Today’s News & Commentary — May 30, 2017

Published May 30th, 2017 -  - 05.30.1710


Uber and Lyft returned to Austin, TX on Monday after Texas Governor Greg Abbott signed HB 100 into law, eliminating Austin’s fingerprint requirements for drivers.  As the LA Times describes, the bill designates the state, not local, government as the regulator of the “ride-hailing industry.”  Uber and Lyft left Austin in May of 2016 after losing Proposition 1—Austin voters decided (56% to 44%) not to allow Uber and Lyft to continue using their existing background check systems.  Governor Abbott called HB 100’s passage a “celebration of freedom and free enterprise.”  Austin Mayor Steve Adler, in contrast, was “disappointed” and expressed his “hope that [Uber and Lyft] return ready to compete in a way that reflects Austin’s values.”

Last Thursday, the Court of Appeals for the Second Circuit agreed to hear en banc Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017), a case which held that Title VII’s ban on sex discrimination does not protect against sexual orientation discrimination.  As we have covered in a previous post, this issue has been addressed, and decided to the contrary, by the Seventh Circuit.  Notably, the Seventh Circuit’s ruling produced a split with the Eleventh Circuit (Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017)).  Zarda’s case was originally dismissed on summary motion pursuant to Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), another Second Circuit case holding that Title VII does not proscribe sexual orientation discrimination.  On appeal, the Second Circuit panel refused Zarda’s argument that it overrule Simonton, citing Christiansen v. Omnicon Group, 852 F.3d 195 (2d Cir. 2017) (court permitted an openly gay employee to pursue a Title VII claim, but on a sex-stereotyping, not sexual orientation discrimination, theory) for the proposition that only the en banc panel of the Court or SCOTUS could reverse circuit precedent.  Oral argument in the case will take place this September.

On Friday, a New Jersey judge denied the Jersey City teachers union’s motion to dismiss a lawsuit, brought by two NJ residents working with the Goldwater Institute (a conservative think tank), challenging the district’s “release time” policy as violative of the New Jersey Constitution.  The policy allows two top union officials to work exclusively on union activities while being paid by the district.  The suit alleges that “release time” is prohibited by the state Constitution’s ban on local governments giving gifts to individuals or entities.

Last Thursday, Rep. Phil Roe (R-Tenn.) reintroduced the Employee Rights Act (ERA).  The bill, if passed, would amend the NLRA to, among other things, require secret ballot elections in employee unionization decisions; require unionized workers to hold periodic secret ballot elections to verify a continued desire to be represented by the union; empower the NLRB to de-certify unions for intimidating members; criminalize union threats; and require unions to receive affirmative permission from members to use payments toward political spending.  Rep. Roe described the ERA as neither “pro- or anti-union,” but rather, “a commonsense measure to ensure a transparent and fair workplace.”

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