teaching style.
It was 2011 and the economic recovery was in full swing, yet teachers had not received a raise or a step increase since at least 2008. As a result, teachers who came in from elsewhere were sometimes paid more than those that had dedicated their careers to the school. The only way around this was to leave the district and come back a different year. This was very hard to do, though, because all of the neighboring school districts had noncompete agreements and would not release teachers from their contracts.
The 2011-12 school year was the first year that teachers in Prince William County Schools received a raise, and it was only a small cost-of-living adjustment to account for inflation. I believe I only received one step increase in five years of teaching.
The staff was very dedicated, and freely gave of their time to help students learn. Teachers were expected to stay at least once a week for two hours after school for tutoring, and as a member of the math department, I was encouraged to stay twice. This was structurally enforced because there were dedicated buses that stayed late on Tuesdays and Thursdays specifically to take students home who had stayed for tutoring. Students were required to be in a classroom if they took the late buses home and were not allowed to ride them without a pass from a teacher verifying that they were receiving tutoring or participating in a club.
Those teachers who did not stay to tutor were regularly reminded that they should and that teaching was about doing what was best for students. As a young teacher, I did not think twice about the idea of staying to tutor my students; my job was to help them succeed.
I was also the boy's junior varsity soccer coach. During soccer season, practice was everyday after school for two hours and games twice a week that often kept me from home until 10 or later at night. Because I was coaching JV, my job title was as an assistant coach and there was no dedicated funding for assistant coaches. As such, the head coach had to decide how much of his pay he would allocate to me and his varsity assistant coach. This ended up being about $1500 for the season. I coached because I enjoyed it, not because of the pay.
This school, as with schools everywhere, had trouble with finding enough substitutes. This was especially true on Mondays and Fridays. To discourage us from taking Monday or Friday off, the principal refused to look for subs on those days. When teachers were out, it was up to their department to figure out how to get the classes covered. This meant we had a rotating schedule of IOU’s based on who had lost their planning period to cover for another teacher. We were not happy about this, but there was nothing we could do.
Teachers are expected to attend graduation without compensation. Teachers are expected to take the time to remove all decorations and personal teaching supplies from the classroom at the end of each school year and return them at the beginning of the following year, without compensation for their time. Teachers must supervise, take tickets, or chaperone a minimum of two sporting events or dances each year without compensation.
Still, when I moved from Virginia to Washington, it was a very sad time. I loved the people and school where I was working and had invested a lot of time and energy into making it the best school I could.
Professional: the mindset and experience of the union teacher.
I now teach at a high school in an Olympia, Washinton suburb. The district has an active union and the switch from a non-union to a union job was quite a culture shock. I have now taught here for four years and each year I have received a full step increase along with an additional COLA. This fact alone is a culture shock. In Virginia, any step increase was a miracle. In Washington, annual step increases are a minimum expectation.
At first glance, the teaching atmosphere didn’t seem that different, but as the school year got going, little things became apparent. At the beginning of the year, a sign-up sheet was passed out to determine when people were going to stay after school to tutor. Being a new teacher, at the school, I wanted to make sure that I was contributing, so when there were spaces left blank, I made sure that I signed up so that tutoring would be covered. It wasn’t until I was actually tutoring that I learned that I would be compensated for my extra time at the standard teacher hourly wage. This was a shock. Between my wife and I, we did not need the extra pay, and I was hoping to spend more time at home with my kids, so from then on, I have decided to leave the after-school tutoring for those that need the extra compensation. I still volunteer to tutor before and after school, but only during my contract hours.
When I was asked to coach JV soccer, I found out that there was an actual salary schedule that dictated my pay based on my experience. If I agreed to coach, I would have made more as a JV soccer coach in Washington than I would have if I was the head soccer coach in Virginia and didn’t share my pay with assistant coaches. Not only that, but my compensations would have increased with each year I coached. Even with the additional pay, I turned down the coaching position so I could have more family time.
If I take tickets at a sporting event, I am compensated. Graduation attendance is not compensated, but it is also not mandatory. I am not asked to remove all of my decorations at the end of each year, and if I am told that I must change classrooms that I teach in, there is additional pay to compensate me for the added time required to move. If there aren’t enough substitutes available, and I have to cover for a teacher during my planning period, I am given extra compensation for the time that I lost.
All of these little things create a very different relationship between the teacher and the school where they work. Teachers think of themselves as professionals who must be compensated for any professional work that they do. Teaching in the school is much more transactional. Any time there is an additional task required of a teacher, the expectation is that it is compensated. The idea that teachers must go the extra mile because we care about students and if we don’t do it for free we are not good compassionate teachers is just not a discussion. Even after teaching here for four years, it is still a shock.
I should also mention the added freedom teachers have to speak their minds to the administration. There is a lot less fear here: teachers know they can stand on their rights and will not be pushed around.
Occasionally there are tasks that the district or school asks us to participate in that require more work, but no additional compensation. The district finds it very hard to get volunteers for these tasks. For instance, the district is going through a new math curriculum adoption. The district agreed that any meetings required outside of the bargained professional development days would be compensated, but that the additional work required to learn and implement the pilot curriculum would be done on the teacher's own time. Because of this, I was the only math teacher at my school willing to participate in the textbook adoption process. Unions bring a culture to a school that says we are professionals and our time is valuable. If you wish to use my time to improve the school, I expect to be compensated. With this mindset, if the district really does need volunteers, they almost always must look to the outside community. Teachers are professionals, not volunteers, and they will happily let the administration know this.
The Union Difference
From my experience, districts that do not have a union encourage teachers to be martyrs for their school. They shift the burden of providing for students from the administration to the poorly compensated classroom teacher. The message is, you care about your students, so you do what must be done to make the school better. Teachers are reminded regularly that teaching is a calling, and that we chose this profession, not because of pay, but because we care about children.
In a unionized school, the teachers remind the district that we are professionals and that if they want the most for the students in their district, they must pay for it. The burden of who is responsible for offering things to students shifts back to the administration.
The Supreme Court said in 2018 that
[w]hen a large number of employees speak through their union, the category of speech that is of public concern is greatly enlarged, and the category of speech that is of only private concern is substantially shrunk. Janus v. AFSCME, at 2473.
The Court therefore appears to embrace the idea that speech which might be an unprotected
private grievance when one employee does it becomes protected by the First Amendment when the union is involved in supporting that grievance. This idea was central to the Court’s decision in Janus that, because union grievances and bargaining were of public concern, employees had a First Amendment right to choose for themselves whether to support them or not.
This dovetails nicely with many of the practical reasons that an employee engaged in free speech criticizing her government employer is more protected when she does it through and with her union:
- When you speak through the union, it is easier to be anonymous. You have the right to anonymous participation in the union.
- When you speak through the union, you have the power of the many other members standing at your back with you. This both makes your voice more effective and makes you less likely to suffer retaliation. Retaliating bosses typically prey on the weak, not the strong.
- Your union can negotiate avenues for effective speech up the chain of command and enforce them.
There is an initial hurdle, of course. Before the union can be effective it must have the support of a core of people determined to improve things at work. And the stronger it grows in membership and support, the more effective all of your speech will be.
But most people don’t realize that you do not need any outside union to come in and help you. You can start a real union all by yourself, with just a little simple paperwork and the support of your friends and coworkers.
And in the end there can be no question that government employees benefit from standing together with each other in a union, and speaking out about the issues that must be addressed to improve the job.
And when they do so, they are protected from retaliation by the First Amendment. A strong legal representative that understands this area of law is essential to every public employee union - particularly in a state like Mississippi.
If you work for the government in Mississippi - whether it is a public school, a jail, a city, or a state agency - the chances are good that your boss has an unconstitutional policy restricting your speech. These policies seem to be rampant in the state.
Teachers, does this sound familiar?
Cops, recognize this one?
And I’m sure you’ve all heard of this one:
These kinds of rules infringing government employee speech are subject to
exacting scrutiny under the First Amendment:
A speech-restrictive law with widespread impact . . . gives rise to far more serious concerns than could any single supervisory decision. Therefore, when such a law is at issue, the government must shoulder a correspondingly heavier burden, and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights.Janus v. AFSCME, 138 S. Ct. 2448, 2472 (2018).
For example, in the recent case of Liverman v. City of Petersburg, a police department had a social media policy which forbid
the dissemination of any information on social media that would tend to discredit or reflect unfavorably upon the Department, including negative comments on the internal operations of the Bureau or on the specific conduct of supervisors or peers. 844 F. 3d 400, 408 (4th Cir. 2016). The court correctly noted that this was
a virtual blanket prohibition on all speech critical of the government employer and noted
the astonishing breadth of the social networking policy's language. Id. The policy was clearly unconstitutional.
But even if it isn’t some official
policy, even if it is just an email or a spoken comment from a supervisor, it can still be unconstitutional. For example, in Moonin v. Tice, the K9 chief sent an email stating that
all communication by
line employees with outside persons about the work must
be expressly forwarded for approval to your chain-of-command. Communication will be accomplished by the appropriate manager/commander if deemed appropriate. Any violation of this edict will be considered insubordination and will be dealt with appropriately. 868 F. 3d 853, 859 (9th Cir. 2017). The rule was unconstitutional because
[t]he troopers' freedom to offer their informed opinions about the direction of the K9 program on their own time, as concerned citizens, is a prerogative that the First Amendment protects but that Tice's edict forbids. Id. at 864.
The bottom line: if you work for the government in Mississippi, the chances are good that they are violating your constitutional free speech rights. Next week we will discuss the most effective ways to address the issue.
It is among the most well-established ideas in constitutional law:
prior restraints are typically unconstitutional.
Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights . . . the Supreme Court has routinely held that prior restraints on protected speech are presumed to be constitutionally invalid.Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 556, 559 (1976). In fact, for a while the Court thought that the First Amendment’s free speech clause was only about banning prior restraints. See generally Chemerinsky,
Constitutional Law: Principles & Policies, at 892-93, 918 (2d Ed. 2002) (discussing Patterson v. Colorado, 205 U.S. 454, 462 (1907) and 4 William Blackstone, Commentaries on the Law of England, 151-152 (1769)).
But what does it actually mean? What is a
prior restraint? No one seems to know. Chemerinsky, supra, at 918. The courts sometimes say that the difference is that a prior restraint prevents speech in advance and other rules merely punish them after the fact. But as a well-respected scholar put it,
[a]ll punishment for speech - whether under prior restraints or other laws - occurs after the expression takes place.Chemerinsky, supra.
From my point of view, the answer is one of lexicographical ipse dixit: a prior restraint is whatever the courts call a prior restraint. In practice this means either a court-issued
gag order, or a system of licensure and censorship.
[T]he classic type of prior restraint is where the government requires a license or permit in order for speech to occur. Chemerinsky, infra, at 932 (discussing Lovell v. City of Griffin, 303 U.S. 444 (1938)). To invalidate such schemes - where speech is to be submitted to government censors before publication - was a core purpose for the First Amendment.
For example, in Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273 (5th Cir.2003), the Fifth Circuit held it was unconstitutional to require pre-approval from school officials before a petition could be circulated among attendees at a school board meeting. See also Brooks v. Auburn University, 412 F. 2d 1171 (5th Cir. 1969) (university president cannot require pre-approval of speakers on campus)
Three requirements must be met for a licensing scheme to be valid. Chemerinsky, supra at 933.
- The purpose must be to address a clear and present dangerous threat to a protected competing interest. Wood v. Georgia, 370 U.S. 375 (1962).
- There must be clear standards leaving almost no discretion to the licensing authority.City of Lakewood v. Plain Dealer Publishing Co., 486 US 750, 759 (1988).
- Licensing can be required
only if it takes place under procedural safeguards designed to obviate the dangers of . . . censorship.Freedman v. Maryland, 380 U.S. 51, 58 (1965). There must be a procedure that prevents the policy from being misused or abused, with appeal to court where necessary to correct a mistake or abuse.
The bottom line: any system of prior approval and censorship of the speech of private citizens is likely to be unconstitutional.
This is the third in a series of posts inspired by the free speech case of Gunter v. Jackson Public Schools.
The First Amendment prohibits the government from interfering with or deterring the speech of citizens. But some speech can be dangerous, and rules may be necessary to protect people or preserve the peace. For example, it may make sense to outlaw threats to kill police officers.
But even a good rule limiting speech can become unconstitutional if it is too vague or broad. If it is too vague it will be hard to tell what speech is and is not allowed, and in this uncertainty people will be afraid to engage in important protected speech. Similarly, if the rule is too broad it will prohibit a great deal of speech that does not cause a problem, thus interfering with speech rights.
For this reason, the Courts say that a speech rule is unconstitutional if it covers
a substantial number of unconstitutional applications judged in relation to the statute's plainly legitimate sweep. Seals v. McBee, 898 F. 3d 587, 593 (5th Cir. 2018); US v. Stevens, 559 U.S. 460 (2010).
In Seals, for example, a statute prohibiting
threats to a police officer was found unconstitutionally overbroad. Although there was no problem with banning
true threats of bodily harm, the word
threat could be understood to cover other kinds of threats, such as the threat to sue or to boycott. These kinds of threats cannot be banned. The Court therefore said the rule was unconstitutionally overbroad.
The government cannot ban
negative commentary to the media as this is censorship of disfavored viewpoints.
This is the second in a series of posts inspired by the free speech case of Gunter v. Jackson Public Schools.
The most fundamental rule of the First Amendment and freedom of speech is that the government cannot censor or punish speech because it disagrees with what was said.
One of the best examples of this is probablySchacht v. United States, 398 U. S. 58 (1970), where the Court struck down a law permitting actors to wear a military uniform while acting in a movie only
if the portrayal does not tend to discredit that armed force. The Court noted that although the government could probably make a rule banning actors from wearing the uniform in any movie, it certainly could not single out and ban the speech which made the government look bad.
As the Supreme Court put it in another case:
It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . Discrimination against speech because of its message is presumed to be unconstitutional. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.
In that case, a University refused to fund religious student magazines, while funding secular student magazines. This was unconstitutional. Although the government did not have to fund any student magazines, once it decided to fund some of them it could not discriminate based on the viewpoint taken in the magazines. Read more: Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828-89 (1995).
The best overall discussion of this concept is probably found in RAV v. St. Paul, 505 U.S. 377, 381-86 (1992).
The bottom line: the government cannot make rules punishing people for saying something the government does not agree with. I think that a rule banning, for example,
negative commentary to the media is very likely to be unconstitutional.
Free speech at work is a fundamental right
Free speech at work is one of the big three issues the firm cares most deeply about. (The other two are due process and equal justice. And of course, unions are essential to all three.) The firm recently filed an important motion in the free speech case of Gunter v. Jackson Public Schools, which gives a perfect occasion for discussing some important free speech ideas. This will probably be a series of blog posts, so stay tuned.
The First Amendment limits what government can do, not private companies.
The first key idea to understand is that the First Amendment’s limitations only apply to government action, not private companies. In fact, it is not just people, but also private companies which are protected against government violations of free speech.
What this means is that the First Amendment will have no bearing on, for example, how Facebook punishes or regulates the speech of its users, or how Walmart punishes or regulates the speech of its employees. In fact, if Facebook or Walmart want to take a political stand on an issue and censor users or employees that disagree, the government and the courts typically cannot intervene because that would infringe the free speech rights of Facebook or Walmart.
There are exceptions, and private employees also have free speech rights of certain kinds, including whistleblowers which are protected by specific laws. So do not assume that a private employer like Walmart can do whatever it wants to employees that speak out in ways it does not like. But that has nothing to do with the First Amendment.
The bottom line for our purposes here is that, when you are talking specifically about the First Amendment and freedom of speech, you must always keep in mind that the key question is
what is the government doing. The First Amendment only limits governmental action against free speech.
Overtime Lawsuit filed against Hinds County School District
A lawsuit has been filed against Hinds County School District, alleging that it has underpaid its hourly employees. This class action lawsuit covers janitors, bookkeepers, and anyone else who is not exempt from overtime. (It does not include teachers or coaches, because they are exempt from the Fair Labor Standards Act.)
The lawsuit alleges that the District did not pay the employees the time they worked, shorting them anything from a few minutes to multiple hours in various weeks. This is both because of work which was taking place off the clock, and also because the District was simply not paying for all the time recorded on the timeclock.
More information about the lawsuit - including a copy of the form needed to join the class action - is available at the Hinds County overtime lawsuit website.
The Challenges of Employment Law
Today's post is written by Elissa Furlong, a law fellow working for the firm this year.
An attorney once told me that you when you first graduate from law school, you don’t know anything about how to actually practice law. I only have one year of law school under my belt, so by that equation, my knowledge about how to practice law isn’t especially extensive (but don’t worry because anyone reading this would be in good hands with Joel).
To make matters worse (for me), the consensus surrounding employment/labor law seems to be that it is ever changing and particularly complex. My sources confirming this include my dad, a labor law attorney, one of my professors, who told me she only fully understood the intricacies of employment discrimination once she started teaching it, and even my first day observations working for Joel.
I remember when I first became interested in workers’ rights: it was when I took economics in college and learned about corporate social responsibility and free trade. It continued when I studied human rights in South Africa, and again when I interned with the International Labor Organization. It wasn’t until I started law school, though, that I started to realize that most areas of law, including and especially labor/employment law, are riddled in several shades of grey.
But even if governed by a nuanced and complicated area of law, the concerns and grievances of working people seem straightforward: people want, and deserve, to be treated with respect at work. Although I don’t know a lot about the practice of law, I am hoping that the laws in place, as complex as they may get, can do something to further this simple, universal desire, and tilt in favor of those who want something as fundamental as dignity at their place of work. If you are being deprived of this dignity, you should contact an employment law attorney. She/he can sort through the complicated.
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Once we have confirmed there is no conflict, you may discuss your matter with the attorney in a little more detail, and, if requested, make an appointment. If at your appointment the firm accepts you as a client in writing, then the attorney will be able to provide you with employment law advice.