The Majority Opinion: Legal Blog

As always, there are some recent EEOC cases that jump out at me when I review recent developments on that front.  Below are a few recent EEOC cases and settlements that stand out: Dollar General Settles EEOC Sexual Harassment Claim The EEOC filed a sexual harassment claim against Dollar General as a result of a store manager in Dollar General's Bull Shoals, Arkansas store that began sexually harassing female employees shortly after his transfer to that store.  The alleged harassment included comments and requests for sexual favors.  Even though at least one employee called the corporate hotline and also complained to an assistant manager about the harassment, Dollar General failed to take action to stop the manager's conduct. Dollar General settled for $27,500 and agreed to provide sexual harassment and retaliation training for store managers and assistant managers. EEOC Press Release:  http://eeoc.gov/eeoc/newsroom/release/2-4-14.cfm JP Morgan Chase Se

Work Closed Because of Storm - How Time Off & Paying Employees Works This article goes through what employers and employees can expect to experience when an office closes because of weather and a question arises over whether the employees are entitled to be paid.  With winter storms sweeping across much of the country the past few weeks, including down south where it is not as common to experience work closures because of winter weather, this article provides a timely refresher. Probationary Period For California Employees - How the ACA Comes Into Play Nancy Yaffe makes note of how California employers are impacted by the Affordable Care Act ("ACA"), in regard to when employees now have to be provided healthcare benefits. While many probationary periods are ninety days, the ACA no longer permits employers to wait that full time period before offering healthcare benefits.  Under the ACA, California employers have to provide healthcare benefits to their empl

On February 7, 2014, a class action was filed in the California District Court against Whole Foods for alleged violations of the Fair Credit Reporting Act ("FCRA").  The complaint is based, in part on claims that Whole Foods used invalid authorization forms in the background screening process and ordered background checks on potential employees before obtaining valid authorization.  The class includes thousands of applicants who completed applications with Whole Foods between February 7, 2009 up to the present.  Notably, if found to have violated the FCRA, Whole Foods could be subject to statutory violations between $100 and $1,000, per violation. Special thanks to Angela Preston who also wrote on this topic and provided tips for employers to follow in order to comply with the FCRA.  Her article can be found here:  http://www.employeescreen.com/iqblog/whole-foods-hit-with-fcra-class-action-for-background-checks/

Note :  I am familiar with two of the three court of appeals judges that decided this case, Judges Keyes and Higley.  Judge Keyes' husband, an attorney in Houston and Austin, taught one of my classes in law school.  Judge Higley was a fellow member of the Garland Walker Inn of Court and was a judge of an appellate argument I gave. Sentinel Integrity Solutions, Inc. v. Mistras Group, Inc. - First District Court of Appeals, Texas   Facts :  Jody Olson, an employee of Sentinel, agreed to and executed a non-compete covenant that prevented him from performing for a competitor any duties encompassed by the role of a manager for Sentinel.  The non-compete included a geographic restriction on Olson working in locations in any one of seven different states, plus Trinidad and Tobago, and a time restriction for a period of three years.  After starting with Sentinel in August of 2009, Olson worked for the company a few months before deciding to leave in December of 2009.  After le

Every week, I read a wide variety of cases, articles, blogs, and opinions on employment and labor law issues from around the country.  This week, however, I found a few intriguing articles on labor law topics that really jumped out at me.  As a result, the highlights of my readings this week center on labor law issues. NLRB Rules Confidentiality Policy is Overbroad The NLRB recently held that an employer's confidentiality policy which prohibited employees from disclosing confidential information, such as "personal or financial information, etc." illegally restricted the employees' right to engage in protected concerted activity.  Employers that utilize confidentiality policies should ensure they are narrowly drawn or risk litigation over potentially overbroad policies. Proposed New Union Election Rules = More Unions Likely to Form? The NLRB has proposed new rules in regard to when employees vote on whether or not to organize a union.  Under the current

Chavarria v. Ralphs Grocery Co. - Ninth Circuit Court of Appeals Facts :  After having worked at Ralphs Grocery Co. for roughly six months, Plaintiff brought a class action against Ralphs for several alleged wage and hour violations of the California Labor Code and California Business and Professions Code.  As a condition of employment, Plaintiff had signed an employment application that included an arbitration agreement that provided for a class action waiver.  Ralphs moved to compel arbitration, pursuant to the arbitration clause in the application. The district court held that Defendant's arbitration policy was unconscionable and denied Defendant's motion to compel arbitration.  The U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s ruling.  Holding : The Court examined Defendant's arbitration policy and found it was both procedurally and substantively unconscionable and therefore unenforceable. In regard to the procedural unconsc

For those employers who have not checked or forgot about the change in mileage reimbursement rates, the IRS announced the optional standard mileage reimbursement rates have changed for 2014. Beginning January 1, 2014, the reimbursement rates decreased one-half cent from the current rates in effect, and are as follows: 56 cents per mile for business miles driven; 23.5 cents per mile driven for medical or moving purposes; and 14 cents per mile driven in service of charitable organizations (same as current rate in effect). For those employers that use the standard IRS rates for mileage reimbursement, make sure to change your expense reimbursement policies.  

On Monday, it was announced that a portion of the Affordable Care Act ("ACA") will be delayed again.  Employers with between 50 to 99 employees will now have until 2016 before they risk being subjected to a penalty for failing to comply with the ACA.   As well, companies with 100 workers or more are also getting a bit of breathing room. These companies will not be subjected to a penalty if they now offer insurance to 70 percent of their employees by next year.  Note this is less than the originally mandated 95 percent of employees that were required to be offered insurance by the employer.  Washington Post article with additional information on the law and how it impacts employers:  http://www.washingtonpost.com/national/health-science/white-house-delays-health-insurance-mandate-for-medium-sized-employers-until-2016/2014/02/10/ade6b344-9279-11e3-84e1-27626c5ef5fb_story.html

Most employers will face a time when an employee leaves the company, whether it be voluntary or involuntary.  Each state handles how the former employee is to receive their final paycheck differently.  This particular note focuses on the law in Texas. Voluntary The Texas Payday Law requires that when an employee quits, retires, resigns, or otherwise leaves employment voluntarily, the final pay is due on the next regularly-scheduled payday following the effective date of resignation.   As a result, if a company has paydays on the 1st and 15th of each month, if an employee quits on February 5, the employer can pay that employee the final pay check on the next regularly-scheduled payday, in this case, February 15. Involuntary   However, in the case of involuntary termination such as a discharge, termination, layoff, "mutual agreement," and resignation in lieu of discharge, the employer has six calendar days from the effective date of discharge to give the emp

Summers v. Altarum Institute, Corp. - Fourth Circuit Court of Appeals Facts :  Summers was a senior analyst for a government contractor and requested permission to work remotely while he recovered from an October 2011 accident that left him incapacitated, with fractures in both legs.  Doctors prohibited Summers from putting any weight on his left leg for six weeks and predicted he would not walk normally for at least seven months.  Summers sent e-mails to his supervisors and the contractor he was working with and sought advice on how to return to work.  He initially suggested he take short term disability for a few weeks, then start working remotely from home part time, with an eventual increase in his hours until he was full time again.  However, the company refused to engage Summers in negotiations about working from home.  Effective at the start of December 2011, Summers was fired. Summers filed an ADA discrimination claim for the discharge.  Altarum filed a motion to dism

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 :  As of August 2010, the National Labor Relations Board had five members, the maximum number allowed.  On August 27, 2010, one of the five year terms of a Board member expired and President Obama submitted a nomination to the Senate to fill that spot.  A year later, on August 27, 2011, another Board member's term expired, leaving the NLRB with only three members, the minimum needed for a quorum.  President Obama submitted a nomination for that spot.  One of the three remaining members of the Board,Craig Becker, had been appointed during a recess of the Senate in 2010. Because the Recess Appointments Clause provides that the term of a recess appointee "shall expire at the End of [the Senate's] next Session," and Becker's recess appointment had been made during the second session of the