Gig workers already lost once under Judge Amy Coney Barrett, President Donald Trump’s nominee to the U.S. Supreme Court.
In her August opinion for the 7th U.S. Circuit Court of Appeals, Barrett ruled against Grubhub food delivery drivers who proposed a class action claim against the company demanding minimum wage and overtime pay. Instead, she said the drivers must go through arbitration, which tends to drive more favorable results for employers.
Barrett has only been on the Chicago-based circuit court for three years and has yet to voice her views on many labor issues. But legal experts said Barrett’s decision on the Grubhub case may foreshadow the Supreme Court ruling against gig workers and leaving a sizable conservative imprint on other labor and employment issues.
Although some experts said it’s unlikely, the court can go as far as overturning California’s Assembly Bill 5, the landmark law that directed employers to give employment benefits to more workers, including gig drivers. Uber and Postmates are among the companies challenging it in court.
“This Supreme Court, particularly with the confirmation of Judge Barrett, all bets are off,” said William B. Gould IV, a law professor emeritus at Stanford University and a former chairman of the National Labor Relations Board under the Clinton administration.
AB 5 and gig workers
Barrett’s ruling in the Grubhub case, if applied nationwide by the Supreme Court, could effectively squash workers’ complaints by making it more difficult for them to sue, some legal experts said.
Employers prefer arbitration because it is more predictable compared to class action cases that may award huge amounts of money to employees, said Todd Lyon, a partner and co-chair of the Labor Relations Practice Group for Fisher Philips, a law firm that represents employers.
Lawyers are less inclined to take up arbitration cases, which have much lower potential payout than class action suits. Arbitration also ensures workers are playing on the field of employers, who can navigate the process much easier than an individual employee, Gould said.
It’s “arbitration of employers’ own creations,” Gould said. Barrett’s ruling “could deny workers’ rights under the law,” he said.
And some benefits gig workers have had for years could go away if Barrett is appointed and the court’s conservative majority reconsiders close decisions, such as ones upholding the Affordable Care Act.
Many gig workers have been using Covered California set under the Affordable Care Act to find and secure health insurance.
But the Supreme Court could overturn the Affordable Care Act and jeopardize those benefits, UC Berkeley law professor Catherine Fisk said in an e-mail.
“Workers who earn just a bit too much to be eligible for Medicaid and who lack employer-provided health insurance, which of course is the case for gig economy workers, will lose access to health insurance, and employers who do offer health benefits will go back to their prior practice of excluding coverage for pre-existing conditions,” Fisk said.
Finally, legal experts said the Supreme Court can upend California’s definition of independent contractors set by AB 5.
Last year, the California Trucking Association sued California in federal court to bar the state from enforcing AB 5 against trucking companies. The Supreme Court can take the case and rule in favor of the association, exempting the trucking industry from the bill, said David Rosenfeld, a lecturer at UC Berkeley law school and a lawyer representing unions since 1973.
Rosenfeld said he isn’t as worried about the Supreme Court ruling in favor of Uber and Postmates, who also sued California in federal court last year saying AB 5 violates their rights to be treated equally as other companies.
Gould said he views Uber and Postmates’ claim as frivolous. But with a more conservative Supreme Court, everything’s possible, he said.
“In normal times, I wouldn’t think they have a prayer of obtaining a review on the merits,” Gould said. “But the Supreme Court is dramatically moving to an extreme outside the mainstream legal position on a variety of issues, so you just don’t know this court may do.”
In Janus vs. AFSCME, the Supreme Court in 2018 held that public sector unions cannot charge fees to workers who do not want to belong to them. The decision describing those fees as an unconstitutional infringement on workers’ First Amendment rights dealt a blow to unions that had charged so-called fair share fees.
Since the ruling, anti-union organizations have filed several cases, including in California, asking unions to give back workers their fees collected before the Janus decision, arguing unions should have known the fees would be found to be illegal even though they were permitted for more than 40 years by a previous Supreme Court ruling.
Courts so far have ruled against the anti-union organizations. Maxford Nelsen, director of labor policy at the Washington-based Freedom Foundation, noted his organization is petitioning the Supreme Court this year to review one of those cases.
“We should be getting first hints fairly soon,” Nelsen said. “If they grant the review, it’s a good sign that the current majority, with or without Barrett, is interested in this issue.”
A conservative Supreme Court bolstered by Barrett’s appointment can force unions to repay back millions, Rosenfeld said.
“If the Supreme Court wants to do some real damage, they can take one of those cases and find that plaintiffs have claims for dues before the Janus was decided,” he said.
Nelson said the Supreme Court in a year or so can also decide on several cases involving laws that make it harder for government employees to cancel their union membership, such as limiting when they can opt-out to a few days or weeks in a year.
The Supreme Court may also tackle other important employment questions, Gould said. For instance, should McDonald’s be held liable for its franchisees committing wage theft? What about whether companies can invoke religion to exempt them from anti-discrimination protections?
Democratic presidential candidate Joe Biden wants to make significant labor reforms, such as ending “right to work” and holding company executives liable if they interfere with workers’ efforts to unionize. The Supreme Court could block some or much of those changes if Biden is elected, Gould said.
Still, Lyon noted Barrett has been on the 7th U.S. Circuit Court of Appeals only since 2017.
“Her decisions are not that voluminous, so what we have to go on is a very small record,” Lyon said. “It’s not crystal clear what kind of views she would hold on some of those things.”
Lyon said Barrett has favored employers more than employees so far in her rulings. But she can surprise people in her Supreme Court decisions, Lyon said.
“It’s certainly a long track record that exists for Supreme Court justices to ultimately be independent,” he said.