Benjamin Sachs

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.

Is Supreme Court nominee Merrick Garland a judicial progressive or a moderate? One way to judge is to look at his many opinions that defer to administrative agencies and that are a hallmark of his jurisprudence during his nearly 20 years on the D.C. Circuit Court of Appeals. In disputes over union power, his opinions nearly always benefit unions. According to the onlabor.org website, which is run by Harvard Law professors Benjamin Sachs and Jack Goldsmith, Judge Garland wrote the majority opinion in 22 cases that considered appeals of decisions made by the National Labor Relations Board. In 18 of these decisions, Judge Garland sided with the NLRB’s judgment against a company for unfair labor practices. In all of those cases, the blog notes, “deference to the NLRB has had favorable consequences for labor and unions.”

“We can either have democracy in this country or we can have great wealth concentrated in the hands of a few, but we can’t have both,” Associate Supreme Court Justice Louis Brandeis said decades ago during another period of pronounced inequality in America. Echoing the concern of the Harvard Law School (HLS) graduate, over the past 30 years myriad forces have battered the United States’ legendary reputation as the world’s “land of opportunity.” The 2008 global economic meltdown that eventually bailed out Wall Street financiers but left ordinary citizens to fend for themselves trained a spotlight on the unfairness of fiscal inequality. The issue gained traction during the Occupy Wall Street protest movement in 2011 and during the successful U.S. Senate campaign of former HLS Professor Elizabeth Warren in 2012...“Money has corrupted our political process,” said Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at HLS. In Congress, he said, “They focus too much on the tiny slice, 1 percent, who are funding elections. In the current election cycle [as of October], 158 families have given half the money to candidates. That’s a banana republic democracy; that’s not an American democracy.”...Though labor rights have been eroding for decades, Benjamin Sachs, the Kestnbaum Professor of Labor and Industry at HLS, still thinks that unions could provide an unusual way to help equalize political power nationally...To restore some balance, Sachs suggests “unbundling” unions’ political and economic activities, allowing them to serve as political organizing vehicles for low- and middle-income Americans, even those whom a union may not represent for collective bargaining purposes.

The Labor Department on Wednesday waded deeper into the contentious issue of joint employment, seeking to clarify who is accountable for violations of employment laws when two different entities, like a manufacturer and a staffing agency, both have ties to the same worker...Conversely, plaintiffs’ lawyers may find the interpretation helpful when litigating cases. “You have a document you can present in court,” said Benjamin I. Sachs, a professor of labor and employment law at Harvard Law School. “You can say the administrator of the wage and hour division sees it this way.”

The Citizens United decision, which amplified the role of money in American politics, also promised something like a level playing field. Both corporations and unions, it said, could spend what they liked to support their favored candidates. But last week’s arguments in a major challenge to public unions illuminated a gap in the Supreme Court’s treatment of capital and labor. The court has long allowed workers to refuse to finance unions’ political activities. But shareholders have no comparable right to refuse to pay for corporate political speech. At the arguments in the case, Friedrichs v. California Teachers Association, No. 14-915, the justices seemed poised to widen that gap by allowing government workers to refuse to support unions’ collective bargaining activities, too. The case should prompt a new look at whether the differing treatment of unions and corporations is justified, said Benjamin I. Sachs, a law professor at Harvard. “If we’re going to make this opt-out right for workers more and more muscular, which is what is going to happen with Friedrichs,” he said, “the question of symmetrical treatment of shareholders just becomes that much more important.”

A U.S. Supreme Court case set for argument Monday challenging powerful public-sector unions echoes a very different dispute: The recent battle over gay marriage. The legal fight pits a small group of teachers and the Christian Educators Association International (CEAI) against the influential California Teachers Association, a union with 325,000 members and a history of backing liberal political causes. ... If the plaintiffs win, Benjamin Sachs, a professor at Harvard Law School, said he would expect to see more workers stop paying for union representation. "That would create a profound free-rider problem for all public unions," he said.

...The hype’s been building for decades now: The robots will be like legions of outsourced Indian workers — smarter than you, cheaper and with kickass work ethics too. An Oxford University study in 2013 suggested that the automation of more and more work, from accounting clerks to the C-suite, could wreak havoc on nearly half of all American jobs in the coming decades...Nobody yet knows the contours of the looming labor upheaval. Experts debate how long it will take for automation to hit its stride and really start kicking us all in the nuts, the scope of its impact, even how many jobs will be lost and how many might be gained. But some among them argue that it’s not too early to think about what exactly the world will need to do when the great hiccup does come around. “There are a host of policy responses” that could address the looming transition, says Benjamin Sachs, professor of labor law at Harvard Law School, “none of which are easy — or modest.”

For roughly the first two years of its existence, Munchery, an on-demand food preparation and delivery service, classified its drivers as independent contractors. They were not covered by minimum wage and overtime laws, and were not eligible for unemployment insurance or workers’ compensation. Then, in 2013, it reversed course and made its drivers full-blown employees. In addition to those various protections, they received health benefits if they worked at least 30 hours per week. The about-face suggests an ambiguity in the status of workers at Munchery and other on-demand companies like the car-hailing services Uber and Lyft...But even these hard cases often are not necessarily as hard as they initially appear. Benjamin I. Sachs, a Harvard law professor who is a former union official, notes that the drivers may only need to be paid from the point at which they have agreed to pick up a particular rider.