The Majority Opinion: Legal Blog

Apologies in advance for the brevity of this post.  I am sitting on the runway at LAX and it is tougher to type sitting on an airplane than when I am in my office. With that being said, I have seen friends, colleagues, neighbors, strangers, and everyone in between doing the ALS Ice Bucket Challenge over the past few weeks.  I came across a very interesting article a few days ago that I thought would be perfect to kick off this week's "What I've Been Reading This Week" post.  As always, below are a few articles that caught my eye this week. Litigation Upcoming for ALS Ice Bucket Challenges in the Workplace? Everyone has likely seen a video or heard about the ALS Ice Bucket Challenge.  It is a great way to raise awareness and for those who also donate in addition to dumping a bucket of water on their heads, it is a unique way to raise funds.  With that being said, questions are starting to arise about how the ALS Ice Bucket Challenge can impact the work

One of the labor & employment law topics that has kept me interested this year is the ongoing struggle of N.F.L. cheerleaders to obtain higher pay and the subsequent wage and hour suits that have been brought as a result.  For those keeping score at home, the Oakland Raiders have been sued twice (at this time, there are five outstanding wage and hour suits brought by cheerleaders against four different N.F.L. teams).  The Raiders cases have been some of the most prevalent, and consequently the suits against that team have gotten a majority of coverage. Earlier this month, the N.F.L. filed a response to one of the cheerleaders' suits brought against the Raiders (the second Raiders lawsuit), which also named the N.F.L. as a potentially liable party.  In its response, the League claimed that the cheerleaders cannot pursue the claim against the League because the N.F.L. and its teams are immune from all state labor code provisions.  Interestingly enough, the League does no

Johnson v. Heckmann Water Resources - Fifth Circuit Court of Appeals Facts :  Kevin Johnson and Brad Smith brought suit against their former employers, Heckman Water Resources, Inc. (HWR) and Complete Vacuum and Rental, L.L.P. (CVR) and sought unpaid overtime compensation under the Fair Labor Standards Act ("FLSA").  During their employment, the employees were classified as non-exempt employees (and as a result, eligible for overtime) under the FLSA and were paid an hourly wage. The employees worked twelve hour shifts for seven consecutive days.  HWR and CVR used a Monday through Sunday workweek to calculate overtime under the FLSA.  Based upon the way the workweek was calculated, Johnson was compensated for four hours of overtime every pay period and Smith was compensated for eight hours of overtime. In their suit, Johnson and Smith alleged that their workweek should have begun on Thursday and ended on Wednesday, thereby entitling them to forty-four hours of overt

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. After several other states and cities have passed "Ban the Box" measures, the District of Columbia has followed suit and passed a law of their own that prohibits employers from asking about a job applicant's criminal history until after a conditional job offer is made.  Bear in mind though that employers may still decline to consider an applicant further based on his or her qualifications, interview performance, and even Internet searches of applicants, provided that the decision is not based on any criminal background information. Some key points of the Fair Criminal Record Screening Act of 2014 (the official name of D.C.'s Ban the Box legislation): The Act

A lot of the efforts to raise minimum wage (both at the federal and state levels) has caught my eye.  In particular, Seattle's efforts to raise its minimum wage rates to an extraordinarily high rate of $15/hour was one of the more interesting topics I came across this week.  As always, below are a few articles that caught my eye this week. Fashion Rules at Work: The Do's and Dont's Every once in a while, I come across a good article on business related dress codes at work.  This is a different take on that topic and includes a few thoughts on what an employer can do if they implement a dress and grooming policy for employees. Attempt Made to Block Seattle's $15/Hour Minimum Wage Hike For those who have been following the recent developments, Seattle has passed a law to go into effect in April 2015 to raise the minimum wage in the city to $15 per hour.  To the surprise of few, many retailers, restaurants, and chain stores oppose this measure.  Earlier thi

Stenehjem v. Sareen - California Court of Appeal, Sixth Appellate District Facts :  Stenehjem filed suit against his former employer and its president and CEO for alleged defamation and wrongful termination, among other claims.  The defendants filed a cross complaint against plaintiff for civil extortion due to plaintiff's pre-litigation demand.  Specifically, plaintiff included in his demand a threat that unless the defendants paid plaintiff's claims, plaintiff  would file a False Claims Act and report defendants to federal authorities for allegedly forcing plaintiff to create false accounting documents.  The lower court granted plaintiff's motion to strike the cross complaint and the cross complaint was subsequently dismissed.  Holding :  The California Court of Appeal held that the former employee's pre-litigation demand was an unconstitutional extortion and therefore the cross complaint was improperly dismissed.  When the Court of Appeal looked at the pre-

Recently, the United States Supreme Court ruled on National Labor Relations Board v. Noel Canning ( NLRB v. Noel Canning - Supreme Court Ruling blog ).  In that blog, I had noted that the Supreme Court held that President Obama's three appointments to the NLRB while he deemed Congress to be in "recess" were not proper and therefore all decisions that the Board made during that time frame were not valid.   The question then became, what would happen to all those rulings that the Board had made?  I speculated that a majority would be upheld, save for some smaller, unpublished decisions.  Well, lo and behold, the NLRB did just that and announced that it would ratify all administrative, personnel, and procurement matters taken by the Board from January 4, 2012 to August 5, 2013.  In doing so, the Board removed any questions in regard to questions concerning the validity of actions taken during this period.  This was really nothing more than cleaning things up and rein

Depending upon the nature of the job, some workplaces are known for having a more laid back atmosphere where joking, horsing around, and off color comments or gestures are deemed acceptable.  For those of you who have ever watched wrestling, you have likely seen and heard things that would not be tolerated in an every day office.  (I mean, where else is it "acceptable" to body slam your co-workers on a daily basis or push around and threaten to abuse referees and other authority figures??) Recently, a WWE wrestler, Alberto Del Rio, was fired from the company after he allegedly slapped a WWE employee backstage.  Details are apparently still sketchy but apparently when the employee, a WWE web producer, was finished eating, he was instructed to clean his food tray.  The employee allegedly said that it was "Del Rio's job."  You can guess what happened next...word got back to Del Rio about what happened, Del Rio approached the employee and ended up slapping h

It seems like I always find a few good HR articles that peak my interest.  I know there are some HR readers of the blog, so while I am sure the NLRB related posts are always enjoyable to them, I like to include something for everyone.  As always, these are a few of the articles I read this week that stood out to me: Items That Should Be Included in Every New Hire Packet This is a good list of a few items that every new hire packet should include.  Although not exhaustive, and bearing in mind that each employer is different, this list provides a good starting point.  I would also suggest the packet include a company directory or at least relevant contact numbers and e-mails for supervisors in case the employee needs to call in sick, has an after hours emergency that will keep them from reporting to work on time, etc.  Also, it is a good idea to include contact information for a HR representative, in the event the employee has the need to consult with HR in regard to pay issues,

Ihegword v. Harris County Hosp. Dist. - 5th Circuit Court of Appeals Facts :  Edith Ihegword was a nurse at several hospitals in Houston from 1998 to 2009.  In 2009, Ihegword was discharged on the grounds of poor job performance, loss of confidence and inability to get along with co-workers.  Ihegword brought suit and alleged discrimination on the basis of national origin & disability, failure to pay overtime wages in violation of the Fair Labor Standards Act (FLSA) and Texas Labor Code, and retaliation.  In relevant part, Ihegword claimed that she did not always complete her paperwork to document her time worked before her shift ended.  While she claimed that she maintained a log of her overtime worked, Ihegword said she kept it in her locker but was not allowed to retrieve it after she was terminated.  As a result, Ihegword estimated from memory that she worked about twelve hours of uncompensated overtime a week.    Harris County Hospital District (HCHD) filed a mo

President Obama recently signed an Executive Order called the "Fair Pay and Safe Workplaces Executive Order" which will impact a wide range of labor and employment law issues.  While the law will not take effect until 2016, here are a few of the big changes that the Order sets out: Among other things, the Order mandates that federal contractors disclose recent labor violations. As well, any company that is attempting to obtain a federal contract for more than $500,000.00 must first disclose all of its "labor law violations" (state and federal) for the previous three years.  Interestingly enough, "labor law violations" is a widely strewn phrase which includes violations of rules regarding civil rights, wage and hour, collective bargaining, and safety and medical leave, including violations of the FLSA, OSHA, NLRA, FMLA, ADA, and ADEA violations, among a host of others.  Perhaps the most striking requirement in the Executive Order is the r

Last week, the attorney representing Buffalo Bills cheerleader Caitlin Ferrari in her wage and hour lawsuit against the team (among other defendants), filed a motion seeking to depose the N.F.L. Commissioner, Roger Goodell.  While the N.F.L. itself is not a defendant at this time, Ferrari's attorney pointed the court to a document submitted by the Bills which includes Commissioner Goodell's signature on it.  This particular document, signed by Commissioner Goodell, specified that Citadel Broadcasting would have the cheerleaders sign an agreement, which included provisions that the Jills (the cheerleading team) agreed the N.F.L. could use their likeness without compensation, and that the cheerleaders are independent contractors rather than employees, among other stipulations.  In the motion to quash the deposition filed by the N.F.L., the league argued that the request to depose the Commissioner was improper as Ferrari had failed to show that the Commissioner had "un

Johnmohammadi v. Bloomingdale's, Inc. - Ninth Circuit Court of Appeals Facts :  Fatemeh Johnmohammadi brought a class action against Bloomingdale's to recover unpaid overtime wages.  Once the case got moved to federal court, Bloomingdale's sought to compel arbitration.  At issue was an arbitration agreement in Bloomingdale's employment documents which  provided that employees who failed to opt out waived their right to pursue employment related claims on a collective basis in any forum, judicial or arbitral.  As a result, the court held that Johnmohammadi entered into a valid arbitration agreement and that all her claims fell within the scope of that agreement.  Holding :  The Ninth Circuit affirmed the district court and held that arbitration agreements which become effective if the employee fails to "opt out" of the agreement within thirty days are enforceable.  The Ninth Circuit rejected the plaintiff's argument that the "opt out" pro

There have been a string of cases filed by N.F.L. cheerleaders against different teams this year, with all the lawsuits centering out claims of unlawful pay in violation of the Fair Labor Standards Act.  When an employer pays an employee below minimum wage, which the cheerleaders claim, that is a problem and could result in unfavorable rulings for employers.  I had posted an update a few days ago about the Oakland Raiders unceremoniously raising its cheerleaders' pay to $9.00 per hour for the upcoming season, which falls in line with the minimum wage rate in California.  ( Raiders Raise Pay for Cheerleaders - Blog ) (I say "unceremoniously" because the Raiders did not make any formal announcement, but rather included the pay rate on fliers for its cheerleading auditions for the 2014 - 2015 season).   Earlier this year, five former members of the Buffalo Bills cheerleading squad, referred to as the "Buffalo Jills", brought a wage and hour claim complain

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: Walgreens Pays $180,000 To Settle Discrimination Suit This is one of the more interesting EEOC cases to come along in a while in regard to a discrimination lawsuit.  Walgreens settled an Americans with Disabilities Act ("ADA") claim for $180,000.00 brought by a former employee of the pharmacy giant.  The EEOC alleged that the employee, who was diabetic, was fired after she ate a bag of potato chips to stabilize her blood sugar without paying for it. A few things went against Walgreens in this instance, namely the company's attorney who acknowledged that the employee who worked for the company for 18 years was valuable and that fact that even though the store knew of her disability, the security guard on duty did not seek clarification that the employee did not have time to pay beca

Another busy week in court has kept me on the road and out of the office.  As a result, I have not had as much time to read through different articles as I would have liked.  Nevertheless, I still came across a few good reads that I think readers of this blog will like.  Until next week... OSHA Issues New Directive to Keep Communication Tower Workers Safe With an increase in the number of communication tower worker deaths over the past few years, the Occupational Safety and Health Administration ("OSHA") updated its Communications Tower Directive recently in regard to the use of hoist systems used to move workers to and from workstations on communications towers.   The directive includes an outline of the proper use of hoist systems and includes information on how to safely hoist workers to lessen possible risk.  Even for those employers (and readers) who have no involvement in this industry, it is still an interesting read to page through. A Few Ways to Cur