Late last month, the Supreme Court announced that it would hear Janus v. AFSCME, a case that challenges public-sector unions’ right to collect fees from nonmembers. Such “fair share” fees have been a legal bedrock of labor unions since the Supreme Court’s 1977 ruling in Abood v. Detroit Board of Education. In Abood, the court held that unions could lawfully charge fees to non–union members to help offset the costs of “collective bargaining, contract administration, and grievance adjustment” from which all employees benefit, as long as the union does not use such fees for political purposes. Continue reading Slate: If the Supreme Court thinks nonmembers can’t be compelled to pay union fees, then unions can’t be compelled to represent nonmembers.
Local First Amendment scholar David L. Hudson, Jr. – an occasional guest contributor to this blog whose First Amendment resume rivals anyone alive (Ombudsman for the First Amendment Center, Legal Fellow for the Foundation for Individual Rights in Education, Professor of First Amendment Law at Vanderbilt Law School, etc.) – has penned an excellent piece over at Slate calling on U.S. Supreme Court Justice Anthony Kennedy to undo the damage of Garcetti v. Ceballos—one of the worst First Amendment decisions in the Supreme Court’s modern history.
Decided in 2006, the Supreme Court’s contentious 5-4 decision in Garcetti upended previously settled law regarding the First Amendment rights of public employees. The Court’s majority opinion—authored by Justice Kennedy—stands for the general proposition that even if public employees are exposing governmental misconduct or speaking about matters of unquestioned public importance, they have no First Amendment protection whatsoever for any speech made pursuant to their official duties. As Hudson explains:
“In Garcetti, the Supreme Court created a categorical rule: ‘When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.'”
The consequences of Garcetti have been devastating, falling particularly hard on whistleblowers and other public employees who have sought to expose official misconduct. Professor Hudson’s full piece (accessible here) is well worth the read, and for the public’s sake, one can only hope that Justice Kennedy will take notice.
Questions about this article? Email Daniel Horwitz at email@example.com.
By Daniel Horwitz:
“I firmly believe that we should have a wage that reflects what it really requires to live here [in Nashville] and that’s a [$9.51/hour] living wage,” then-candidate Megan Barry proclaimed last January during her campaign for Mayor. A few months later, her opponent, Bill Freeman, one-upped her. “I want to increase the minimum wage one dollar at a time, one year at a time, until we reach a $12 per hour minimum wage in Davidson County,” he announced, even airing a TV spot on the issue. “It’s long past time, and it’s the right thing to do.”
Raising the minimum wage is perhaps the single most popular economic policy proposal that exists in the United States today. According to recent polling on the issue, fully 92% of Democrats, 73% of Independents, and 53% of Republicans support raising the minimum wage from its current rate of $7.25 per hour to $12.50 per hour by 2020. Broadly considered: “Americans, regardless of region, socioeconomic status, or demographic distinction, strongly favor a very significant increase in the federal minimum wage,” pollster Guy Molyneux has explained.
In Tennessee, local support for raising the minimum wage is similarly palpable. As noted, Nashville Mayor Megan Barry has stated that she supports doing so. So, too, have several local officials in Chattanooga. Memphis officials have publicly supported a citywide minimum wage increase as well. Much to their chagrin, however, all agree that one major obstacle prevents them from carrying out their best laid plans: a 2013 state law that prohibits municipalities from raising the minimum wage above the federal baseline.
The unanimity of agreement on this point is striking. “Tennessee Code Annotated 50-2-112, restricts municipalities from setting a wage minimum above the state and federal minimums for companies with which it contracts,” explains the Times Free Press. “State law could thwart Councilman Lowery’s effort to boost Memphis minimum wage,” concurs the Commercial Appeal. And even as a candidate, Bill Freeman conceded the point. “[T]he Freeman campaign says [raising the minimum wage] would require the repeal of a statute enacted in 2013 that bans cities from requiring that contractors and vendors pay more than what’s required by federal law,” the Tennessean explained.
The only problem with this analysis, however, is that it’s wrong. In pertinent part, the 2013 law at issue actually provides as follows:
“Notwithstanding any charter, ordinance or resolution to the contrary, no local government, as a condition of doing business within the jurisdictional boundaries of the local government or contracting with the local government, has the authority to require a private employer to pay its employees a [sic] hourly wage in excess of the minimum hourly wage required to be paid by such employer under applicable federal or state law.”
To the discerning reader, this law contains a loophole (bolded above) large enough that a mack truck could drive through it sideways. Notice, specifically, how the law does not impose a categorical ban on a local minimum wage increase. Had the legislature intended to accomplish that result, then the law would have looked like this:
“Notwithstanding any charter, ordinance or resolution to the contrary, no local government has the authority to require a private employer to pay its employees an hourly wage in excess of the minimum hourly wage required to be paid by such employer under applicable federal or state law.”
Instead, the restriction contained in Tenn. Code Ann. § 50-2-112(a)(1) is significantly qualified. Under the express terms of its qualifier, nothing prevents a local government from raising the minimum wage so long as a private employer’s compliance with the local minimum wage increase is not required either: (1) “as a condition of doing business within the jurisdictional boundaries of the local government,” or (2) “as a condition of . . . contracting with the local government.” Imposing any other condition on a private employer for failing to comply with a minimum wage increase, however, is fair game. Thus, giving a company the option of either complying with a minimum wage increase or being met with some other type of condition (a higher licensing fee, a monetary penalty, a higher tax assessment, etc.) would not run afoul of Tenn. Code Ann. § 50-2-112(a)(1)’s limitations in any way.
In other words: if, for example, a company were forced to pay a monetary penalty for failing to comply with a local minimum wage increase—rather than being denied the right to do business or to contract with the local government—then there would be no conflict with Tenn. Code Ann. § 50-2-112(a)(1). In fact, that’s largely the way that the federal minimum wage law works. Under the Fair Labor Standards Act—which imposes a $7.25 per hour minimum wage on most businesses—a business that fails to pay its employees a $7.25 per hour minimum wage is (among other things) subject to a civil monetary penalty of up to $1,100 for each violation.
As a result, any city in Tennessee can mandate a local minimum wage increase tomorrow without fear. So long as the penalty for non-compliance isn’t denial of a business’s right to operate or to contract with the city, a local minimum wage increase would not be preempted.
The propriety of increasing the minimum wage, of course, is a separate issue. Economists disagree on whether increasing the minimum wage benefits the working poor. Additionally, legislators have several other proven anti-poverty tools—such as reducing reliance on regressive sales taxes and expanding the Earned Income Tax Credit—available at their disposal that ought to be considered as well. Whether municipalities in Tennessee are categorically prohibited from enacting a minimum wage law, however, is a far different question. They are not.
Questions about this article? Email Daniel Horwitz at firstname.lastname@example.org.
 Tenn. Code Ann. § 50-2-112(a)(1) (emphasis added).
 See 29 U.S.C.A. § 216 (“Any person who repeatedly or willfully violates section 206 or 207, relating to wages, shall be subject to a civil penalty not to exceed $1,100 for each such violation.”).
 Compare Economist Statement on the Federal Minimum Wage, Over 600 Economists Sign Letter In Support of $10.10 Minimum Wage, Economic Policy Institute, Jan. 14, 2014, available at http://www.epi.org/minimum-wage-statement/, with Richard V. Burkhauser and Joseph J. Sabia, Why Raising the Minimum Wage Is a Poor Way to Help the Working Poor: An Analysis of Senators Kerry and Kennedy’s Minimum Wage Proposal, Employment Policies Institute, July 2004, available at https://www.epionline.org/wp-content/studies/burkhauser_07-2004.pdf.
By Daniel Horwitz:
The past week has been a terrible one for victims of sexual harassment and domestic violence. Two high profile scandals—both involving elected officials—suggest that any number of Tennessee’s politicians have no qualms about leveraging their positions of power to harass, abuse and intimidate women. The first scandal involves allegations that State Representative Jeremy Durham—a member of the Republican leadership until just a few days ago—sexually harassed legislative staff and interns repeatedly and without hesitation. The second involves allegations that Nashville Metro Councilmember Loniel Greene—who resigned his seat last night effective immediately—used his position as a public official to intimidate a victim of domestic violence. According to a recorded phone call, Greene threatened a woman who had reported a domestic violence incident, stating: “Bitch, I’m smarter than you. You try to play the system, motherfucker I am the system.” After stating that “she’s going to have to be shut down,” Councilman Greene then “work[ed] on” the alleged victim in an attempt to silence her.
The response to these allegations from other elected officials was tepid at best. For example, in an utterly tone-deaf statement that placed responsibility for Representative Durham’s alleged sexual harassment squarely on the shoulders of those who were believed to have been the victims of it, House Speaker Beth Harwell announced that: “I have instructed the Director of the Internship program that interns are not to attend receptions or events related to the legislature, and they are not to give their cell phone numbers to members.” The response to Councilman Greene’s scandal was similarly listless. Prior to his resignation, exactly two out of forty total Metro Councilmembers—Councilman Bob Mendes and Councilman Jeremy Elrod—condemned the allegations, while the Mayor suggested that Councilman Greene should consider resigning because the allegations could “becom[e] a distraction.”
“The YWCA of Nashville & Middle Tennessee is appalled at news accounts of a current domestic violence case involving a newly elected Metro Councilman. How is it that persons in positions of power in Nashville are able to misuse that power to silence victims? How is it that processes, put in place to protect victims, are not followed? These patriarchal behaviors raise serious questions about whether we are able to trust the systems set up to protect victims.
As advocates, we are constantly asked ‘why women do not report abuse; why women will not prosecute; why women cannot just leave.’ This recent high profile incident provides a perfect example of why victims don’t, won’t, and can’t. We want Nashville to be a place where all of our leaders work to make Nashville safer for victims of domestic violence, not more dangerous. ”
Added Sara Beth Myers of AWAKE (Advocates for Women’s and Kids’ Equality):
“Tennesseans should be confident in our laws that protect victims of harassment both in the civil and criminal context. The offices of our state and local elected officials should be paragons of professionalism and transparency, setting an example for every other workplace in Tennessee. In a state in which women are so underrepresented in our legislature, lawmakers and policymakers should be especially deliberate about interacting with their female colleagues both legally and respectfully. The past week’s events revealed a situation in our government that we should all deem unacceptable.”
The presumption of innocence is obviously of paramount importance and should not be discounted. As such, pending the outcome of formal legal proceedings against Representative Durham and former Councilman Greene, those who have resisted making public condemnations are entitled to the benefit of the doubt. Elected officials’ collective disregard for the alleged victims of these incidents, however, is far more difficult to explain. Protecting victims of harassment and domestic violence and protecting the presumption of innocence are not incompatible concepts. A legal system that fails to do both at once holds little value.
To be absolutely clear at a time when too many elected officials haven’t been: victims are not responsible for being sexually harassed, beaten, or intimidated. Sexual harassment is illegal. Domestic violence is illegal. Intimidating a victim of domestic violence is illegal. Retaliating against a victim who reports being abused is illegal. All such acts are despicable. None should ever be tolerated.
The law protects victims of harassment, violence and abuse. If you have been victimized, resources are available to help you. If you’re in danger, you can reach the YWCA’s 24-hour crisis and information line at (615) 242-1199 or toll free 1-800-334-4628. The Legal Aid Society of Middle Tennessee and the Cumberlands has free lawyers available to help those who have been victims of domestic violence, including providing free divorce services and helping victims obtain orders of protection. The District Attorney’s Office has a Victim Witness Services Division that is exclusively dedicated to helping victims navigate the legal system. The Tennessee Coalition to End Domestic and Sexual Violence makes a multitude of free resources available to victims of domestic violence and sexual abuse. Many employment lawyers, although they are not free, will take sexual harassment cases on a contingency basis. All of these resources exist to help empower victims and stop the cycle of abuse.
It is also important to shed light on the many existing policy shortcomings that need fixing. Although late in coming, legislative leaders have already acknowledged that the General Assembly’s current sexual harassment policy needs to be overhauled, because “staffers and others who are regularly at the Capitol do not feel comfortable coming forward.” Sadly, the same is often true of the criminal justice system. In many instances, for example, the names of victims of domestic and sexual violence are made publicly accessible on arrest warrants, which discourages a significant number of victims from reporting. There is also a pending dispute in the Tennessee Supreme Court over whether victims’ private, personal information becomes a public record under Tennessee law once their records have been turned over to law enforcement. On behalf of several domestic and sexual violence prevention advocates who participated in the case as amici curiae, the author has argued that it does not, but the Tennessee Supreme Court will have the final say. Additionally, the legislature’s failure to adapt to modern forms of harassment has left a void in victims’ protection against abuses such as non-consensual pornography—otherwise known as “revenge porn”—and harassment via electronic media, such as text messages and facebook.
These shortcomings certainly need to be corrected. While that happens, however, don’t wait. The law protects victims of sexual harassment and domestic violence, even when elected officials do not. If you need help, help is available.
Questions about this article? Email Daniel Horwitz at email@example.com.
 In the interest of full disclosure, the author is a member of the YWCA’s Board of Directors.
After being accused of sexually harassing a city clerk, Mr. David Young – then the city administrator for the City of LaFollette – was fired by a majority vote of the LaFollette City Council. Thereafter, Mr. Young sued the City in Circuit Court for retaliatory discharge under the Tennessee Public Protection Act. In his complaint, Mr. Young requested a jury trial, which the City opposed. Ultimately, the dispute over whether Mr. Young was entitled to a jury trial was appealed to the Tennessee Supreme Court. After considering several disparate constitutional and statutory provisions, the court concluded that Mr. Young had neither a constitutional nor a statutory right to have his case tried by a jury, and thus, his request for a trial by jury was denied.
Initially, the City argued that the Government Tort Liability Act (GTLA) expressly precluded a right to trial by jury. The GTLA specifically states that claims brought under its provisions shall be tried “without the intervention of a jury.” According to the court, however, the Tennessee Public Protection Act is “an independent statute which establishes its own rights and remedies apart from the procedures that apply under the GTLA.” Thus, the GTLA’s prohibition against jury trials did not apply.
Separately, the Tennessee Constitution expressly includes a right to trial by jury. Specifically, Tenn. Const. art. I, § 6 provides that “the right of trial by jury shall remain inviolate[.]” Notwithstanding this apparent clarity, however, the Tennessee Supreme Court has held repeatedly that art. I, § 6 only provides a narrow right to trial by jury for claims that “existed at common law.” Incongruously, in practical terms, this means that the Tennessee Constitution only guarantees a right to trial by jury for claims that existed “under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796.” In this particular case, because the Tennessee Public Protection Act “was enacted by the Tennessee Legislature in 1990, almost two hundred years after the adoption of the first Tennessee Constitution,” the court explained that art. I, § 6 did not apply to Mr. Young’s retaliatory discharge claim, either.
Can a business refuse to hire you solely because you’ve previously filed a workers’ compensation claim? According to the Tennessee Supreme Court, the answer is yes.
In Yardley v. Hospital Housekeeping Systems, the Tennessee Supreme Court accepted a certified question of law to determine whether the Tennessee Workers’ Compensation Act prohibits employers from refusing to hire a prospective employee solely because he or she “had filed, or is likely to file, a workers’ compensation claim incurred while working for a previous employer.” In some states, discrimination of this sort is unlawful and gives rise to a claim for “retaliatory failure to hire.” In an opinion authored by Chief Justice Sharon Lee, however, the Tennessee Supreme Court held that under Tennessee law, this practice is legal.
In 2010, Kighwaunda Yardley, a hospital housekeeping employee, was hurt on the job and began receiving workers’ compensation benefits. She received treatment and continued performing “light duty work” for her employer until 2012, with the expectation that when she fully recovered from her injury, she would return to her job as a housekeeping aide.
Unfortunately for Ms. Yardley, in 2012, her job was outsourced to a separate company (“the New Company”). The New Company re-hired most of the hospital’s housekeeping staff, but it declined to hire Ms. Yardley. An internal email sent by the New Company’s Vice President revealed that he had written that Ms. Yardley had: “been out on Workers’ Comp with the hospital long before the [New] Company’s arrival,” that her shoulder was hurting her again, and that “bringing her on board with the [New] Company would seem to be a Workers’ Comp claim waiting to happen.” The New Company’s Vice President also stated internally that he: “would advise against hiring Ms. Yardley IF we have that option.” After she was not hired, Ms. Yardley sued the New Company for retaliatory failure to hire.