Reinhardt at work.

• Author: Sachs, Benjamin I.
• Position: Stephen R. Reinhardt's labor and employment law decisions

In his thirty years as a judge, Stephen Reinhardt has authored more than 150 labor and employment opinions for the Ninth Circuit. (1) Indeed, it would be hard to identify a single question concerning the law of work about which Judge Reinhardt has not written at least one major decision. In addition to its sheer size and scope, Judge Reinhardt's jurisprudence also reflects a remarkable grasp of the overall structure of U.S. labor and employment law. From questions as fundamental as who is an employee (2) and what constitutes work, (3) to issues as complex and esoteric as how to define common situs picketing, (4) the Judge is at home and at ease in this area of law. At their best, Reinhardt's labor and employment opinions display a technical virtuosity impressive to both seasoned practitioners and legal academics. This feature of his opinions should come as no surprise: Judge Reinhardt practiced as a labor lawyer before taking the bench in 1980 (making him nearly unique among his colleagues on the federal courts of appeals (5)), and he came to his judgeship already possessing a firm grasp of the statutory and decisional landscape.

But the Judge's labor and employment jurisprudence is defined by more than its scope and technical accomplishment. In fact, Judge Reinhardt's writing in these areas is recognizable both for a consistent substantive vision of what labor and employment law intends to accomplish and for the Judge's method of interpreting these statutes. The substantive theme that runs through these opinions is a straightforward one: labor and employment statutes are written to enable workers' own efforts to make their lives better. He views the law as a vehicle for, and a facilitator of, worker empowerment--a view, at bottom, that labor and employment statutes do not merely grant particular workplace rights, but, perhaps more importantly, enable workers to fight for themselves.

Running alongside this substantive vision of labor and employment law is a tool of interpretation that the Judge deploys to resolve these cases. Namely, the Judge relies on his own understanding--informed by years of practice--of how law actually operates in the world of work, in the world of union organizing, and in the world of labor-management relations. His opinions are full of references to what the Judge, humbly of course, refers to as "reality"--the "realities of collective bargaining," (6) the "reality of day-to-day labor relations," (7) and "the practical realities of labor-management relations." (8) What these phrases capture is the Judge's insistence that labor and employment statutes be interpreted pragmatically. He demands that the court understand how things actually work before deciding how the law should be construed.

Although many cases could be cited to highlight these themes, three will serve our purpose here. The first concerns the scope of the anti-retaliation clause of the Fair Labor Standards Act (FLSA). (9) The second deals with the ability of undocumented immigrant workers to assert rights granted by Title VII of the Civil Rights Act of 2964. (10) And the third takes up the ability of unions to spend dues money on organizing new workers. (11) Because each of these opinions is significant in a number of additional ways--beyond the two themes that are the focus here--this Feature will also note some of the cases' broader implications.

1. ANTI-RETALIATION PROTECTION

   Judge Reinhardt's concern for worker empowerment--his view of the law as protecting workers' ability to fight for themselves, not simply as extending workplace entitlements--is expressed first and foremost in cases dealing with employer retaliation. Perhaps the best example comes in the context of the Fair Labor Standards Act. The FLSA sets the federal minimum wage and requires that covered employees receive overtime premium pay: if a covered employee works more than forty hours in a week, she is entitled to earn one and one-half times her regular rate for the overtime hours. (12) The statute, through its anti-retaliation clause, also offers protection to employees who seek to enforce these rights. (13)

   In the early 1990s, the Seattle SuperSonics (Sonics)--at the time, an NBA basketball team--began paying its ticket sales agents $166.67 a month in "overtime pay" regardless of how many hours of overtime the agents actually worked. (14) Believing, correctly, that this pay scheme was illegal and in contravention of the FLSA's overtime provisions, a group of sales agents decided to request that management reform the pay practice. They chose two "representatives" to deal with management--including the named plaintiff, Laura Lambert--and succeeded in convincing the Sonics's management to pay the agents the actual overtime wages that were owed. Nonetheless, less than a week after the Sonics settled the workers' overtime claim, the team reorganized its ticket sales operations. As a result, all of the agents involved in the effort to secure overtime pay were fired; in fact, the one agent not dismissed by the Sonics was the one agent who had not complained about the Sonics's payment scheme. (15)

   The case seemed like a clear-cut example of illegal retaliation. A Seattle jury agreed: it awarded the agents nearly $700,000 in lost wages and $12 million in punitive damages. (16) On appeal, however, a three-judge panel of the Ninth Circuit held that the anti-retaliation clause of the FLSA does not apply when workers complain to their employers about violations of the Act. (17) The clause makes it illegal for an employer to discharge or discriminate against any employee because the employee has "filed any complaint ... under or related to this chapter." (18) The panel read the statutory term "filed" to mean filed with a court or with the U.S. Department of Labor. On this reading of the statute, because Lambert and the other agents had taken their complaint to Sonics management, they had not "filed" a complaint within the meaning of the statute, and thus there was no cognizable retaliation.

   Rehearing the case en banc, the Ninth Circuit vacated the panel's decision in an opinion written by Judge Reinhardt. In holding that the FLSA anti-retaliation clause covers complaints made to employers, Judge Reinhardt's opinion begins by setting out a substantive vision of the statute's purpose. Most broadly, and quoting from a 1944 Supreme Court decision, the opinion argues that the FLSA is "remedial and humanitarian in purpose" and continues: "'We are not here dealing with mere chattels or articles of trade but with the rights of those who toil.... Those are rights that Congress has specifically legislated to protect. Such a statute must not be interpreted or applied in a narrow, grudging manner.'" (19)

   More particularly, the opinion stresses that FLSA enforcement depends upon workers coming forward to assert their rights under the statute, and thus the statutory scheme can function only if the anti-retaliation clause eliminates the "fear of economic retaliation." (20) In Judge Reinhardt's words:

   The FLSA's anti-retaliation clause is designed to ensure that employees are not compelled to risk their jobs in order to assert their wage and hour rights under the Act. Construing the anti-retaliation provision to exclude from its protection all those employees who seek to obtain fair treatment and a remedy for a perceived violation of the Act from their...