December 2014 Archives

           In the midst of these profound problems, the Christmas Season summons to put our aside despair, cynicism and pessimism over the present course of events and to embrace a message of hope and the possibility of radical change. The Christmas narrative describes the birth of a child to a humble carpenter and a loving mother who, by the singular power of his example and his message, was able to craft a demand for universal justice encompassing all of humanity that resonates to the present.     

          In this Christmas Season in particular, we should also be inspired by the example of a humble Argentine Jesuit who has no army and no political power, but who is able to lead by the power of his moral example. From his demand for unconditional love to his insistence upon peace and religious toleration, the Pope Francis has sought to reach out to all people of good will.

             In a meeting with journalists on March 16, 2013, Pope Francis announced that he would bless them silently, "Given that many of you do not belong to the Catholic Church, and others are not believers." In a papal address a week later, while he decried the "attempt to eliminate God and the Divine from the horizon of humanity," he offered this comment about nonbelievers: "[W]e also sense our closeness to all those men and women who, although not identifying themselves as followers of any religious tradition, are nonetheless searching for truth, goodness and beauty, the truth, goodness and beauty of God. They are our valued allies in the commitment to defending human dignity, in building a peaceful coexistence between peoples and in safeguarding and caring for creation."

           On December 13, 2013, in his Apostolic Exhortation, Evangelii Gaudium ("Joy of the Gospel"), Pope Francis restated the historic essence of Catholic social philosophy as he called upon people of good will everywhere, believers  and non-believers alike, to work for a better, more just world. The Pope proclaimed that "The great danger in today's world, pervaded as it is by consumerism, is the desolation and anguish born of a complacent yet covetous heart, the feverish pursuit of frivolous pleasures, and a blunted conscience. Whenever our interior life becomes caught up in its own interests and concerns, there is no longer room for others, no place for the poor. God's voice is no longer heard, the quiet joy of his love is no longer felt, and the desire to do good fades."

          In unequivocal terms, the pope condemned the free market ideology that has become the conventional wisdom of this post-modern world: "Just as the commandment 'Thou shalt not kill' sets a clear limit in order to safeguard the value of human life, today we also have to say 'thou shalt not' to an economy of exclusion and inequality. Such an economy kills. How can it be that it is not a news item when an elderly homeless person dies of exposure, but it is news when the stock market loses two points? This is a case of exclusion. Can we continue to stand by when food is thrown away while people are starving? This is a case of inequality. Today everything comes under the laws of competition and the survival of the fittest, where the powerful feed upon the powerless. As a consequence, masses of people find themselves excluded and marginalized: without work, without possibilities, without any means of escape." 

         The pope continued his lament that, "Human beings are themselves considered consumer goods to be used and then discarded. We have created a 'disposable' culture which is now spreading. It is no longer simply about exploitation and oppression, but something new. Exclusion ultimately has to do with what it means to be a part of the society in which we live; those excluded are no longer society's underside or its fringes or its disenfranchised - they are no longer even a part of it. The excluded are not the 'exploited' but the outcast, the 'leftovers.'"

          Pope Francis' call for social justice is profoundly conservative, but to the tone deaf, it sounds far too radical. He has reminded all of us that the status quo is no longer acceptable because it is incompatible with human dignity. Those who seek to know the truth of the human condition will acknowledge this basic proposition. By contrast, the clamor and indignation of the critics and naysayers are solely calculated to vindicate the status-quo irrespective of the suffering and misery it has spawned.         

          The Gospel of Matthew admonishes us, "To whom much is given, much is expected in return" and "What you did for the least of my brothers, you did for me."

          This Christmas, people of good will everywhere might commit themselves to the message of Pope Francis who insists that our collective capacity to promote social justice is greater than the sum of reckless individuals and feckless, unresponsive institutions that all too often pursue only their own short-term, selfish objectives. An added but equally important imperative is his insistence that we need to understand that we ourselves are the only instruments who can bring about the change that is so urgently needed.   

          The record before the court showed that the class of employees who brought suit under the federal Fair Labor Standards Act of 1938  (FLSA) were routinely required to submit  to security inspections  and screenings that amounted to "roughly  25 minutes per day" after they had checked out but before they could go home. The employees alleged that the screenings were conducted "to prevent employee theft" and they were intended solely "for the benefit of the employers and their customers." The additional uncompensated time, based upon a five day work week, amounted to an additional 6.8 hours at the workplace each week.

             In proceedings below, the U.S. District Court for Nevada dismissed the complaint of the employees for a purported failure to state a claim under Fed. Rule Civ. Procedure 12. The court held that "the time spent waiting for and undergoing security screenings was not compensable under FLSA" because the employees could not show that the screenings were an indispensable and principal part of the activities that the employees were required to perform."

          The United States Court of Appeals for the Ninth Circuit reversed the district court's decision, finding that "postshift activities that would ordinarily be classified as noncompensable postliminary activities are nevertheless compensable as integral and indispensable to an employee's principle activities if postshift activities are necessary to the principal work performed and done for the benefit of the employer," as the record before the court showed.

             Inexcusably, the Obama administration - despite the consistent support that it has received from organized labor - supported the employer's appeal and urged that the decision of the Ninth Circuit Court of Appeals be reversed.

               Writing on behalf of court, Justice Thomas disagreed with the Court of Appeals. In an extensive and tortured exegesis of the language of the Portal-to-Portal amendments to the Fair Labor Standards Act that were passed by a Republican-controlled Congress in 1947 to exempt employers from liability for future claims for "activities which are preliminary to or postliminary to said activities or principles." Thomas insisted that question was the sole issue before the court.

             Not surprisingly, given his narrow definition of what he and the other eight judges agreed was the sole issue before the court, Thomas opined that "the security screenings at issue here are noncompensable postliminary activities" because "Integrity Staffing did not employ its workers to undergo screenings" and that the "screenings were not integral and indispensable"' to the employees' duties as warehouse workers.  Left unanswered were the obvious questions: What would have happened if the employees refused to wait for the screenings and insisted upon their right to go home immediately after they finished work? Would they still be employed the next day?

              The American legal system has long been a captive of the powerful, the wealthy and the well-connected, and almost uniformly hostile to unions and to the rights of workers. Throughout the nineteenth century most state courts treated labor unions and strikes as illegal conspiracies in restraint of trade.

             With the enactment of the National Labor Relations Act in 1935, the right of all workers "to organize and bargain collectively through representatives of their own choosing" was pronounced for the first time to be national public policy. Other New Deal legislation included the Walsh-Healey Government Contracts Act, which required the payment of prevailing wages on government contracts in excess of $10,000; the Railroad Retirement Act; and the Fair Labor Standards Act, which provided for the first time, with certain exceptions, a nationwide minimum wage floor and maximum workweek of 40 hours per week within three years of its enactment date.

             Since the 1940s, however, the American labor movement has been forced into retreat. After the death of Franklin Roosevelt and the election of a Republican Congress in 1946, the rights of workers have been continuously under siege. The first great success of New Deal critics was achieved with the enactment of the Taft-Hartley Act in 1947, an act that was passed over President Truman's veto. The effect of that legislation was to outlaw "closed shops" and to permit individual states to allow "open shops" - i.e. shops in which elected unions could not require all of the employees to belong to the unions, irrespective of whether the non-union employees also received and enjoyed the benefits of collective bargaining.

             As a result of that Taft-Hartley Act, corporations began an inevitable migration to the South where welcoming state legislatures hastily enacted "right-to-work" laws. The migration of these manufacturing companies away from the unionized urban centers of the Midwest and North left hundreds of mill towns impoverished and desolate, and the union movement was effectively eviscerated. Thereafter, it did not take long for the owners of corporations to discover that, once they had escaped from the threat of unionization, they could also escape almost all government regulation by moving their businesses and manufacturing operations out of the United States to low-wage countries in the Third World.

             Since the advent of the Reagan administration, the assault upon the rights of unions and employees has accelerated. The Democratic administrations of Bill Clinton and Barack Obama have been equally culpable as reflected in the former's support for NAFTA and the latter's endorsement of the proposed TransPacific Partnership Agreement. They, too, have been uncritical supporters of the myth that "free trade" is somehow a positive good for the economy, despite all of the evidence that shows that out-sourcing has been an unmitigated disaster for American workers and has created soaring trade deficits that converted the United States from an exporting country to a net importer increasingly dependent upon foreign goods.   

            Because of pervasive hostility to unions and the demise of organized labor as a movement, the American workplace is increasingly governed by the nineteenth century doctrine of employment-at-will. The doctrine of at-will employment is a legal fiction that was created by state courts during this country's first Gilded Age in an era. The doctrine repudiated the long-standing presumption set down by Blackstone in his Commentaries that any indefinite employment contract was for one year. Forty-nine states - with the exception of Montana (which has abolished at-will employment by statute) - still subscribe to that legal concept.

             The legal fiction of at-will employment essentially posits an equality of bargaining power between individual employers and employees: Each is free to accept or reject employment, resign or be fired without cause or restriction. However, since employers in "union-free" environments are legally permitted to unilaterally impose, almost without restriction, whatever conditions of work they require as to hours, compensation, and often restrictions on re-employment after discharge in the form of non-competition agreements, the relationship is most often one of inequality in which the employees are burdened and the employers benefited.

              The market-based paradigm upon which at-will employment is based continues to inform and control public policy decisions. It has also further exacerbated the increasing economic inequality, destroyed the livelihoods of American employees and made the American Dream to a cruel hoax for everyone except the1%.

             Historically, those nominated as justices to the Supreme Court, with precious few exceptions, have had little experience litigating cases on behalf of employees or fighting for the rights of the downtrodden. With one or two exceptions, this is true of the current court. In addition, as graduates of elite law schools, with successful prior careers in the private and public sectors, Supreme Court justices have cultivated scores of influential and well-heeled friends and acquaintances over the years whose values they share. One also suspects that they have never forced to stand in a line to purchase concert tickets or have ever shopped at Wall-Mart. 

             For their efforts, the eight associate justices are paid $213,000 per annum; the chief justice receives a salary $223,500. The justices enjoy life tenure for good behavior; their pensions will never be lower than their exiting salary should they choose to retire; they enjoy the same generous healthcare available to all federal employees; they have opportunities to travel to all judicial districts throughout the United States and its overseas territories at taxpayer expense; and they enjoy a minimum of 3 full months of vacation each year. For those reasons, the chasm between the nine judges in the court and the hard-scrabble hourly employees who toil for Amazon in its warehouses is vast, but is it asking too much to expect a little empathy? 

              Sadly, the unanimous decision of the United States Supreme Court in this case is further evidence that all nine of the judges are tone deaf, oblivious to the existence of economic and legal inequality, and unable to articulate a vision of justice that does more than comfort the already comfortable and afflict the already sorely afflicted. 

             Merry Christmas from the Supreme Court.