The US Supreme Court's Term Starts Today - What You Should Know...

There are 3 major topics that you should be on the watch for as the Supreme Court's term starts on the first Monday of October, and they all center around the conservative's 6-3 majority on the bench. With their majority, will the conservatives limit abortion, expand gun rights, and protect religion? 

Here is what you should know: 

Abortion: Every pundit out there is telling you that Roe v. Wade is in danger during this term because Mississippi's 15-week abortion law will be heard in the case of Dobbs v. Jackson Women’s Health, which will be argued on December 1st. 

You should know that Roe sets the state's right to restrict abortion at the point of viability, except if abortion is necessary, in appropriate medical judgement. However, hasn't the point of viability shrunk over the years from when Roe was decided in 1973. On the other hand, as Carliss Chatman wrote, in the Washington and Lee Law Review, "If a Fetus Is a Person, It Should Get Child Support, Due Process, and Citizenship," no? It seems that you need to go all in with whichever belief you have as anything short seems like you will be full of pure political conjecture - when do you think that a fetus is first a person?  

Guns: New York State (NYS) went after the National Rifle Association (NRA) in Bankruptcy Court earlier this year, and, now, it's the NRA's turn to come after NYS. The NRA is before the Supreme Court by backing the New York State Rifle & Pistol Association in New York State Rifle & Pistol Association v. Corlett. The case asserts that NYS' concealed carry license law, which requires "proper cause" to carry a firearm, is unconstitutional. The case will be argued on November 3rd. 

You should know that "proper cause" means that an individual must demonstrate a special need for self-protection as distinguishable from that of the general community in order to carry in the State. Do you think that this makes sense as a standard or should concealed carry just be blanketly permissible, as the Plaintiff's argue is their right under the Second Amendment? On the other hand, don't unsafe public spaces offend the First Amendment's protections of assembly, association, and speech? It seems like we have an Amendment standoff and wouldn't restrictions on guns in public spaces be appropriate to make public spaces safe for democratic participation, as argued by the New York Civil Liberties Union in the case? What say you on this tough one? 

Religion: Flags and religion have been the biggest thing for the Republican Party since the 2020 elections and they are coming together in Shurtleff v. Boston where Boston flew a LGBT rights flag, but not one with the cross at city hall. Now, the Christians want their cross over the City, but what about the separation of Church and State in the First Amendment? 

You should know that freedom of religion is protected in the First Amendment, but that LGBT rights are not. However, is religion free if the state picks one over another? On that note, do you remember the separation of Gay and State being in the Constitution, because I don't? 

What Really Matters: The public is often looking for something that doesn't exist. As Justice Alito explained in response to tremendous outrage by abortion groups at the Supreme Court refusing to stop the Texas abortion law, those allegations are "false and inflammatory... "[w]e did no such thing and we said that expressly in our order." Instead, the Court ruled on procedure and that was lost on everyone who just reads salacious headlines with the word abortion in the title. If you actually read the decision, it's not about abortion at all, but, actually about something much more decisive and terrifying. 

You should know that Chief Justice Roberts explained that the real question in the case was "whether a state can avoid responsibility for its laws" by "essentially delegat[ing] enforcement to...the populace at large." Stated otherwise, the law let private citizens sue whoever they found to have violated the law. Taking that to its logical conclusion, should we deputize neighbors to sue each other for violating our laws? Should we be able to get $5,000 if we go after a neighbor for speeding on the highway? What about $7,500 for littering? Maybe, $25,000 for dealing drugs? Is that the future that we want? You decide.

 

Guidance Published for Federal Contractors and Subcontractors on COVID Vaccinations

As you may recall, all federal contractors now have vaccination requirements because of Executive Order 14042, as discussed in our blog here.

The Order requires that all contracts between federal contractor and subcontractor contain a clause ensuring compliance. However, the specifics of that clause were unknown until September 24, 2021, when the Safer Federal Workforce Task Force (SFWTF) published guidance, which requires:

• Vaccinations of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accomodation; 
• Compliance by individuals, including covered contractor employees and visitors, with the  guidance related to masking and physical distancing while in covered contractor workplaces; and 
• Designation by covered contractors of a person(s) to coordinate COVID-19 workplace safety efforts. 

The SFWTF guidance requirements for federal contractors and subcontractors are similar to the ones imposed upon NYS healthcare workers, which also require full vaccination as a condition of employment. 

Do you think we are going to see the same lawsuits and pushback on this requirement as we did in the healthcare setting?  

Will there be lots of employees quitting their jobs rather than complying? 

Is SFWTF overreaching in its efforts to stop the spread of COVID-19 or did they get it right? 

NYC School Employees Go to Justice Sotomayor of the Supreme Court for Relief - Should They Get It?

In their best written papers to date, NYC school employees argued to the Supreme Court that they need a stay of the October 1, 2021 deadline to get vaccinated. 

They argue that the vaccination order prevents them from lawfully pursuing their occupation, which is a fundamental Due Process right. They claim that their alternative options of private school teaching, adult or continuing education teaching, or private tutoring are not pursuing their occupations completely. Nonetheless, they fail to address whether taking "their certifications and seek[ing] employment in any other public school system... in the State," would be pursuing their occupations completely, as NYC had argued before the Second Circuit. 

Regardless, the issue of whether the employees can still pursue their profession is where the case is likely to be decided. In their opposition before the Second Circuit, the City had argued and emphasized that Due Process protection is only afforded if "a plaintiff is completely prohibited from engaging in his or her chosen profession." However, the school employees now argue that "a violation of one’s fundamental right to pursue an occupation exists and gives rise to a due process claim where there is less than a complete inability to practice one’s profession." Which one is it? Who is right? 

What do you think the law should be? 

The other argument advanced by the school employees is that the vaccination order should have given them an option to opt out of vaccination for weekly testing because school staff should be treated equally to firefighters and police officers who have that option. While this seems like a good argument in an initial read of the papers, the school employees' argument that firefighters and police officers present a greater risk to spread COVID because they have contact with the public as opposed to school children who have less severe COVID fails the smell test when it's considered that adults can be vaccinated and those under 12 years of age cannot. However, we will see. 

Minimum Wage Workers Outside NYC, Suffolk, and Westchester Counties May Soon Receive a Boost in Hourly Wages

A proposed rule at 12 NYCRR 141 will increase basic hourly minimum wage for non-farm workers outside of New York City, Nassau, Suffolk and Westchester counties, from $12.50 to $13.20. 

This proposed rule is in compliance with the minimum wage requirements at Labor Law 652(6). 

Although 70 cents may not be considered impactful by many, those struggling to afford monthly expenses, especially during the ongoing COVID-19 pandemic, will certainly benefit from such an increase. 

To voice your support or opposition to this proposed rule, comments should be sent to Michael Paglialonga, NYS Dept.of Labor at regulations@labor.ny.gov by November 29, 2021. 

NYS Bill to Allow Unemployment Benefits to Vaccine Refusal Firings

NYS Senator Alexis Weik Sponsored a bill that provides eligibility for unemployment insurance for "unemployment due to such employee's choice not to receive a coronavirus vaccine."

While this bill is nowhere near being enacted, do you agree with the Senator?

Is this bill perpetrating the spread of a deadly virus by empowering people to make stupid decisions that will lead to deaths or is it the right move to support liberty - my body my choice?

You decide - tell your NYS representatives if you support this bill or strongly oppose it!