James Brudney spoke with Law360 for a Q&A about labor and employment law. Questions ranged from changes in the field, challenges to the courts, curricular considerations, and election-year issues.
James J. Brudney joined the faculty at Fordham University School of Law in 2011, after 19 years at The Ohio State University Moritz College of Law, where he was Newton D. Baker / Baker & Hostetler chairman in law. Professor Brudney clerked for Judge Gerhard A. Gesell of the U.S. District Court in Washington, D.C., and then for Justice Harry A. Blackmun of the U.S. Supreme Court. He was associated for four years with Bredhoff & Kaiser PLLC in Washington, representing individuals and unions in constitutional and statutory matters.
Professor Brudney served for six years as chief counsel and staff director of the U.S. Senate Subcommittee on Labor. He has been an adjunct professor of law at the Georgetown Law Center and a visiting professor of law at Harvard Law School and Oxford University. At Fordham, Brudney teaches labor law, employment law, international and comparative labor law and also legislation and regulation.
Professor Brudney is co-chairman of the public review board for the United Auto Workers International Union, and is a member of the committee of experts of the International Labor Organization. He was honored with two teaching awards while at The Ohio State University. In 2014, he was selected as professor of the year by Fordham’s law school students.
Q: What are the biggest changes you’ve seen in labor and employment law over your career?
A: Perhaps the biggest change is the shift in primary focus from labor law (i.e., the law regulating union organizing and bargaining) to employment law — the law regulating relations between individual employees and their employers. Statutory issues arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 and other federal and state anti-discrimination laws, as well as the Employee Retirement Income Security Act, the Fair Labor Standards Act and state wage-and-hour laws, occupy lawyers and courts far more than they did when I began my career. Conversely, counseling and litigation involving the National Labor Relations Act and state collective bargaining statutes play a markedly smaller role than when I entered the profession. This reflects the decline in union membership, especially in the private sector, but also greater attention to the challenges faced by an aging workforce and to the problems of individuals that the law has recently protected (e.g., those with disabilities) or recently neglected (e.g., notably low-wage workers).
Another important development, not unrelated to the rise of employment law, is a change in the locus of dispute resolution, from federal and state courts to arbitrators. Supreme Court decisions since the early 1990s have significantly expanded the reach of the Federal Arbitration Act with respect to employment contracts, and those contracts now routinely include agreements to arbitrate all or virtually all statutory claims arising in the workplace setting. The Supreme Court has concluded that the Federal Arbitration Act, a 1926 law, effectively trumps statutory rights of access to courts and juries that Congress created in numerous laws enacted since the 1960s.
Q: Which labor and employment law issues are most in need of further clarification by the courts?
A: One that cries out for clarification — by legislatures and agencies as well as courts — involves who qualifies as an “employee” in our complex service-centered economy. Millions of workers are classified as independent contractors, or assigned part-time, temporary or internship status. From a business standpoint, structuring various workplace operations to fall outside of the employment relationship may well make economic sense. But for workers, the absence of benefits and other employment-based protections becomes a genuine hardship. Our system of social insurance and workplace regulation (e.g., health care, pensions, workers’ compensation, Social Security, overtime restrictions, etc.,) presumes an allocation of burdens between employers and governments. To the extent we allow a substantial portion of the workforce to be excluded from “employee” status, we may need to rethink the traditional structure of shared responsibilities.
This is most obviously true for workers at the lower end of the labor market who desperately need health care, family leave and other workplace protections and who are not “consenting” in a meaningful sense to their nonemployee status. But assuming arguendo that workers closer to the top of the labor market — such as individuals engaged in different information technology occupations — have knowingly opted for nonemployee status, one might ask why taxpayers should cover emergency health care or post-retirement costs for these individuals. The latter question is one that should be addressed by legislatures and agencies as well as courts.
A second issue that courts in particular can help clarify involves the reasonable scope and duration of noncompete agreements. As more employers conclude that knowledge possessed by their employees is a primary source of competitive advantage, they have increasingly pressed for agreements restraining those employees in their subsequent ability to work in the same field. The wisdom or legality of noncompete agreements implicates not only the technology sector but financial services, sales and recently even low-wage workers in sandwich shops. Each occupation presents distinct issues and there is no one-size-fits-all solution. Still, courts are well-situated to determine when such agreements are overbroad (and perhaps subject to revision) or wholly unreasonable.
Q: Where do you see the next wave of labor and employment law cases coming from?
A: I am not sure about “waves,” but I expect a number of cases on the meaning of joint-employer status under the NLRA, especially regarding franchise relationships, in the wake of the National Labor Relations Board’s August 2015 ruling in Browning-Ferris Industries. There may also be more FLSA cases involving franchisees in the fast food industry, given recent scholarship indicating that franchised outlets have especially high levels of noncompliance with minimum wage and overtime standards.
In addition, employees’ use of social media to voice their opinions or reactions to workplace events is likely to create increased litigation. In labor law, there will be further cases addressing what qualifies as protected concerted activity under Section 7 of the NLRA. In employment law, litigation is likely to address how far employers may restrict or monitor employees’ critical discussion of employer conduct or policies without infringing on rights of privacy or free expression.
Finally, I anticipate there may be litigation in response to recent efforts by state agencies and legislatures to increase minimum wages for fast food workers or other specified categories of low-wage employees. If these lawsuits are patterned after the one brought in Seattle, they will challenge on state and/or federal constitutional grounds the targeted nature of the minimum wage increases.
Q: What novel issues of labor and employment law or recent case law are you including in your curriculum?
A: My labor law course addresses neutrality agreements and how unions have used those agreements to contract around the NLRA election law framework. I also cover the use of the Racketeer Influenced and Corrupt Organizations Act by employers to counter comprehensive union campaigns. I close by presenting an overview of the ILO’s structure and operations, in an effort to offer some broader perspective on U.S. labor regulation.
In employment law, I consider how employers regulate social media participation by workers on their own time and space. I address very recent court decisions on unpaid internships and I examine decisions applying the wide range of whistleblower protections that have been legislated or judicially created in recent years.
Q: If you were the U.S. Secretary of Labor, what changes would you make?
A: I would continue efforts to enhance income levels and support working families within existing statutory frameworks. This has included updating overtime rules so that more salaried workers receive protection and extending minimum wage coverage to home care workers, who traditionally earn poverty-level wages. Further steps would involve working with Congress to enact some form of minimum wage increase at the federal level, indexed to inflation so that the issue does not continue to fester as a legislative controversy. Many states are acting to raise their minimum wage levels, but a higher federal floor could help to reduce inequities in income and consumer spending power between different regions of the country.
I also would act to promote and strengthen shared responsibility for labor standards protection and compliance by U.S.-based multinational corporations that often operate at the top of global supply chains. Tens of millions of individuals work in these supply chains, covering manufacture and distribution of garments, footwear, electronics and other retail goods, as well as agricultural production. The U.N. Guiding Principles on Business and Human Rights and the American Bar Association Business and Human Rights Project reflect a growing recognition that business should be held (and expects to be held) more accountable as a key player in the human rights conversation. The U.S. Department of Labor and its Bureau of International Labor Affairs have an opportunity to help shape this conversation. One possibility would be to encourage or incentivize agreements between worker organizations and major brands that provide for higher wages and benefits along with rigorous comprehensive monitoring of suppliers — an excellent example is the series of bilateral agreements negotiated since 2005 between the Coalition of Immokalee Workers, on behalf of over 30,000 Florida tomato workers, and more than a dozen major food retail brands. Another option would be to explore applying FLSA Section 15(a) (the “hot goods” provision) to supply chain settings; this section has enabled the DOL to identify and sanction goods manufactured or assembled in violation of certain widely accepted labor standards.
Q: What issue in labor and employment law would you most like to see discussed during the 2016 elections?
A: Redressing the significant increases in income inequality that we have experienced as a nation since the 1970s. I would like to hear serious debate about possible changes in workplace-centered legal rules and standards. The discussions should address greater protection for workers’ efforts at union organizing and representation, given the powerful evidence that collective bargaining plays an important role in raising wages and benefits. They also might include consideration of higher minimum wage levels, fewer exemptions from overtime rules and increased access to benefits, such as portable pension plans and paid family and medical leave.
Reproduced in full with permission from Law360.
