ACSBlog: The Blog of the American Constitution Society

by David Madland, Director of the American Worker Project at the Center for American Progress and co-author of “The Progressive Generation: How Young Adults Think About the Economy”

According to the results of a first-of-a-kind analysis about Millennials’ views on the economy, a majority of 18- to 29-year-olds (our definition of this generation) believe that labor unions and the government can be a force for good in the economy, and that increased investments in healthcare, education, and other areas are necessary to ensure strong and sustainable economic growth. Millennials’ views are more progressive on economic issues than those of other age groups today, and are more progressive than previous generations when they were younger.

The Texas Supreme Court provided a victory to the maker of BIC lighters when it ruled that a tort claim against the company could not be brought because of the U.S. Consumer Product Safety Act, Texas Lawyer reported.

The state high court concluded that the federal law pre-empted a tort case against the company brought in state court by a mother whose 6-year-old daughter was burned when another child accidentally set fire to her dress while playing. The court ruled that the federal law allows some tort claims, but not those that conflict with the federal regulations.

ACS recently hosted a panel discussion on regulatory preemption.

Shareholders suing DVI Inc., a health care finance company that went bankrupt, will not be able to recover against London law firm Clifford Chance for allegedly conspiring with DVI’s executives to conceal the company’s financial health through use of sham transactions, a Philadelphia federal judge ruled, according to the New York Law Journal.

The ruling cited Stoneridge v. Scientific-Atlanta, a January 2008 Supreme Court decision that held that investors may not recover against third parties whose business partners fraudulently misled them, unless the investors relied upon public statements made by the third party.

A new study finds that state courts are far more likely to vacate arbitration awards for employees than for employers.  State appellate courts confirmed only 56.4% of the cases in which employees prevailed in arbitration, as opposed to 86.7% of the cases in which the employer prevailed, the study finds.

There is a growing debate, fueled by poor military medical care, about whether active-duty service personnel should be able to sue for malpractice.  Such malpractice suits have been barred since the Supreme Court’s 1950 decision in Feres v. United States. 

Feres’ critics argue that it shields negligent healthcare providers from accountability and seek a legislative fix, but supporters contend that it protects the military from costly litigation. 

Earlier this week, a three-judge panel of the U.S. Court of Appeals for the Second Circuit held that former EPA Administrator Christine Todd Whitman could not be held liable for telling New York City residents that the air near the fallen World Trade Center was safe to breathe following the terrorist attacks on Sept. 11, 2001.  The lawsuit, filed by a group of workers and residents that lived near the site, alleged that Whitman and other EPA officials had misrepresented the health risks of the dust and debris from ground zero.  A lower court judge had allowed the case to proceed, labeling Whitman’s actions "conscience-shocking."

by Simon Lazarus and Harper Jean Tobin, attorneys with the National Senior Citizens Law Center

On April 23, the Supreme Court will hear arguments in the fifth and final age discrimination case before it this term, Meacham v. Knolls Atomic Power Laboratory. This case – brought by twenty-six workers laid off by a Naval contractor – will likely provide clues to at least two important questions:

First, at a time when shrinking pension benefits and rising health costs are forcing more and more employees to work past retirement, whether the Age Discrimination in Employment Act (ADEA) will provide effective protection against practices that disproportionately harm older workers.

Second, and more broadly, how far the Roberts Court is prepared to go to cast aside text, precedent, the position of the EEOC, and even the Bush Administration’s Solicitor General in its apparent quest to curb job discrimination suits generally as an irritant to business defendants.

The Meacham lawsuit was brought by a group of workers who lost their jobs in an “involuntary reduction in force” at the Knolls laboratory. Layoff decisions were made by managers on a subjective basis, with fuzzy standards and little oversight. As it happened, thirty of the thirty-one employees laid off from various departments were over forty. The Second Circuit held that the employees had established the minimum proof necessary to prevail.

Tuesday is "Equal Pay Day": the day when an average woman’s wages finally catch up to the wages earned the year before by the average man. Earlier this month, Fatima Goss Graves, senior counsel at the National Women's Law Center, shared her wish for Equal Pay Day.

Although Barnard College in New York eventually granted Nadia Abu El-Haj tenure as an associate professor of anthropology, it was an arduous process that proved a testing ground for academic freedom. Jane Kramer authored an exhaustive piece for The New Yorker on the battle that erupted over Abu El-Haj’s application for tenure. The piece covers the online petition, launched by Barnard alumna Paula Stern, to deny Abu El-Haj tenure. Stern’s opposition to the professor stemmed largely from Abu El-Haj’s 2001 book, Facts on the Ground, which, according to Kramer “looked at the role of archeology in what was essentially a political project: the Biblical validation of Jewish claims to what is now Israel.”

Kramer writes that the book was widely praised by colleagues. The New York Times reported in fall 2007 that Abu El-Haj’s supporters, largely from the field of anthropology, praised her book as “solid, even brilliant, and part of an innovative trend of looking at how disciplines function.” Stern, however, told Kramer that many other scholars were concerned about Abu El-Haj’s work, particularly her book. Stern told Kramer that after reading the last few pages of the Facts on the Ground she concluded that the Abu El-Haj was “dangerous” and “wrong.” Stern was able to mount serious opposition to Abu El-Haj through the petition, which quickly attracted thousands of signatures only months after the professor’s tenure application was filed. The article also notes that Stern relied heavily on information from historian Daniel Pipes and David Horowitz’s online publication FrontPage to criticize Facts on the Ground. Abu El-Haj tells Kramer, “What happened last year – it wasn’t about me. I was a cog in a big wheel of the issue of the Middle East and Israel.”

A law practice in Mineola, N.Y. is drawing a lot of attention from many, including lawyers and others, for its ban on the use of BlackBerry-style devices at “major meetings.”

A partner with the law firm, Meltzer, Lippe, Goldstein & Breitstone LLP, told Newsday that while the firm expects clients’ e-mails and calls to be answered promptly, it also needs its staff to be focused on major issues during meetings.

The firm’s “no-device” policy has been in place for six months and, according to partner Ira R. Halperin, came about because the communications devices’ buzzes and vibrations were increasingly interfering with meetings. But the firm's addicts of the wireless devices should take heart --  the BlackBerry ban, according to Halperin, does not apply to meetings of routine matters.

The retailing behemoth Wal-Mart is reeling from the sudden public availability of videos capturing 30-years of its internal meetings and events.

In 2006, Wal-Mart severed its longtime relationship with Flagler Productions, a Kansas-based video production company. The company, which claims a contract was never signed between it and Wal-Mart, has struggled to stay in business. One way it has survived is by offering for sale videos of Wal-Mart’s internal meetings and other events that it recorded during its 30 years of working for the company. Much of the interest in the videos, according to the Associated Press, has sprung from plaintiffs lawyers pursuing claims against the retailing giant, such as employment discrimination cases. 

Brad Seligman, a lead attorney in a class-action lawsuit against Wal-Mart for discrimination against women says, “Once in a while you come upon documents that are helpful in a case. What’s amazing about this is that this company has a video record going back many years showing senior management in at times fairly candid situations.”

One clip aired by ABC News shows Wal-Mart founder Sam Walton in the late 1980s telling the board of directors that there were not enough women in management. Other clips show a Wal-Mart lawyer decrying labor unions as “blood-sucking parasites” and an executive meeting where male managers are frolicking in drag.

Wal-Mart spokeswoman Daphne Moore complained to The Associated Press that it never intended the videos for public consumption and that it was examining its legal options.

Attorneys for drug makers say they are "on the verge of success" in creating what The New York Times deems a legal shield against patients injured by pharmaceutical company products even when the companies "play down" the risks of their medicines and fail to publicly disclose clinical trials, The New York Times reported. Under an expanded view of the legal doctrine of "pre-emption," medical device manufacturers successfully argued this past year before the U.S. Supreme Court that when the Food and Drug Administration gives its approval to their products, anyone harmed by their use cannot sue in state courts under traditional tort theories. The Supreme Court agreed to hear a case next year that would expand this doctrine to drugs approved by the FDA, putting an end to liability in state courts for harm caused by drug manufacturers.

ACS hosted a panel discussion in November on the medical device pre-emption case, Riegel v. Medtronic, as well as released an ACS Issue Brief entitled "The Emerging Threat of Regulatory Pre-emption," by Georgetown University Law Professor David Vladeck. In late March, ACS co-hosted a day long symposium on "Justice and the Role of Class Actions" (video forthcoming), which explored the use of lawsuits to protect consumer safety, among other issues. Lawsuits provide compensation and an incentive to product manufacturers beyond regulation to ensure that goods are safe, reliable, and accurately marketed.

A California judge ruled that Starbucks must pay its California baristas $86 million, plus interest, for violating of the state’s tip-pooling law by using some of the employees’ tips, received from tip jars, to pay shift supervisors.

Two State Department contractors were fired and a third was suspended for improperly accessing Senator Barack Obama's passport file, the Washington Post reported. Senator John McCain and Senator Hillary Clinton's files were also improperly accessed, the New York Times reported. Although the earliest of the three incidents occurred on January 9, 2008, the State Department did not notify Senator Obama regarding the alleged breaches and possible violation of the Privacy Act until March 21, 2008. Congressman Henry Waxman, who chairs the committee of jurisdiction over the matter, is calling for the State Department to identify the contractors involved in the data breach.

By Scott A. Kronland, Altshuler Berzon LLP. Scott Kronland represents the AFL-CIO and California Labor Federation in Chamber of Commerce v. Brown, scheduled for oral argument before the U.S. Supreme Court on March 19, 2008.

Supreme Court precedents draw a distinction between the government prohibiting or penalizing private activity and the government merely refusing to subsidize that activity. For example, political lobbying enjoys core First Amendment protection, but the government can decline to subsidize lobbying through the tax code. Likewise, the existence of a constitutional right to obtain an abortion does not mean the government must pay for indigent women to obtain abortions, even if the government otherwise pays for their medical care. And the government can deny food stamps to the families of striking workers, even though the right to strike is protected by the First Amendment.

Chamber of Commerce v. Brown, which will be heard by the Supreme Court on Wednesday, involves arguments about whether the same prohibit/subsidize distinction should apply when a state law is claimed to be preempted by the National Labor Relations Act (NLRA).

At issue is a California law that prohibits employers from using state grant and program funds "to assist, promote, or deter union organizing." The California Legislature enacted this statute in 2000 after receiving complaints that it is unfair for the State to subsidize employer campaigns about unionization when the State does not subsidize unions' efforts to organize workers.

David Kirby writes in the Huffington Post that the U.S. government "has quietly conceded a vaccine-autism case in the Court of Federal Claims." According to the Legal Times, nearly 5,000 autism claims have been filed with the U.S. Court of Federal Claims, which must determine whether "the combination of certain vaccines and thimerosal, a mercury-based vaccine preservative, can cause autism."

Under the 1986 National Childhood Vaccine Injury Act, claims for injuries caused by vaccines are heard before the U.S. Court of Federal Claims in a no-fault proceeding. "The compensation system was meant to handle the rare but inevitable injuries that result from allergic and other reactions to vaccines," the Legal Times noted. The lawsuits are brought against the U.S. government, not vaccine manufacturers; special masters act as trial judges (there is no jury); pain and suffering damages are capped at $250,000 (although awards are available for lost wages, medical and educational costs, and attorneys' fees); and compensation awards are funded by a 75 cent excise tax paid on each vaccine.

According to Kirby, in one of the three test cases regarding the alleged link between vaccines containing thimerosal and the onset of autism that were under consideration by a three-member panel of Special Masters, the government conceded that "compensation is appropriate." The following language is from a purported government filing, signed by Peter Keisler, Assistant Attorney General, which is under seal (and published by Kirby):

On Wednesday, the Senate Judiciary Committee heard testimony on amending the False Claims Act to "explicitly empower federal workers" to file lawsuits to recover money "when the federal government is the victim of fraud or contracting overcharges."

The law, initially enacted to attack war profiteering during the Civil War, returned more than $20 billion to the U.S. government in the last twenty years, according to Senator Leahy, but has been narrowly construed by recent federal court decisions.

The Connecticut Supreme Court held that a widow of a judge who died eight years ago could not sue the state for negligence on the grounds that her husband’s work habits had caused his death. 

The court found that a law passed by the state to extend the statutory limits for such a suit applied only to this one individual and, while “well intentioned,” the law “created a preference that cannot withstand constitutional scrutiny.”

by Center for Progressive Reform scholars Alexandra Klass, University of Minnesota Law School, and Sandra Zellmer, University of Nebraska College of Law

This morning, the Supreme Court will hear oral argument in the case of Exxon Shipping Company v. Baker. The case, brought by commercial fisherman against Exxon Mobil, arises out of the grounding of the Exxon Valdez oil tanker in Prince William Sound, Alaska in 1989, causing the release of 11 million gallons of oil. More birds and marine mammals were killed than in any other U.S. oil spill to date.  The harm to affected species continues to this day, due to the loss of critical food sources, smothered spawning grounds, and decreased reproduction. In 2007, the U.S. Fish and Wildlife Service concluded that “history will judge the Exxon Valdez oil spill as the worst kind of spill in one of the worst places for a spill--an incredibly rich ecosystem.”

It may not be a chicken in every pot, but the National Labor Relations Board issued a regulation requiring the American flag be displayed at every union representation election. Why? "These voters, like all participants and observers, should be reminded that the Agency’s impartial election processes are guaranteed by the full force of the Federal Government."

The blog American Rights at Work compares NLRB elections to political elections in a nifty checklist, concluding that they aren't alike at all.

The Massachusetts Appeals Court ruled that state insurer MassHealth must revisit its decision not to pay for surgery for an HIV-positive teenager who developed a hump on her neck from her HIV medications.   

The protections workers have against retaliation by their employers when they complain of discrimination is the subject of three cases before the Supreme Court and this ACS press briefing held on February 12, 2008.

On Tuesday, the Supreme Court will hear argument in Gomez-Perez v. Potter regarding federal employees who complained about age discrimination. On Wednesday, the Supreme Court will hear argument in CBOCS West v. Humphries regarding whether Section 1981 of the Civil Rights Act covers complaints in racial discrimination cases. The Court has not yet scheduled argument in Crawford v. Metropolitan Government of Nashville on the extent that Title VII protects employees who cooperate in an employer's internal investigation into sexual harassment.

Below are video excerpts from ACS's press briefing that featured Eric Dreiband, Jocelyn Frye, Daniel Kohrman, William L. Taylor, and moderator Michael Gottesman. Video of the event is available here.

The three employment discrimination cases before the U.S. Supreme Court on the protections workers receive against retaliation were the subject of an ACS press briefing on February 12, 2008. The panelists were Eric Dreiband, Jocelyn Frye, Daniel Kohrman, and William L. Taylor, with moderator Michael Gottesman.

Video of the discussion is available here. Two cases are scheduled to be argued next week (Gomez-Perez v. Potter and CBOCS West v. Humphies) with certiorari granted in a third (Crawford v. Metropolitan Gov't of Nashville).

A new study by researchers at Columbia Law School and the Society of American Law Teachers  reported that nationwide enrollment of African-American and Mexican-American students in U.S. law schools has fallen 8.6% in the past 15 years, and could continue to fall.

Applications to law schools among those minority groups have remained constant since 1992, and law school enrollment overall has continued to rise. Vernellia Randall, a professor at Dayton Law, cited law schools’ reliance on LSAT scores as a cause of declining enrollment. “It’s going to get a whole lot worse before it gets better,” she said.

UPDATED: Here is an ACS briefing on diversity in the legal profession

Recently proposed regulations by the Small Business Administration to limit federal contracting set-asides for women-owned business have come under fire as having "no basis in law" and portending "doom" for the seven-year old program, according to the East Bay Business Times. Besides limiting set-asides to four industries, the proposed rule also requires each federal agency to make a finding that it had discriminated against women before setting aside contracts.

Jennifer Brown, Vice President and Legal Director of Legal Momentum, a legal advocacy organization dedicated to securing equality and justice for women, condemned the proposed rule, saying:

It is frankly impossible to imagine any federal agency making a formal determination that it had engaged in sex discrimination in awarding government contracts. [This would not only] embarrass the agency but presumably open it to litigation by past disappointed contractors.

She added that no court decisions require individual agencies to make such findings.

Denise Farris, a commercial construction lawyer, said, "the practical effect of this rule is that virtually no contracts will ever be successful set aside under this program."

"The largest onslaught of employment cases on the docket in years" is how Law.com characterizes the U.S. Supreme Court's grant of certiorari to three retaliation cases. Each case arises under a different civil rights law, with two cases scheduled for argument next week.

ACS will host a briefing on the cases on Tuesday, February 12, at the National Press Club in Washington, D.C. A panel of experts will discuss the issues presented and significance of each case. The panelists are:

• Eric Dreiband, Partner, Akin Gump Strauss Hauer & Feld LLP
• Jocelyn Frye, General Counsel, National Partnership for Women & Families
• Daniel Kohrman, Attorney, AARP Foundation Litigation
• William L. Taylor, Chair, Citizens' Commission on Civil Rights, and Vice Chairman, Leadership Conference on Civil Rights
• Moderator, Michael Gottesman, Professor of Law, Georgetown University Law Center

In a new issue brief released by ACS, Fatima Goss Graves discusses how to restore effective protection for students against sexual harassment in schools.

Graves, senior counsel at the National Women's Law Center, reviews how the U.S. Supreme Court has placed a disproportionate burden on students who attempt to recover damages for harassment inflicted by teachers or fellow students as compared with employees who are harassed in the workplace.

She argues that the current Title IX standards for harassment claims are unsound, and suggests federal and state law solutions that could "both restore the right of recovery for students who experience harassment in schools and provide meaningful incentives for school districts to promote safe school environments."

Graves suggests that the Civil Rights Act of 2008, recently introduced in Congress, is a potential solution at the national level. She also examines the role of state anti-discrimination laws, such as New Jersey's Law Against Discrimination, as a means for providing fuller protections for students while serving as a catalyst for reform at the state level.

Today, the Supreme Court held 5-3 that investors may not recover against third parties whose business partners fraudulently misled them. Boston College law professor Kent Greenfield previewed Stoneridge Investment Partners v. Scientific-Atlanta for ACSBlog, calling it "the most important business case to come before the Court in a decade."

In this case, Scientific-Atlanta agreed to help Charter mislead its auditor and the markets by inflating prices (among other things), thus making it appear as if Charter had met its revenue targets. The question before the Court was whether Rule 10b-5 of federal securities law reached Scientific-Atlanta under "scheme" liability. Justice Kennedy held it did not, because the investors "did not rely upon [Scientific-Atlanta's] statements or misrepresentations."

A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit reversed Chief U.S. District Judge Bernard Friedman and issued a 2-1 decision holding that the No Child Left Behind Act does not provide clear notice on who must pay for compliance with some of its requirements. School districts argued that some of the laws' requirements constituted an unfunded mandate, despite a specific provision in the law that prohibits such mandates, and argued that the federal government should provide more money for compliance with its provisions.

by Simon Lazarus and Harper Jean Tobin, attorneys with the National Senior Citizens Law Center

On Wednesday, January 9, the Supreme Court will hear arguments in one of the four workplace discrimination cases on its calendar for the current term. Coming as they do on the heels of the notorious Ledbetter v. Goodyear decision in May of last year, these cases will go far to reveal whether the Roberts Court intends to continue hollowing out 20th century civil rights guarantees until there is little of practical significance left. (In Ledbetter, a 5-4 majority effectively gutted the equal pay protections in the 1964 Civil Rights Act by requiring victims to file suit within 120 days of a defendant’s discriminatory act – despite the fact well-known fact that workers rarely learn that they have been targets of discriminatory pay decisions for years.)

Wednesday’s case, Kentucky Retirement Systems v. Equal Employment Opportunity Commission (EEOC), involves the Age Discrimination in Employment Act (ADEA), which bans job-related discrimination against any individual “because of such individual’s age.” Originally passed in 1967, ADEA protections have recently grown more important to the constituency served by the Act, as baby boomers have swelled the ranks of older workers, and shrinking pension benefits have forced many to continue working longer than they anticipated. Kentucky Retirement Systems involves the application of the ADEA to the design of retirement plans, an especially sensitive matter to the baby boomer cohort.

Kentucky drew the ire of the EEOC because its pension program for workers in hazardous state jobs, such as fire or police protection, provides younger workers with a richer disability retirement package than it provides for their older counterparts. Under the plan, hazardous duty workers under the age of 55 – the age at which Kentucky employees become eligible for retirement – if forced to retire because of a disability, are eligible for a special enhanced package of benefits. In contrast, disabled hazardous duty workers over 55 are eligible only for “normal” retirement benefits. In addition, the Kentucky formula uses age as an explicit criterion for determining individual benefit levels for eligible disability retirees in ways that produce better results for younger retirees than similarly situated older colleagues.

The EPA will allow a new federal vehicle emissions law to preempt 16 states' existing or planned stringent emissions requirements despite the administration's ability to waive those requirements, CNN reported.

In response to the government's decision, California's Governor Arnold Schwarzenegger announced plans to sue the federal government to allow "a California plan to reduce greenhouse gas emissions."

The new federal law will increase fuel efficiency standards by 40 percent by 2020, requiring automakers to bring their fleets to an average of 35 miles per gallon.

The California plan, however, would cut emissions by nearly 30 percent by 2016, raising fuel efficiency standards in the state to 43.7 miles per gallon for passenger cars and some SUVs and trucks, while larger vehicles would need to reach 26.9 mpg by that year.

Simon Lazarus and Harper Jean Topic recently wrote an article discussing the changing use of federal preemption. ACS hosted a panel discussion last year that examined "how on many critical issues of the day, including marriage rights for same-sex couples, stem cell research, medical marijuana, state law tort claims, and economic and environmental regulation, many traditional proponents of state prerogatives have shifted stance to advocate federal preemption."

The Senate voted to expand the rights of whistle-blowers late Monday evening, joining the House in passing similar legislation, which will have to be reconciled before going to the President for his signature, the Washington Post reports. Similar legislation proposed over the last six years has been opposed by the Department of Justice, although this legislation may have enough support to override a presidential veto.

According to the Government Accountability Project, the legislation “plugs a government accountability loophole created last year when the Supreme Court’s Garcetti v. Ceballos decision canceled constitutional free speech rights for government workers carrying out their job duties.” ACSblog summarized the Garcetti decision here and discussed the role of whistle-blowers here.

The bill protects federal employments who disclose information, permits employees to share classified information with members of Congress, and protects whistle-blowers whose have their security clearances revoked in retaliation for the disclosure, according to the article.

The legislation would also allow federal employees to challenge administrative rulings in their local federal appeals court instead of the U.S. Court of Appeals for the Federal Circuit.

The FCC voted 3-2 today to lift a ban on a a broadcaster also owning a newspaper in the same market, so long as the market is one of the 20 largest in the U.S. (along with a number of other conditions), the Washington Post reports.

The cross-ownership ban was originally approved in 1975 to preserve diversity of viewpoints and promote economic competition.

Massachusetts' highest court allowed a lawsuit against a physician to go forward who failed to warn his patient about the side-effects of various medications he prescribed, the Boston Globe reported. The patient's car struck and killed a ten-year-old boy who was standing on the sidewalk after the driver passed out.

American Rights at Work has launched a new blog, Eye on the NLRB, written by Erin Johansson. Erin describes the blog's mission as follows:

Our role as an NLRB watchdog is more important than ever as the momentum for the Employee Free Choice Act continues to grow, and as the NLRB’s September Steamroll brings attention to the Bush administration’s attacks on workers.  In its old style, this publication generated media attention for particularly egregious cases, leading to a much larger audience and impact than we could have thought possible.  I’m hopeful that this blog will broaden the audience interested in labor law issues and lead to even more scrutiny of the NLRB.  We need many pairs of eyes on the NLRB!

The Center for American Progress has released a new report entitled, "Beyond Justice: Bush Administration's Labor Department Abuses Labor Union Regulatory Authorities," by Scott Lilly.

In the report's introduction, Lilly points out that in recent years many regulatory agencies have laxly enforced their rules "to the significant financial benefit of certain businesses and at the expense of those whose health and safety those laws were designed to protect." But in the governance of organized labor, "rigorous and in fact pernicious regulatory enforcement was the course chosen by the Bush administration."

Lilly argues that the "underlying purpose, of course, is to undermine the reputation of the labor union movement through a classic political misinformation campaign—all under the supervision of a lifelong partisan political operative whose career has been dedicated to the destruction of his political opponents."

Read more.

by John Weaver, Editor-At-Large

With impending changes in New York City and Ohio public schools, the proper mechanisms for disciplining and removing public school teachers are the subject of national debate. In New York, Mayor Michael Bloomburg is assembling a team of lawyers, led by a new Teacher Performance Unit, to help principals build cases against tenured teachers who they believe are not up to the job. The plan will cost $1 million a year and seeks to increase the number of tenured teachers who are ousted from the system; currently one-hundredth of 1 percent of tenured teachers in New York City are removed for ineffective performance.

Randi Weingarten, the president of the city’s teachers union, claimed that this justified city teachers’ fears. “We’ve always been concerned that the first thing that would happen after somebody put out progress reports would be principals would go after teachers,” she said. “Basically, it’s signaling to principals that rather than working to support teachers, the school system is going to give you a way to try to get rid of teachers.”

The New York Times reported this week that “[c]orporate executives, trade associations and lobbying firms have begun to recalibrate their strategies,” anticipating a potential transition in Washington and the implications for business regulation. 

Examples include businesses seeking to reduce family and medical leave for employees, energy companies seeking relaxed pollution-control requirements, trucking companies seeking to narrow safety laws that restrict the number of hours truckers may drive each day, and automakers seeking less stringent vehicle safety requirements. 

Because the Supreme Court has restricted incoming Administrations from reversing final regulations promulgated under their predecessors, regulations emerging over the next year will remain in place until the next Administration undertakes new formal rulemaking processes, which can last several years.

by Ana Avendano, Associate General Counsel, Director Immigrant Worker Program, AFL-CIO

Last week, the Bush Administration announced that it was changing its approach to “No-Match” letters in an attempt to meet concerns raised by a federal judge.

“No-match” letters are notices that the Social Security Administration (SSA) sends annually to employers who report a certain number of discrepancies between their employment records and SSA’s database. According to the SSA's website, the purpose of a letter is “to obtain corrected information to help SSA identify the individual to whom the earnings belong so that the earnings can be posted to the individual's earnings record.” This makes sense, given that the SSA was created as a safety net for working people, and allows an individual to keep an accurate record of one’s earnings and taxes. According to government records, 70 percent of discrepancies belong to native-born U.S. citizens.

“No-match” letters have long been used by employers to defeat worker organizing. Time after time, employers have used the letters as a pretext to fire workers when they try to organize, file a wage claim or otherwise exercise their workers’ rights.

On December 5, Jobs with Justice, along with partnered organizations, held a National Workers’ Rights Board Hearing concerning the SSA “No-Match” letters.

Writing at the Northwestern University Law Review's website, Victor B. Flatt of the University of Houston Law Center (who holds the A.L. O’Quinn Chair in Environmental Law, and also serves as director of the University's Environment, Energy, and Natural Resources Center, the University of Houston Law Center) recently posted an article analyzing the goals of proposed federal policies addressing climate change.  Particular questions he addresses include: " What Climate Change Effects are we Trying to Avoid?" and " Whom Are We Trying to Protect?"  Professor Flatt also considers the viability of compensation as a legislative goal.

by Woodley Osborne, Of Counsel, Mehri & Skalet, PLLC, Washington, D.C.

The Supreme Court will hear argument today in a case presenting important questions regarding the kind of evidence available to plaintiffs alleging employment discrimination. In Sprint/United Management Co. v. Mendelsohn, the Court will be asked to resolve divergent views regarding the admissibility of two categories of evidence: “other supervisor” evidence—evidence that an employer’s supervisors, other than the one who supervised the plaintiff, may also have engaged in acts of discrimination; and "culture evidence"—evidence of a pattern and practice of discrimination.

Ellen Mendelsohn was laid off by Sprint as part of a company wide reduction in force. She sued Sprint claiming that her selection for termination was the product of age bias. At Sprint’s behest the District Court barred Ms. Mendlesohn from introducing any evidence that Sprint “has a pattern and practice, culture or history of age discrimination,” and any evidence regarding discrimination against other employees unless the decision-maker was her supervisor and there was “temporal proximity,” i.e., the decision was close in time to the decision affecting Ms. Mendelsohn.  With this evidence out, the jury returned a verdict for Sprint.

A divided court of appeals reversed, holding that the evidence proffered by Ms. Mendelsohn was “relevant to Sprint’s [alleged] discriminatory animus toward older workers,” and that evidence of a pattern of discrimination is at least circumstantial evidence that the selection of Ms. Mendelsohn for termination was also discriminatory.

This week, New York Times journalist Adam Liptak wrote in the International Herald Tribune about Chicago labor lawyer Thomas Geoghegan's new book "See You in Court." Responding to and reconceptualizing calls for tort reform, Geoghegan argues that "[w]e have to bring back predictability in the law," and, in Liptak's words, "bemoans the rise of tort claims, lawsuits over injuries that can give rise to enormous jury verdicts."

But . . . Geoghegan blames conservative legal theorists and big business, not plaintiffs' lawyers and the rise of the regulatory state.

The reason there is so much tort litigation, Geoghegan says, is that workers and others no longer have contracts they can enforce. Lacking contracts, they are reduced to making wild allegations and asking for extravagant damages in suits that mostly fail but that sometimes pay off like a lottery ticket. . . .

The move from labor law to employment litigation — from contract to tort, in the legal jargon — injected all sorts of expense and unpredictability into a process that used to be straightforward and relatively humane.

Stephanie Mencimer has an article in Mother Jones on mandatory arbitration clauses entitled "Suckers Wanted: How Car Dealers and Other Businesses are Taking Away Your Right to Sue."

Mandatory arbitration clauses are designed to take fraud cases into a world of private justice, where big corporations hire the arbitrators that hear their cases and there's no right to appeal. Most importantly, unlike court proceedings, arbitration is secret, with no transcripts or written decisions, so that nosy reporters or other potential plaintiffs can't learn what's going on behind closed doors. . . .

Mandatory arbitration clauses are so insidious that car dealers actually furiously lobbied Congress to get them banned in their contracts with auto manufacturers.

by Simon Lazarus and Harper Jean Tobin, attorneys with the National Senior Citizens Law Center

Tomorrow – Wednesday, November 28 – the Supreme Court will hear oral arguments in a case that pits states wishing to protect public health against businesses looking to knock down regulation wherever they see it. The case is Rowe v. New Hampshire Motor Transport Association, and the legal issue involved – federal “preemption” of state law – garners few headlines, but is one of the most frequent subjects of Supreme Court decisions and touches nearly every area of American life.

Preemption is a necessary judicial tool for ensuring the supremacy of federal law in our divided system of government; it ensures that states do not undermine federal programs, or throw monkey wrenches in complex regulatory schemes that require national uniformity. But of late, businesses have been seeking, and increasingly courts have been granting, preemption of state regulatory and common-law safeguards, regardless of whether Congress anticipated or intended any such results.

Victims' rights are violated by limits in medical malpractice cases on non-economic damages such as pain and suffering, Cook County Circuit Court Judge Diane Joan Larsen found on Tuesday, according to the Chicago Sun-Times.

The ruling stemmed from the case of Abigaile LeBron, who suffered severe brain damage and other developmental problems during her delivery because the hospital and physician allegedly did not act with sufficient alacrity when her mother began showing problems. State lawmakers  had limited non-economic damage awards to $500,000 against doctors and $1 million against hospitals.

The state Supreme Court has twice struck down caps on jury awards that "take away the lawful power of juries to decide damages," and the Illinois Hospital Association is expect to appeal to the high court.

A number of recent decisions by the National Labor Relations Board "drastically revoke protections for workers," according to American Rights At Work's  Workers' Rights Watch: Eye on the NLRB. Two decisions in particular were cited as creating additional procedural barriers for workers who have been illegally fired.

First, the NLRB shifted the burden from employers to employees to prove that they adequately searched for work after being improperly fired in order to receive back pay. The Board reversed a 45-year-old precedent that previously had required employers to prove that employees failed to take reasonable steps to find work after they were fired.

Second, in what Workers' Rights Watch characterized as a way to make it easier for "employers to fire union supporters to chill an organizing effort," if a worker waited for more than two weeks to seek interim employment after being illegally fired, the employee will now lose eligibility for back pay for that period.

On Wednesday, the House of Representatives passed the Employment Nondiscrimination Act, a civil rights measure that will extend protection against workplace discrimination to gay men, lesbians, and bisexuals, by a vote of 235-194, the New York Times reported. The legislation makes it illegal for an employer

to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation.

Various versions of the legislation have been proposed since 1974, and Senators Edward Kennedy (D-MA) and Susan Collins (R-ME) said they will introduce similar legislation in the Senate. Although the White House threatened to veto an earlier version of the bill, it has not publicly stated its position regarding the legislation.

The final version of the legislation does not bar discrimination based upon gender identity, and carves out a blanket exemption for religious groups.

Kate Kendell, Executive Director of the National Center for Gay and Lesbian Rights, wrote a guest blog entry on ENDA. ACS also released an Issue Brief by Katie Eyer on protecting LGBT workers in the absence of clear statutory protections.

by Helen Norton, associate professor of law at the University of Colorado School of Law

Editor's Note: The U.S. Supreme Court will hear argument in Holowecki  on Tuesday, Nov. 6

So far this Term the Supreme Court has granted review in five employment discrimination cases. On November 6, the Court hears oral argument in the first of these, Federal Express Corporation v. Holowecki. Holowecki requires the Court to decide what constitutes a “charge” for purposes of satisfying a variety of deadlines under federal anti-discrimination law that determine whether a worker’s lawsuit can proceed. Holowecki thus provides another opportunity for the Court to interpret statutory procedural requirements either to enhance or deny workers’ meaningful ability to assert their civil rights. 

The Age Discrimination in Employment Act (ADEA) requires an aggrieved individual to file a “charge” of unlawful discrimination with the EEOC within 180 or 300 days (depending on the jurisdiction) of the alleged discriminatory act and at least 60 days before initiating an ADEA lawsuit in court. It further requires the EEOC, upon receiving a “charge,” to notify the employer of the accusations against it and to begin an investigation of those claims. The statute itself does not include a definition of the term “charge.” The EEOC’s regulations require a “charge” to be submitted in writing, and to name the prospective respondent and generally describe the alleged discrimination. 

In December of 2001, Patricia Kennedy submitted an intake questionnaire and a notarized affidavit to the EEOC, alleging that Fed Ex had engaged in systemic discrimination against older workers by, among other things, disparately disciplining older couriers for failing to meet performance standards in an effort to force them from their jobs. On that questionnaire, she indicated her consent that the EEOC identify her to Fed Ex as the origin of the complaint. The EEOC, however, did not notify Fed Ex of her submission nor did it begin an investigation of her claims. In April of 2002, Ms. Kennedy and 13 other workers filed suit in federal court, alleging that Fed Ex had violated the ADEA and various state laws prohibiting age discrimination.

by John Weaver, Editor-At-Large

University administrators are closely watching developments in Robertson v. Princeton University, a New Jersey case concerning a $35 million donation given to Princeton in 1961 for its Woodrow Wilson School of Public and International Affairs by Marie Robertson. The donation created the Robertson Foundation, which Princeton operates through university-appointed trustees to fund the school.

In their lawsuit, Robertson’s heirs assert the gift was intended to prepare students for work in the federal government, the Wilson School is not doing so, and that Princeton has used the money for other ends. Princeton argues the terms of the donation do not require students to prepare for government careers, rather that its terms state students "may prepare" for government careers. The university also points to graduates like Anthony Lake, a former national security adviser to President Bill Clinton, and General David Petraeus, who have entered public service.

The Robertsons filed suit in 2002, alleging Princeton misused $200 million of the Foundation's money, which would have generated $400 million had it had been invested in the Wilson School.. The trial will decide whether the Robertson Foundation's Princeton-designated trustees will continue in their roles and whether Princeton must compensate the Foundation for misuse of its funds. The family is seeking the nearly $900 million endowment be removed from Princeton’s control, as well as $600 million in damages. Superior Court Judge Neil Shuster declared that the Robertson Foundation would only be removed from the university under “the most egregious and nefarious of circumstances.”

Higher education currently receives more donations than ever before – $28 billion in 2006 – and university administrators are concerned about the implications for the terms and conditions of gifts. Some hope this lawsuit will result in universities being more responsive to donor needs. However, John Lippincott of the Council for Advancement and Support of Education argues that major gifts are already predicated upon “long-term relationships built on trust and mutual interest.”

Others worry that a major decision against Princeton will adversely affect the growth of higher education. Joseph Nye, a former dean of Harvard’s Kennedy School of Government, said that “If the heirs of donors are allowed to micromanage an academic institution a generation after a gift has been given, it will seriously curtail the creativity and initiative that has marked the recent administration of the Wilson school as well as set a bad precedent for other academic institutions.”

The U.S. Supreme Court will hear argument in five cases this week. Video of ACS' Preview of the 2007-2008 Supreme Court Term is available in ACS' Multimedia Library.

Monday, Oct. 29

• Klein v. Bd. Of Trade (commodities futures trading market)
• Ali v. Fed. Bureau of Prisons (scope of FTCA waiver of sovereign immunity)

 Tuesday, Oct. 30

• U.S. v. Williams (validity of anti-simulated child pornography pandering law)
• Logan v. U.S. (whether action counts towards sentence enhancement)

 Wednesday, Oct. 31

• Danforth v. Minnesota (whether state courts may apply broader retroactivity standards than the supreme court)

 Questions Presented are below the fold.

by Kate Kendell Esq., Executive Director of National Center for Lesbian Rights

I am concerned that the deletion of express protection against discrimination based on gender identity from Employment Non-discrimination Act (ENDA) would result in a law that does not fully protect lesbians, gay men, and bisexual people in addition to leaving transgender people unprotected.  We are joined in this view by all of the other principal LGBT legal organizations, including the ACLU LGBT Project, Gay & Lesbian Advocates & Defenders, Lambda Legal and the Transgender Law Center. Collectively, our organizations have litigated more cases on behalf of lesbian, gay, bisexual, and transgender people in the United States than anyone else, including handling scores of employment discrimination cases over the past three decades.

Many have been working for the day when the federal government makes the workplace discrimination LGBT people face illegal since the first such proposal was introduced in Congress in 1976. But as much as we wish that day had already arrived, it will not do much good if all we get is a bill that would not protect the LGBT community’s basic rights. While the first version of ENDA introduced this year would have protected the LGBT community, the version introduced last week would not.

I see three significant problems with this weakened version of the bill:

1. Protections for transgender people were removed.
2. Definitions of who is protected by the bill leave gaping loopholes so that no one will be fully protected against discrimination.
3. The blanket exemption for religious employers is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections.

ACS released an issue brief entitled "Anchoring the Clean Water Act: Congress' Constitutional Source of Power to Protect the Nation's Waters," by Jay Austin and D. Bruce Myers, Jr., senior attorneys at the Environmental Law Institute. Austin and Myers identify the constitutional powers Congress can draw upon to protect waters nationwide, including identifying and explaining the effect of several U.S. Supreme Court rulings.

ACS released an issue brief entitled "The Citizen's Advocate: A Perspective on the Historical and Continuing Role of State Attorneys General" by Peggy A. Lautenschlager, former Wisconsin Attorney General, and Daniel P. Bach, former Wisconsin Deputy Attorney General.

The brief explains that state attorneys general who have sometimes been accused of "activism" are in fact exercising their legitimate authority in areas traditionally reserved to the states or where concurrent federal/state enforcement authority exists to serve the citizenry they represent.

by Kent Greenfield, Professor of Law at Boston College and Distinguished Faculty Fellow at the Center on Corporations, Law & Society, Seattle University School of Law

The Supreme Court will hear arguments today (Tuesday, October 9) in what some are calling the most important business case to come before the Court in a decade -- Stoneridge Investment Partners v. Scientific-Atlanta Inc. The facts pertain to the financial shenanigans of a cable television company, but the Court’s decision could have wide ranging implications for law firms, accounting firms, and banks, among others, and – depending on which side you listen to – could either damage the nation’s international financial competitiveness or leave millions of investors underprotected from fraudulent schemes.

The case arose from an alleged fraudulent scheme initiated by Charter Communications, one of the nation’s largest cable companies. In the summer of 2000, it became clear to Charter executives that it would not meet Wall Street’s expectations for annual cash flow and revenue. (Of course, the fact that companies have to focus increasingly on the short-term to the detriment of the long-term health of the company, much less society, is the root of many evils.) Charter asked two of its suppliers, Scientific-Atlanta and Motorola, to help out by inflating the prices it charged Charter for set-top boxes. The suppliers also had to produce private documents lying about the reason and the timing of the increase.

The suppliers agreed to pay back to Charter the same amount of money – $17 million in total – for advertising, which was really free. This “wash transaction” was done to mislead Charter’s external auditor and thus the market. The amounts paid for the set-top boxes were accounted for as capital expenses, appearing on the books over several years. The advertising “revenue” was reported in a lump sum, which made it appear to the auditor and investors that Charter had met its financial targets, which bolstered the stock price. When the fraud came to light two years later, Charter stock plummeted from $26 to 78 cents, costing shareholders millions.

by John Weaver, Editor-At-Large

Last month, Margaret Spellings, the Secretary of Education, released a “Dear Colleague” letter on the topic of college loans. In it, she asks colleges and universities to protect the borrower’s choice of lenders and base lists of preferred or recommended lenders solely on the best interests of the borrowers. This has been necessitated by a college loan scandal that hit news wires earlier this year, in which a number of school financial aid officers accepted gifts or favors from college loan providers in return for preferential business treatment.

She also references pending changes to 20 C.F.R. 682 et al. that will take effect on July 1, 2008. In theory, these new regulations – in conjunction with pending legislation like H.R. 890 and the S. 486 – will curtail the practices of some lenders and schools regarding prohibited inducements. Where the current code and regulations state generally that lenders and guarantors may not offer inducements to schools to secure loans, the pending code and regulations specifically state actions that are prohibited or that will be considered prohibited inducements. Additionally, H.R. 890 requires that every school participating in federal student loan programs have a code of conduct that prohibits school employees from engaging in activities with lenders and guarantors that constitute a conflict of interest or the appearance of a conflict of interest. This attempts to make law many of the requests Spellings has made in her “Dear Colleague” letter from last month.

The greater question, though, is how needed are these changes?

A three-judge panel on the U.S. Court of Appeals for the Ninth Circuit took the unusual step of granting summary judgment against Experian Information Solutions, holding that the credit reporting agency violated a federal law that requires credit agencies to take reasonable steps to verify the accuracy of credit reports and review reports that have been challenged, and directed the district court to calculate damages and attorney's fees, the Los Angeles Times and San Francisco Chronicle reported. The company had placed an erroneous filing on Jason Dennis' credit report and refused to change it.

In his opinion, Judge Kozinski wrote "This case illustrates how important it is for Experian, a company that traffics in the reputations of ordinary people, to train its employees to understand the legal significance of the documents they rely on." The court additionally held that Dennis is entitled to a trial on the claim that Experian failed to adopt reasonable procedures to ensure accuracy.

American Rights at Work has published their third annual Labor Day List: Partnerships that Work, which celebrates partnerships between employers and their employees’ unions that both meet the needs of workers and fulfill business objectives in the global economy.

According to Public Citizen, a lawsuit filed in the 9th Circuit seeks to stop an Administration-backed pilot program that would allow Mexican-domiciled trucks to gain access to U.S. roadways and thus violate U.S. law while also raising safety and environmental concerns.

An article by Chris Mondics of The Philadelphia Inquirer reports U.S. Solicitor General Paul Clement sees a "business tilt on top court."

U.S. Solicitor General Paul D. Clement said in Philadelphia yesterday that the Supreme Court under Chief Justice John G. Roberts Jr. had taken a pronounced pro-business approach, and suggested that it could carry over into the next term.

Clement, the government's chief legal advocate before the Supreme Court, said decisions limiting punitive-damage awards against corporate defendants and imposing restrictions on antitrust lawsuits suggested a distinct tilt in favor of business.

"The business docket is a very rich part of the docket and one in which the Roberts court to date has proven very sympathetic to the concerns of corporate defendants," Clement said in an hour-long address about the Supreme Court's recently completed term.

New Hampshire Governor John Lynch (D) signed legislation today which limits employers' opportunities to retaliate against pro-union workers.  The new law is similar to the Employee Free Choice Act, currently pending before Congress.

In addition to the school racial desegregation cases, the Supreme Court also ruled in a major antitrust case earlier today.  In Leegin Creative Leather Products v. PSKS, the Court by a 5-4 vote overruled Dr. Miles v. Park, a 96 year-old case holding resale price maintenance agreements – through which manufacturers or distributors specify minimum prices below which retailers are not permitted to offer goods – per se illegal.  Justice Kennedy's majority opinion replaced the per se rule with a case-by-case "rule of reason" analysis, on the ground that "[m]inimum resale price maintenance . . . . has the potential to give consumers more options so that they can choose among low-price, low-service brands; high-price, high-service brands; and brands that fall in between."

In dissent, Justice Breyer, joined by Justices Ginsburg, Souter and Stevens, criticized the majority's willingness to overturn a longstanding precedent.  According to Justice Breyer, "The Court justifies its departure from ordinary considerations of stare decisis by pointing to a set of arguments well known in the antitrust literature for close to half a century. Congress has repeatedly found in these arguments insufficient grounds for overturning the per se rule." 

The Associated Press discussed the case's significance in the context of both long-term and emerging doctrinal trends in antitrust law, reporting that Leegin Creative "is the fourth antitrust ruling by the Court in the last four months. In each instance, the Court sided with defendants that were sued for anticompetitive conduct . . . . In recent decades, the Supreme Court has chipped away at what many economists traditionally regarded as vital consumer protections against anticompetitive conduct. For example, exclusive dealer territories and setting price ceilings are no longer automatically unlawful."

A vote today on the Employee Free Choice Act (EFCA) was blocked by a Senate filibuster.  The final vote was 51-48 in favor of the bill.  60 votes are required to defeat a filibuster.

In a recent ACS Issue Brief, Neutrality Agreements and Card Check Recognition: Prospects for Changing Labor Relations Paradigms, Professor James Brudney argues that current labor law hinders unionization:

The stark inequality between employer "incumbents" and union "challengers" regarding rights of access to, or speech aimed at, the voters would be unthinkable in a political election setting. Individual employees attending sophisticated captive audience speeches, or participating in one-on-one encounters with their immediate supervisors, understandably may feel intimidated if not coerced by repeated oral, written, and electronic communications linking "union presence" to layoffs, plant closings, and permanent replacement during a lawful economic strike. Even if an employer does not immediately follow through on such predictions, their repeated expression is likely to affect employees as they contemplate the range of subtler deprivations that union supporters may face in the future. . . .

Opponents of neutrality often counter that if employees cannot hear from the employer, they will not be able to make a suitably informed and reasoned choice. That contention invites doubt on two grounds. One is that the employer already has the opportunity and motive to present arguments against unionization before a union appears, and is likely to have done so over months, if not years. A second is that the optimal time for informed choice about union representation will occur during contract negotiations, when employees can see how a collectively bargained workplace actually would look.

Supporters of elections also worry that individuals sign cards without giving the matter enough thought, or from fear of criticism by fellow employees. It is not at all clear that workers succumb so readily to indifference or peer pressure. Assuming they do, however, a union seems unlikely to retain employees' backing in negotiations unless it can persuade them that its bargaining proposals deserve majority support and even application of group pressure if warranted.

EFCA would have addressed many of Professor Brudney's concerns by providing a streamlined "card check" process for worker unionization.

In National Association of Home Builders v. Defenders of Wildlife, the Court on Monday held 5-4 in an opinion by Justice Alito that a federal agency required by law to take a certain action need not also satisfy Section 7 of the Endangered Species Act (ESA), which requires an agency to ensure that its action will not threaten endangered and threatened species.  In this case, the Clean Water Act obligated the EPA to transfer to the administration of local water pollution permits to the State of Arizona in the wake of the State's completion of nine statutory criteria.  While the application of the ESA provision at issue to discretionary agency actions remains non-controversial, the ruling held that statutory mandates are not subject to limitation by the ESA. 

Justice Stevens' argued in dissent that the ESA applies to all agency actions, whether imposed by statute or delegated to its authority, relying on the decision in TVA v. Hill that Section 7 of the ESA "admits of no exception."  Justice Breyer dissented separately, also citing TVA v. Hill for the proposition that "the Endangered Species Act changed the regulatory landscape, 'indicat[ing] beyond doubt that Congress intended endangered species to be afforded the highest of priorities.' "

The Senate will vote this week on the Employee Free Choice Act, a bill which will reduce management's opportunities to intimidate workers who wish to unionize.  Senator Edward Kennedy (D-MA) recently provided data on the advantages of opening union membership to more workers:

* It’s little wonder that most Americans want a voice at work in these insecure times.  In a recent survey, 58 percent of Americans indicated they would join a union if they could, a record number.
 
The freedom to choose a union is vital to restoring the American Dream, especially for the most vulnerable Americans.  
 
* Unions help American workers get their fair share – union wages are almost 30% higher than non-union wages.  Unions are also a cure for rising inequality because they raise wages more for low- and middle-wage workers than for higher-wage workers.
 
•    Union cashiers earn 46% more than non-union cashiers.
•    Union food preparation workers earn nearly 50% more than non-union workers.
•    Union maids and housekeepers earn 31% more than their non-union counterparts.

* The freedom to join a union is a women’s issue and a civil rights issue.  Union women earn 31 percent more than women workers who don’t have a union.  African Am