By David K. Shipler
Making America Cruel Again, Part 2 of an Occasional Series
One of the many peculiarities of Donald Trump’s presidency is how deftly he stabs workers in the back while making many of them think he’s on their side. He’s given “I’ve got your back” a new meaning.
His administration is dismantling environmental protections for laborers, decimating job safety regulations, and attacking the livelihoods of many of them by triggering tariffs on US goods going to Canada, the European Union, and China. Most of this destruction can be repaired in time once Democrats return to power in the White House and Congress. But more durable damage is being done by the Supreme Court, and there is surely more to come as Trump tees up for his second court appointment.
His first pick, Neil Gorsuch, is remarkably hostile to workers’ rights, and he has been so since before he ascended to the Court. He wrote the 5-4 majority opinion this term in Epic v. Lewis, stripping employees who are forced to sign arbitration agreements from any recourse in the courts over unfair labor practices. And he joined the 5-4 majority in Janus v. American Federation of State, County, and Municipal Employees, stripping public employees’ unions of their ability to collect dues from all workers who profit from the salaries, vacations, health insurance, and other benefits negotiated through collective bargaining.
Gorsuch’s position should have come as no surprise. In a 2016 dissent as an appeals court judge in the Tenth Circuit, he went through bizarre legal acrobatics to uphold the firing of a truck driver who opted to leave his cargo rather than freeze to death on a winter night in Illinois.
When the brakes on his trailer froze, the driver, Alphonse Maddin, phoned for help from his company, Trans Am Trucking, and waited several hours for a repair truck. He was practically out of fuel, the auxiliary power heater for the cabin was broken, and he began to show dangerous signs of succumbing to the subzero temperatures. His cousin, who called him, said that his speech was slurred. His feet felt numb, and breathing was difficult. Finally, in desperation, he unhitched the tractor from the trailer and drove toward safety, returning 15 minutes later after being informed that the repair truck had arrived. He was then fired.
Every single judge and board except Gorsuch found the company in violation of the whistleblower protections of the Surface Transportation Assistance Act; an administrative law judge, the Department of Labor’s Administrative Review Board, and two judges on Gorsuch’s three-judge appeals court panel ordered Maddin reinstated with back pay. Gorsuch was alone in his cruelty, expressed in a sneering dissent. The law, which protects drivers who refuse to operate an unsafe vehicle, did not apply, Gorsuch argued, because by driving his tractor away, Maddin “operated” it. Gorsuch gave no indication that he understood the trailer with unsafe brakes to be part of the vehicle.
His opinion in the Supreme Court’s arbitration case is equally sterile, devoid of grounding in reality. He finds, along with the Court’s majority, that an employee who signs an arbitration agreement as a condition of employment must go individually through arbitration to contest a violation, and has no right to join with other employees in a class-action lawsuit.
Gorsuch’s opinion is a great boon to business, which has expanded the use of arbitration. But his reasoning rests on two pillars, one of fantasy, the other hypocrisy. The first is the notion that an employee is entering an arbitration agreement voluntarily, when in fact employers routinely force prospective employees to sign such agreements as a condition of getting hired or keeping the job. Anyone who wants to work there is essentially coerced into going alone to an arbitrator to resolve disputes rather than going in a group to the courts.
A lone worker can’t afford to hire a lawyer by himself, and few lawyers would essentially work pro bono when an individual settlement, in contrast to a class-action victory, would bring so little compensation. The Supreme Court, therefore, has removed a powerful incentive for employers to abide by federal and state law on their treatment of workers. In her dissent, Ruth Bader Ginsburg cites one case where it would have cost $200,000 in legal fees to recover $1,867.02 in overtime pay. She also cites a study finding that in New York, Chicago, and Los Angeles, low-wage workers lose nearly $3 billion a year in pay they are rightly owed.
She writes richly of a history that Gorsuch willfully ignores, noting that arbitration law was designed to address merchants’ disputes among themselves and provides explicitly that nothing in the statute shall apply to employment contracts. She sees this decision as turning back the clock to the “yellow-dog” contracts that were forced on workers until the 1930s, requiring them to agree not to join unions.
That brings us to the second of Gorsuch’s pillars, this of hypocrisy: He asserts that employees who want to act collectively can always organize labor unions for collective bargaining. Then, in the next labor case, Janus, that followed several weeks later, he and his conservative colleagues emasculate government-workers’ unions by denying them the right to require non-members to pay dues for the collective bargaining that benefits them. (They already had the right not to pay that portion of dues used for supporting political candidates.)
The reasoning is based on a novel, increasingly popular, right-wing application of the First Amendment as prohibiting required speech. Employees who don’t agree with a union’s position can’t be made to pay for it, the opinion holds. But they still get the union’s negotiating benefits. This required-speech argument is also being put forward as a way to relieve corporations from placing warning labels and other consumer-protection information on their products.
Union membership has plummeted in the United States: Only 6.5 percent of private-sector employees are members, and about one-third of government employees are unionized—mostly teachers, police officers, firefighters, and civil servants. Unless the unions make more aggressive moves to persuade workers that paying dues is worthwhile, the protections they have provided and the benefits they have won are likely to be diluted.
Maybe that’s Trump’s clever way to curb immigration: to make the United States into a country where nobody wants to come.