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Monday, August 29, 2022

NJ Employment Rights Attorney, NJ Employee Rights and Justice Ketanji Brown Jackson

Many persons have been wondering about their federal and state employment and collective bargaining rights. This was prompted in part by the Supreme Court’s recent Dobbs decision, where the Court overturned its own prior Roe v. Wade decision, which law had applied to all states. One Justice wrote the US Supreme Court should review other cases it had decided in the past to determine if they should be overturned, because he believed the legal precepts in these cases were “demonstrably erroneous.” He wrote, “As I have previously explained, ‘substantive due process” is an oxymoron that lacks any basis in the Constitution.”

During the Ketanji Brown Jackson confirmation hearings, some Senators stated their opinions that certain issues previously decided by the US Supreme Court could also be overturned and such legal issues be returned to the states for the individual states to decide them on a state-by-state basis. What concerns employee and civil rights advocates with this line of thinking is, if this were to happen, two employees who are doing the same type of work but reside in different states with different laws, could have drastically different legal rights depending on the laws where they reside, although all reside in the same country.

Justice Ketanji Brown Jackson has a long history of issuing fair and balanced judicial decisions in all matters before her, including those that affect employees’ rights and collective bargaining. In one such case prior to her being appointed to the US Supreme Court, Judge Jackson had to decide whether a President’s Orders were legitimate exercises of presidential authority.

In AFGE v. Trump, 318 F. Supp. 3d 370 filed August 25, 2018, Judge Ketanji Brown Jackson heard the case in United States District Court for the District of Columbia. In her Memorandum Opinion, Judge Jackson began by defining the responsibilities of the three branches of federal government as articulated in the US Constitution. It divides the powers of the Federal government into three spheres:

1) The legislative department, i.e., the United States Congress comprised of the House of Representatives and the Senate) which is committed to the duty of making laws. The legislative branch was created by Article I of the US Constitution.

2) The executive branch (the President) has been committed to the duty of executing the laws; The executive branch was created by Article II of the US Constitution.

3) The judiciary branch which has been committed to the duty of interpreting and applying laws in cases properly brought before the courts. The judiciary  branch was created by Article III of the US Constitution and it created the Supreme Court

 Judge Jackson emphasized in the beginning of her Memorandum Opinion, that each branch of government must stay within its proper domain because if there is an accumulation of all three powers - legislative, executive, and judiciary - within the same hands, it is an inherent threat to liberty. When either branch, the legislative, executive, or judiciary branch; exceeds the scope of either its statutory or constitutional authority, it falls to the federal courts to reestablish the proper division of federal power.

Citing numerous prior US Supreme Court cases for authority, such as Plaut v. Spendthrift Farm, Inc., (rebuking Congress's intrusion into the judicial sphere); Lujan v. Defs. of Wildlife, preventing the Judiciary from intruding into the executive sphere); Youngstown Sheet & Tube Co. v. Sawyer, (halting the President's encroachment upon the legislative sphere), Judge Jackson stated that the case before her, implicates these fundamental principles of separation of powers because,  it relates to the power of the Judiciary to hear cases and controversies that pertain to federal labor-management relations. It also related to the power of the President to issue executive orders that regulate the conduct of federal employees as to collective bargaining and the extent to which Congress has made policy choices about federal collective bargaining rights that supersede any presidential pronouncements or priorities.

In this matter, the then President, on May 25, 2018, issued three executive orders relating to the administration of the federal civil service and the rights of federal employees to engage in collective bargaining. Among numerous other things, by these three executive Orders, President Trump sought to regulate both the collective bargaining negotiations that federal agencies enter into with public-sector unions and the matters that these parties negotiate. Collectively, these Orders: 

1) placed limits on the activities that federal employees may engage in when acting as labor representatives;

2) guided agencies toward particular negotiating positions during the collective bargaining process; and

3) addressed the approaches agencies must follow when disciplining or evaluating employees working within the civil service.

Subsequently, numerous federal employee unions ("the Unions" or "Plaintiffs") filed consolidated cases against President Trump, the U.S. Office of Personnel Management ("OPM"), and the Director of OPM (collectively, "Defendants"), challenging various aspects of the validity of the executive orders.

Both sides filed for summary judgment, which is a judgment entered by a court for one party and against another party without a full trial. [In Federal court, under Rule 56, in order to succeed in a motion for summary judgment, a movant must show that there is no genuine dispute as to any material fact, and that the movant is entitled to judgment as a matter of law.]

The Unions collectively contended that: 1) President Trump had no statutory or constitutional authority to issue executive orders pertaining to the field of federal labor relations; (2) the challenged provisions of the orders conflict with particular sections of the The Federal Service Labor-Management Relations Statute, “FSLMRS” in a manner that negates the Unions' statutory right to bargain collectively; and (3) certain provisions violated Article II's Take Care Clause and the First Amendment's right to freedom of association.

The Defendants’ summary judgment motion raised two threshold issues: that the  Court lacked subject-matter jurisdiction over the dispute due to the channeling effect of the FSLMRS's administrative review scheme, and that some of the Unions' claims were insufficiently concrete to be ripe for judicial decision. Defendants' summary judgment motion argued that the President has ample statutory and constitutional authority to issue executive orders in the field of federal labor relations, and that the Orders do not conflict with the FSLMRS's complicated statutory regime. Defendants further argued that the Union’s Take Care Clause claim is nonjusticiable, and First Amendment freedom-of-association claim is baseless.

Judge Jackson found that the federal court has subject-matter jurisdiction because Congress, the legislative department of the three federal powers, did not intend for this matter to be resolved through administrative review schemes

Judge Jackson found that the Defendant Unions had the stronger of the legal arguments. With respect to Defendants' threshold concerns, Judge Jackson concluded the Court had subject jurisdiction over the claims because even though most disputes concerning federal labor-management relations must be channeled through the administrative review scheme that Congress has prescribed, this matter was different in kind than the disputes that Congress in its law making intended the FSLMRS's channeling provisions to cover. Judge Jackson found the Unions' legal claims were fit for judicial resolution in Court.

Congress as the law-making branch of federal government, undertook to guarantee federal employees the statutory right to engage in good-faith collective bargaining.

Judge Jackson held that:

 “As to the merits of the Unions' contentions, while past precedents and pertinent statutory language indicate that the President has the authority to issue executive orders that carry the force of law with respect to federal labor relations, it is undisputed that no such orders can operate to eviscerate the right to bargain collectively as envisioned in the FSLMRS. In this Court's view, the challenged provisions of the executive orders at issue have that cumulative effect. Stated succinctly, by enacting the FSLMRS, Congress undertook to guarantee federal employees the statutory right to engage in good-faith collective bargaining.”

 If you quit your job, you may lose right to prevail in a lawsuit

In many instances of discrimination, if you quit your job, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of quitting, or think you will be fired, you should contact this office immediately to discuss your options in the safest way for you.

What You Can Do

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were discriminated against at work and was successful in recovering multiple six figure settlement moneys for them. If you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in employment law.

If You Complained

If you think you have been retaliated against for complaining about or reporting to your employer what you believe are your employer’s discrimination or illegal practices, it is essential for you to contact an experienced, competent and successful employment discrimination and whistleblower attorney who will be aggressive about enforcing your rights as soon as possible.

if you have been demoted, had your hours cut, terminated, harassed or been subjected to retaliation for complaining about, objecting to, refusing to participate in, or reporting what you believe is your employer’s illegal or improper conduct, you should contact this law firm as soon as possible. I am successful in bringing employee lawsuits against governmental entities and private employers and recovering money for victims of discrimination.

If you are being subjected to such unlawful workplace actions, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept whistleblower and discrimination cases from all over New Jersey.

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were discriminated against at work. I am successful in bringing employee lawsuits against governmental entities and private employers and recovering money for victims of race, sex, age, disability, LGBTQ, and other discrimination.

Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Union, Plainfield, Lakewood, Edison and every county, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris.

 


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