The Majority Opinion: Legal Blog

Yes indeed, today is Halloween.  Some consider it a scary day full of unwanted surprises, scares, and endless nightmares.  Some might say that the same can be said for every day in HR as well.  As a result, this week I have dedicated this Halloween edition of What I've Been Reading This Week to the HR readers of the blog. As always, below are a few articles that caught my eye this week. Ban the Box: The Basics The HR Bartender is always one of the resources I rely upon and check out during the week.  An article was recently posted which includes a few easy to follow infographs that breaks down the "Ban the Box" measures that have been passed around the country recently.  I have posted extensively on the topic previously, but this article streamlines things pretty well.   Managing Halloween at the Office A lot of offices are having Halloween parties this week as well as today.  Josh Sudbury has a few thoughts for those in the HR fiel...

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 several new laws that will impact California employers. AB 1443 - Protection for Unpaid Interns In September, California enacted a new law, AB 1443, which amended California Government Code 12940 to add unpaid interns to the list of workers protected by California's anti-discrimination and anti-harassment laws.  Employers are now prohibited from discriminating based on protected characteristics in the "selection, termination, training, or other terms" of unpaid interns. The new law also prohibits harassment of unpaid interns based on protected characteristics and makes employers liable for sexual harassment of unpaid interns by non-exempt employees if the employer knew or should have known of the conduct but failed to promptly take cor...

Recently, the United Steelworkers of America held its annual convention and vowed to enact certain changes in the labor structure of America.  A few are nothing out of the ordinary, such as workers should have access to neutral voting locations and workers should have a right to a representation election within 30 days of filing a petition for one.   However, the one that really jumped out at me was the goal to unseat Senator Bob Corker of Tennessee who spoke out against the UAW's presence at the Chattanooga Volkswagen plant.  For those who do not remember, earlier this year, workers at a Volkswagen plant in Cattanooga voted on whether to unionize.  ( Volkswagen Vote - Reuters Report ).  Amid the vote by the workers, Senator Corker made comments that many interpreted as influencing the vote.  Specifically, Senator Corker stated that he had "conversations" and based on those conversations was assured that should the workers vote against the UAW, ...

Early last week, a former University of Houston soccer player filed a lawsuit on behalf of herself and Division I student athletes against the NCAA and all NCAA Division I member schools.  (Yes, that includes even my own alma matter...I will let you guess which one).   The plaintiff alleged that the University of Houston violated the Fair Labor Standards Act ("FLSA") as she was an uncompensated student athlete and should have been classified as a temporary employee.  Note, if she had been classified as a temporary employee, she would have been entitled to receive compensation.  In essence, the lawsuit argues that students in work study programs (such as serving as ushers at sporting events, working at the library, washing dishes at the food halls, etc.) perform non-academic functions for the benefit of the NCAA and the schools.  As a result, these work study participants meet the criteria to be classified as part time temporary employees and therefor...

I have been out of the office a few days this week in court and as a result, have had to play catchup when I am back in the office.  That has left me less time to read through my usual articles this week, but I did see a few that are worth passing along.  In particular, the article/chart that breaks down the differences between the San Francisco and California sick leave requirements is worth reading. As always, below are a few articles that caught my eye this week. Don't Have a Policy in Place? Don't Panic, But Start Drafting One Some employers do not have any policies in place.  In fact, some employers do not have enough policies in place.  This article points out a few policies that all employers should have, such as policies that address paid time off, equal opportunity, safety rules, etc.  Going a bit further, the article then suggests how employers can create new policies and the most efficient and effective ways to draft the new policies, depe...

The Standard Register Co. v. Keala - US District Court for the District of Hawaii Facts :  Lynden Keala, Jaxcine Kaulili-Guzon, and Sharon Brown-Henry all worked for The Standard Register Co. and WorkflowOne LLC ("WorkflowOne").  Each of the employes signed agreements with WorkflowOne in which they agreed to 1) not disclose the confidential trade secrets of WorkflowOne; and 2) for a period of twelve months after their last date of employment with WorkflowOne, not solicit business competitive to WorkflowOne.  While Keala signed the agreement around the time he started back with WorkflowOne, both Kaulili-Guzon and Brown-Henry signed the agreements after they had been working at WorkflowOne for a period of time. After the former employees left their positions at WorkflowOne, suit was subsequently filed against the former employees as well as their current employer.  WorkflowOne based its claims on the grounds that the former employees violated the employment ag...

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 :  Samantha Elauf applied for a job at and Abercrombie & Fitch Kids store in 2008.  At the interview, Elauf wore a head scarf but did not specifically say that, as a Muslim, she wanted the company to give her a religious accommodation.  Nevertheless, Abercrombie denied Elauf the job on the grounds that wearing the scarf vioalted Abercrombie's "Look Policy" for its employees.  For those wondering, the "Look Policy" is Abercrombie's requirement that its employees dress in clothing that is consistent with the kinds of clothing that Abercrombie sells in its stores, identified as "a classic East Coast collegiate style of clothing."  The EEOC subsequently filed a suit on Elauf's behalf in 2009 on the grounds that Abercrombie's "Look Policy" and decisio...

Ebola is all over the news.  I can't seem to turn on the t.v. or go online without seeing some news article or commentary on it.  As a result, to kick off this week's What I've Been Reading blog, I found a few good articles on how ebola can impact the workplace and what employers can do to stay on top of the issue. As always, below are a few articles that caught my eye this week. Ebola & the Workplace: Setting up a Plan Of all the articles on ebola in the workplace that I read this week, this is one of the better articles on the topic.  Wisely, the article suggests that employers remain vigilant, not panic, and come up with a plan of action to deal with potential ebola issues.  I think the key take away in this article is to have a response plan and be proactive about dealing with possible issues that can come up. Ebola Issues? Stay Calm & Work Through It Similar to the first article, this one by Howard Mavity has some good point...

Shoun v. Best Formed Plastics, Inc. - US District Court for the Northern District of Indiana, South Bend Division Facts :  George Shoun injured his shoulder in March 2012 while on the job at Best Formed Plastics and spent several months off recovering.  Jane Stewart, who processed the worker's compensation claim for the company, prepared an accident report and monitored Shoun's medical treatment.  In February 2013, Stewart apparently posted a message on her Facebook page: "Isn't [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun's shoulder injury kept him away from work for 11 months and now he is trying to sue us." Stewart's Facebook page was apparently linked to her business e-mail address and was available to the business communities in northeastern Indiana and southern Michigan.  Stewart's statement remained on her Facebook page for 76 days. Shoun ...

Earlier this year, I keyed in on a case pending before the United States Supreme Court that readers should keep an eye on, Integrity Staffing Solutions, Inc. v. Busk .  ( Integrity Staffing Solutions, Inc. v. Busk - Original Update ).  Last week, the Supreme Court heard oral arguments on this case.  For those who do not remember, this case concerns whether workers who have already clocked out for the work day, but are still required to go through employer mandated screening before leaving work, should be compensated for that time spent in security screening. The employer, Integrity, spent a majority of the time during oral argument focused on the position that the security screening process is simply a part of leaving work for the day.  Since employees are not paid for time spent punching out, the argument followed that employees should not be paid for emptying their pockets at the end of the day and going through screening. The federal government has join...

Normally, I reserve the One to Keep an Eye On blogs for cases that are working through the appellate system.  In this case, however, there is a big bill working through Congress now that I wanted to highlight. Several legislators in Congress introduced a bill called the Schedules That Work Act which seeks to control how employers schedule many of their lower-wage workers.  The bill would give workers in all industries the right to request a flexible, predictable, or stable schedule without fear of retaliation.   Take for example workers in the retail and restaurant industry.  Employers of these workers would be required to provide two weeks' advance notice of schedules and compensate employees who are sent home before the end of their shifts, work a split shift, or are assigned on-call shifts.  The bill also provides that employers would be required to accommodate the scheduling needs of workers who attend school or have serious illnesses, car...

A couple good articles this week...my favorite being a warning to employers to not label workers as independent contractors rather than employees.  This is an issue I have seen start to come up more and more often lately.  As always, below are a few articles that caught my eye this week. 10 Ways Employers Can Offer Reasonable Accommodations to An Employee's Disability Stephen Simpson has written one of the better articles that I have read in a while.  Disability laws require that an employer provide a reasonable accommodation to a disabled employee, if possible, and this article identifies ten different ways an employer can do just that.  The article also includes a case for each of the ten suggestions which make it more relate able and easy to follow. Beware of Labeling Workers as 'Independent Contractors" Rather Than 'Employees' Michael Haberman has a good article on the increased risks that have come up over the past few years for employers wh...

Rice v. Kellermeyer Company - US District Court for the Northern District of Ohio, Western Division Facts :  In early 2012, Ronald Rice, the VP of Sales at Kellermeyer Company announced to his co-workers that his wife was pregnant with their first child.  On June , 2012, Rice requested permission to use accrued vacation time from June 11 through June 15, partly because of "an unexpected appointment" for his pregnant wife.  Rice's supervisor denied the request for Rice to use paid leave for June 14 through June 15 and told him that if he took time off, it would be unpaid. Rice subsequently requested FMLA paperwork from the director of HR to allow him to attend the appointment.  Three days afterward, Rice was fired.  Rice brought suit against Kollermeyer for violations of the FMLA by interfering with, restraining, or denying Rice the exercise of his rights under the FMLA and retaliating against him by discharging him for asserting his rights under the FML...

This is one of the bigger pieces of legislation to come along in quite some time.  California employers take note...this one will impact you! On September 10, 2014, California's Governor signed into law AB 1522, the Healthy Workplaces, Healthy Families Act of 2014.  This law, which goes into effect July 1, 2015, requires California employers to provide workers paid sick leave.  With a few exceptions, the law covers employees who work at least 30 days within a year of starting their employment. A few important parts of the law to note: Employees will accrue paid sick leave at a rate of at least one hour for every 30 hours worked. Employees may use accrued paid sick leave for personal illness, a family member's health condition, or leave related to domestic violence, sexual assault, or stalking. Accrued sick days carry over to the following year of employment, but an employer may limit an employee's use of paid sick days to 24 hours or three days per cal...

Every employer has encountered it at one point or another:  one, several, or all of their employees show up late to work or leave early without prior approval.  It is one thing if time off has been requested or prior approval has been granted.  It is another thing when the employee is expected to be at work and simply shows up late or leaves early without getting approval to do so from their supervisor.   Often, when an employer learns of an employee's tardiness or decision to leave early, the employer wants to immediately discipline that employee.  Before an employer acts, however, there are a few things to keep in mind: Set out expectations clearly for each employee.   Has the employee been made aware of the employer's expectations on when to be in the office?  Employers should note that simply relying on the arguments of "employees should have known when to be here" or "they should have recognized when other employees were requir...

Every so often, I come across a few good articles on a particular topic during the week that warrant a "What I've Been Reading This Week" post dedicated solely to that topic.  Given the recent announcement of a settlement of the first Oakland Raiders cheerleader lawsuit for $1.25 million (plus a few other provisions), I thought this would be a good time to note some articles on the wage and hour fights of these current and former N.F.L. cheerleaders.  As always, below are a few articles that caught my eye this week. An Inside Look at the Wage & Hour Fight of the N.F.L. Cheerleaders Bloomberg Businessweek has a very good article that takes an inside look at the wage and hour lawsuits brought by several N.F.L. cheerleaders.  The article has a very intriguing take at the impact these lawsuits have had, not just on the other cheerleaders who are now out of work (for instance, this is the first time in nearly 5 decades that the Buffalo Bills will not have cheerl...

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: Popeye's Chicken Franchisee to Pay $25,000 to Settle Disability Discrimination Claim A Popeye's Chicken franchisee had a charge brought against it by the EEOC who claimed that the general manager of the location in Longview, Texas refused to hire an applicant for a position at the restaurant when it became known that the applicant was HIV-positive.  Apparently, the applicant had years of prior experience working in the fast food industry, including experience as a general manager.  However, when asked why he had left his prior position, the applicant listed "medical" as the reason.  Upon being interviewed and asked to disclose the "medical" condition, the applicant stated he had HIV.  The franchisee immediately informed the applicant that he could not work for Popeye...

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 an amendment made by New York City. Readers of the blog will remember a post from early June in which human rights laws were extended to interns in New York City ( Human Rights Laws Extended to Interns (NYC) ).  On July 22, 2014, Governor Cuomo of New York signed a similar bill for interns across the entire state of New York that amended the New York Human Rights Law by adding a new section that prohibits employers from discriminating against unpaid interns and prospective interns based upon a host of factors including age, race, color, national origin, and sexual orientation, among other categories.  The amendment also prohibits employers from retaliating against unpaid interns who oppose practices forbidden under the Human Rights Law or wh...