Benjamin Sachs

An op-ed by Benjamin Sachs. Today’s Philadelphia Inquirer reports on the death of Pablo Avendano, a 34-year old bike messenger who was killed while delivering food for Caviar, the app-based food delivery service. Because Avendano was classified as an independent contractor and not an employee, his family will not be entitled to workers compensation benefits that they could otherwise collect...If gig workers – Uber drivers, Lyft drivers, and Caviar delivery people – get reclassified as employees, that status will not require the firms to take away all the workers’ flexibility. In fact, the trope gets the relationship between control and employee status exactly backwards. The way the law works is this: if a firm exercises sufficient control over a worker, then the worker may be an employee.

The Center for American Progress (CAP), one of DC’s most influential liberal think tanks with deep ties to the Obama administration and Hillary Clinton campaign, has just proposed a big idea for raising Americans’ wages. A new paper by CAP’s David Madland calls for the creation of national wage boards, tasked with setting minimum wage and benefit standards for specific industries. Fast food companies, say, would send representatives to meet with union officials and other worker representatives, and hammer out a deal that ensures workers get a fair shake. Same goes for nurses, or retail workers, or home health aides, or accountants...“Sectoral bargaining is certainly getting more attention in legal academic and labor law policy debates,” Benjamin Sachs, a professor at Harvard Law School and former practicing labor lawyer, says. “The way I would think about it is that there’s an existential panic about what will happen to the labor movement. That’s not new, it’s just getting worse. … If we need unions for economic and political equality as I think we do, we have to do something to stop that downward spiral.”

An op-ed by Sharon Block and Benjamin Sachs. For the past three years, the federal government has painstakingly built a case against the world’s second-largest private employer, McDonald’s, charging the company with illegally harassing and terminating employees who have gone on strike with the “Fight for $15″ campaign. There have been over 150 days of trial and hundreds of exhibits entered into the record. And though McDonald’s has aggressively fought to slow down the trial, attorneys at the National Labor Relations Board have continued to press the case. Until, that is, the Trump administration’s political appointees showed up for work.

Even in his hometown of Springfield, Mark Janus is a relatively unknown figure. Janus is a state employee who works in a nondescript office investigating child support claims. He’s also a divorced father of two adult children and he volunteers to help Boy Scouts. Until recently there was little in the 65-year-old man’s life that would indicate he would make history. But on Feb. 26 the United States Supreme Court will hear his case. At stake is whether government workers should, as a condition of employment, be compelled to pay money to a union. “I would say this case has the potential to be a landmark case,” Harvard University Law Professor Benjamin Sachs told Illinois Times. “Essentially, if the court rules in Mr. Janus’ favor, it would put every government worker in the United States under a right-to-work regime.”

An article by Sharon Block and Benjamin Sachs. In September, we shared our plan to hold a symposium at Harvard Law on the question of whether it is time to end labor preemption. The symposium brought together leading labor law scholars and practitioners to wrestle with this big question. To help give context to the symposium discussion, we had asked several thought leaders to help paint the picture of what is at stake in this debate by exploring ways that workers are already organizing outside of the confines of the National Labor Relations Act and models that they might pursue, if given the opportunity.

An op-ed by Benjamin Sachs. Juli Briskman was fired after telling her employer that she’s the one who gave President Trump’s motorcade, as The Post’s Petula Dvorak put it, the “middle-finger salute seen around the world.” However sympathetic Briskman’s story is and heavy-handed the consequence seems, the conventional legal treatment of this situation would be straightforward: Briskman’s employer, the government contractor Akima LLC, has the right to fire her at will. Under this conventional approach, if Akima management doesn’t like it when employees publicly express political views, then as a private-sector employer, it isn’t bound to respect the First Amendment’s guarantee of free speech. But these aren’t conventional times, and the conventional legal approach doesn’t make sense today. Briskman’s firing is unconscionable, and it should be illegal.

An op-ed by Benjamin Sachs and Noah Zatz. As National Football League owners and players’ union representatives meet in New York today and tomorrow to discuss the players’ recent demonstrations — the kneeling, linking arms or raising fists during the national anthem — they should know how the law views these protests. This will not only tell them what the league lawfully can do; it also will reveal something about American values.

An op-ed by Benjamin Sachs. Last Sunday, Jerry Jones, the owner of the Dallas Cowboys, said he would bench players who did not stand during the national anthem. This threat was publicized nationally and applauded on Twitter by President Trump, who summarized the two men’s shared view: “Stand for Anthem or sit for game!” On Wednesday, the president elaborated on his views, telling Fox News that the NFL “should have suspended” Colin Kaepernick for kneeling during the anthem because “you cannot disrespect our country, our flag, our anthem — you cannot do that.” It is quite possible the players have First Amendment protection against retaliation of this kind.

As National Football League team owners consider President Trump’s call to fire players who refuse to stand for the national anthem, they have stumbled into one of the most consequential debates in today’s workplace: How far can workers go in banding together to address problems related to their employment? In principle, the answer in the N.F.L. and elsewhere may be: Quite far. To the extent that most people think about the reach of federal labor law, they probably imagine a union context — like organizing workers, or bargaining as a group across the table from management...“Workers without a traditional organization that is meant to protect them at work are kind of scrambling around for new ways of protecting themselves,” said Benjamin Sachs, a labor law professor at Harvard University.

On Sunday, Dallas Cowboys owner Jerry Jones indicated that he would bench players who didn't stand for the national anthem before games...But does Jones, or any other owner, have the right to bench a player for protesting during the anthem? Could such a benching be a violation of the NFL's collective bargaining agreement or, beyond that, could it even be illegal?...Benjamin I. Sachs, Kestnbaum Professor of Labor and Industry, Harvard University: "I think being benched is adverse employment action. I also think that the protests are in fact directly related to their status as NFL employees. If they are protesting racial discrimination, that's something that impacts their status as NFL players. So I think benching would be violating federal law."

Late last week, the U.S. Supreme Court announced that it will add a case critical to the future of public-sector unions to its docket. With President Donald Trump's appointment of conservative-leaning Justice Neil Gorsuch, many expect the court to rule against the unions. Such a decision would energize the recent resurgence of state laws that effectively reduce the power of unions in both the public and private sector...“It is an enormously big deal,” says Harvard law professor Benjamin Sachs, who often writes about labor issues. “Unions have to provide services and representation equally to everyone in a bargaining unit. But if you can get those services for free, a lot of people won’t pay them. You have a classic free-rider situation.”

When President Trump called for owners of National Football League teams to fire players who take a knee during the national anthem to protest racism, the response by players and others was an even more widespread dissent before games that touched a deep cultural nerve and shook a seminal American institution...“As a general rule, the Constitution’s free speech protections don’t apply in private-sector workplaces — including the NFL — so the First Amendment generally isn’t much help here,” said Benjamin Sachs, Kestnbaum Professor of Labor and Industry at Harvard Law School and an authority on labor law.

...On Monday, the Supreme Court opened its fall term with National Labor Relations Board v. Murphy Oil USA, and two similar cases, that will determine whether companies can force workers like Hobson to sign away their right to file collective suits. The decision in the cases, which were heard jointly, has the potential to push millions more workers into individual arbitration hearings that lack many of the protections of the US legal system...Sharon Block, the director of Harvard’s Labor and Worklife Program and a former NLRB board member, is concerned that Murphy Oil could be used to stamp out other workplace rights. Block and Benjamin Sachs, a Harvard law professor, recently highlighted how the Trump administration’s brief casts doubt on the legal protections for collective actions outside of a traditional union context. That interpretation, Block says, could prevent workers from jointly asking for wage increases or joining worker centers that advocate for higher wages. Those rights are particularly important as union membership declines.

An op-ed by Sharon Block and Benjamin Sachs. The Trump Administration is waging a quiet war on workers. The effort involves anti-union appointments to federal agencies, repeal of Obama-era regulations that were designed to raise the wages of low and middle income workers, and support for anti-worker legislation in Congress. But the most recent salvo may actually prove to be the most devastating. In a case called Murphy Oil, slated for the first day of the Supreme Court’s new term, the Trump administration is inviting the court to eviscerate the rights of employees who don’t have a union.

Each January, as the Bureau of Labor Statistics (BLS) releases its annual data on union membership rates, labor braces itself to see how steeply the chart dips. This past year, the share of unionized workers declined 0.4 percent, to just 10.7 percent of wage and salary workers overall and a bare 6.4 percent of private-sector workers. As has been the case for many years now, the annual release represents the lowest year on record for unions....And yet, as Harvard Law Professor Ben Sachs has pointed out, the Supreme Court has not employed the typical typologies of preemption at all when dealing with labor law. Rather, it has created a “preemption doctrine [that] is among the broadest and most robust in federal law.”

President Trump, who came into office courting labor unions and vowing to stand up for American workers, is taking a major step to alter the direction of federal labor policy, positioning the National Labor Relations Board to overturn a series of high-profile Obama-era decisions...“The question is, on the major issues of the day, can we update the act to take account of changes in the labor market?” said Benjamin Sachs, a professor of labor law at Harvard Law School and a former union lawyer. “These guys are on one side; the Obama board was on the other. We’ll see a profound change in direction of labor law.”

Conservative groups are wasting little time in trying to deal a crippling blow to labor unions now that Justice Neil Gorsuch has joined the Supreme Court. A First Amendment clash over public sector unions left the justices deadlocked last year after the death of Justice Antonin Scalia. But union opponents have quickly steered a new case through federal courts in Illinois and they plan to appeal it to the high court on Tuesday...For unions, the loss of millions in fees would reduce their power to bargain for higher wages and benefits for government employees. "This is an aggressive litigation campaign aimed at undermining unions' ability to operate by forcing them to represent people for free," said Benjamin Sachs, a professor at Harvard Law School specializing in labor law.

Labor unions in America are in crisis. In the mid-1950s, a third of Americans belonged to a labor union. Today, only 10.7 percent do, including a minuscule 6.4 percent of private sector workers. The decline of union membership explains as much as a third of the increase in inequality in the US, caused voter turnout among low-income workers to crater, and weakened labor’s ability to check corporate influence in DC and state capitals...But the recent victorious fight for a $15 minimum wage in New York offers a path to sectoral bargaining at the state level...“Sectoral bargaining is certainly getting more attention in legal academic and labor law policy debates,” Benjamin Sachs, a professor at Harvard law school and former practicing labor lawyer, says.

A federal appeals court on Thursday ruled that companies cannot force their employees to sign away their right to band together in legal actions, delivering a major victory for American workers and opening an opportunity for the Supreme Court to weigh in. The United States Court of Appeals for the Seventh Circuit in Chicago struck down an arbitration clause that banned employees from joining together as a class and required workers to battle the employer one by one outside of court...“The increasing use of mandatory arbitration agreements and the prohibition on workers proceeding as a class has been one of the most major developments in employment the last decade,” said Benjamin Sachs, a professor of labor law at Harvard Law School. “Most of the court decisions have facilitated this development. This is a major move in the opposite direction.”

Last week, ride-sharing pioneer Uber announced it was settling a pair of major class-action lawsuits brought by Uber drivers in California and Massachusetts. The drivers claimed Uber had “misclassified” them as independent contractors, rather than employees, in order to save money. The suit was seen as one of the biggest threats to Uber’s business model to date...Benjamin Sachs, a labor law professor at Harvard Law School, said the drivers association could probably withstand an 8a2 charge if it didn’t have any real power in its dealings with Uber management. “If it’s just a substitute for a suggestion box, and if it’s not a meaningful back and forth, then it might escape 8a2 scrutiny,” Sachs said.