The United States Supreme Court is expected to issue rulings this month on three cases that could have a significant impact on employment across the country, including Kentucky and Indiana.One case that has been discussed on this blog, Burwell v. Hobby Lobby, involves whether a closed corporation can refuse to comply with the Affordable Care Act mandate that requires employers to provide health plans to their employees that include birth control coverage. The owners of Hobby Lobby, an Arkansas-based craft store chain, believe that all forms of birth control are “abortofacients” and that the birth control mandate imposes too great a burden on their free exercise of religion. Until this point, the only institutions exempt from the birth control mandate have been religious institutions, not private companies.
Hobby Lobby asks the question of whether corporations can have “religious beliefs,” even closed corporations. Furthermore, what does it say if the Supreme Court allows private employers to always exercise their religious beliefs at the expense of their employees’ beliefs? Is it fair for an employer’s freedom of religion to outweigh the employee’s?
In addition to this case, there are two others that could potentially undermine the strength of unions and the National Labor Relations Board (NLRB). In National Labor Relations Board v. Noel Canning, the Supreme Court will decide whether the President can continue to make temporary appointments while the Senate is at recess. It is a power that Presidents have used for a wide variety of matters. President Obama used the recess appointment power to appoint new members to the NLRB, since his efforts to do so while the Senate was in session were stymied by a Republican-led filibuster. Many Senators had an interest in keeping the NLRB understaffed, so that it could not make decisions that (very likely) punished or restricted employer abuses.
After the NLRB, including the two recess appointments, voted to uphold a union contract in a dispute with Noel Canning, Noel Canning appealed. One of the arguments given was that the Senate was not officially in recess, since Republican Senators kept holding pro forma sessions every few days. If the Supreme Court votes narrowly to strike down a President’s recess power, that could impact the future ability to fill NLRB membership seats in the face of a filibuster. In a worst-case scenario, a determined minority of Senators could therefore ensure that the NLRB is never fully staffed.
Finally, one anticipated case is Harris v. Quinn, or the question of whether unions can charge non-union members “agency fees” to ensure that non-union employees do not enjoy union-won benefits without any cost. Non-union employees that enjoy benefits without costs are often referred to as “free riders.” Should the Supreme Court rule against “agency fees,” that could spell the end of the “agency shop,” which has been a bedrock of labor and helped unions achieve significant gains. While past Supreme Courts have recognized the necessity of the agency fee, they have limited it to the cost of negotiating and administering collective bargaining agreements. In Harris v. Quinn, a group of non-union home care workers in Illinois have argued that all public agency shops should be unconstitutional on the basis of violating the First Amendment prohibition against compelling political speech. If the Supreme Court votes to get rid of agency fees, more workers will attempt to free ride on union workers’ benefits, and public sector unions will be severely weakened.
Miller & Falkner is an Indiana and Kentucky plaintiffs law firm serving residents of Kentucky and Indiana. Located in Louisville, Kentucky, the firm provides representation in the areas of personal injury and employment law. If you need a Kentucky or Indiana labor law attorney, contact us today for a free consultation.