Courts Matter for Workers

Retail and service jobs can be brutal on the best days, and the holidays exacerbate the mistreatment of working people. For many people who are just trying to get by, the only options for work are service-based jobs that pay federal minimum wage during the year with the only pay increase coming during the holiday season.  Working people are often taken advantage of by the corporations that employ them for seasonal work, typically receiving little pay and few benefits, as well as uneven work shifts that don’t allow for childcare or transportation. Employers try to assuage working people by paying them time and a half and letting them take double shifts, as if working more in worse conditions is somehow a privilege. There are no promises, however, of pension plans, 401(k)s, or days off to celebrate with family.

Working people are expected to work late nights, early mornings, or overnights from the weeks leading up to Thanksgiving through New Year’s Day on shifts that are woefully understaffed. Managers push the boundaries of labor laws so they can get the most work out of the least number of employees. Every day, people are fired or mistreated at work for all sorts of reasons. Harassment is normalized, discouraging employees from discussing wages is normalized, and microaggressions and racism are normalized.

The courts should be an avenue of redress for employees facing mistreatment or unsafe working conditions. If the employer is not following minimum wage standards, if the workplace is unsafe, or if adequate breaks aren’t provided, employees have a right to adjudicate their claims and have their day in court.

Access to justice for low wage workers was never simple, even before the Trump Administration, thanks to underfunded legal services, conservative rulings that often made it hard to even get to discovery (let alone a jury trial), forced arbitration that pushed disputes into secret corporate-favored proceedings, and so on.  But Trump is reshaping our justice system, and workers are being harmed.

Trump’s judicial nominees have proven histories of rolling back labor and employment rights that took decades – if not generations – of fighting by people across the country. They were chosen as judges precisely because they prioritize the rights of the wealthy and powerful over everyday Americans. For workers, that means that the right to make ends meet, to be paid adequately, and to have quality benefits, is under assault.

Neil Gorsuch’s first opinion on the Supreme Court made it harder for victims of wage theft to hold their employers accountable. Many of Trump’s lower court nominees led the fight to stop the Obama Administration from ensuring that about four million workers would become eligible for overtime pay. One appointee, as a state court judge, sided with businesses challenging Miami’s decision to raise the minimum wage $5 more than the state law, and because of her decision, over 24,000 Miami workers  lose over $117 million in wages annually. Another recently confirmed Trump judge criticized the “surge of wage-and-hour class action lawsuits” in California, including one case where Walmart had “to pay $172 million in damages for failing to provide 30-minute meal breaks to its employees in accordance with California labor law.” He actually contended that properly enforcing these basic protections “can dent the bottom line of Fortune 500 companies and potentially cripple small businesses.”

Trump’s judges aren’t only balking at fair wages, but also safe working conditions, including those overseen by the Occupational Safety and Health Administration (OSHA). One Trump judicial nominee believes OSHA itself is unconstitutional. Brett Kavanaugh called OSHA protections “paternalistic” and would have overturned a fine for SeaWorld after a trainer was killed by a whale because SeaWorld failed to adopt sufficient safety measures. Neil Gorsuch, as a lower court judge, was the only judge out of seven that ruled against Alphonse Maddin, the “Frozen Trucker.” Gorsuch ignored a law enacted to protect the health and safety of transportation workers and allowed Mr. Maddin’s employer to force him to choose between his job and saving his own life when his truck broke down in freezing conditions. In another case, Gorsuch was the only judge who would have overturned an OSHA fine on an employer that failed to properly train a mining-construction worker who was killed on the job. He was electrocuted when a piece of equipment got too close to an overhead power and line. He had been on the job for a single week and was not provided with full job safety training. Fortunately, the remaining judges were able to interpret the law correctly in spite of Gorsuch’s objections and the suit was found in favor of the plaintiff. Unfortunately, another Trump Judge was successful in writing a decision that denied black lung benefits to a retired coal miner who developed a permanent respiratory disability. The decision reversed the Department of Labor Benefits Review Board’s decision and reinstated the Administrative Law Judge decision that the dissent noted, “wholly ignores” evidence of lung impairment.

Trump’s judges have also denied employees protections under anti-discrimination laws. For example, Amy Coney Barrett, who is on Trump’s short list for the Supreme Court, sided against an African-American worker whose company transferred him to another store because of their practice of segregating employees by race.  Barrett also held that a law prohibiting age discrimination did not protect a 58-year-old job applicant who was refused an interview for a senior position because the company was only seeking applicants with fewer than seven years of experience. The company hired a 19-year-old with far less experience.

Trump’s judges are siding with the wealthy and powerful over the people time and time again. By doing so, they are essentially stealing wages from hard-working people. They likewise create obstacles for working people to adjudicate their claims in court. These judges legally gaslight and side against workers who have suffered discrimination and harassment at work, and exposure to hazardous working conditions. Make no mistake that many of Trump’s judges were nominated and confirmed because of their proven histories of rolling back rights. They will be on the bench decades after the Trump Administration is long gone, fulfilling his plan to eviscerate the rights of working people.

When you’re out doing your holiday shopping this year, keep in mind how stressed and overworked the retail employees are. Not only are they being pushed to the limits, but Trump and his judges are making it even easier for their employers to take advantage of them.