Company can’t call coronavirus a natural disaster requiring layoffs – People’s World

Supreme Court Justice Ketanji Brown Jackson has already dismissed a number of Trump’s anti-worker actions. | PA

NEW ORLEANS — In a notable workers’ rights victory in the wake of the coronavirus pandemic, the New Orleans federal appeals court ruled in late spring that a Texas fracking company cannot not claim the virus is a “natural disaster” that allows it to avoid federal WARN – the Plant Shutdown Act – and lay off its workers without notice.

The June 15 decision by Judge Carl Stewart of the United States Court of Appeals for the Fifth Circuit was one of several rulings by federal appeals courts regarding workers’ rights in the first six months of 2022, a people’s world the survey shows. Many notable decisions seemed to come out of Texas, and there’s a reason for that.

This is called “judge shopping” by business leaders and the radical right.

Former Republican Oval Office occupant Donald Trump not only stacked the U.S. Supreme Court with the three far-right justices — Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch — who rocked the Upper Court against women’s constitutional right to abortion, the right to vote, the Clean Air Act and much more.

Trump has also, with the willful connivance of Republican Senate Leader Mitch McConnell of Kentucky, achieved a long-standing goal of the radical right, and in particular the so-called Federalist Society: to stuff the district courts and the courts of justice. appeal from the United States of right-wing ideologues dressed in black court robes.

Especially in Texas, and before the US Fifth Circuit Court of Appeals in New Orleans, which covers the Lone Star State and Louisiana. In other words, the Oil Patch.

So when corporations, their lobbies, the radical right and their political puppets, often led by the attorneys general of Texas and Missouri, wanted to overturn the pro-worker rules enacted by the Biden administration, they went to the Texas federal courts and won.

And that’s what made the fracking ruling by a three-judge Fifth Circuit panel so remarkable. The workers won. But then Democrat Bill Clinton nominated Stewart to the bench.

In the fracking case, US Well Services, Inc., abruptly shut down without notifying its workers, violating federal WARN law, known as the Plant Closure Act.

This measure, which unions pushed through Congress in 1988, says very clearly that if a company employing 100 or more workers plans mass layoffs or outright closure, it must give workers at least 60 days’ notice. .

If there is a union, of course, the notice gives it a chance to bargain with the bosses either to avoid the calamity or to lessen its impact on the workers. The company must also give the same notice to the surrounding community and state unemployment officials, so that they can research alternatives (the community) and prepare to assist workers with unemployment assistance.

US Well Services did not do this, however. He claimed the pandemic was “a natural disaster,” one of three exceptions the WARN Act allows to his 60-day term. If employers violate the WARN Act, they are fined one day’s wages per worker for each day the worker was not paid after losing their job until they get a judgment in their favor.

When oil prices crashed and customers deserted the fracking business as demand plummeted, it abruptly fired Scott Easom, Adrian Howard and John Nau on March 18, 2020, without notice. They filed a lawsuit, claiming US Well violated the WARN Act. The federal district judge who took the case ruled for the company.

Justice Stewart and his two colleagues did not.

“The WARN Act’s natural disaster exception provides “that no notice … shall be required if the plant closure or mass layoff is due to some form of natural disaster, such as a flood, a earthquake or drought that is currently ravaging farmland in the United States. .”

The coronavirus pandemic does not qualify, Stewart said. That’s because an earlier case said causes “not mentioned were deliberately excluded” from being natural disasters. And Congress, in enacting the WARN Act, did not mention – or list – pandemics.

In 1988, “Congress knew and could have included terms like disease, pandemic, or virus in statutory WARN Act language,” the judge added. That’s what he did after the Dust Bowl of the 1930s when he established federal crop insurance, he noted. “That he chose not to [do so] warrants the inference that these conditions were deliberately excluded” and that US Well should pay Easom, Howard, Nau and his other workers.

Stewart’s decision for workers stands out among worker-focused cases before federal appeals courts because it was a victory for workers. There were few cases, but losses were more common, especially at the hands of Trump-appointed Republican judges.

A notable anti-labor ruling, also from the Fifth Circuit — which Trump stacked — rejected Democratic President Joe Biden’s repeal of Trump’s “independent contractor” rule. It upheld a lower court ruling, also made by a Republican-appointed judge, in the Texas campaign.

Anti-worker forces, led by Associated Builders and Contractors and the so-called Coalition for Workforce Innovation – a front group for companies that deliberately rely on independent contractors – won the decision. The Fifth Circuit reinstated Trump’s rule, allowing companies to classify more workers as independent contractors.

The pattern persisted in another notable labor rules case, where National Nurses United and the AFL-CIO sued the Occupational Safety and Health Administration in the US Circuit Court for DC – often called the second most powerful court in the world. country – to force it to issue a Temporary Emergency Standard ordering healthcare employers to protect workers from the coronavirus. They lost, again to a Trump-appointed majority.

But a second case in that same DC appeals court ended in a worker’s victory over a Trumpite scheme — and the author of that Feb. 18 ruling was soon-to-be-elevated Judge Ketanji Brown Jackson. by Biden to the United States Supreme Court.

Government Employees (AFGE) challenged Trump’s late 2020 dictate that agencies could change personnel policies and working conditions without negotiating with unions, unless the change was major, rather than unless that it is minimal.

AFGE challenged Trump’s plan before the Federal Labor Relations Authority, the equivalent of the National Labor Relations Board for federal labor-management relations. The AFGE lost there.

So he headed to the appeals court — and Jackson wrote for the three-judge panel that overturned Trump’s ruling. This wasn’t Jackson’s first case pitting AFGE against the former Oval Office occupant.

While serving as a district judge, Jackson ruled for the union’s challenge to Trump’s three anti-federal workers’ executive orders. One has virtually stripped unions of their ability to represent workers, banning shop stewards from doing so on their own time and on their own, removing small union offices in federal buildings, and even depriving unions computers, telephones and fax machines.

A second Trump order barred federal workers from even contacting Congress. Jackson threw that one out as a violation of free speech. She threw out the other two as violating federal law governing relations between labor and management of the US government.

The DC Circuit, then stuffed with a majority of Trump-appointed judges, overruled Jackson, whom Democratic President Barack Obama nominated to the district court. Not this time.

“The FLRA’s decision to abandon its de minimis the exception for a ‘substantial impact’ threshold was not sufficiently reasoned, and is therefore arbitrary and capricious in violation of the Administrative Procedure Act”, which also required public notice of such changes and hearings. There was none, Jackson wrote in February 2022.

“We therefore accept the unions’ requests for review and rescind the FLRA policy statement,” Jackson decided. Biden’s FLRA dropped the case and reinstated the old norm.


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Marc Gruenberg