2018 Jackson Lewis P.C.

Transcription

1 2017 Jackson Lewis P.C. 2018

2 THE MATERIALS CONTAINED IN THIS PRESENTATION WERE PREPARED BY THE LAW FIRM OF JACKSON LEWIS P.C. FOR THE PARTICIPANTS OWN REFERENCE IN CONNECTION WITH EDUCATION SEMINARS PRESENTED BY JACKSON LEWIS P.C. ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OR OTHER ADVICE. 2

3 What s New in Washington, D.C. The Supreme Court of the United States wrapped up its term on Wednesday, June 27. The end of the term brought about several newsworthy decisions, including finding President Trump s travel ban on citizens of several predominantly Muslim countries constitutional. Associate Justice Anthony Kennedy, 81 years old and an appointee of President Reagan, announced his retirement from the Court after 30 years of service. 3

4 The Retirement of Justice Anthony Kennedy Justice Kennedy announced he will retire from the Court this year, allowing President Trump an opportunity to appoint a second Justice to the Supreme Court. President Trump appointed Justice Gorsuch in Justice Kennedy often acted as the proverbial swing vote in several major cases, at times voting with the liberal-minded Justices on social issues (i.e., Ginsburg, Sotomayor, Kagan and Breyer). If President Trump appoints a staunch conservative, with the Republican party holding a majority of the seats in the Senate, the nominee will likely be confirmed shifting the Court s ideological balance to the right. 4

5 A Look Back at Justice Kennedy Justice Kennedy sided with his liberal colleagues in the early 1990s when reaffirming the Roe v. Wade decision establishing a woman s constitutional right to abortion. He cast the deciding vote in Obergefell, ruling that same-sex marriage is protected under the U.S. Constitution. He voted with his conservative colleagues in Epic Systems Corp. v. Lewis, which held that class action waivers in employment agreements do not violate the NLRA. With his impending retirement, the importance of his swing vote cannot be understated, as the Court s balance may shift for generations. 5

6 The Employment Law Impact One of the biggest issues expected to reach the Court is the Circuit Court split on whether Title VII s ban on sex discrimination in the workplace extends to cover discrimination based on sexual orientation. Currently, Title VII does not protect against discrimination on the basis of sexual orientation. However, the Second (includes NY) and Seventh Circuits have issued opinions suggesting that it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex. Based on Justice Kennedy s history of voting in favor of LBGTQ rights, such as in Obergefell, many expected him to be in position to cast the deciding vote in favor of extending Title VII to cover discrimination based on sexual orientation. 6

7 What the Future Holds President Trump is on record as having a list of 25 names of possible Supreme Court nominees all of which historically possess a clearly conservative mindset. President Trump has stated his goal is to appoint justices that will overturn Roe v. Wade. With the Republicans holding a majority of the seats in the Senate, they are expected to try and confirm President Trump s nominee prior to the midterm elections in November where they risk losing their Senate majority. If this happens, the Court s majority will be of a conservative ideology, which could lead to more pro-employer decisions from the Court. 7

8 A Employment Law Decision On the final day of its term, the Supreme Court handed down its decision in Janus v. AFSCME Council 31, No (June 27, 2018). The Court held that public-sector workers who are not union members cannot be forced to pay agency fees that cover the cost of collective bargaining. Specifically, a provision in a CBA between a state government entity and a labor union requiring non-members to pay mandatory fees to the union as a condition of employment violates the Free Speech Clause of the First Amendment, The Court voted 5 to 4 to overturn more than 40 years of precedent that found these agency fees for non-union members constitutional. 8

9 I m Not A Public Employer. I m Not Unionized. Why Should I Care? On its face, you may think the Janus decision does not impact your workplace... think again! With unions ability to collect fair share fees in the public sector impeded, their attention will turn to increasing their presence in the private sector. New York remains the most union-heavy state in the country. The groundwork exists for unions to try and expand their reach to you! In 2017, 23.8% of New York employees were union members a total of 2,017,000 employees. The mindset of unions attempting to organize only blue collar workers is outdated they are targeting white collar workers and millennials (i.e., your workforce) and will become more aggressive in their attempts to organize. Studies show today s workforce wants better benefits and a level of job security and a union can help them. Be vigilant! 9

10 Janus Background Mark Janus, an employee of the Illinois Department of Healthcare and Family Services, is represented by, but not a member of, AFSCME Council 31 (a union). As a non-member, the CBA between the state and AFSCME required Janus (and other non-members) to pay a fair-share fee to AFSCME, ostensibly to cover the costs of collective bargaining and contract administration. Janus refused to join the union because he opposed many of the public policy positions that the union advocated, including the positions it took in collective bargaining. 10

11 Janus The Road to The Supreme Court Prior to Janus, these fair-share fees were constitutional according to the Supreme Court in its landmark 1977 decision Abood v. Detroit Board of Ed., which allowed public employers to require non-union workers in union-represented bargaining units to pay fair-share fees. The caveat for non-members they could not be forced to pay for a union s political or ideological activities. The United States Court of Appeals for the Seventh Circuit upheld Abood and found the fees constitutional. Janus petitioned the Supreme Court to hear his case. In 2016, following the death of Justice Scalia, the Supreme Court heard a similar case and issued a 4 to 4 opinion maintaining the constitutionality of fair share fees. 11

12 The Janus Impact Justice Samuel Alito (a 2006 appointee of President George W. Bush) wrote the opinion for the majority, joined by Chief Justice Roberts, and Justices Kennedy, Thomas and Gorsuch. An ideological split vote. Moving forward, unions that represent public sector employees anticipate that a significant number of non-members will cease paying agency fees to the union that represents them. The Service Employees International Union, one of the largest unions in the country, months ago laid off employees at its national headquarters in anticipation the Court s decision. Although Janus involves public sector employees, private sector employers should be paying attention. The direction of the Court is clear. 12

13 What Might Unions Do Moving Forward? As many unions that represent public sector employees also represent private sector employees and want to represent more of them unions may seek to become more financially efficient in order to continue their organizing efforts in the private sector. Unions will use their trimmed resources to meet their current statutory duties to represent employees at workplaces where they now have representation rights. Unions advocacy could become less robust if their reduced financial pool requires them to make do with fewer union officials or otherwise strain their ability to shoulder the costs of representation. They may take fewer grievances to arbitration. Unions may increase their efforts to enlist partners (e.g., community groups, politicians, religious leaders) to work as low-cost, force multipliers in their organizing efforts. 13

14 THANK YOU With 800 attorneys practicing in major locations throughout the U.S. and Puerto Rico, Jackson Lewis provides the resources to address every aspect of the employer/employee relationship. 14