The wages of the trump era
SHEILA HOBSON never imagined that the lawsuit she filed seven years ago about some unpaid overtime would one day become a Supreme Court case with far-reaching implications for American workers.
But two days ago, on the eve of oral arguments, she came in for an even bigger shock — the U.S. government, her biggest champion, had suddenly switched sides. Instead of fighting for Hobson and workers like her, the government is now fighting against them.
“Oh, my word,” Hobson said when the Daily News contacted her Thursday with news of the switch. “Why would they do that?”
The answer is in an amicus brief filed by the U.S. solicitor general’s office in her case, National Labor Relations Board vs. Murphy Oil.
The Trump Justice Department had reconsidered the position taken under then-President Barack Obama, the brief said, and “reached the opposite conclusion.”
Such a wholesale and lastminute about-face is nearly unprecedented U.S. legal history.
The Supreme Court is scheduled to hear the case Oct. 2, the first day of its new term.
At stake is nothing less than the right of workers to address workplace issues collectively, from wage and overtime disputes to discrimination and other unfair treatment.
“If it becomes impossible to act together, then you are basically cutting off the ability of workers to enforce their rights through any kind of representation,” said Celine McNicholas, a labor lawyer at the Economic Policy Institute. “When you look at how often workers turn to class or collective action, it’s clear this would have a chilling and detrimental effect.”
Back in 2010, Hobson, now 60, joined three other women workers at Murphy Oil in suing the company for unpaid overtime.
Murphy Oil, a gas station chain across the South, argued that the women didn’t have the right to file a group complaint, because they had signed away their right to collective legal action when they were hired.
They could file complaints, the company said, but they had to do it as individuals, not as a group.
The company won the first round in court, but Hobson decided to press her case with the labor board, which agreed that she and her co-workers had the right to work together for their collective good, notwithstanding Murphy Oil’s employee contract.
Workers have a well-established legal right to share information and take collective action to protect themselves, the board ruled, and requiring workers to surrender that right violates the National Labor Relations Act.
Murphy Oil successfully challenged the NLRB’s finding in Louisiana’s 5th Circuit U.S. Court of Appeals, but under Obama, the labor board decided to keep fighting and take it to the Supreme Court.
In January, seven days before Donald Trump’s inauguration, the Supreme Court accepted the NLRB’s petition in the case of Murphy Oil and bundled it with two similar cases filed by employers.
Obama’s solicitor general, Donald Verrilli, had given the NLRB position strong support in his brief, declaring that employee agreements like those at Murphy Oil were legally “unenforceable” because they violated settled law on workers’ rights.
The new position of Trump’s Justice Department threw that principle out the window, said Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School and a former Obama administration official. “It could essentially close the courthouse door on workers,” she said.
“If you are a low-wage worker bringing a case by yourself, it’s hard to pay for it — and hard for the attorney to earn enough for the time and energy involved.”
To make the situation even more complicated, the Obama Justice Department was going to argue on behalf of the NLRB in the Supreme Court.
When Trump’s Justice Department shifted sides, it left the NLRB, Hobson and the other plaintiffs without representation.
The labor board’s general counsel had to step in and will argue the case for Hobson and workers. The Justice Department will now actively argue in favor of Murphy Oil and against the NLRB.
Hobson, who got fired just a few months after she took her claim to the NLRB, was cheered by the news that her case was still alive — but groaned when she heard of the government’s changed position.
“I voted for Trump, yes I did,” she said. “I regret it now. I thought he was a good businessman, and that maybe wasn't a bad thing. Now I strongly feel that employees are a number to him, and he is just looking out for the corporations.”
She also said she was going to have to tell her husband — a strong Obama supporter — that he’d been right.
“Wow, I really hate that, but I know now I was wrong.
“You live and you learn,” Hobson said.
She also said she wouldn’t do anything different in her case, even though her demands for fair pay got her fired.
“I’m very proud of what I did. It won’t change anything for me whatever the Supreme Court decides, but I hope it will for others,” she said.
“You know, you can open businesses all day long, but they’re nothing without workers — we’re the ones who make it into something.”