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The Modern Day Yellow Dog

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yellow-dog-contract

The yellow dog contract was common in early 20th century work. These entailed employers forcing workers to sign a contract that explicitly stated they could not join a union as a condition of employment. In the 1915 case of Coppage v. Kansas, the Gilded Age Supreme Court ruled this legal. Finally in 1932, the Norris-LaGuardia Act banned them.

The New Gilded Age Supreme Court has decided to take up the modern version of this, the binding arbitration contract.

The Supreme Court on Friday agreed to decide whether companies can use employment contracts to prohibit workers from banding together to take legal action over workplace issues.

The court accepted three cases on the subject. They follow a series of Supreme Court decisions endorsing similar provisions, generally in contracts with consumers. The question for the justices in the new cases is whether the same principles apply to employment contracts.

In both settings, the challenged contracts typically require two things: that disputes be raised through the informal mechanism of arbitration rather than in court and that claims be brought one by one. That makes it hard to pursue minor claims that affect many people, whether in class actions or in mass arbitrations.

I think we know where this is going and why Merrick Garland is not on the Supreme Court. Republicans saw a real threat to their plan to bring us back to the Gilded Age. And they were going to stop at nothing to kill that threat, ranging from unprecedented destruction of norms concerning confirming justices to approving of massive Russian interference in our election to allow Emperor Tangerine to take the throne despite his massive lawbreaking and impeachable offenses.

If the Roberts court, presumably up to 5 members thanks to Trump outsourcing his selections to Jim DeMint by the time oral arguments occur, there is almost no way it does not rule in favor of employers. To do so would take away one of the only tools workers have without unions to ensure some sort of rights on the job. Forcing mandatory arbitration returns the workplace to the Lochner era of the Gilded Age, where workers and employers were legally assumed to be equals in power on the job, inevitably resulting in the utter crushing of workers. Going back to this point is not the policy of Donald Trump. It’s the policy of the entire Republican Party.

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  • Lamont Cranston

    I’ll just leave this here…

    Jimmy John’s drops noncompete clauses following settlement

    Jimmy John’s is about to make some major changes to its employee contracts.

    The Illinois-based sandwich chain has agreed to stop including noncompete agreements in its hiring documents, a practice that was deemed “unlawful” by the New York attorney general’s office.

    The announcement follows an investigation by that office into Jimmy John’s use of noncompete agreements with franchisees in New York, which began in December 2014. The agreements had barred departing employees from taking jobs with competitors of Jimmy John’s for two years after leaving the company and from working within two miles of a Jimmy John’s store that made more than 10 percent of its revenue from sandwiches.

    “Noncompete agreements for low-wage workers are unconscionable,” Eric Schneiderman, New York’s attorney general, said in a statement. “They limit mobility and opportunity for vulnerable workers and bully them into staying with the threat of being sued. Companies should stop using these agreements for minimum wage employees.”

    • Brett

      Good. Even if the contracts were unenforceable, having them was intimidation aimed at any low-wage workers who might be tempted to leave for a better-paying job.

  • A long time ago, probably during the Bush Administration, Digby wrote something (which I can’t find right now) about the rise of Reagan in California. All the middle class white folks were happy to see him crack down on black people and dirty Berkeley kids, cap the property taxes, and screw the unions. They weren’t going to be affected. Fast forward thirty years and the state was bankrupt, all of a sudden college was unaffordable, and the pension fund wasn’t doing so hot. Now it was real for them, too.

    Trump has pulled this old Republican trick on a national scale. The problem is that the US in 2016 is in a lot worse shape than California was in 1966. It isn’t going to take decades for regular people to feel the results.

    When this decision inevitably goes the way of big business, it’s on the Democrats to tie it to Trump and his whole fucking party. Trump is going to destroy a whole lot of consumer and worker protections (like this) that will materially affect the lives of hundreds of millions of Americans. Without a concerted and sustained media effort on the part of the Democrats (and the “Left”, “liberals”, “progressives” or whatever we’re calling ourselves these days) the blame won’t find its way to him and the Republicans.

    It’s not the Roberts Court. As soon as that seat is filled, it’s the Trump Court.

    • Phil Perspective

      When this decision inevitably goes the way of big business, it’s on the Democrats to tie it to Trump and his whole fucking party. Trump is going to destroy a whole lot of consumer and worker protections (like this) that will materially affect the lives of hundreds of millions of Americans. Without a concerted and sustained media effort on the part of the Democrats (and the “Left”, “liberals”, “progressives” or whatever we’re calling ourselves these days) the blame won’t find its way to him and the Republicans.

      And what are you going to do about Manchin and all the other corporate stooge(including two 2020 contenders) Democrats?

      • Still waiting on your plan to elect leftists in Alabama. I’m sure you will articulate it in this thread.

        • MPAVictoria

          Well… the Democratic party could run a few of them?

          • Abbey Bartlet

            I take it you haven’t spent much time below the Mason-Dixon Line.

        • Phil Perspective

          Still waiting on your plan to elect leftists in Alabama. I’m sure you will articulate it in this thread.

          Do you have $10 million dollars? Campaigns aren’t free after all. I certainly can’t do any worse than the Democratic Party has done.

          • Snarki, child of Loki

            “I certainly can’t do any worse than the Democratic Party has done.”

            On a “number of votes” standard, or a “dollars per vote” standard?

      • jim, some guy in iowa

        what are you going to do *without* them?

      • Ithaqua

        Look! A shiny object over there!

      • econoclast

        If it’s impossible to build a large enough coalition of voters without a certain number of corporate stooges in it, what then?

        • Abbey Bartlet

          Permanent opposition! Vive la résistance!

          • Snarki, child of Loki

            Bring your knitting to Place de la Révolution, and we’ll make some “Shorter corporate stooge” blog posts.

      • And what are you going to do about Manchin and all the other corporate stooge(including two 2020 contenders) Democrats?

        They aren’t really relevant to this, are they? Prominent Democrats and Democratic speakers need to hammer home the “Trump Court”, bring up horrific examples of people screwed by arbitration, etcetera. The voters needed to win back Michigan, Wisconsin, Florida, etc. don’t care who Joe Manchin is.

        And as for the 2020 field, that people are already jerking off about it strikes me as nuts. Trump hasn’t even taken office yet, the political backdrop in 2018/2020 is completely unknown at the moment. Ask again in a year if/when it’s starting to look like the House is in play in 2018.

        • Phil Perspective

          And as for the 2020 field, that people are already jerking off about it strikes me as nuts. Trump hasn’t even taken office yet, the political backdrop in 2018/2020 is completely unknown at the moment.

          So you’re okay with Booker undercutting Democratic messaging and going to Trump’s inauguration while Democratic House members skip it? What happened to #TheResistance and not normalizing Trump? If that is the bar, why are people already lowering it?

          • The Democrats are never going to be united the way the Republicans are. Ever. It’s a diverse (in every sense of the word) coalition. If it were up to me, every one of them would be boycotting the inauguration, but that a bunch of them are is better than nothing. As for “normalizing” Trump, that ship has sailed. He’s gonna be the president by this time on Friday.

            I don’t have any bar to lower. What I’m suggesting is simply that Trump is gonna do things that will cause harm, and the blame for that harm needs to be the focus of Democratic messaging. That’s it. Internecine fights on the left don’t interest me. They’re mostly a distraction.

  • Brett

    This could be worse than the First Gilded Age. At least workers in the First Gilded Age had the right to sue and get into court, even if they usually lost before the 20th century. If conservatives get their wish list on arbitration, even that will disappear – workers will have little legal remedy in the courts and a completely hollowed out NLRA regime* when it comes to unionization.

    * I don’t think they’ll kill the NLRA outright, although there are undoubtedly some Federalist Society hacks who would love to make that ruling. It would put the union-busting business out of business, and also open up the door on labor practices.

    • Denverite

      If conservatives get their wish list on arbitration, even that will disappear – workers will have little legal remedy in the courts and a completely hollowed out NLRA regime* when it comes to unionization.

      I mean, they’ll have the right to submit their claims to arbitration. Arbitration isn’t the issue here; it’s the ban on class arbitrations, which makes it impractical for small-stakes claimants to pursuant their claims. That’s independent of who decides the claims in the first place.

      • vic rattlehead

        The other point of a class, though, is efficiency, right? Maybe that’s the soft underbelly. They want a ban on class arbitrations? Fine, what I’d do if I had the money I’d fund this and get rid of the small stakes concern-let’s get an army of pro bono lawyers to arbitrate every single claim an employee wants arbitrated. Every last one. Gum up the works. You want no classes? Everything arbitrated individually? You got it. Open wide.

    • Aaron Morrow

      I don’t think they’ll kill the NLRA outright

      If I remember anything about my high school history class, it’s that the NLRA will be used to squash worker rights, in a very efficient manner. After all, we can’t have elected Republicans getting their hands bloody, can we?

  • Bloix

    Q: How is this even possible?
    A: The Supreme Court has declared that the Federal Arbitration Act enacts a nation-wide policy that arbitration is to be encouraged.
    Q: But aren’t employment contracts a matter of state law? What about state’s rights?
    A: [crickets]

    • Denverite

      This is nonresponsive. The FAA was specifically enacted to curtail states’ rights. Congress thought states were being too hostile to arbitration agreements, so to the extent they involve interstate commerce, the FAA is intended to preempt contrary state law. This is probably appropriate under even an antebellum understanding of Congress’s power (much less a post-bellum one).

      • Just_Dropping_By

        You’re shocked, shocked, to find miscaricaturizations of federalism and commerce clause jurisprudence for purposes of constructing strawman accusations of hypocrisy at LGM?

  • petemack

    Time for a few cross sector strikes, I guess. I figure they must be legal given that the rest of the compromises they were banned in have been rolled back.

    • rhino

      The reality is that shit like this just hastens the return to violence.

      We got the new deal and all the other reforms that are now being rolled back because the fat cats realized they were not safe anymore.

      Tree of liberty, blood of patriots, you know the drill.

      Pity the rich are so stupid, we could save so much trouble.

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