The Majority Opinion: Legal Blog

Over the past few years, the emergence of E-Cigarettes in the workplace has become more common.  The question that employers now face is how to handle employees that want to "vape" while at work.  Employees often argue that since E-Cigarettes are not technically "cigarettes" per se, they should be allowed to use them at work.  Other employees, often ones that do not use E-Cigarettes, complain that they should not be subjected to the E-Cigarettes, regardless of whether or not they are not as harmful as regular cigarettes.  The question then becomes how does a company deal with the use of E-Cigarettes?  However, not all companies agree on whether or not to allow their employees to use these E-Cigarettes:  Exxon Mobile and McDonalds allow it, while CVS, Starbucks, and Wal-Mart all prohibit their employees from vaping. While many states ban smoking in the workplace, only three states (New Jersey, North Dakota, and Utah) have added E-Cigarettes to these anti-smok

Francine Katz, a former executive at Anheuser-Busch, brought suit in 2009 and alleged that she was sexually discriminated against by the company.  Katz claimed that she was paid significantly less than her male counterpart who held the position before her.  After being promoted to vice president of communication and consumer affairs, Katz earned approximately $1 million annually.  However, she claimed that her male counterpart who held the position before her earned around $5 million annually.  Katz further alleged that she was not invited to meetings with company executives, was excluded from golf outings, and on occasion, was not invited to fly on the company's jet with other executives.  In essence, Katz attempted to show that the "good 'ol boy" network excluded her based solely upon her being female. Anheuser-Busch argued that Katz's compensation compared favorably to other executives in similar positions at other companies and that Katz's predecess

I hope all the readers of the blog are having a good Memorial Day.  I'm taking the day off but still wanted to post this update on new laws in California to tide the readers over until I post additional updates later this week.  Enjoy! 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. AB 10 raises California's minimum wage to $9.00 per hour on July 1, 2014 and again to $10.00 per hour on January 1, 2016.  Note that the current minimum wage in California is $8.00 per hour.  With the increased discussion of minimum wages across the country (and President Obama's recent executive order on the issue), there is likely to be continued movement on this issue in the coming years. AB 442 amended California Labor Code Sections 1194.2 and 1197.1 that now authorizes the Labor Commissioner to seek payment of liquidated damages to empl

Employers Should Reevaluate Their Intern Programs This is a helpful reminder for employers to reevaluate their intern programs to ensure that there are not any potential legal issues that could arise over the interns claiming they are actually employees and are therefore entitled to compensation.  The article provides a few points that employers should review in order to ensure they are in compliance with unpaid internship laws.   Should Employers Monitor the Social Media Posts of Its Employees? This Wall Street Journal article has a mini debate over whether employers should monitor the social media posts of its employees.  Given the increasing number of employees who use FaceBook, Twitter, Instagram, Snapchat, Pinterest, etc., concerns can arise over what these employees are actually posting.  Employer likely have a reason to be concerned about what the employees are posting, especially if it could impact the company's reputation, finances, etc.  However, it is importan

Another month, another lawsuit filed by an N.F.L. cheerleader complaining of violations of minimum wage laws by N.F.L. teams.   It all started with a Raiders cheerleader in January who filed suit complaining that she was paid around $5 an hour for her work during the season, well below minimum wage ( Oakland Raiders Cheerleader Lawsuit ).  Inspired by the Raiders lawsuit, a Cincinnati Bengals cheerleader filed a similar suit in early February complaining of wage and hour violations by the team on the grounds that the cheerleaders were only paid $2.85 an hour ( Cincinnati Bengals Cheerleader Lawsuit ).  In March, a lawsuit was filed by former members of the Buffalo Bills cheerleading group, complaining of wage and hour violations by the team ( Buffalo Bills Cheerleader Lawsuit ).  Not to be outdone, a New York Jets cheerleader filed suit against the team at the start of this month and complained that she was only paid about $3.77 an hour ( New York Jets Cheerleader Lawsuit ).* 

The governor of Minnesota recently signed a bill called the Women's Economic Security Act which has greatly expanded protections for women in the workplace.  While the bill is quite expansive, a few points of the bill really stand out: Expands unpaid leave under the Minnesota Parental Leave Act from 6 weeks to 12 weeks; Prevents employers from discriminating against pregnant women and women who have children, in regard to hiring, firing, promotion, or compensation decisions; Require employers with more than 21 employees to provide reasonable accommodations for pregnant employees; and Businesses with large contracts with the state must certify that they pay men and women equal pay for similar jobs. Given the increased litigation that has been brought recently as to pregnant women and women in the workforce, this bill should come as no surprise.  Employers need to be sure that they keep up with the new legislation and additional protections that have been carved out for

As readers of the blog are familiar with, a wage and hour lawsuit was brought against the Oakland Raiders earlier this year on the grounds that the cheerleaders were not paid at least minimum wage for their work done as part of the cheerleading team.  ( Oakland Raiders Cheerleader - Blog ).   The Raiders responded to the suit and asserted, in part, that the claim could not be litigated in the courts and instead should be sent to arbitration.  The Raiders pointed to the terms of the contract that the cheerleaders signed which stated that any dispute that arose in regard to the agreement would be sent to binding arbitration, with the N.F.L. Commissioner to serve as the sole arbitrator.  ( Oakland Raiders Cheerleader Contract - page 29 addressed the arbitration provision).   Last week, the Raiders filed a Motion to Compel Arbitration of this case.  If the court grants the Motion, it would remove this case from the public eye and allow Roger Goodell, the N.F.L. Commissioner, to

Hersh v. County of Morris - Supreme Court of New Jersey Facts :  Cheryl Hersh was employed by the County of Morris.  The County gave Hersh permission to park in a private parking garage where the County rented about 65 parking spots, which was approximately two blocks from Hersh's office.  On January 29, 2010, Hersh parked her car in the garage, exited the garage to go to her office, and was struck by a motor vehicle that ran a red light while Hersh was crossing a public street. Hersh filed for workers' compensation benefits and the judge of compensation concluded that since the accident occurred during the course of Hersh's employment (since the accident happened after Hersh arrived at her "employer controlled lot"), she was entitled to workers' compensation.  The Appellate Division affirmed the ruling and held that although the garage and sidewalk were not part of the workplace, the County exercised control over the areas and thus the ac

Have a Second Person Present When Escorting an Employee From the Premises When an employee gets fired, the employer oftentimes escorts that employee directly off the premises.  This article is a good reminder to have a second person present when this happens in order to avoid "he said she said" claims that could arise.  As the article notes, you don't know what an employee will say about what happened after the fact.  Having a second person present can help mitigate these sorts of issues. Refresher on Joint Employer Liability While not all employers face joint employer liability issues, it does routinely arise for others.  Lindsay Bouffard provides a quick refresher on joint employer liability, by way of pointing to a recent case from the Sixth Circuit Court of Appeals that dealt with the issue. Searching Computers for Possible Pornography Many offices have probably had a similar issue at some point:  an employee gets an e-mail with pornographic ima

While I have previously addressed issues over payment of wages for employees in Texas, the focus of this article is on whether employees have a right to get a paystub from their employers. Some states across the country do not require that employers provide employees paystubs, including Florida and Tennessee, among others.  However, other states such as California and Oregon require that employers provide their employees with paystubs.  Texas falls under the majority of states that require employers to provide paystubs to their employees at the end of a pay period.  Under the Texas Labor Code Section 62.003, at the end of each pay period, an employer must provide an employee with a pay stub for the work done by the employee for that pay period.  The pay stub must list certain things, including the name of the employee; the rate of pay; the total amount of pay earned by the employee for that pay period; any deduction made from the employee's pay and an explanation for that d

Back on January 20, 2014, the Philadelphia mayor signed a pregnancy accommodation law ( See the text of the Bill here ).  The law requires employers to offer reasonable accommodation, including, but not limited to, restroom breaks, periodic rest, assistance with manual labor, etc.  Employers in Philadelphia were given 90 days to comply with the law, which required them to post a workplace pregnancy law prepared by the city.   As of today, that 90 day window has already passed.  Employers in Philadelphia need to familiarize themselves with the new law and ensure they are complying with the new requirements. See attached for the workplace poster that Philadelphia employers are required to have:  http://www.phila.gov/HumanRelations/PDF/pregnancy_poster.pdf

With the recent vote by Amazon workers that decided not to form a union ( Amazon Workers Say NO To a Union ), Wal Mart is one of the big companies that has also been able to resist their employees forming a union.  With Wal Mart's ability to keep unions out, questions have arisen about how they have been able to do it.  Recently, slides that Wal Mart used to educate its management on how to remain union free were leaked:  Wal Mart Slides .  An internal memo ( Wal Mart Memo ) that Wal Mart used to advise its managers on how to deal with employees who walked out also created controversy.  When these slides and memo were released, many pro union groups and employees complained that the tactics used by Wal Mart were illegal and "violated the spirit of the law."  While the ways that Wal Mart has been able to keep unions out might appear to be heavy handed and in violation of NLRB rules, it does not appear that anything that has been done "violated the spirit of th

Ensure that Employee Handbook Includes Rules On Off-the-Clock Work & Missed Break Time Wage and hour claims are very, very common now a days and seemingly easy enough to avoid.  This article has a few good ideas for employers to ensure the employee handbook covers any potential wage and hour issues that could arise over off the clock work and missed break time.  Even if there is an understanding in the office on how things are to be handled, having everything in writing in the employee handbook is a good way to avoid potential issues. Rethinking Personal E-mail Policies at the Office Molly DiBianca has an interesting insight on how and why employers should consider changing the personal e-mail policy at the office.  Given the heightened risk that is associated with the internet and allowing employees access to personal e-mail accounts during the work day, it oftentimes is not a bad idea for employers to take steps to reduce exposure and liability. "Donald Sterli

Stop me if you have heard this before:  an N.F.L. cheerleader brings a wage and hour suit against the team and alleges, among other things, that the team pays below minimum wage for the practices, appearances, and games the cheerleaders are required to work.  For those keeping count at home, this is the fourth wage and hour lawsuit filed by an N.F.L. cheerleader this year ( Oakland Raiders Cheerleader Lawsuit ;  Cincinnati Bengals Cheerleader Lawsuit ;  Buffalo Bills Cheerleader Lawsuit ) Not to be outdone, yesterday, a New York Jets cheerleader brought a class action wage and hour suit against the Jets.  The cheerleader alleged that she was not paid for attending three day a week practices, attending mandatory cheerleading camps sponsored by the Jets, and for certain promotional appearances she had to make as part of the cheerleading team, referred to as the "Flight Crew".  The complaint alleged that the cheerleaders got paid $150 for game days and $100 for outside ap

The Kroger Company of Michigan - NLRB Facts :  Anita Granger filed an unfair labor practice charge against Kroger on February 15, 2013, in regard to the social media disclaimer that Kroger required its employees to post whenever an employee posted something online.  Specifically, Kroger stated that in its handbook that if employees identified themselves as an associate of the company or published any work related information online, the following disclaimer had to be included:  "The postings on this site are my own and don't necessarily represent the positions, strategies, or opinions of The Kroger Co. family of stores." The issue in this case centers on whether the disclaimer requirement violated the National Labor Relations Act ("NLRA"), specifically Section 7.  Section 7 states: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosi

Don't Make Your Vendor's Employees Your Employees Michael Kun has some good advice on how employers can take steps to ensure that they do not make their vendor's employees their employees as well.  Reading through his list of suggestions, it is easy to see how the line can be blurred and employers could put themselves on the hook as being responsible "joint employers." Massachusetts Seeks to Ban Non Compete Agreements in Tech Related Fields The Governor of Massachusetts recently proposed that non compete agreements be banned in tech related fields so that employees could more easily move to positions at rival companies without being limited by the scope and nature of non competes.  The Governor has proposed that in return for non competes being banned in tech related fields, the state could adopt the Uniform Trade Secrets Act which prohibits workers from taking companies' intellectual property to another company but leaves employees free to join a c

Last week, I had reported on the Buffalo Bills cheerleaders who brought suit against the Bills (and a few others), claiming wage and hour violations, among other complaints ( From Pom Poms to the Courtroom, Pt. 3: Buffalo Bills Edition - blog ).   In a somewhat surprising turn of events, the company that oversees operations of the cheerleaders announced late last week that they are suspending operations through at least the end of the upcoming season and the Buffalo Jills will not be on the sideline this season.  This announcement comes just two days after the lawsuit was filed in state Supreme Court.  As the attorney for the five cheerleaders who brought the suit stated, this decision to suspend operations should not affect the suit, since the complained of action already occurred.  It will be interesting to see whether the Raiders and Bengals (the only other two NFL teams who have cheerleader related wage and hour suits at this time), or any other NFL team for that matter