Legal Career View

Setting the Scene

Lost in the constant turmoil of President Trump’s predilection for self-inflicted wounds is the interesting fact that labor law—the demise of which has been announced by numerous observers—is experiencing something of a revival. Not quite yet of Lazarus proportions, but interesting for aspiring legal job seekers nonetheless.

You cannot blame the gravediggers for their perhaps premature proclamation. After all, private sector unions now account for a miniscule 7 percent of the U.S. work force and right-to-work laws have now been enacted by a majority of states, including some recent surprising ones in the industrial Midwest. However, they ignore the fact that public employee unions, in sharp contrast, still comprise a robust 38 percent of the government work force.

The 2010 election put Republican governors in office in the union-heavy (a very relative term) Midwest. Governor Scott Walker of Wisconsin and his ideological clones in other states have done more for the American labor movement than anyone since Samuel Gompers and John L. Lewis. What was dead as a doornail has been energized, raised from the dead to fight once more for collective bargaining and other rights, and to become deeply involved in national and state elections.

First it was Governor Walker, followed quickly by Governors John Kasich in Ohio and Mike Pence in Indiana, who went after public employee unions in a big way. Ironically, one of the results of their anti-union activities has been that labor law and labor relations jobs on attorney job websites have steadily increased, with law firm labor and employment practices leading the way.

In many states, collective bargaining agreement (CBA) negotiations have, for years, taken the form of unions holding a gun to the heads of management. The result has been, for example, gilt-edge contracts that some unions have that permit their members to featherbed their working hours during their last few years of employment in order to take home annual six-figure pension checks. State and municipal governments can no longer afford to operate in this way.

For example, while New York State bans public employee union strikes, it must contend with the “Triborough Doctrine,” under which existing CBAs cannot expire during negotiations for a new labor contract. Consequently, there is no union incentive to negotiate a new CBA if its members would likely be better off under the old one. Consequently, negotiations can continue ad infinitum.

Signs of Growing Interest

While public sector unions have been energized by attempts to squelch them, there are also signs of life in private sector organizing. Emerging industries are now at the point where nascent efforts to organize their workers are occurring all over the country.

Digital media industries are seeing a lot of this kind of activity. Other new industries are also being targeted, chief among them the renewable energy sector, especially rapidly expanding wind and solar.

Boosting Your Labor Law Credentials

Credentials mean something when competing for a labor law job. It helps, of course, to have taken labor law courses in law school and/or to have a related undergraduate or graduate degree. Nevertheless, there are short-term, reasonably priced educational programs that you can take to enhance your competitive advantage, such as:

• Rutgers University
  • Public Sector Labor Relations Certificate Program
  • Labor and Employment Relations Certificate
• University of California-Davis Extension
  • Labor-Management Relations Certificate Program
• City University of New York – The Murphy Institute
  • Certificate in Labor Relations
  • Advanced Certificate in Labor Relations

For More Information

• American Bar Association Section of Employment and Labor Law
• U.S. Department of Labor
• AFL-CIO
• International Labour Organization

The National Picture

Twenty-six states and the District of Columbia now have laws legalizing marijuana sales and use in some form. Three other states—Arkansas, Florida and North Dakota—will soon join this list after 2016 ballot measures permitting use of medical marijuana.

Seven states—Colorado, Washington, Oregon, California, Massachusetts, Maine and Nevada–and the District of Columbia have laws legalizing marijuana for recreational use. California’s measure allows adults 21 and older to possess up to one ounce of marijuana and grow up to six plants in their homes. Other tax and licensing provisions of the law will not take effect until January 2018.

Legislatures in states that recently passed legalization measures are currently debating and devising regulatory schemes governing the use and sale of marijuana. Several other states have also decriminalized the possession of small amounts of marijuana.

Medical marijuana laws are all over the map when it comes to the types of medical conditions that allow for treatment. Several states allow residents to possess marijuana only if they suffer from certain rare medical illnesses.

The biggest potential threat to this rapidly expanding industry is the U.S. government. Selling marijuana is still illegal under federal law. The Obama Justice Department refrained for the most part from enforcing the law in legalizing states. The jury is still out with respect to what the Trump Justice Department will do.

The U.S. Supreme Court last year, by a 6-2 vote, rejected a challenge to Colorado’s marijuana legalization law that permits adults to buy, sell or use an ounce of the drug. The justices turned away a lawsuit brought by Nebraska and Oklahoma, whose state attorneys general argued that illegal marijuana was pouring into their states from Colorado. They argued that Colorado’s law violates the federal Controlled Substances Act (21 U.S.C. §§ 801 et seq.), which treats marijuana as a dangerous drug and forbids its sale or use. They urged the Supreme Court to declare that Colorado’s law was preempted by the federal drug laws.

Consequences

The legalization of marijuana has led to a huge growth in the production and distribution of legal cannabis and an explosion of new businesses—growers, distributors, retailers—and related service providers, including marketers, paraphernalia sellers, bankers, and lawyers (sole practitioners, law firms of all sizes, attorneys who work for consulting firms, and government regulators encompassing both attorney and JD Advantage positions).

Colorado, which voted to legalize recreational marijuana in 2012 is now home to a more-than-$1 billion a year industry, according to tax data. Sales are increasing at an annual rate of more than 20 percent.

Marijuana law is likely to be a growth industry for years to come, regardless of the federal enforcement role.

Key Issues

The major issues around the new cannabis regimes encompass many practice areas, including:

• Transactions
• Investment
• Litigation
• Criminal matters
• Banking and finance
• Money laundering
• Asset protection
• Landlord-tenant
• Intellectual property
• Ethical considerations

The law with respect to all of these is changing rapidly. New regulations are cascading all over the country. That makes marijuana law potentially one of the 21^st century’s most robust practice areas.

On April 14, the Consumer Financial Protection Bureau (CFPB)  issued its fifth fair lending report to Congress, which discusses the Bureau’s work in this area in 2016 and its plans for 2017. Before proceeding further, I should note that the CFPB, a creature of the Dodd-Frank Wall Street Reform and Consumer Protection Act, is under siege by congressional Republicans.

For 2017, the CFPB intends to: (1) evaluate whether lenders have “intentionally discouraged” potential applicants in minority neighborhoods from applying for credit; (2) investigate whether mortgage or student loan borrowers who fall behind on payments face more difficulty in working out new payment plans because of their race, ethnicity, age, or gender; and (3) further explore fair access to credit for woman- and minority-owned firms. The Bureau lumps its characterization of these initiatives as presenting “substantial risk of credit discrimination for consumers.”

There is opportunity here on both sides of credit transactions: (1) representing consumers who allege discrimination, and  (2) representing lenders defending against such allegations.

On a related note, the U.S. Department of Education appears to be engaging in a debt forgiveness slowdown. Translated, that means that student loan recipients defrauded by for-profit colleges (other than Trump University, where a settlement with thousands of members of a plaintiff class was recently approved) might have to wait longer to see that debt forgiven by the Education Department. Tens of thousands of student borrowers seeking to have their federal loans canceled on the grounds their colleges defrauded them now must wait to see if their loans will be forgiven under the Borrower Defense to Repayment program.