The Majority Opinion: Legal Blog

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.  In this instance, this note focuses on a new regulation that affects many San Francisco based employers. The Bay Area Commuter Benefits Program is a new regulation that impacts San Fransisco based employers with 50 or more full time employees.  These employers are required to offer commuter benefits to their employees, by way of one of four options: Allow employees to exclude their transit or vanpooling costs from taxable income consistent with Section 132(f) of the Internal Revenue Code; Provide a transit or vanpool subsidy to reduce or cover employees' monthly transit/vanpool costs; Provide a low-cost or free vanpool or bus service, operated by or for the employer; or Provide an alternative commuter benefit that would be as effective as the other options in reducing single-occupan

The Boeing Company - NLRB Facts :  There are two relevant factual situations upon which this decision turns.  The first:  In 2012, union employees took part in peaceful protests at several Boeing's facilities by wearing red shirts on Wednesdays and engaging in peaceful walks or marches to support the upcoming contract negotiations.  Boeing photographed hundreds of these employees who participated in the marches. The second:  Boeing had in place a policy in which employees were limited to the use of camera devices in the workplace.  If the employees wanted to use a camera device, they were required to show a valid business justification, had to get prior authorization, etc). These actions by Boeing were complained of as unfair labor violations of the National Labor Relations Act (Act). Holding :  The NLRB Administrative Law Judge held that Boeing's photographing the employees that marched amounted to a violation of the Act.  While Boeing argued that photographin

Ortiz v. Board of Education of City of Chicago - US District Court Northern District of Illinois, Eastern Division Facts :  David Ortiz was discharged from his job at a public school because he reported to work under the influence of alcohol.  By way of background, Ortiz was diagnosed with recurrent major depressive disorder.  However, he was apparently a satisfactory employee, although he may have taken mediation during his tenure with the school.  After expressing suicidal thoughts and being hospitalized and not coming to work between March 9, 2010 and April 1, 2010, Ortiz reported to work on Monday, April 5, 2010.  When Ortiz reported to work, he was "carrying one empty and three full cans of Mike's Hard Lemonade, along with raw meat."  The principal at the school had a breath alcohol test done on Ortiz which revealed a blood alcohol level of .198; fifteen minutes later Ortiz's level was .203.  After a dismissal hearing, the Board terminated Ortiz in July 20

It has been a busy week in trial, so I have not had a chance to read through as much as I would have liked.  With that being said, I found a few articles on one of my favorite employment law topics:  Non-Compete Agreements.  Each article has a different insight and look at non-competes...something for everyone. The Wild Card in Non-Compete Cases: The Judge For those of us who are litigators, most, if not all cases eventually turn on who the judge is and how things play out before him or her in court.  One of the partners at my firm says the outcome of every case depends upon what the judge had for breakfast that morning...I could not agree more.  This is a good article on a non-compete case that an attorney had before a particular judge and that judge's reaction to whether the terms of the restrictions in the non-compete were "reasonable".   Before Signing That Non-Compete - Things To Keep in Mind! Non-compete agreements are one of my favorite legal t

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. West Virginia recently passed the Pregnant Workers' Fairness Act ("PWFA") which sets out additional protections for pregnant employees.  The statute makes it unlawful for employers to discriminate against a pregnant employee and also requires the employer to offer reasonable accommodations to pregnant employees, unless the accommodation would amount to an undue hardship.  However, unlike the ADA, the PWFA makes it unlawful for an employer to "require a job applicant or employee affected by pregnancy, childbirth, or related medical condition, to accept an accommodation that such applicant or employee chooses not to accept."  Interestingly enough, the statue fails to settle what happens when an employee rejects an accommodation and the employee and employer cannot agr

Talbot v. Desert View Care Center - Supreme Court of Idaho Facts :  Talbot worked as a nurse at Desert View Care Center.  However, a Facebook post triggered his termination for violating the employer's social media policy.  In the post, Talbot stated that he didn't like some patients who made his work difficult and stated that these patients made him less motivated to answer their call light whenever they needed something.  After one of Talbot's Facebook friends, a nursing professor, reported the post to the employer and expressed concerns about resident safety, the employer fired Talbot and cited its social media policy.  Talbot sought unemployment benefits but his claim was denied because he was discharged for violating the company's policy.  Talbot appealed and the Appeals Examiner reversed the initial denial and found that Talbot had not been terminated for employment related misconduct.  The employer appealed and the decision was reversed and Talbot was de

There were some really good articles this week that I came across...granted I found quite a few Top *Name a Number* lists that I could not help passing up.  My favorite article though was for the HR readers out there.  Sometimes the most common sense and straight forward articles are the most beneficial! Checklist of 11 Things HR Can Do During the Summer This is a helpful article of 11 different things HR can do during the summer to knock out a few projects that always seem to never get done.  The list includes some common sense things such as updating the employee handbook and reviewing how potential employees are handled to more in depth projects like conducting an HR compliance audit.  Whatever the time of year, these is a handy checklist that HR pros should keep in mind. Employers Starting to Hire Less & Less Based Upon What They Find on Social Media The title says it all...as employers start to look more and more at the social media posts of potential employees,

Recently, there was uproar over a sign in a bar in Texas that said " I like my beer like I like my violence...domestic ."  (A similar sign outside a bar of Philadelphia can be seen here:  Philadelphia Bar's Sign ).  Even after a customer requested the sign be taken down, the bar management resisted and left the sign up.  While the bar employees may have found this sign to be humorous, it caused a wave of bad publicity and negative press that could have easily been avoided.  In fact, the bar manager was apparently fired as a result of the sign.  Not only does this type of behavior expose the employer to a bad situation and unfavorable press, but it can put employees in a situation where they might say or do something negative towards a customer that could open the employer up to liability for the employees' actions.  It is important for employers to remember that these types of situations are easy to avoid.  While employees can have the freedom to perform the

Hoven v. Walgreen Co. - Sixth Circuit Court of Appeals Facts :  Jeremy Hoven was an at-will employee working at a Walgreen in Michigan.  After concerns over his security at work after a few robberies, Hoven asked Walgreen for additional security.  When Walgreen did not comply with his request, Hoven obtained a license to carry a concealed weapon.  On May 8, 2011, while working, several gun wielding robbers entered Walgreen.  After one of the robbers pointed a gun at Hoven, Hoven drew his concealed weapon and fired shots at the robbers.  Eight days later, after Hoven refused to resign, Walgreen fired him on the grounds that he violated the non-escalation policy of Walgreen.  Hoven filed suit against Walgreen and claimed he had been unlawfully terminated in violation of Michigan public policy, namely his Second Amendment right to have a firearm.  Walgreen moved for summary judgment on Hoven's claim and the lower court granted the motion.  Hoven subsequently appealed to the S

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. Minnesota expanded its "Ban the Box" law to include private employers, effective January 1, 2014.  Under the Ban the Box law, public and private employers in Minnesota may not inquire, consider, or request disclosure of an applicant's criminal history until after the applicant has been selected for a job interview, or if no interview is being conducted, then before a conditional offer of employment has been made. Note that there are exceptions to this law for employers to conduct criminal background checks that relate to the job, such as police, fire, school bus drivers, etc. Employers in Minnesota need to ensure they comply with this new law.  Now that the Ban the Box law has been extended to include private employers, it likely affects a majority of employers in the st

Gates & Sons Barbeque of Missouri, Inc. and Workers' Organizing Committee, Kansas City - NLRB Facts :  Gates & Sons operated a chain of successful barbeque restaurants.  One of the benefits offered to its employees was a free meal, valued between six and ten dollars, each day an employee was scheduled to work.  The Gates & Sons location involved in this case was highly successful and its employees at the location enjoyed the free lunch benefit. A Workers' Organizing Center (which are often affiliated with labor unions) entered the picture and used a tried and true labor tactic, a strike, in order to help the employees advocate for higher hourly pay.  Unlike a traditional labor strike called by a union in support of a collective bargaining demand, this was a one day strike by the workers.  Even though these workers were not represented by a union, they still have the right to engage in "concerted activities for...mutual aid or protection" under Sec

Some very interesting reading this week.  My favorite by far was the article on the Suitable Seating Requirement in California.  This is one of the finer legal issues that is being litigated across the state which has led to some very interesting litigation. How Will the Suitable Seating Requirement Impact the Hospitality Industry? One of the more interesting legal issues surrounds how the "suitable seating" provision in California will impact the hospitality industry.  The suitable seating requirement requires some employers to provide "suitable seating" to some employees when the "nature of the work" would "reasonably permit it."  There is a great deal of confusion about the interpretation of this law which has left court's (and parties) unsure of how it applies.  The issue is currently before the California Supreme Court for clarification.  Michael Kun has a few thoughts about the issue and how the interpretation of the suitable s

Recently, the ranking Republican of the Senate Health, Education, Labor, and Pensions Committee, Senator Lamar Alexander (R-Tenn.) offered to propose amendments to an appropriations bill that would prohibit unions from being given access to employers' email systems which allow unions to view employees' personal e-mail addresses and cell phone numbers.  The proposed amendment would also prohibit unions from forcing employers to open up e-mail systems for union organizing. Senator Alexander couched part of his support of this amendment on the grounds that employees have a right to privacy.  He included an example of agents of Communication Workers of America Local 1103 in Connecticut who used personal information they obtained about one woman who did not support to the union to sign her up for hundreds of unsolicited and unwanted magazines and other products.   The Senator also criticized the increased politicization of the NLRB over the years and advocated that the Bo

Recently, the anti-union video that Target shows its employees was leaked ( Watch the Video Here ).  Unsurprisingly, the video walks through the potential downfalls of Target employees voting to unionize, including a slippery slope argument that if a employees were to unionize, things would drastically change.  The video suggests that it would become difficult to advance within the company, employees could be prohibited from taking work related complaints to managers, and customers may start shopping elsewhere which would result in less revenue for Target and consequently layoffs of its employees. Considering how successful Target has been keeping unions out, it is no surprise that this video has come under attack.  Similar to Wal Mart's efforts to keep unions out ( How Wal Mart Deals With Union Organizing - Blog ), it should come as no surprise that big box retailers are not keen to the idea of their employees voting to unionize.  How successful these efforts will continue

File this under "interesting":  Last week, the Oakland Raiders raised the pay of their cheerleaders to $9 per hour, up from the alleged $5 per hour some of the Raiders cheerleaders claim they were paid.  The increase was not done by way of announcement, but rather included as a note on the website which posted audition details for the cheerleading team this coming season.   Note, the $9 per hour pay rate now falls in line with the recent increase in minimum wage in California that went into effect July 1, 2014.  Interesting enough, before this raise, Raiders cheerleaders earned about $1,250.00 per season.  Now, they will earn about $3,000.00 this season as a result of the pay increase.   Keep in mind that this increase in pay does not get rid of the two lawsuits filed by Raiders cheerleaders.  Those cases are still being litigated (and potentially headed for binding arbitration before the N.F.L. Commissioner).  With that being said, however, this is still a win for

The EEOC has filed a lawsuit against Wisconsin Plastics, Inc. for alleged origin discrimination in violation of Title VII of the Civil Rights Act of 1964.  The lawsuit alleged that the employer terminated a group of Hmong and Hispanic employees based on ten minute observations and marked them down for their English skills, even though those skills were apparently not needed for the employees to perform their jobs.  It is important to note that all the employees that were terminated had received satisfactory ratings on their annual performance evaluations while employed by defendant.   This will be an interesting one to keep an eye on.  It is important for employers to remember that when English fluency is not required for safe and effective performance of a job (or for the successful operation of the employer's business), a requirement of English fluency can constitute employment discrimination on the basis of national origin. A copy of the EEOC press release can be found

Hope all of the readers are having an enjoyable 4th of July long weekend.  It is a shorter day for me, so I will keep this note brief.  Stay safe, enjoy some downtime, and see everyone next week!  As always, these are a few articles and notes that caught my eye this week: It's the Summer Season! What Are Your Employees Wearing to Work? Summer is in full force at this point.  With that, comes the inevitable change in what employees wear to work.  This HR article provides a few pointers for both employers and employees to keep in mind for the summer season.  Even for those workplaces that have a summer dress code in place, this article has a few good common sense reminders that are helpful to keep in mind. Remember! Some Topics Are Taboo to Include on Your Resume Tom Breen has an interesting article on resumes, with evidence which shows that including a religious affiliation on your resume should be avoided.   A pair of studies conducted by the University of Connecti

Earlier this year, I had highlighted the National Labor Relations Board v. Noel Canning as one of the premier labor cases before the US Supreme Court to keep an eye on ( National Labor Relations Board v. Noel Canning - Blog ).  For those readers needing a bit of a refresher, President Obama had appointed three members to three open board spots at the NLRB when the President declared the Senate was in recess and he was therefore exercising his recess-appointment power to fill the vacancies.  In essence, there were three main issues in the case: (1) Whether the President’s recess-appointment power may be exercised during a recess that occurs within a  Senate session, or is instead limited to recesses that occur between enumerated sessions of the Senate; (2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and  (3) whether the President'

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: Chick-Fil-A Franchise Settles Pregnancy Discrimination Suit A Chick-Fil-A franchise in North Carolina agreed to pay $10,000.00 to settle a pregnancy discrimination suit filed by a prospective employee who was not hired because she was pregnant.  During her interview at Chick-Fil-A, several questions were asked about when the employee was due, how long she had been pregnant, and what her child care plans were for the baby.  These types of questions violate Title VII of the Civil Rights Act and the prospective employee sued the Chick-Fil-A franchise for pregnancy discrimination when she was not hired.  As part of the settlement, the Chick-Fil-A franchise agreed to implement a policy that would prohibit pregnancy discrimination. EEOC Press Release:   http://www.eeoc.gov/eeoc/newsroom/release/6-5-14