Here's What The Post-Scalia Supreme Court Means For Workers

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The death of Supreme Court Justice Antonin Scalia will have far-reaching implications for working people, especially public sector, home care, and undocumented workers. Here's a look at upcoming cases before the court, cases making their way through lower courts — which may now be dropped — and cases that could be open to re-examination if the court's balance of power shifts.

Public Sector Unions: Friedrichs v. CTA

The case with the most potentially devastating repercussions for organized labor is Friedrichs v. California Teachers Association, for which oral arguments have already been heard by the Supreme Court.

The case will determine whether public-sector unions have a right to collect fees from non-members for costs related to bargaining contracts, and the court had been poised to rule against the California Teachers Association in a 5-4 decision, effectively gutting unions financially. Without Scalia, the justices are likely split 4-4, and the tie could send the case back to the 9th Circuit Court of Appeals. The circuit previously ruled to maintain the status quo, which would be a reprieve for unions.

Cases in the works

The conservative National Right to Work Legal Defense Foundation has been backing cases moving through the lower courts with a plan to build on the presumed victory in the Friedrichs case. Some of those cases, which had been headed for Supreme Court, may now struggle to win over a court evenly split between liberal and conservative judges, according to labor law scholars.

Home Care Workers: D'Agnostino v. Baker

At issue in D’Agnostino v. Baker, now on its way to the second circuit, is the question of whether healthcare worker unions can bargain on behalf of home-care workers who aren't members, who would otherwise benefit from union-negotiated contracts. Because so many home care workers are publicly employed by government-run Medicare and Medicaid programs, the case runs along similar lines of arguments as Friedrichs, dealing with First Amendment rights to free speech. (The Court previously decided, in Harris v. Quinn, that home care workers cannot be required to pay agency fees.)

Without Scalia, whose vote would likely have decided against the union's right to represent non-members, conservative backers may choose not to waste resources appealing all to the Supreme Court, writes labor lawyer and Century Foundation analyst Moshe Marvit.

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Marvit says that other cases addressing the membership structures of unions, such as Bain v. CTA, could also be dropped by their conservative backers, unless the court regains a conservative majority with the next appointee.

"Businesses and conservative groups are hesitating to appeal their cases to the Supreme Court,” Marvit told BuzzFeed News, citing Dow Chemical and a guns rights group that have so far chosen not to appeal major cases. And Marvit said he "can imagine right-to-work and other conservative labor/employment groups taking this tack.”

Cases that could be re-examined

Scalia and the conservative majority have also had a profound affect on labor law in a large number of 5-4 decisions that progressive groups will likely want re-examined, should the balance of the court shift, as Catherine Fisk, Professor of Law at UC Irvine School of Law, has noted.

Who is a supervisor?

Two Supreme Court decisions dealing with the definition of supervisors were decided 5-4, with Justice Scalia in the majority, both of which restricted the category of workers eligible to unionize. A third reduced the liability of employers for harassment by workers who may have some supervisory duties.

The National Labor Relations Board

A 2010 case held that the NLRB cannot act without three members. Since board positions require Senate confirmation, the ruling had the effect of putting the board's powers at the mercy of the Senate majority — or a Senate minority willing to block appointments.

Rights for undocumented workers

A 2002 case decided, 5-4, that undocumented workers are not entitled to full protections and rights under the National Labor Relations Act.

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Arbitration clauses

With Scalia in the majority, the court also ruled in 2001 to enforce mandatory arbitration agreements for workers, a process that can prevent workers from seeking a hearing before a court. In a series of decisions since then, the Court expanded its support for these types of contracts, despite the fact that scholars have "almost uniformly condemned" these mandatory agreements, according to Fisk.

Academics have found "the Court’s interpretation of the Federal Arbitration Act is inconsistent with the language and history of the statute and that enforcing arbitration agreements that effectively preclude vindication of claims is a perversion of arbitration," she wrote for On Labor.

The New York Times recently ran a series on the spread and consequences of arbitration agreements, citing Scalia's role in determining that arbitration clauses could forbid class action lawsuits "even if a class action was the only realistic way to bring a case."

Class action lawsuits

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Justice Scalia was also instrumental in making it more difficult for employees and consumers to bring class action suits against companies. In a 2011 class action suit by female Walmart workers, he wrote in an opinion that the employees in question did not have sufficient "questions of law or fact common to the class" to proceed in a suit dealing with pay and promotional gender disparities, because they could not show “a common answer to the crucial question, why was I disfavored?”

The case didn't proceed far enough to look at whether the group of women, representing Walmart's 1.5 million female employees, experienced discrimination by the retailer — merely that they could not proceed as a class, setting precedent for similar cases by workers suing for redress from employers.

Here's everything you need to know about that nomination process for Scalia's replacement.