When Joseph Seiner first began attending the Washington and Lee School of Law in the mid-1990s, he was fully intent on becoming a corporate lawyer. An internship at a labor law firm in Atlanta changed his mind.
“I immediately just loved it,” he says. “I loved the human element of it. When you talk about someone’s job, that’s something that’s really core to how they view themselves. You see every human emotion when you’re in this area. I’ve had clients, when I was an attorney, screaming at me. I’ve had clients crying.”
After that summer, he junked the corporate law track. Labor and employment law, which he now teaches at the University of South Carolina, has been his focus ever since.
It’s also given him a front row seat in seeing how the legal rights of workers have been withering away over the past decade.
In his new book, The Supreme Court’s New Workplace: Procedural Rulings and Substantive Worker Rights in the United States, Seiner addresses the way legal rights have been eroded — often due to decisions made in cases that have gone under the national radar.
“What’s interesting about these decisions,” he says, “is they don’t always arise in the employment context. They’ll be decisions that occur in anti-trust or tort law, or someplace outside the scope of workplace law.”
Seiner says that over the past decade there have been several ways in which employees have found it harder to bring a successful claim against a boss.
“The first is that it’s harder for workers to even get their case before a court. Now they need more evidence than they needed 10 years ago for a court to even consider a particular case.”
That evidence may well be in the hands of the employer.
“Trying to get personnel files or email records or things like that — employees aren’t even getting access to that information,” he said. “It’s very hard for individuals to bring these claims without being given access to this information, which is being restricted to them.”
Class action claims have also taken a hit. Seiner cites the 2011 case of Wal-Mart Stores, Inc. v. Dukes, where over one and a half million female workers charged the department store chain with discrimination, only to find the U.S. Supreme Court refused to recognize them as a “class.”
Seiner said one of the requirements for a group to be certified as a class is “commonality.”
“The Supreme Court in that Wal-Mart decision really raised the bar on what it takes to say, ‘We look alike, the way we were wronged is similar to other employees,’” Seiner said. “Now, it’s very, very hard to establish that commonality and get a court to certify it.”
One of the biggest obstacles to workers seeking justice came from an unlikely case: the 2007 class action lawsuit of Bell Atlantic vs. Twombly, which charged that the communications giant was in cahoots with a number of other companies to squeeze out competition and establish a monopoly. The ramifications of the Supreme Court’s decision, which dismissed the case against Bell, went well beyond business law.
“What that case said is that you need a plausible claim,” Seiner said. “You may have enough evidence to bring a plausible claim. The problem with that is the term ‘plausible’ is very subjective. So if you have a court that’s not inclined to take these types of cases, you’ve just given it a hook to throw it out by saying, ‘Nope, the evidence here is not plausible, so I’m not even going to let this case move forward at all.’”
Seiner said the high court “overturned five decades of precedent in this one case, and it’s just not the type of case that makes headlines.”
While unionism has long been in decline nationally and barely exists in South Carolina, Seiner suggested the future will likely create other ways for workplace issues to be resolved.
Uber, for example, created what Seiner dubbed a kind of quasi-union that addresses concerns of their drivers.
Also, Seiner sees some measure of hope in that the current unemployment rate (at 4.3 percent) is low, putting workers in a better position than during the recession of five years ago.
But workers with grievances will have a “much more difficult terrain to navigate than they have in the past,” and their lawyers will have to get smarter.
“They have to be much more familiar with procedural law than they have been in the past to bring these claims, because there are a lot of traps that are being set that you can fall into,” he said. “Even if you have a good case, if you don’t characterize it the right way, it can be thrown out.”