Saturday, May 28, 2016

"Berning" the High Court: Suggestions for Samders' Nominees

(To be published in Law360)... Bernie Sanders has not yet named his nominees for the Supreme Court. But given his increasingly parallel track with Donald Trump, here’s thinking ahead on possible Sanders nominees. The main criterion for this short list is the apparently pro-worker tilt of these judges—a tilt that could endear them to a candidate who speaks loudly for a $15 an hour minimum wage. As in my earlier column for Trump, I offer disclaimers. First, I don’t plan to vote for Sanders. In addition, this sample is not scientific—not even close. But it offers food for thought—and to a degree, it shows how courts today are pushing back on corporate work models that cut costs to the bone and erode traditional employment. I selected judges on the basis of recent pro-worker rulings, surmising that Sanders might go down this path.
Judge Edward Chen, U.S. District Court, Northern District, California: This judge’s lengthy ruling in O’Connor v. Uber Technologies, Inc., 82 F.Supp.3d 1133 (N.D. Cal. 2015), is pivotal in the current wave of litigation that challenges Uber’s model of using independent contractors for ridesharing. This ruling denied Uber’s summary judgment motion regarding the firm’s view that drivers are not employees. Sanders would probably like Judge Chen’s take-down of Uber’s position that it is not really a transportation company. The judge said, to the contrary and with considerable spitfire: “Uber engineered a software method to connect drivers with passengers, but this is merely one instrumentality used in the context of its larger business. Uber does not simply sell software; it sells rides. Uber is no more a ‘technology company’ than Yellow Cab is a ‘technology company’ because it uses CB radios to dispatch taxi cabs, John Deere is a ‘technology company’ because it uses computers and robots to manufacture lawn mowers, or Domino Sugar is a ‘technology company’ because it uses modern irrigation techniques to grow its sugar cane. Indeed, very few (if any) firms are not technology companies if one focuses solely on how they create or distribute their products.”
In contrast to Donald Trump, whose ideology changes with his current audience, Sanders is a rigid and strident ideologue. There is no indication that Judge Chen is similarly aligned; however, his unrestrained and overly-exuberant rejection of Uber Technologies’ silly argument would indicate the kind of judicial temperament suitable for a Sanders nomination.
Judge Claudia Wilken, U.S. District Court, Northern District, California: For context, courts have begun to tiptoe into the vocabulary of “athletic labor” when ruling on claims by NCAA players (for more, see my Arizona Law Review article, “Courts and the Future of ‘Athletic Labor’ in College Sports,” http://arizonalawreview.org/courts-and-the-future-of-athletic-labor-in-college-sports/). In 2014, Judge Wilken ruled for former UCLA basketball star, Ed O’Bannon, and his class action co-plaintiffs. At issue was the widespread commercial exploitation by NCAA schools of athletes’ images and likenesses without sharing the wealth with players. The NCAA’s position was indefensibly greedy and hypocritical, grounded in the idea that these players were student athletes whose receipt of licensing revenues would spoil their amateur status.
Sanders might like Judge Wilken’s completely arbitrary award of damages to NCAA athletes. She ordered the NCAA to pay each player up to $5,000 per year. Sanders might also like the rough-justice approach taken by Judge Wilken. She pulled that figure from a brief interchange during plaintiffs’ cross-examination of one of the NCAA’s witnesses. Under oath, Neal Pilson, a television sports consultant formerly employed at CBS, made the unremarkable statement, “if you’re paid for your performance, you’re not an amateur.” He was pressed on cross exam to guess the NIL (name-image-likeness) value for NCAA student athletes. After declining to guess several times, he caved and said: “I tell you that a million dollars would trouble me and $5,000 wouldn’t, but that’s a pretty good range.”
The Ninth Circuit— a court that tilts in favor of employees— overturned this key part of Judge Wilken’s ruling.  But to Bernie Sanders, results trump process; and so, a judge who wildly guesses at damages in a way that transfers billions of dollars from a big, bad monopoly to oppressed college athletes would be a plus for Judge Wilken.
Justice Mary Kristina Pickering, Nevada Supreme Court: Justice Pickering wrote a carefully reasoned and exhaustively researched opinion in Terry v. Sapphire Gentlemen’s Club, 336 P.3d 951 (2014). I admit, I like the ruling; and I feature it in my forthcoming article, “Bare Minimum: Stripping Pay for Independent Contractors in the Share Economy,” in the Journal of Women and the Law (2017). Strip clubs are more abusive to women than people realize. Clubs eschew employment in favor of independent contracting with dancers. They pay no wages or benefits; patrons pay dancers with fees and tips. But clubs extract entry fees to work; require renting of dressing rooms and stage time; and compel tip-sharing with DJs, emcees, house moms, bouncers and bartenders. By transmuting employment into tenant and contractor relationships, clubs monetize a dancer’s labor into phony assets that pay for her co-workers.
Sapphire Gentlemen’s Club is the largest of its kind in the U.S., and employs— or contracts with, in their view— 6,600 dancers. Justice Pickering’s opinion found that the dancers were employees, not contractors, under state wage and hour laws. Unless you own and operate one of these clubs, you’re likely to agree with Justice Pickering.
But it’s Justice Pickering’s expansive language about safeguarding women from exploitation—all of it justified— that would make good campaign material for wooing women who support Hillary Clinton: “[T]his court is mindful that Sapphire’s supposed lack of control may actually reflect a framework of false autonomy that gives performers a coercive choice between accruing debt to the club or redrawing personal boundaries of consent and bodily integrity. Sapphire emphasizes that performers may choose not to dance on stage at Sapphire so long as they also choose to pay an optional off-stage fee, and similarly that a performer may choose not to dance for a patron she knows will pay with dance dollars, she may make that choice, though the performer may not ask that patron to pay in cash, and in making either choice the performers also risk taking a net loss for their shift. But by forcing them to make such choices, Sapphire is actually able to heavily monitor [the performers], including dictating their appearance, interactions with customers, work schedules and minute to minute movements when working, while ostensibly ceding control to them. This reality undermines Sapphire’s characterization of the choices it offers performers and the freedom it suggests that these choices allow them; the performers are, for all practical purposes, not on a pedestal, but in a cage.” That kind of language would broaden Sanders’ populist appeal.
Judge John Koetl, U.S. District Court, Southern District, New York: Judge Koetl graduated from Harvard Law in 1971, only seven years after Sanders graduated from the University of Chicago. Both men, however, are folk heroes to millennials. In a highly consequential ruling, Marshall v. UBS Financial Services, Inc., 2015 WL 4095232 (S.D.N.Y 2015), Judge Koetl dismissed the large bank’s argument for not paying student interns. Christopher Marshall worked two days each week, usually four to five hours per day, updating spreadsheets and cold-calling potential customers. He was not paid a dime for his work—and his work was not connected to academic credit. Judge Koetl’s recent ruling cleared the way for this wage and hour lawsuit to proceed.
Compared to other judges on the Sanders short list, Judge Koetl writes in a more restrained style. Still, this ruling shows enough glimpses of judicial populism: “Workers cannot choose whether to be covered under the FLSA, and thus, a worker’s expectations cannot determine eligibility for wage protection. Even if a worker vehemently protested protection under the FLSA, an employer would still be obligated to comply with its statutory obligations.”
Judge Susan Richard Nelson, U.S. District Court, Minnesota: Professional athletes have come to love this court because they win major rulings here as often as it snows. In Brady v. National Football League, 779 F.Supp.2d 992 (D.Minn. 2011), she ignored appellate rulings from around the country over the previous 20 years that turned back player antitrust lawsuits on grounds that the Sherman and Clayton Acts have a very broad exemption for collective bargaining relationships. In 2011, just as the CBA between the NFL and players union was set to expire, the players strategically de-authorized their labor union. This was to enable Tom Brady to be their lead, class action plaintiff—as a player, not as a union member— if and when the NFL locked out the players to extract concessions. A few hours later, the league did, in fact, impose a lockout.
The legal question was whether a collective bargaining relationship survived Tom Brady’s game of hide-and-seek. Playing along with peekaboo justice, Judge Nelson enjoined the NFL. Her logic and overwrought language, deployed in behalf of multi-millionaire football players pretending to be an oppressed group of workers, scores points for the Sanders litmus test. In her view, to “propose, as the NFL does, that a labor dispute extends indefinitely beyond the disclaimer of union representation is fraught with peril.” A few months later, the Eighth Circuit vacated her injunction— a ruling that paved the way to a quick settlement at the bargaining table. More recently, Judge Nelson ruled in favor of National Hockey League players, who alleged the league was negligent in failing to warn about the dangers of concussions. See In re National Hockey League Players’ Concussion Injury Litigation, 2016 WL 2901736 (D.Minn. 2016).

ASSESSMENT: Judges on this short-list ruled against monopolistic employers and financial behemoths— the NFL, NCAA, UBS, and Uber, not to mention the corporate colossus that runs strip shows. The O’Bannon ruling by Judge Wilken was nakedly redistributive, the kind of Robin Hood justice that qualifies for a seat on the Sanders Court. Others are much better grounded in law, and simply have the coincidental effect of putting large dents in corporate models that are designed to eviscerate traditional employment. Finally, the plaintiffs in these important and recent cases match key groups in the Sanders camp— college students, and also alienated workers who chafe at their phony status as “independent contractors,” believing, as these judges do, that they are really employees.

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