Today’s News & Commentary — February 26, 2018

Published February 26th, 2018 -  - 02.26.183

Oral argument for Janus happens today.  As a refresher, a ruling in favor of the plaintiff, Mark Janus, would bar public sector unions from collecting agency fees that go to collective-bargaining costs from union non-members.  Because unions are still under a duty of fair representation to all the employees they represent, including non-members, a ruling in favor of Janus could encourage current members to leave, reducing revenues for unions.  The Court is expected to rule for Janus.  In anticipation, some public sector unions across the United States have already launched aggressive publicity campaigns urging union members to stay in the union.  The New York State United Teachers has knocked on the doors of 55,000 of its members. In Illinois, Ohio, and Pennsylvania, teachers’ unions have sent school leaders to encourage individual teachers to stay in the union.  The National Education Association, the country’s largest teachers’ union, has characterized the Supreme Court case as a “hurricane” for which unions must prepare.

This morning, the Supreme Court rejected without prejudice a request from the Trump administration for the court to determine whether the administration could shut down DACA.  Earlier this year, two district judges ruled that the administration had abused its discretion in rescinding parts of DACA.  The Supreme Court’s decision was expected, given that no appeals court has heard the issue yet.

Also this morning, in Zarda v. Altitude Express, an en banc panel of the Second Circuit held that “sexual orientation constitutes a form of discrimination ‘because of . . . sex,’ in violation of Title VII.”  Chief Judge Katzmann filed the majority opinion.  Zarda overturns the Second Circuit’s prior opinion in Simonton v. Runyon, which held that Title VII did not cover sexual orientation discrimination.

Last week, in Digital Realty Trust v. Somers, the Supreme Court unanimously held that Dodd-Frank’s anti-retaliation provision for whistleblowers do not extend to employees who have not reported the violation to the Securities and Exchange Commission.  Paul Somers was allegedly fired in retaliation for reporting his supervisor to higher management upon finding that his supervisor had eliminated certain internal controls in violation of the Sarbanes-Oxley Act of 2002.  Since Somers did not report his supervisor’s behavior to the Securities and Exchange Commission, however, the Court held that his termination was not barred by the whistleblower protections of Dodd-Frank.

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