UNIVERSITY PARK, Pa. – The Penn State Law Civil Rights Appellate Clinic has been involved in two high-profile employment cases before the U.S. Supreme Court this term: Janus v. AFSCME and Encino Motorcars v. Navarro.
Janus is predicted by many to be one of the Supreme Court’s most significant cases this term. Days before the court heard oral argument in Janus, the clinic students watched as two of the best appellate attorneys in the country, David Frederick and David Franklin, honed their arguments on behalf of the American Federation of State, County, and Municipal Employees (AFSCME). A decision in the case is expected in the spring.
“The most interesting aspect of attending the moot court was the opportunity to listen in while highly accomplished practitioners exchanged and debated strategic appellate advice in preparation for oral argument before the Supreme Court,” said third-year student Thomas Atkins. “Now that the transcript of oral argument in the case has been published, it’s fascinating to see how the appellate attorneys made adjustments to their approach and corrected course in response to the panel’s feedback.”
Janus concerns whether state law can allow unions to collect “fair share” fees from public employees who are not union members, but who nevertheless benefit from the union-sponsored collective bargaining efforts. In its unanimous 1977 decision in Abood v. Detroit Board of Education, the Supreme Court ruled that nonmembers of public employee unions may be required to pay fees to the union to cover the costs of “collective bargaining, contract administration, and grievance adjustment purposes,” but those funds may not be used by the union for political activities.
Mark Janus, a social worker in Illinois covered by an AFSCME collective-bargaining agreement, filed suit against the union, arguing that the 78 percent of union dues that he was required to pay under Illinois law—his “fair share” covering nonpolitical union activities— violated his First Amendment rights.
“If the court overrules 45-year-old precedent in Abood, public employees in states that have rejected so-called ‘Right-to-Work’ legislation could have the incentive to free ride on the efforts and expenses of union members; free riding employees could reap the benefits of union representation while shouldering none of its cost,” said third-year student Krista Dean. “The case could go down in history with the likes of Citizens United as one of the court’s most consequential recent First Amendment rulings.”
In preparation for the moot court observation, the clinic students researched Abood and crafted argument regarding some of the issues in the case. “The clinic reviewed an enormous variety of empirical research that tended to suggest that yes, if unions are prevented from collecting fees from the employees who benefit from collective bargaining, unions across the country could be hobbled and effective labor-management relations compromised,” Atkins said.
Additionally, the Civil Rights Appellate Clinic was counsel of record on an amicus brief to the U.S. Supreme Court on behalf of the National Employment Lawyers Association in Encino, which was decided by the court on April 2.
At issue in this case was whether “service advisers” who sell automotive service solutions to customers of Encino Motorcars LLC in Encino, California, are eligible for overtime pay when they work more than 40 hours per week. Hector Navarro and his fellow service advisers at Encino Motors filed suit against their employer in 2012, alleging that Encino Motorcars violated the Fair Labor Standards Act (FLSA) by failing to pay them overtime wages.
The FLSA exempts from overtime pay requirements “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.” The district court initially denied their claims, finding that the service providers are essentially salesmen engaged in servicing vehicles, however, the U.S. Court of Appeals for the 9th Circuit reversed that decision, finding that the service advisers are not exempt because they are not involved in the servicing of the vehicles, only in the sales of the service. Other federal and state courts have disagreed with this interpretation, leading to the Supreme Court agreeing to hear the case this term.
The clinic’s brief urged the Supreme Court to affirm the 9th Circuit’s decision, arguing that, by a plain reading of the exemption, service advisers are not exempt from overtime pay. Further, the brief argued that under statutory interpretive rules, because service advisers are not specifically included in the exemption, they are not exempt from overtime wage requirements.
Finally, it argued, the Supreme Court’s “well-settled, consistently applied rule of construing exemptions to the FLSA narrowly against the employer, in order to achieve the remedial, humanitarian purposes for which the FLSA was enacted, also supports affirming the judgment of the court of appeals.”
In a 5-4 decision, the court disagreed with the position advocated by the clinic in its brief, finding that service advisers are exempt from FLSA overtime pay requirements because they meet the definition of a “salesman … primarily engaged … servicing automobiles.
“Being a member of the clinic has been the most invaluable part of my law school experience,” Atkins said. “The clinic operates like a boutique appellate firm focusing on high-impact cases at the cutting edge of civil rights and employment law. Students are encouraged to take initiative and responsibility over all aspects of a real-world case; we choose our cases and follow through with them from the research and writing phase to filing and oral argument.”
“As a foreign attorney and LL.M. student, participating the Civil Rights Appellate Clinic has been the most interesting experience for me at Penn State Law so far,” said Iranian LL.M. student Nasim Mokhtari. “Since I come from a civil law country—where everything is based on Sharia and has a codified statute—the whole legal process and system of common law is an absolutely new structure for me.
“I specifically like learning about the role of amici in the American law system because I get to see how lawyers and law students work so hard to find new solutions for legal matters and how much law scholars are helping the whole legal scheme and making efforts to facilitate the process,” she said. “The entire experience showed me how much everyone is aware of their legal rights in this country and how much the system cares for people.”
The Civil Rights Appellate Clinic, directed by Professor Michael Foreman, is one of nine legal clinics available to Penn State Law students, provides intensive training in appellate advocacy by involving students in noncriminal civil rights cases before state appellate courts, federal courts of appeal, and the U.S. Supreme Court. Students conduct research, draft briefs, assist in case selection, develop substantive legal positions, and plan appellate strategy.