The Majority Opinion: Legal Blog

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 :  The Plaintiffs claimed that their employer failed to compensate them for time spent in security screenings at the end of each work shift, in violation of the Fair Labor Standards Act ("FLSA").  The Plaintiffs alleged that employees waited up to twenty five minutes to be searched, with the search including the removal of employees' wallets, belts, and keys and passing through a metal detector.  The employer claimed these searches were necessary to minimize "shrinkage" and control the theft of any items by the employees.   Note that the FLSA generally does not provide for compensation for activities that are preliminary or postliminary to the employee's principal activities.  Preliminary and postliminary activities that are "integral and indispensable" are compensa

Continuous Video Taping Surveillance OK According to California Attorney General The California Attorney General issued an opinion and stated that employers who do video tape surveillance of their drivers do not constitute a misdemeanor nor violate the Labor Code.  The Attorney General stated that where the video file is inspected by a third party and used as a basis for discipline by the driver's employer, this conduct does not amount to a misdemeanor so long as the third party is an agent of the driver's employer who is videotaping and inspecting the file for the sole benefit of the driver's employer, and the file is furnished solely to the driver's employer.  10 Straight Forward Rules for Background Checks When Hiring Robin Shea takes a proposed list of rules from the Federal Trade Commission and boils it down to a straight forward list of rules to keep in mind when conducting background checks on potential employees.  While some of them are commonsense, it

For those keeping score at home, an undisclosed number of Northwestern University football players asked to be represented by a labor union a few months ago ( Northwestern University Football Players Ask for Union Blog ).  Today, the Chicago district of the National Labor Relations Board (NLRB) ruled that the student athletes qualified as 'employees' and therefore could unionize.  Citing the fact the student athletes have primarily an economic relationship with the university, NLRB regional director Peter Sung Ohr ruled that the student athletes could vote on whether to be represented by a union.  After the ruling was made, Northwestern University stated it would appeal to the full NLRB in Washington, D.C.  Depending on the outcome of the full NLRB's ruling, this case could end up in the courts. This has the potential to drastically alter the college sports landscape.  If student athletes are considered employees and allowed to unionize, a whole host of questions

Troester v. Starbucks Corp. - United States District Court, Central District of California Facts :  Douglas Troester served as a shift supervisor at Starbucks.  Troester brought suit against Starbucks and alleged Starbucks violated the California Labor Code by failing to compensate him for time spent closing up the store after he had already clocked out.  Troester alleged that this uncompensated time included instances when he walked out of the store after setting the alarm, time spent locking the door, walking employees to their cars after closing up, and waiting with employees until their ride came, among other tasks.  Troester filed a class action and alleged these instances amounted to violations of the California Labor Code.  Starbucks moved for summary judgment and alleged that any alleged uncompensated time was "de minimis" and therefore uncompensable.   Holding :  The District Court granted Starbucks' Motion for Summary Judgment that dismissed the claim

Copper River of Boiling Springs, LLC - NLRB Facts :  Autumn Ballew and other fellow employees filed unfair labor charges against the employer, Copper River.  The unfair labor charge relative to this discussion was the claim that Copper River violated the National Labor Relations Act (NLRA) when it implemented a rule in its handbook that prohibited its employees from "displaying a negative attitude" when interacting with coworkers and customers.   Holding :  The NLRB Board held the language in the handbook was not in violation of the NLRA and upheld the administrative law judge's ruling.  Under Section 8(a)(1) of the NLRA, a workplace rule which "explicitly restricts" an employee's exercise of protected concerted activity is unlawful.  In this case however, the Board found that the language in the handbook applied only to unprotected conduct that interfered with Copper River's "legitimate business concerns."   Date :  February 28, 2

Each state has a host of new employment and labor related laws that take effect in 2014.  This series focuses on several new laws from around the country that are of particular interest. California AB 263 prohibits an employer from threatening to contact or actually contacting immigration authorities because an employee complained that he or she was paid less than minimum wage. An additional aspect of AB 263 is its prohibition of "unfair immigration-related practices" when an employee asserts any rights protected by the California Labor Code or by any local ordinance applicable to employees. "Unfair immigration-related practices" include: (1) requesting more or different documentation than is sufficient under federal law governing employment verification, or refusing to honor such documents that on their face reasonably appear to be genuine, (2) misusing the E-Verify system, (3) threatening to file or the filing of a false police report, and (4) thr

Ensuring a DOL Audit Runs Smoothly Jon Hyman re-posted this article a few weeks ago regarding how employers can ensure their books are in line in the event the Department of Labor ("DOL") does an audit of a company's wage and hour records.  Although common sense, it is important for employers to self audit themselves and confirm there are no irregularities or discrepancies.  Doing so can mitigate a potential issue if the DOL were to ever require an audit be done. Employer Interrogations of Its Employees: Good Idea or Going Too Far? This New York Times article has an interesting discussion of the use of interrogations by employers in regard to its employees.  While some employers use interrogations often (and bring in highly skilled interrogators), employers need to be aware of the risks and potential lawsuits which can arise when they interrogate their employees.  The UAW's Election Objection: Updated Recently, the United Auto Workers Union at

Recently, three former minor leaguers sued Major League Baseball, Bud Selig (MLB Commissioner), and three MLB teams over alleged FLSA violations.  Specifically, the Plaintiffs allege that MLB failed to pay overtime and minimum wages in violation of the FLSA and various state laws.  Specifically, Plaintiffs alleged that minor leaguers’ salaries have increased only 75 percent since 1976, compared to an increase of more than 2,000 percent in the major leagues.  Plaintiffs also claimed that most minor leaguers earn between $3,000 and $7,500 for the season, despite working over 50 (and sometimes more than 70) hours per week, including workouts and extensive travel time and also received no wages at all during training periods. In bringing the suit, Plaintiffs also seek to form a collective action for violations of state labor laws.   While an interesting argument, this one could take a while to sort out as it works its way through the California courts.  Sit back, relax, a

Beginning in April, employees of New York City businesses with at least five employees will be eligible to take paid sick leave.  Before this change, paid sick leave was only available to employees who worked for employers with fifteen or more employees.   Last year, Mayor Bloomberg vetoed a similar bill ( Bloomberg Vetoes Sick Leave Bill ), however newly elected Mayor de Blasio has indicated that he will sign the bill ( de Blasio Supports Sick Leave Bill ) This is a big gain for employees who work for smaller employers.  New York City joins other cities, such as San Francisco and Portland, which had passed similar sick leave bills.  It will be interesting to see what other liberal leaning cities do, now that New York City has followed suit regarding paid sick leave for employees that work for smaller employers.

Andrews v. CBOCS West, Inc. - Seventh Circuit Court of Appeals Facts :  Ruth Andrews (a white employee) worked as a server at Cracker Barrel from 1999 through 2007.  During a portion of this time, Andrews did not get along with her supervisor, J.J. Stewart (a black employee).  In 2002, Andrews filed a discrimination claim against Cracker Barrel and settled a year later.  Around the time of the settlement, Stewart told Andrews that she should "hope to God I never become GM because if I do, one of the first things I'm going to do is fire you." In 2006, Stewart became general manager of the location that Andrews worked at and stated that it was a goal to make this location the first all-black Cracker Barrel.  Andrews documented her interactions with Stewart, and noted that Stewart allegedly made regular comments about Andrews' age.  Andrews kept record of several instances when Stewart called her "old woman", "old lady", and "grandma&quo

Recently, the American Bar Association's Federal Labor Standards Legislation Committee published its annual report on significant FMLA cases decided by federal courts in 2013.  This is a great resource for employers, and those interested in FMLA issues, to review and rely upon.  Although it is quite a lengthy review (what else would you expect, given this is a thorough overview of FMLA cases for an entire year?), it is easy to navigate and well broken down into specific topics. ABA article on 2013 FMLA cases:   http://www.fmlainsights.com/FMLA%202014%20Mid%20Winter%20report.pdf

Parker v. State of Delaware - Delaware Supreme Court Facts :  Note :  The facts of this case dealt with an assault (non-employment related) and subsequent Facebook posts by the alleged attacker, Parker, in regard to the assault.  At trial, the State of Delaware sought to introduce the Facebook posts into evidence.  Over Parker's objections, the trial court admitted the Facebook posts into evidence and the jury convicted her.  The Superior Court adopted the Texas approach in regard to the introduction of the Facebook posts.  Parker appealed. Holding :  The Delaware Supreme Court affirmed the lower court's decision to adopt the Texas approach in regard to the introduction of the Facebook posts and affirmed the lower court's ruling.  The Supreme Court distinguished between the Texas and Maryland approaches to the introduction of social media evidence at trial. The Texas approach (from the Texas Court of Criminal Appeals case Tienda v. State ) provides that when a

The Danger of Non-Disparagement Clauses Many employers have non-disparagement clauses in termination or resignation paperwork.  However, Jon Hyman has several thought provoking comments about how these clauses often create more trouble than they could be worth and provides a few suggestions on how to avoid potential pratfalls.  Employers should take note of these thoughts and consider making changes to their non-disparagement clauses.  New York City Mayor To Authorize Retroactive Pay For Unions? This article discusses whether Mayor Bill de Blasio, New York City's newly elected mayor, will authorize retroactive pay for unionized city workers.  In the article, it notes that Mayor de Blasio blasted former Mayor Bloomberg for leaving the city with so many unsettled labor contracts before his term expired.  However, the article goes on to explain that this was likely a result of the labor unions preferring to hold on until Mayor de Blasio, a presumed more pro-union mayor, too

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 :  Lane, a public employee that worked at a community college, uncovered evidence that a legislator was engaged in some corrupt activities.  In August 2008, Lane testified under subpoena in a federal criminal trial that involved the legislator.  When Lane got terminated from his job in early 2009, he sued Franks, president of the college, claiming retaliation in violation of the First Amendment.   This case raises an issue left undecided in Garcetti v. Ceballos .   In that case, the United States Supreme Court held that a public employee who speaks or writes as part of that employee's job duties enjoys no First Amendment protection. The employer can fire that employee for speaking or writing.  This reasoning centers on the fact that the employee was not speaking or writing as a citizen. Th

All too often it seems, management is criticized for not creating a team mentality among its workers and instead treating its workers like only a number.  However, this is often far from the truth.  Take Waffle House, for example.   A few weeks ago, when another winter storm threatened to hit Atlanta, Waffle House chose to stay open and ensured it took care of its workers in the process.  At one particular Waffle House location, the restaurant bought hotel rooms next to the restaurant so its employees would have a place to stay and would not have to risk driving on potentially dangerous roads.  For those employees who did not stay at the hotel and remained at home, the restaurant coordinated on how to ensure these employees could still safely get to work.  The Monday before the storm hit, there was wide spread coordination to ensure that employees with four wheel drive vehicles could pick up those employees without such transportation.  One of the employees at this particular Wa

For those keeping score at home, a few weeks ago, an Oakland Raiders cheerleader filed a  wage and hour suit against her employer (see the blog here: http://themajorityopinion.blogspot.com/2014/01/from-pom-poms-to-courtroom-oakland.html ). Apparently as a result of that suit, a Cincinnati Bengals cheerleader filed a class action complaint against the Bengals organization a few weeks ago and alleged similar wage and hour issues.  According to the complaint, Cincinnati Bengals cheerleaders (cleverly referred to as "Ben-Gals") are not paid for the hours that they attend for practice, promote the team calendar, and attend for mandatory charity events.  The complaint further alleged that the cheerleaders work about 300 hours a year for the Bengals organization and are paid, "at most, $90 for each home football game at which they cheer."  If these claims are true, there are Fair Labor Standards Act (FLSA) violations that the Bengals could be liable for.  As an asid