Secret civil justice undermines employee rights

Pintera Studios

A story investigated by ProPublica and featured on Planet Money highlights the problem of secret justice in perpetuating the willful abuse of at-home gig workers.

I expected that "Call Center Call Out," reported by Planet Money's Amanda Aronczyk and ProPublica's Ariana Tobin, Ken Armstrong, and Justin Elliott, based on the ProPublica story, would be a sad and frustrating tale of work-from-home gig economy labor being exploited, principally by the misclassification of employees as independent contractors to reap savings in compensation, work conditions, and employee benefits.

Turns out, there is even worse dissimulation afoot.  And there are worrisome implications for the health of the civil justice system.

To work these call-center jobs, for intermediary contractors such as Arise Virtual Solutions, the not-quite-employees are compelled to sign non-disclosure agreements (NDAs), arbitration agreements, and class action waivers.  These all are enforceable, even when the workers do not fully understand their implications.

When a worker has the temerity to commence arbitration proceedings, challenging misclassification as an independent contractor, the worker wins.  In one example in the story, a worker easily qualified as an employee under the labor test applied by the arbiter.  A worker can win thousands of dollars in reimbursement of expenses—they have to pay out-of-pocket for the privilege of their training and then buy their own computers and telecomm equipment—and back wages to bring their compensation history up to minimum wage.  

But here's the rub: the workers already are bound by their NDAs, and the arbitration is secret, too.  So there is no public record of the misdeeds of the employer.  The arbitration-winning complainant cannot even tell other mistreated workers that their labor rights are being violated.

According to the reporters, the secret justice system of arbitration is actually part of the business model for enterprises such as Arise.  They can pay liability to a small percentage of workers while willfully exploiting most others.  Because of the NDAs, arbitration clauses, and, most importantly, class action waivers, a lawyer said in the program, she can fight this abuse only behind a veil of secrecy, one case at a time, amounting to thousands of cases, even though every case is winnable on precisely the same analysis.

There's a classic scene from Fight Club (1999) when the Narrator (Ed Norton) is telling an airliner seatmate about his car company's "formula" for issuing a recall only when it's cost effective, regardless of the cost of human life.  (Think GM ignition switch recall.)

"Which car company do you work for?" the seatmate asks.

The Narrator pauses, staring her in the eyes.  Then, nodding knowingly, he answers,

"A major one."

So what companies use these call centers to take advantage of the cheap and ill-begotten labor forces organized by companies such as Arise?

Major ones.  Ones you've talked to.

Have a magical day.

 

The stories are Amanda Aronczyk & Ariana Tobin, Call Center Call Out, Planet Money, Oct. 2, 2020; and Ken Armstrong, Justin Elliott, & Ariana Tobin, Meet the Customer Service Reps for Disney and Airbnb Who Have to Pay to Talk to You, ProPublica, Oct. 2, 2020.

Union, university collude to cut Mass. higher ed pay

UMass Dartmouth (LGagnon CC BY-SA 3.0)

The faculty union and university here at UMass Dartmouth, which includes UMass Law School, are busy about the business of colluding to cut faculty (and staff and admin and everyone's) pay in response to financial (mis)management of the covid crisis.  The draft Memorandum of Agreement came out today; temporarily, I am parking a copy here.  In salient part:

The salary reduction shall be calculated as follows[:]

a. There shall be no reduction on the first $30,000 of regular salary and any regular contractual or other stipend for any faculty or staff member.

b. For each $5000 in excess of this threshold there shall be a salary reduction calculated as a percentage of the faculty or staff member’s marginal salary. This percentage reduction shall start at 5% (0.05) and shall increase by 1 percentage point (0.01) for each step up to a maximum of 10% (0.10).

In the law school, we were already hit with a $7,500-each cut in summer research support, which is a little under 5% for me, much more for others. With two generations of educational debt and current college bills looming over our heads in my family, this cut, just more than 12% in sum, hurts.  In a meeting of faculty yesterday, I got a sense of the impact on the lower ranks and less job-secure, and I was left livid.

The progressive structure was the union's idea, not the university's.  The university only asked for 5% across the board.  On Friday, union president Grant O'Rielly gleefully boasted to members that that wasn't good enough, so the union proposed a progressive plan to ensure that higher paid faculty would pay even more money and suffer a higher rate.  Victory!  The university was so impressed that it accepted and gave the union a pat on the head.  Maybe a cookie, too.  Though there was no mention of a cookie.  

The saddest thing here is the aforementioned collusion between union and university to make this all happen.  They entered into a pact by which no jobs would be lost on either side.  But on the admin/management side, there might ought be some jobs shed, and I scarcely see there would be impact on our educational mission.  You can't spit on main campus (not that you should spit in public, especially now) without hitting a handsomely compensated assistant vice chancellor of something-something.  I'm sure students will take solace in knowing that those jobs are all safe, while their newly virtual and long beleaguered legal skills instructors will now make less money than when they were hired.

The union entertained no other alternatives, either, besides admin cuts.  A reserve fund sits at UMass HQ in Boston, untapped.  As a colleague said yesterday, "it's for a rainy day, and it's raining."  The union didn't proffer a faculty furlough for December/January or May, which we could accomplish without cutting into the class schedule, and then faculty would be eligible for unemployment compensation.  Staff furloughs work that way.  The union didn't negotiate for a better separation-incentive program, or reduced workloads, or summer research support, or even a guarantee that the university can't come back to the well again next year.  The union just rolled over in self-effacing obedience to their management masters.

The greatest insult comes to those of us not in the union.  Thanks to Massachusetts's purported system of exclusive representation, we are compelled to accept the pay cut upon a union negotiation and vote in which we have no say.  And the university, to date and despite my demand, refuses to negotiate with us separately.  If that sounds, well, unconstitutional, yes, I think it is, especially since Janus.  That case said we couldn't be compelled to pay for union speech with which we disagree.  It hardly makes sense, then, that we are compelled to speak with union speech with which we disagree.  I am presently seeking counsel, and there's more than just me, so get in touch, #RightToWork advocates.  Exclusive representation is being challenged meanwhile in other states.

Massachusetts's bargain-basement approach to public education—a real shock to us when we moved here in 2011—was already criminal, especially for a blue state boasting a Kennedy legacy.  Now the state's proud blue labor tradition is belied by the reality that unions are co-conspirators in the crime.  Together the university and union make a mockery of UMass Law's "social justice" mission.

[UPDATE, Sept. 12, 2020:] 

In a case involving the University of Maine, the First Circuit upheld exclusive representation in state law.  The complainant is Jon Reisman, an economics professor at the University of Maine at Machias, and the case is now pending cert. review in the U.S. Supreme Court.  (Hat tip to a D.C. colleague.)

The First Circuit's reasoning is succinct and somewhat baffling.  The court held simply that state law requires the union to bargain for everyone, members and non-members, as a bargaining unit, but not as individuals; thus, Reisman is not "personally represented" and may be subject to whatever terms are struck for the bargaining unit.

Aside from the illogical and constitutionally unknown distinction between speaking for a "unit" and speaking for people, I fear Reisman's case was premature. At UMass Dartmouth, we see the damage wrought by exclusive representation, and the First Amendment problem is laid bare. The First Circuit pointed to Reisman's ability, under Maine law, to communicate grievances directly to the university, without going through the bargaining unit (though a union representative is then brought in to resolve the matter). At UMass Dartmouth, the university has expressly refused to hear grievances outside the union (specifically, mine).  Reisman also did not well articulate any concrete injury, rather, only the intangible harm of compelled association. At UMass Dartmouth, union non-members are about to suffer a big pay cut.  

Moreover, UMass Dartmouth non-members have been kept completely in the dark about the pay cut and excluded from informational meetings, debate, and voting on the measure.  So it can hardly be said that the union at UMass Dartmouth is acting on behalf of a bargaining unit of the whole, members and non-members alike.  The First Circuit's reliance on how things are supposed to work in the idyllic vision set out in statute in Maine bears no relation to the plain First Amendment affront playing out in practice in Massachusetts.

_________________

A reminder that this is my blog, not edited or controlled by UMass Law/Dartmouth.  At the same time, I write in furtherance of public service, which is part of my job, and in which capacity I am protected by custom, contract, law, and the First Amendment.

UMass Dartmouth appoints 6 to 'Chancellor Professor,' first awarded high academic rank since 2003

The University of Massachusetts Dartmouth has appointed six faculty to the rank of "Chancellor Professor," effective today.  I'm honored and humbled to be among them.  These are the university's first promotions to chancellor professor since 2003.  The number of persons who may hold the high rank is limited to ten percent of the faculty, campus-wide.  The provost's office reported, "All have demonstrated excellence in the art and practice of teaching, a record of scholarship that contributes to the advancement of knowledge, and have made outstanding contributions to the University or to their profession."  From UMass Dartmouth News, here is something of the accomplishments of my colleagues:

John Buck

Electrical & Computer Engineering

Professor John R. Buck, who has received the prestigious Office of Naval Research Young Investigator award and the National Science Foundation CAREER award, is a Fellow of the Acoustical Society of America, a Fulbright Scholar and a Senior Member of IEEE. His scholarship focuses on underwater acoustics, signal processing, animal bioacoustics and engineering pedagogy. Professor Buck received fifteen research grants from federal agencies. Many of his graduates have continued their research at prestigious universities and national laboratories. Professor Buck’s classes incorporate active and collaborative learning, making the students’ learning the central focus of the classroom. He was UMass Dartmouth’s inaugural winner of the Manning Prize for Excellence in Teaching for outstanding development of curricular materials and innovative assessment of student learning. Professor Buck also received the IEEE Education Society’s Mac Van Valkenburg Award, and the Faculty Federation Leo M. Sullivan Teacher of the Year Award. Professor Buck founded and led several faculty mentoring programs in the Office of Faculty Development, as well as directly mentoring several junior faculty from across the campus.

Qinguo Fan

Bioengineering

Professor Qinguo Fan has made substantial leadership contributions to the College of Engineering overseeing the transformation of Textiles Department into its current form as Bioengineering. As Bioengineering chairperson, he led the development of the new undergraduate major in bioengineering, recruitment and mentoring of new faculty, major renovations to laboratories and formation of an industrial advisory board. Under his strong leadership, the BNG undergraduate program successfully completed its first ABET accreditation in Fall 2016, considered exceptional for a new program doing the ABET accreditation the first time. The Bioengineering department now offers, in addition to the Bioengineering major, a Bioengineering minor, the 4+1 BS/MS program and a Biomedical Engineering concentration. Several Bioengineering graduates have gone on to medical schools, research positions and work at medical device companies. Professor Fan’s research has primarily focused on structural color, blue light cured polymers, and conducting polymers during the last ten years. He is a co-inventor on one U.S. patent. Professor Fan is a member of the American Association of Textile Chemists and Colorists and the International Society for Pharmaceutical Engineering. Professional recognition includes receipt of the Highly Commended Award at the Literati Network Awards for Excellence for one of his research articles.

Sigal Gottlieb

Mathematics

Professor Gottlieb has demonstrated a deep passion for incorporating research into undergraduate education. She has adopted an exploratory, discovery-based approach by using “computing for intuition” as a critical tool to learning, and has worked to engage her undergraduate students in research in computational mathematics. Her advisees have gone to have successful careers at universities and research laboratories. Professor Gottlieb is known internationally as an expert in strong-stability-preserving time discretizations and other schemes for hyperbolic equations. As PI or co-PI, she has been responsible for securing well in excess of $3.5M to support her research. In recognition of her expertise and impact on the field, Professor Gottlieb was recently elected a Fellow of the Society of Industrial and Applied Mathematics (SIAM). Professor Gottlieb’s most significant service has been her leadership of the Center for Scientific Computing and Visualization Research (CSCVR), which she helped form and served as director (2013-2017) and co-director (2017-present). In this capacity she has worked to support, facilitate, and promote the research activities of the scientific computing group and to mentor students and junior faculty of scientific computing in a supportive, broad, and deep interdisciplinary research environment.

Brian Howes

Estuarine & Ocean Sciences

Professor Howes played an integral role in the initial development of the marine science graduate program, an internationally recognized marine science and technology program. He has advised and funded graduate students who have gone on to pursue successful careers. Professor Howes has maintained a high level of scholarly productivity in his field, as well as produced numerous technical reports as part of the Massachusetts Estuaries Program (MEP) requirements. He has raised over $23M in extramural research funding through federal, state and municipal extramural grants and contracts. Professor Howes has also made significant contributions to his profession in the form of scientific advances, as well as practical applications that have had a major impact on coastal ecosystem health and water quality in the region.

 

Yuegang Zuo

Chemistry & Biochemistry

Professor Yuegang Zuo has a record of contributing to active learning and has sustained a record of graduating M.S. and Ph.D. students. He provides high quality mentorship resulting in graduate students winning external awards for their work. He has also worked with undergraduate students, who have won American Chemical Society awards. Professor Zuo has maintained a high level of scholarly publishing and is successful in attracting substantial extramural funding. He has contributed to the University and his profession serving on diverse departmental, college and university committees as well as the Faculty Senate. He has served his profession as a reviewer, editor, and meeting organizer and serves on the editorial board for seven journals and recently became the Editor-in-Chief of the Journal of Endocrinology Research.

Massachusetts Bar honors UMass Law's Francomano, advocate for labor, public education

Francomano center. MassBar eJournal photo.

Attorney Patrick Francomano is a first-class person and excellent teacher, one of the assets that makes UMass Law a best-buy treasure for law students and the Commonwealth.  He's a tremendous public servant—and in the same vein, frequent thorn in the side of those in power through his work in labor and in school supervision.  I'm delighted to see him and the work he represents honored by the Massachusetts Bar.  From UMass Law News and the MassBar eJournal:

"Francomano draws inspiration from John Adams’s efforts to establish Massachusetts as one of the first states to grant a constitutional right to education. He believes that public education and the legal system rest on many of the same tenets, and that 'education and social justice are very difficult to disconnect.' As Francomano explained, 'If you have a well-educated society, that is going to be the foundation of a good republic and democracy.'"

Minhaj: With tort impunity, cruise lines externalize risk, costs to workers, passengers, environment

One of my favorite comedians—saw him perform Homecoming King at intimate Cherry Lane in NYC in 2016—Hasan Minhaj (self-described "second brown John Oliver") has taken on the wide range of problems associated with cruise lines' foreign flagging and legal impunity at sea, threatening the safety and well-being of passengers with legal impacts including virtual immunity from tort liability.  (Patriot Act s4e04.)

Instrumental in this deplorable state of affairs for our part, in U.S. law, is the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 30301–30308.  On its face the act simply invites maritime wrongful death actions into U.S. courts.  However, the act's "shortcomings" have been documented in legal scholarship for a long time; the devil is in the details, specifically, damages, which are limited by § 30303 to "fair compensation for the pecuniary loss sustained."  Note, "pecuniary," not the familial wrongful death intangibles recoverable in domestic tort law, and maybe zero for, say, an elderly retired person.  Minhaj reports that attempts to amend the law have been torpedoed in Congress.

But DOHSA is just one piece of the big, messy picture of maritime liability, or non-liability, for cruise lines.  Most civil wrongs involving passengers are sexual assaults, which can come under the lax, overwhelmed, or de facto non-existent jurisdiction of the vessel's flag home.  Same for the abusive conditions to which cruise ship workers are subject, from working hours that would never be tolerated on land, on through to the minuscule compensations available for debilitating injury, such as loss of limb.  And all that's to say nothing of the devastating environmental impact of cruise ship polluting and dumping that occurs beyond the reach of regulators.

Minhaj aptly paints the ugly picture of what happens when an industry escapes the norm-setting and deterrence mechanisms of domestic tort law.  As he suggests, the relatively affordable cost of a cruise as a vacation option—and I confess, I've gone, I've loved it, and I'd like to go again—is born disproportionately by an oppressed workforce, injured passengers, and the voiceless marine environment.

Poli sci papers embrace power plant implosion, populist revolution, and constitutional convention

Here are a few of my favorite gleanings from yesterday's day one of the 2019 annual meeting of the New England Political Science Association in Portland, Maine, April 26-27, kicking off with the Brayton Point tower implosion this morning, Saturday, April 27.

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The Brayton Point cooling towers are no more
(CC BY-SA 3.0 Wikimaster97commons).

Imploded towers invite study of environmental law, policy, and urban aesthetics

Professor Aaron Ley, on the faculty at URI Political Science and also a town council member in Bristol, R.I., is working at the point where environmental law and policy meet public aesthetics.

After presenting on Friday, April 25, Ley left NEPSA to get back to the Massachusetts South Coast and witness the implosion Saturday morning, April 26, of the cooling towers at Brayton Point.  The towers have become a defining feature of the skyline in the region, so their absence in the vicinity of Fall River, Mass., and eastern Rhode Island will be an adjustment for locals (me included).  Though oft invoked as a symbol of adverse environmental impact, Ley explained at NEPSA, the towers functioned actually to mitigate the impact of the coal-fired power plant they grace, because they cooled water before it was released back into the Taunton River, sparing fish and their eggs from destructive warm water.

Ley is working interdisciplinarily with colleagues Bryce DuBois, lecturer at the Rhode Island School of Design, and Katherine LaCasse, in psychology at Rhode Island College, to complete survey and conventional research into public perceptions of urban spaces relative to environmental law and policy.  At NEPSA, Ley detailed the fascinating history of policing pollution in American waterways, from riverkeepers back to bounties on the 19th-century Hudson.

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Are we living in Google and Facebook 'company towns'?
They have courts now

Professor Kevin McGravey at Merrimack College is collecting and analyzing social media cases to see whether the First Amendment public forum doctrine still has some vitality in deciding these disputes, such as the President's ability to mute or block Twitter users.  See Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018) (holding President's blocking of users on Twitter violated First Amendment requirement of viewpoint neutrality; now on appeal to Second Circuit). Cf. Packingham v. North Carolina (U.S. 2017) (holding social media restriction on registered sex offender violated First Amendment.)

The Gulf Shipbuilding Corporation, pictured here after WWI, owned the
Chickasaw, Ala., company town at issue in Marsh v. Alabama after WWII.
From Destroyer History Foundation.

McGravey thinks that the old company town case of Marsh v. Alabama (U.S. 1945) is relevant.  He concedes that the Marsh analogy to a social media platform was rejected by the court in Prager University v. Google, LLC, No. 17-CV-06064-LHK, 2018 WL 1471939 (N.D. Cal. 2018) (now on appeal to Ninth Circuit), in which the court refused to intervene in YouTube classifications and restrictions of PragerU's conservative political videos.  (See Eric Goldman's skepticism of the Marsh theory.)  But McGravey disagrees on a number of grounds, including the exclusivity of certain social media platforms as access avenues to public officials.

A company-town analogy doesn't get all the way to where we should be, McGravey admits, but the public forum doctrine might ought be reformed and extended to achieve worthwhile policy goals such as viewpoint neutrality on Facebook.  Still sounds like a stretch?  Well, consider, Mark F. Walsh in the latest ABA Journal reports on Facebook's plans to create a quasi-judicial appellate body to hear free speech claims.  Google already is adjudicating—internally and not transparently—right-to-erasure claims at the bidding of European data protection authorities.  Is that the town hall bell of the company town I hear?

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Federalism panel spans Rehnquist Court, religious freedom,
and the 1825 Constitutional Convention that never was

A smattering of views from a panel on federalism and the administrative state: 

• Christopher McMillion, Oklahoma Baptist University, is looking at the deep underpinnings of the "Rehnquist revolution" in federalism.  It's not about conservative politics, nor about federal power per se, he explained.  Rather, it's about protecting individual liberties—and actually the same kind of force can be witnessed in 10th-Amendment state jealousy of local officials' prerogatives relative to federal immigration enforcement.  
• Beau Breslin, Skidmore College, is working on a book on the constitutional conventions the United States has never had.  Surely Article V of the U.S. Constitution contemplated conventions with some periodicity.  What if we had had one about every human lifespan?  An 1825 Constitution probably would have opened with a lengthy declaration of rights and would have created an explicit voting franchise for white landholders, Breslin theorizes.  Oh, and Madison would have been so peeved that he sat out the Second Convention.  What would have been the implications in U.S. history for the Constitution thusly revised?  What would the Constitution look like after a 2022 convention?  Breslin examines these questions in part with reference to the real evidence of evolving state constitutions.

• 

  Maine Gov. Baxter with Irish Setter Garry Owen
  (public domain)

  James Stoner, Louisiana State University, exposed the thinly veiled nuance of religious freedom questions in the United States, from Employment Division v. Smith (U.S. 1990) to present.  The courts have looked the other way from legislative prayer, for example, and for that matter from the intertwining of government and religious practice since the days of George Washington himself.  He concludes that the judiciary is ultimately not the best forum for resolution of debate over religion in American public life.
• Sean Beienburg, Arizona State University, is researching the curious political journey of 1921-1925 Maine Governor Percival Baxter (namesake of Maine's beautiful Baxter State Park).  Republican Baxter advocated against the Ku Klux Klan at a time the Klan was making inroads with Maine Republicans.  He also staked out the political territory that would become Republicans' 20th-century economic libertarianism.  I note that Baxter was also an animal rights advocate before there was such a thing, and Maine's beautiful Baxter State Park is named for him.

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Populist revolution and American electoral politics
are both about more than red versus blue

I moderated and discussed on an afternoon panel with three fantastic papers.

• Erik Cleven, Christopher Galdieri, and Ashley Motta of Saint Anselm College are studying "down-ballot roll-off," when voters stop voting as they move down the ballot from "US Senator" to "Town Dogcatcher," or, really, "Register of Probate."  They set out to see whether there is merit in criticisms that voting college students dilute local electoral power because college students aren't interested in local races.  That turns out not to be true—not entirely true, anyway.  Looking at New Hampshire data, they found that new voters in a jurisdiction are responsible for down-ballot roll-off, and college students might just be part of that.  Other correlations arise with low education and lack of partisan tags to indicate party affiliation.  I suspect that an underlying cause is low information, a problem that dovetails with my own interest in transparency and affirmative disclosures of information to correct democratic deficit in developing political systems.



The "heartland-coastland" divide is more complicated than it seems and not
merely an expression of partisan sympathies, R.I. political scientists June
Speakman and Matthew Ulricksen show in new research.

• Two papers were strikingly complementary.  Isaac Effner, Brown University, took the normative lens off of "populism" to recount how a populist labor movement effected the 1934 West Coast waterfront strike and contributed dramatically to the evolution of organized American labor and 20th-century norms for the protection of American (and for that matter global) workers.  Don't be too quick to judge populism in scoffing at frustrated voters who support Trump, is the lesson, because populism per se can be a force for the vital expression of human rights, notwithstanding a temporary flirtation with demagoguery along the way.  Effner notes that similar populist motivations animated support in the last election for both Donald J. Trump and Bernie Sanders.
• And there comes to bear the remarkable work of Matthew Ulricksen, Community College of Rhode Island, and June Speakman, Roger Williams University and a representative in the Rhode Island legislature and former member of my Town Council in Barrington, R.I.  Ulricksen and Speakman showed some stunning maps of voting patterns in Rhode Island in the last election—I'd like to share, but they're not copyright-clear for my reuse; see the New York Times results.  Suffice to say the electoral maps reveal a deep divide in what looks like what Speakman and Ulricksen call a "heartland-coastland" divide, the former, Rhode Island's interior, Trump red, and the latter, in the salt air, Clinton blue.  Problem is, a number of data sets about who these voters are—wealth, ethnic identity, even partisan affiliation—do not actually bear out the divide.  What does?  Spoiler alert: population density.  What's more, because there is correlation with population density and not partisan loyalty, the heartland proves as receptive to Bernie Sanders's message as to Donald Trump's.  Speakman and Ulricksen identify one factor that explains voter behavior across the board: being "mad as hell."  The research leaves off there, but implications and questions abound for what will make an effective political movement in the future to capture increasingly alienated voters—and what conditions might trigger a populist revolution analogous to the 1934 general strike, or something bigger.

The annual meeting of the New England Political Science Association wraps up today, when I'll be presenting some findings on access to information and social and economic development in eastern Europe.

Does your dean work for you?

[This opinion is mine, reprinted from the Faculty Federation News: A Publication of the UMass Dartmouth Faculty Federation AFT-MA 1895, vol. XXIV, no. 5, Mar./Apr. 2018, p. 3.  A version geared to university students can be found at The Torch, the student newspaper of UMass Dartmouth, Oct. 21, 2018.]

When I left law practice to teach, I knew little to nothing about faculty governance and academic freedom.  The dean who hired me, Rodney K. Smith—now professor and director of the Sports Law and Business Program at the O’Connor College of Law, Arizona State University—is a person of the utmost integrity from whom I learned a lot about leadership and the business of higher education.

When I was a green, 26-year-old instructor of law, I remember, I was joined at lunch by Dean Smith.  I couldn’t bring myself to call him “Rod,” even when everyone else did, and it still sounds odd to me, decades later.  Sometimes Dean Smith ate lunch with the crew of us who ate in the faculty lounge, a “king incognito” kind of thing, but, I think, totally genuine.

Dean Smith wanted to know how things were going in the new job.  We chatted a bit about classes, teaching, students.  He asked something about my interests in terms of developing new programs at the law school.  I said something about being willing to do whatever he needed me to, because “you’re the boss.”

“No, I’m not,” he retorted quickly.  And he waited for me to react in that MBTI-sensing-personality way that we Ns always find really aggravating.

That he was the boss seemed self-evident to me.  In my law firm, all partners were the boss, and they could scream and yell or hop up and down or throw papers around or pretty much do whatever they wanted, and we associates were supposed to act like that was totally normal and appropriate.  So this challenge to the natural order of things really made no sense to me.

“You’re the boss,” he added, as if that cleared things up.  I was pretty sure that when I was hired, he had told me how much I would be paid.  If things in fact were the other way around, I had really sold myself short.

“I work for you,” he said with the finality with which one tells a hard-headed child “because I said so.”

It took me a long time to wrap my mind around his meaning.  When I had evaluation meetings with Dean Smith his tack was always “what can I be doing for you?,” to make me better able to do my job—teaching, research, and service.  That was new for me.

As the First Amendment is part of my media law portfolio, and academic freedom is an aspect of the freedom of expression, I have, since that day at lunch with Rod Smith in January 1998, spent some part of my academic life studying the history, law, and policy of academic freedom and its partner principle, faculty governance.

I thought of this at the Faculty Federation meeting this week when President Cathy Curran said we, faculty, are “weird,” in describing the particular challenge of drafting HR policies that apply to faculty.

We are weird.  And it’s not something that’s well understood outside academia, nor often by administrators in academia.

We are weird in a way that is critical to institutional governance, to student learning, and moreover to our society—not just American society, but human society.  If the organization of human civilization is built upon a search for truth in a free market of ideas, and the university is “peculiarly the ‘marketplace of ideas,’” as Justice Brennan wrote, then the independence of faculty inquiry is essential to improvement of the human condition.  That notion underpinned the constituting principle of academic freedom in the original universitas in 13th-century Bologna.  And it’s only more true, more important, in the 21st-century information age.

Faculty governance of the academic enterprise is a corollary.  As former union President Susan Krumholz aptly recalled at the Federation meeting, the administration of a university works for the faculty.  Yes, the administration manages budget, payroll, and enrollment, all things that might constrain faculty freedom.  That’s the weird part.  But it must not be forgotten that those functions exist only to enable faculty, whose job it is to educate students.

Dean Smith was right, and the intervening years have only added to the urgency of his assertion.  In an environment of higher ed financial crisis, burgeoning staff-to-faculty ratios, and rampant bureaucratic overreach in the guises of assessment and accountability, we lose touch with the essential, classical design of the university at our own peril.

Deans, provosts, vice chancellors, and even chancellors and presidents:  They work for us.

Janus-faced about 'Janus': Supreme Court hears major First Amendment labor case, and 'it's complicated'

The U.S. Supreme Court hears oral argument in Janus v. AFSCME (SCOTUSblog) on Monday, February 26.  The problem in a nutshell is the extent to which a public employee can be compelled to associate with a union consistently with the First Amendment freedoms of expression and association.

The Court already held, some years ago, that a public employee cannot be compelled to pay the portion of union dues that supports political activity.  But mandatory payments to support the union in collective bargaining have been upheld upon the logic that employees otherwise would be able to opt out and benefit from union collective bargaining as free-riders, and, ultimately, the union would be decertified for lack of members.  So it’s got to be all in with the union, or no union for anyone.

This is an agonizing problem for a libertarian.  One wishes to protect the right to organize but is loath to compel anyone to do so.  Honoring the latter priority undermines the former.

When I changed jobs in 2011 from the University of Arkansas system to the University of Massachusetts system, I moved from a non-union shop to a union shop.  My first years at UMass, I opted out of the political dues and paid only to be a member of the bargaining unit—“agency,” it’s called.  And I resented having to pay for that. 

Certainly Arkansas was not a bed-of-roses workplace experience.  I had my challenges there and had to spend a good chunk of my personal savings on legal fees.  Now faculty there are fighting to preserve tenure.  I can see where a union might help.

Nevertheless, moving to UMass, I resented being compelled to join the union.  My experience with unions had been that they too often protect people in the workplace who don’t pull their weight, and they prevent people in the workplace who pull more than their weight from being rewarded accordingly.

I have more experience with unions now.  And I was right.  They often protect people who don’t pull their weight, and unionization prevents people who pull more than their weight from being rewarded accordingly.

At the same time, I’ve come to understand that plenty of fault for unions working, or not working, can be laid at the feet of employers, too.  It’s complicated.

I declined to become a union member at first at UMass and sought instead to leverage my own hard work for superior reward.  That didn’t work.  At best, I got into the highest echelons of the contractual raise pool.  We’re talking about a distinction of maybe a percentage point.  I could have gotten that with much less work.  I’ve hardly been able to negotiate my own terms of employment.

To the contrary, like many an employer, the university seems to have a love-hate relationship with the union.  Even while administrators seethe with loathing for their union adversaries, management is unwilling to dance with any other and jealously guards the bargaining table against rivals.  That’s the dirty little secret of public-sector union shops: management and labor are on the same side when it comes to making sure that no one else gets to play the game.  A truly free market, with full information and a healthy balance of labor supply and demand: if such a thing existed, it would be bad news for both sides.  Meanwhile the individual worker gets left on the sidelines.

So unable to make any headway for myself, and upon later experience and observation, I decided to throw in my lot with the labor movement.  Before union membership, my agency dues were $580 for the year in 2016.  That was deducted from my check, even though I was excluded from the bargaining table and stuck with whatever contract concessions someone else decided for me.  Now as a full member of the union, based on my last paycheck, my dues are about $1,285 per year.  So about two-thirds of my union dues go to political activity that I don’t necessarily agree with.

That’s my catch-22.  Membership is the only way to get a seat at the table, and having a seat at the table is the only way to work against abusive employment practices.  The labor market being what it is, there is abuse.  And there are good people in my union who are working hard to fight it.

I’ve been a student of the First Amendment for a long time, and I don’t know what should happen in Janus, whether from a detached scholarly perspective, or for my own best interests.  It rubs me the wrong way being compelled to participate in organized labor and forego my individual economic liberty.  To have my voice heard, I have to let my pocket be picked by political causes I disagree with.

At the same time, the unions are right:  The Janus challenge is about union busting and worker exploitation, not civil liberties and not economic liberty.  In academics, union busting is sure to hasten the end of tenure and the annihilation of academic freedom.  That hardly seems a result that honors the First Amendment.

I admit: I’m Janus-faced about Janus.  But on Monday, I'll be wearing my AFT T-shirt.

 

[UPDATE, Apr. 10, 2021.  Regrettably, my faith in the union was not enough.  The bargain of surrendering my beliefs became untenable.  See, e.g., this post in 2020.]