The Majority Opinion: Legal Blog

With the string of class action suits that have started to become more commonplace in the courts regarding unpaid internships, this is an interesting development on how the NFL is handling the issue.  Originally, the NFL had approximately 13,500 volunteers working the Super Bowl that would not get paid for their work.  However, the NFL reversed course and held that about 1,500 of these volunteers will now get paid.  Unsurprisingly, the NFL is now requiring the remaining volunteers who will not receive compensation to sign a waiver stating that they will not sue, join a class action, and agreeing to arbitrate if they do so.  Note that under the Fair Labor Standards Act ("FLSA"), a person that is an "employee" is entitled to receive a wage for their work done.  The Department of Labor has previously stated that under the FLSA, employees may not volunteer services to for profit private sector employers.  However, individuals who volunteer or donate their servic

Making a "Material Change" to a Separation Agreement - An Important Note Daniel Schwartz makes note of an important EEOC regulation that employers (and employees) should be mindful of when working on a separation agreement.  The article addresses how a "material change" can impact the 21/45 day requirement for the employee to consider the agreement, as required by law. What's In Store For Non Compete Agreements in Texas - 2014 This article addresses what is in store for non compete agreements in Texas this year.  Non compete agreements are often a hot button issue that inevitably become a contentious issue for both employers and employees. Desperate For a New Trial? Not Any More - Nicollette Sheridan's New Trial For Retaliation Claim In 2010, Nicollette Sheridan sued ABC, Touchstone and Desperate Housewives creator Marc Cherry for $20 million, claiming she was let go from the series in retaliation for complaining about being hit in the h

Halliburton Energy Servs., Inc. v. Dept. of Transp. - Fifth District Court of Appeal, CA Facts : Halliburton provided Troy Martinez with a company vehicle that he was to use in the course of his employment.  After Martinez had completed work one day, he drove to Bakersfield to purchase a car for his wife.  Although Martinez had traveled to Bakersfield in the past for work, this trip was not for any work related purpose.  After leaving the dealership, Martinez hit a car, injuring six of the plaintiffs in this suit.  The plaintiffs sued Halliburton, Martinez, and others. The trial court granted Halliburton's motion for summary judgment holding Halliburton could not be held to be vicariously liable for plaintiffs' injuries.  The Court of Appeal affirmed. Holding : The Court held that even though Martinez was driving a company vehicle when the accident occurred and had traveled to Bakersfield previously for work, the trip was "entirely personal" and was not und

As with many employment and labor law related cases that are being litigated around the country, there are always a few that stand out.  This is one to keep an eye on.   Facts :  In 2001, Quality Stores filed for bankruptcy.  Before and after the bankruptcy proceedings, Quality Stores terminated thousands of its employees.  Those employees that were terminated received severance payments under two different plans.  For federal income tax purposes, Quality Stores reported the severance payments as wages on W-2 forms and withheld federal income tax.  Quality Stores also treated the severance payments as taxable under FICA and withheld and remitted to the IRS both the FICA tax they owed as employers and the FICA tax their employees owed.   The Main Issue :  Whether severance payments made to employees whose employment was involuntarily terminated are taxable under the Federal Insurance Contributions Act, 26 U.S.C. 310 et seq.   Lower Court Opinion :   http://www.ca6.uscourts.go

In a somewhat surprising turn of events, for the first time in the history of college sports, college athletes are asking to be represented by a labor union, taking formal steps on Tuesday to begin the process of being recognized as employees.  Ramogi Huma, president of the National College Players Association, filed the petition and union cards signed by an undisclosed number of Northwestern University football players in Chicago today.  In order to represented by a labor union, at least 30 percent of employees (in this case, at least 27 of the 85 scholarship Northwestern University players) need to be in favor of the union to file the document.  Huma did not say specifically how many players signed the cards, only that there was an "overwhelming majority."  The next step is a formal election, which is supervised by the National Labor Relations Board. Northwestern released a statement and said it supports dialogue around the issues that are important to the uni

As with several cases around the country, I pay particular attention to a certain few and watch as the case develops at the appellate level.  This is one in particular that was handed down by the United States Supreme Court earlier today. Sandifer v. United States Steel - United States Supreme Court Facts : Clifton Sandifer filed a collective action against United States Steel on behalf of current and former employees and based the claim on the Fair Labor Standards Act (FLSA).  In essence, Petitioners complained that Respondent owed the employees backpay for time spent changing various pieces of protective gear, necessary for the work that Respondent required be done. Petitioners pointed specifically to twelve of what they stated are the most common kinds of required protective gear: a flame-retardant jacket, pair of pants, and hood; a hardhat; a “snood”; “wristlets”; work gloves; leggings; “metatarsal” boots; safety glasses; earplugs; and a respirator. United States Stee

Deleon v. Kalamazoo County Road Commission - Sixth Circuit Court of Appeals   Facts :  On November 13, 2008, plaintiff Deleon applied for the position of "Equipment and Facilities Superintendent."  Deleon testified that if he had he been offered the job, he would have asked for a $10,000 raise to compensate for the poor working conditions, described as "in a garage where there is exposure to loud noises and diesel fumes."  The commission initially hired another candidate, who soon quit.  An external candidate was then offered the job, who declined. In 2009, Deleon was transferred to the position without a raise and was not offered a choice on the transfer.  Notably, Deleon moved from an office environment to a "facility with running trucks and equipment that resulted in constant exposure to diesel fumes."  He offered testimony that he was the only Area Superintendent position subject to these conditions and developed bronchitis, in addition to a

This past week, an Oakland Raiders cheerleader filed a suit against the Oakland Raiders on behalf of 40 current Raiderettes and other members of the squad over the past four years.  The proposed class action accused the Raiders of failure to pay the Raiderettes minimum wages for the work they do, both on the sidelines and in the community for charity.  The Raiders apparently only pay their cheerleaders $1,250 annually, which equates to less than $5 an hour.  According to the suit, the wages aren't even paid until the end of the season.  The suit also alleged the team sticks the cheerleaders with travel costs and levied "fines", for issues such as failure to bring the correct equipment to practice, that eat into their meager salary. A copy of the complaint she filed (along with the contract which is an interesting read):  http://cbssanfran.files.wordpress.com/2014/01/complaint-filed-01-22-14.pdf

California's Harsh New Standard: Employers Can Recover Attorneys Fees Only if Employee Brought Wage Action in Bad Faith Effective January 1, 2014, California Labor Code Section 218.5 provides that employers can only recover their attorneys fees if they prevail in a wage action suit if it can be shown the employee brought the action in bad faith.  This article gives a bit of background on how Senate Bill 462 was created and how this law came into effect. New Jersey Inching Closer Towards Banning Employers From Asking About Applicant's Criminal History David Katz does a great job explaining how New Jersey is on the verge of banning employers from asking potential employee's about their criminal history.  In a 6-3 vote, New Jersey’s Assembly Labor Committee advanced a bill that would prohibit New Jersey employers with 15 or more employees from asking candidates about their criminal history on employment applications, and from conducting criminal background chec

Romanello v. Intesa Sanpaolo, S.p.A. - New York Court of Appeals   Facts :  Plaintiff, Giuseppe Romanello, was a former bank executive at Intesa Sanpaolo S.p.A, Defendant in this case.  After working for Defendant for nearly twenty five years, Plaintiff became ill and unable to work.  Plaintiff was subsequently diagnosed with a series of disorders, including depression.  After Plaintiff had been absent from work for nearly five months, during which time Defendant continued to pay Plaintiff his full salary, Defendant's counsel sent a letter to Plaintiff's counsel asking whether Plaintiff would return to work or resign.  Plaintiff's counsel replied that Plaintiff's condition had prevented him from working and would continue to prevent him from working for an undeterminable time.  Defendant subsequently terminated Plaintiff's employment. Plaintiff brought suit against Defendant on the grounds that Defendant discriminated against him on the basis of his disabilit

Prengant Employees: What Accomodation is Required? The underlying case, Young v. UPS , centered on a pregnant employee who was fired from UPS and sued on the grounds that UPS discriminated against her in violation of the Pregnancy Discrimination Act because she was not allowed to do light duty work, even though she was pregnant.  Judgment has been granted in the lower courts in favor of UPS.  This is a case to keep an eye on as it could be picked up by the Supreme Court. Potential Employees & Facebook - Good or Bad Indicator of Future Job Performance? This article examines a new study that had recruiters examine the content of different Facebook pages of graduating seniors and predict the future job success of those seniors based solely on what the recruiters saw on the Facebook pages.  Contrary to the results of prior research, this study found no correlation between the Facebook pages and the success of the employees in their jobs. Fiat Buys Chrysler - How Wi

In August 2011 the NLRB adopted a rule that required most private-sector employers to notify employees of their rights under the National Labor Relations Act by posting a notice  where other employee notices are customarily posted, including on the employer’s website.  Under the rule, an employer’s failure to do so would have been considered an unfair labor practice. In both of the Court of Appeals' decisions, National Association of Manufacturers v. NLRB   (D.C. Circuit 2013) and Chamber of Commerce v. NLRB   (4th Circuit 2013), the appellate courts held that the NLRB exceeded its jurisdiction when it promulgated the posting rule and invalidated the NLRB's requirement that that the notice be posted by most private-sector employers.  Many assumed that the NLRB would challenge these rulings, however, on January 6, 2014, the NLRB announced it would not seek to have the United States Supreme Court review the decisions.  It goes without saying that this came as welcome

Vasquez v. Franklin Management Real Estate Fund, Inc.  - Second District Court of Appeal, CA   Facts :  Management Real Estate Fund ("Defendant") employed Vasquez ("Plaintiff) as a maintenance technician at $10 per hour for a 40-hour week.  Plaintiff's duties included driving his own vehicle to a hardware store and performing other errands in obtaining items needed in maintaining defendant's apartments.  When Defendant refused to reimburse Plaintiff for the mileage expenses, Plaintiff quit and sued Defendant for constructive discharge in violation of public policy.  Plaintiff claimed he had no choice but to resign after his repeated requests were denied after 15 months on the job.  His suit alleged violation of California Labor Code Section 2802 and that the denial of reimbursement effectively left him with less than minimum wage during his tenure. The trial court originally dismissed Plaintiff's complaint after concluding that an employer’s fail

Muniz v. United Parcel Service, Inc.. - Ninth Circuit Court of Appeals   Facts :  Kim Muniz, Plaintiff, had been given a performance improvement plan and later demoted, based on unsatisfactory performance by her employer United Parcel Service, Inc., Defendant.  Plaintiff sued and alleged age and gender discrimination, retaliation and negligent supervision and training.  Plaintiff's age discrimination, retaliation, and negligent supervision claims were defeated and/or voluntarily dismissed prior to trial.  As a result, only Plaintiff's gender discrimination claim was tried.  At trial, the jury determined that Plaintiff's demotion was motivated by gender discrimination and awarded Plaintiff damages of only $27,000, contrary to the $700,000 that Plaintiff had asked for.     Although the Defendant largely prevailed on the claims, Plaintiff filed a motion for recovery of attorney's fees for prevailing on a California Fair Employment and Housing Act (FEHA) discriminat

The IRS & Automatic Gratuities On the topic of tips, see the caselaw summary from earlier this week about Starbucks Shift Supervisors being entitled to the tip pool, this is an interesting read.  This article by Alden Parker explains how, effective January 1, 2014, the IRS will treat automatic gratuities and how it will impact overtime calculations for employees.  An easy to follow example is included at the end of the article which makes this a more understandable topic. End of the Year Bonuses - Potential FMLA Minefield As many employers look at giving out end of the year bonuses to their employees, concerns can arise whether these bonuses trigger over time calculations under the Fair Labor Standards Act.  In essence, the key issue is whether the bonus is discretionary or non-discretionary.  Recent Verdicts & Settlements - December 2013 This is a good look at several recent cases from around the country that reached resolution in December 2013.  Note that wh

Barenboim v. Starbucks Corp. - Second Circuit Court of Appeals   Facts :  Plaintiffs Jeana Barenboim and Jose Ortiz filed a class action claim against Starbucks on the grounds that Starbucks's policy of allowing shift supervisors to participate in store tip pools violates New York Labor Law § 196-d.  Section 196-d states that "[n]o employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee."  N.Y. Lab. Law § 196-d. After summary judgment was granted for Defendant in the United States District for the Southern District of New York, Plaintiffs appealed.  The Second Circuit Court of Appeals affirmed. Holding :  The Second Circuit had previously certified two questions to the New York Court of Appeals for interpretation of § 196-d.  The New York

Tipped Employees Under the FLSA Good article by Kara Maciel and Jordan Schwartz on how tipped employees are handled under the Fair Labor Standards Act.  In particular, note the breakdown of several states that have growing litigation on this topic, including Hawaii's Supreme Court which handed down a significant ruling on the issue in a case from earlier this year. Just Cause Termination and Unionized Employees This article analyzes the "seven tests" of just cause termination, predominantly focused on the just cause termination of unionized employees.   NLRB's Change in Tone Regarding Employer Friendly E-mail Decision Bryan Symes examines how Richard Griffin, the NLRB's newly confirmed top attorney, might handle another case that deals with an employer's decision to prohibit its employees from using the company e-mail system for union solicitation.  Note that this issue had been addressed previously in Register Guard, 351 NLRB No. 70 (2007) a