The Majority Opinion: Legal Blog

With nearly 200 posts this year, we have certainly run the gamut on employment and labor law developments, ranging from minimum wage hikes , President Donald Trump's first nominee for Labor Secretary unexpectedly withdrawing , right to work developments ( including right to work zones ), increased attention on sexual harassment claims in the workplace , the National Labor Relations Board taking on a 3 - 2 Republican majority , and the subsequent reversal of the 2015 Browning-Ferris joint employer decision . Of course, that is not even touching on the many decisions handed down by courts across the country over the past twelve months that addressed whether an employer discriminated against an employee with a medical marijuana card simply because she was a card holder ( Callaghan v. Darlington Fabrics ),  yet another case that considered if time spent in security screenings after clocking out was compensable time ( Vance v. Amazon.com, Inc. et al. ), a Fourth Circuit Court of ...

As always, there are some recent EEOC cases that jump out at me when I review developments on that front.  Below are a couple EEOC cases and settlements that stand out. Bojangles' to Pay $15,000 to Settle Sexual Harassment and Retaliation Suit Bojangles' Restaurants, Inc. had a lawsuit filed against it in which the EEOC alleged that the company unlawfully subjected a transgender employee to a hostile work environment because of gender identity and then unlawfully terminated the employee for reporting the sexual harassment.  The suit alleged that Jonathan (De'Ashia) Wolfe, a transgender employee that worked at a Bojangles' location, was repeatedly subjected to offensive comments about her gender identity and appearance.  In fact, managers and assistant managers apparently demanded Wolfe behave and groom in ways that were stereotypically male (since Wolfe was born male), although Wolfe identified as a woman.  Although Wolfe reported the comments on several oc...

Earlier this month, the National Labor Relations Board ("NLRB") overruled an Obama era NLRB decision, Browning-Ferris Industries of California, Inc. , that expanded the definition of joint employer and placed a larger number of employers on the hook for labor law violations that were committed by their subcontractors.  In the NLRB's 3 - 2 decision in Hy-Brand Industrial Contractors, Ltd. , a "traditional" test will now be applied when considering whether an employer is jointly liable with a subcontractor for a labor law violation.  Under the traditional test, it must be shown that the employer had direct and immediate control over essential employment terms to support a finding that multiple entities (the employer, a subcontractor, etc.) are joint employers.  For those unfamiliar with Browning-Ferris , the joint employer tests, etc., this has been a somewhat hot button issue since the Browning-Ferris decision was issued in 2015.  In that decision, issue...

I think I spent less time in the office this week than I have in any other week all year.  Hard to believe so many courts wanted to have hearings this late in the year...but perhaps it is a fitting way to end 2017.  With that being said, one of the more intriguing articles I came across dealt with service or assistance animals in the workplace.  While I cannot recall working in an office (or any work environment for that matter) with a service or assistance animal before, I think this is a topic that many employers will start to be confronted with over the coming years.  While the article below does not have a definitive answer for how employers should deal with this matter, it does provide some guidance and is a useful resource to consider. As always, below are a few articles that caught my eye this week. Will Service or Assistance Animals in the Workplace Become the Norm? File this one under a topic that I am on board with.  Patrick Dorian wrote an ...

For those readers who have been following this blog for a while, let us take a step back to 2015.  Back then, President Barack Obama was nearing the end of his second term.  The National Labor Relations Board ("NLRB") had a pro-employee/union tilt and employers were reeling from several decisions that had been issued.  One of those that was considered to be quite ground breaking was the NLRB's ambush election rule (aka "quickie" elections.)   That rule sped up the time frame in which a union election could occur by shortening the time between the filing of a certification petition and the commencement of an NLRB secret ballot election.  As a result, union elections could occur within 21 days of the filing of a certification petition which would limit the time in which employers could prepare for an election.  A common line of reasoning follows that with a shorter window between the filing of a certification petition and the actual election, the less tim...

Readers might remember that earlier this year, Maryland Governor Larry Hogan vetoed the Maryland Healthy Working Families Act which would have required businesses in the state with at least 15 employees to provide five paid sick days a year .  That legislation, supported by Democrats, met staunch resistance among business groups and Republicans.  Although Governor Hogan, a Republican, vetoed the bill and stalled the passage of paid leave, Democrats have not been deterred.  In fact, Democrats in the state have indicated that they intend to attempt to override the Governor's veto when the legislature reconvenes in January.  Assuming Democrats vote along party lines, they appear to have enough votes to override Governor Hogan's veto and make the Maryland Healthy Working Families Act a reality. Notwithstanding the (likely) override of Governor Hogan's veto by Democrats, late last month, the Governor announced a new piece of paid leave legislation, the Paid Leave ...

I came across quite a few articles this week in regard to minimum wage hikes/the future of minimum wage hikes in the country over the coming months.  Add in the fact that in the upcoming new year workers in several cities are soon to see a minimum wage increase, I think it is appropriate to dedicate one of the last ‘What I’ve Been Reading This Week’ posts for 2017 to this topic. As always, below are a couple articles that caught my eye this week.   Forget About That Wage Hike, Miami Beach Minimum Wage Workers As posted on the Tampa Bay Tribune website, this past Wednesday, an appeals court in Florida upheld a circuit judge's ruling and held that state preemption laws barred Miami Beach from setting its own minimum wage rate.  Last year, the Miami Beach City Commission passed an ordinance that would have raised minimum wage rates in the city to $10.31/hour in 2018 with wages going up $1/year to $13.31 on January 1, 2021.  However, the statewide hourly wag...