The Majority Opinion: Legal Blog

This year saw a wide range of labor and employment law issues:  We have had everything from proposals to drastically alter the NLRB and NLRA , Right to Work zones in Illinois , HR dilemmas over what to do when an employer requires employees to break the law , California passing legislation to provide labor protections to cheerleaders in the state , religious discrimination suits filed by television personalities , "unlimited" vacation days for Netflix employees , all the way to President Obama announcing his support of "Ban the Box" measures , Presidential candidates announcing support for minimum wage increases , and the first union election being upheld at a Target store in Brooklyn .  And that only grazes the surface of some of the developments over the past twelve months!   I certainly appreciate readers following along with me as I track these emerging issues and point out trends that have developed.  With this being the end of the year (and my final po

As always, there are some recent EEOC cases that jump out at me when I review recent developments on that front.  Below are a couple EEOC cases and settlements that stand out: EEOC Claim Against Costco to Proceed to a Jury Recently, a federal district judge held that an EEOC claim that alleged that Costco violated Title VII of the Civil Rights Act of 1964 (by failing to prevent a male customer from stalking and harassing a female employee) will proceed to a jury.  In denying Costco's motion for summary judgment, the court held that there was sufficient evidence to allow the claim to proceed.  Of note, the female employee was subjected to harassing behavior by the male customer for over a year and the conduct continued to escalate (including unwanted touching, "ominous" staring, and other intrusive actions.  The court found that there was evidence that Costco failed to take reasonable steps to stop the harassment, thus the hostile work environment claim was allowe

Recently, Hiscox put out a publication that has a fascinating look at the employee charge trends in the U.S.  This Guide to Employee Lawsuits has an in depth look at several areas of employment litigation that I think readers should note.  In particular: Across the U.S., companies had an 11.7% chance of having an employment charge being filed.  New Mexico has the highest percentage chance of an employment charge being filed (+66% above the national average), with the District of Columbia (+65%), Nevada (+47%), Alabama (+41%), and California (+40%) following close behind. 275 days was the average duration of an employment law matter. For employment law matters that did end up in court, the median judgment was approximately $200,000.00. 25% of cases that ended up in court resulted in a judgment of $500,000.00 or more. The article also includes a couple suggestions on what employers can do to prevent employment charges.  Some of these suggestions are common sense (making sur

Shorter week in the office with the Christmas break.  With that being said, I found more time than the past few weeks to read through some great articles.  In particular, the analysis of how the Democratic party has become so closely intertwined with the Fight for $15 movement was a fascinating read. As always, below are a few articles that caught my eye this week. Four Non-Compete and Confidentiality Agreement Issues On the Horizon for 2016 Over at Jackson Lewis, an article was recently put out in regard to four non-compete and confidentiality agreement issues that are likely to become major issues in 2016.  Readers should note that the article goes beyond just identifying these four big issues.  Instead, the article also points to recent cases from around the country and shows the split that exists among many states/circuits.  Well worth a read. The Fight for a $15 Minimum Wage & Its Ties to the Democratic Party Bryce Covert has a well written article that ties

Recently, the Florida Department of Economic Opportunity ("DEO") held that Uber drivers are independent contractors and therefore not entitled to unemployment benefits.  The issues arose after Darrin McGillis and Melissa Ewers both wanted to be Uber drivers in Florida.  They downloaded the driver app and started to work for Uber.  However, Uber ultimately revoked McGillis and Ewers' access to the app and they both filed for unemployment benefits.  Initially, the Florida Department of Revenue ruled they were both employees and entitled to benefits.  However, Uber appealed the ruling.   In the DEO opinion, it was noted that Uber allows drivers to use the app on their own terms.  Drivers can decide when and how long to drive (which gave the drivers "control over the details of their work"...that's a buzz word right there), use their own vehicles for work, choose customers, and can even work for competitors if they choose.  Therefore, Uber argued that it

Shorter week in the office coming back from New York and handling a few matters out of town for work.  As a result, it was another week where I only had a few spare minutes to read through some articles.  I normally do not post much in the way of international developments in the labor and employment law field.  However, this week I came across some good articles on developments in the UK and Russia that I think warrant a special post. As always, below are a few articles that caught my eye this week. Rising Minimum Wage in the UK to Cost Over 1 Billion Pounds Good article from Forbes on the predicted impact that the new minimum wage in the UK will have on businesses.  Chancellor George Osborne's decision to raise the minimum wage next year is predicted to cost private employers over 1 billion Pounds.  Note, these predicted costs include wages and non-wage labor costs (such as employers' National Insurance contributions).  Quite a steep cost for raising minimum wage r

Last week, the New York Industrial Board of Appeals upheld the proposed $15 per hour minimum wage rate for New York fast food workers.  Under the law, the minimum wage rate would increase in gradual increments to $15 per hour for New York City fast food workers.  The rest of the state would see the increase by 2021.   The National Restaurant Association had claimed the proposed law was unconstitutional on the grounds that it unfairly targeted restaurants that would have to pay each worker on average $11,000.00 more each year than non fast food and retail stores.  (Note, for those non fast food minimum wage employers, a $9 per hour minimum wage rate will go into effect on December 31, 2015.).  However, this argument did not carry much weight before the Industrial Board as it was soundly rejected.  Even with this ruling from the Industrial Board, the National Restaurant Association has indicated they will likely take their fight to court.  As well, for those who might be int

Maldonado-Catala v. Municipality of Naranjito - United States District Court, District of Puerto Rico Facts :  Maribel Maldonado-Catala ("Maldonado-Catala") held a position with the Municipality of Naranjito as an emergency medical technician that began in 2008.  In 2010, Maldonado-Catala suffered a work related accident and was ordered to stop working.  Later that year, she accompanied a co-worker to complain about harassment from an emergency medical office director.  Maldonado-Catala alleged that she had been called "machito" (translated to mean "manly") on a daily basis.  Other suggestive comments were made to her as well.  While on unpaid leave, Maldonado-Catala received several offensive Facebook messages and filed a police report.  Afterward, Maldonado-Catala tried to report to work but was informed her EMT license was expired.  She indicated she did not have the money to renew it. In 2012, Maldonado-Catala suffered another work related

Over the past week or so, I have had several trials which have kept me busy.  As a result, I have again not had as much time to read through articles as I would have liked.  With that being said, I came across several articles that I think readers will enjoy in regard to the recent wrongful termination suit filed by former Southern California Coach Steve Sarkisian.  This one is just getting started and warrants a special post. As always, below are a few articles that caught my eye this week. A Closer Look at Steve Sarkisian's Lawsuit Against Southern California Sports Illustrated has a well written, in depth look at the $30 million wrongful termination suit that former Southern California Coach Steve Sarkisian brought against the school after he was terminated earlier this year.  ( Coach Steve Sarkisian Fired From Southern California ).  In his suit, Sarkisian alleged that he was wrongfully terminated because of a disability, due to being an alcoholic.  Southern Califor

Recently, Democratic Presidential candidate Bernie Sanders introduced a bill that would allow a union to be certified as the exclusive bargaining representative based upon a card check process rather than the current secret ballot election that exists now.  This bill, the Workplace Democracy Act, would also allow a third party arbitrator to impose wages, benefits, hours, work rules, and other contract terms on parties that are unable to negotiate a contract within 120 days. Readers might remember that Hillary Clinton, another Democrat competing for the Oval Office, has traditionally enjoyed wide spread support among union voters.  Given that union voters make up a large swath of the Democratic voting base (especially in the upcoming primary and caucuses), if Sanders hopes to win the Democratic nomination, he is smart to play to this base of voters.  Sanders has noted that while Clinton has support of union leaders, he believes he has support among the "rank and file".

In October, a lawsuit was filed against Starbucks on the grounds that the company allegedly discriminated against a deaf employee because of her disability.  The suit, Roberts v. Starbucks Coffee Company, was filed in Federal District Court in Arizona. To prevail on her disability discrimination claim, Roberts needs to show she was a qualified individual with a disability (as recognized by the Americans with Disabilities Act) that could perform the essential functions of her job with reasonable accommodations, yet the company refused to provide those reasonable accommodations.  The main defense that Starbucks could raise to this type of ADA claim is to establish that allowing the reasonable accommodation would impose an undue hardship on the operation of the company's business and therefore not be feasible. In the lawsuit, Roberts claimed she repeatedly asked for reasonable accommodations on multiple occasions between March 2007 and January 2014, when she was ultimatel

This has been a busy week on my end, coming back from the Thanksgiving break and having a few trials this week out of town.  As a result, I did not get as much of an opportunity to read through articles like I normally do.  In any event, I found a couple good ones that I think readers will enjoy. As always, below are a few articles that caught my eye this week. Are Paralegals Entitled to Overtime Under the FLSA? This is a great note from Eric Meyer about whether paralegals are entitled to overtime under the FLSA.  In short, Eric reaches the conclusion that these employees likely are entitled to overtime (again, depending upon the situation).  Well worth a read. Labor Unions Ramp Up Opposition to Ohio Right to Work Bill The Columbus Dispatch has a good note on recent efforts by Ohio unions to thwart the proposed Right to Work bill in Ohio.  As the article notes, although the bill is still in the early stages of discussion, unions are already doing what they can

Huri v. Office of the Chief Judge of the Circuit Court of Cook County - Seventh Circuit Court of Appeals Facts :  In 2000, Fozyia Huri ("Huri") began working at the Circuit Court of Cook County ("Cook County").  During her time there, she work a hijab.  Huri alleged that Sylvia McCullum (executive director for all Cook County court system child care attendants) was unfriendly from the time they met and never bothered to introduce herself for two weeks.  Over the course of eight years, McCullum repeatedly told Huri one of her colleagues was a "good Christian" and a "good church going Christian", that the chief judge was a "good Christian" and that McCullum herself was a "good Christian".  (Modest, huh?).  In 2009, McCullum apparently told a co-worker to work with a "good Christian" rather than Huri who was "evil".  McCullum also held prayer circle gatherings at work.  As well, McCullum allegedly fals

As of this writing, there are currently twenty five states that have right to work laws in place.  Other states are considering passing right to work legislation ( From The Washington Post - Missouri Could Be the Next Right to Work Battleground State ), but news has come out recently that West Virginia could become the twenty sixth state.  For those unfamiliar with right to work issues, states without right to work laws can allow companies to require union membership as a condition of employment.  Unsurprisingly, unions despise right to work laws.  Without these laws in place, unions are free to bolster their ranks and increase the influx of union dues if union membership is required.  Recently, Republicans in the West Virginia Senate and House of Delegates have been looking at a study that found economic benefits associated with right to work laws.  ( A copy of the study can be found here ).  With some difficult economic conditions in the state, it is unsurprising that politi

Wilson v. Iron Tiger Logistics, Inc. - United States Court of Appeals, Third Circuit Facts :  Robert Wilson ("Wilson") worked as a truck driver for Iron Tiger.  While delivering trucks in approximately -25 degree weather in Canada in 2010, Wilson experienced frostbite on several fingers.  Wilson returned to work after a bit of time with a few doctors' restrictions.  Of note, Wilson was to avoid prolonged exposure to cold and be able to warm his fingers immediately upon feeling pain in his fingertips.  Iron Tiger apparently instructed Wilson to wear gloves, take breaks to warm up his hands, and use customers' indoor facilities to warm up as needed. After Wilson refused to make a delivery to Ottawa, he was terminated.  Wilson subsequently brought a suit for disability discrimination on the grounds that Iron Tiger violated the Americans with Disabilities Act ("ADA") when it terminated his employment.  Iron Tiger moved to dismiss Wilson's claim o

Even though it has been a shorter work week because of Thanksgiving, I was still able to find some time to read through a few interesting labor related articles lately.  In this particular instance, I found some good notes about 'Right to Work' developments around the country that I think warrant a post dedicated to the topic. As always, below are a few articles that caught my eye this week. Could Right to Work Be Headed to Kentucky? Interesting note about the recent loss of Democratic candidate Jack Conway, who was running for governor in Kentucky.  As Jason Hart writes, Republican candidate Matt Bevin won the race with a platform that included making Kentucky the 26th right to work state.  Even though Conway received a fair amount of money from big labor, it apparently was not enough to get him into office.  Interesting to see whether anything happens in the state now with a Republican governor. Missouri Republicans Involved in In-Fighting Over Failed Right t

Salazar v. Cargill Meat Solutions Corporation - Fifth Circuit Court of Appeals Facts :  Marcelino Salazar ("Salazar") worked at Cargill Meat Solutions Corp ("Cargill") from the mide 1980's through 2012 when he was terminated.  At the time of termination, Salazar was 56 and had not received any disciplinary warnings.  In June 2012, Salazar attended a meeting where a supervisor asked whether Salazar had any problems with his work vehicle.  When asked the question, Salazar "was taking a drink of coffee and was not able to answer out loud, so [he] shrugged [his] shoulders as a way of indicating "no" to the question."  However, the supervisor viewed Salazar's "refusal" to answer as insubordination and terminated him on the spot. Following Salazar's termination, a new employee (about thirty seven years younger) appeared at work at took over Salazar's position.  Salazar filed suit and alleged his termination was in vi

Readers might remember that Target has traditionally been very tough in fighting to keep unions out of its workplace.  ( An Inside Look at How Target Deals With Union Organizing ).  There had previously been two union elections at Target stores:  One in 2011 and the other in 1990.  Note, the union lost both of those elections and Target has continued to remain union free.  However, it appears that anti-union rhetoric has taken a slight hit as of late. Earlier this month, the National Labor Relations Board ("NLRB") denied a petition by Target in which the retail giant petitioned to have a union election invalidated that occurred at one of its stores in Brooklyn.  At that location, pharmacy workers voted 7 - 2 to join the United Food and Commercial Workers Union.   However, Target said the election should never have occurred because Target is selling its entire pharmacy operation to the drugstore chain CVS.  Target based its petition on the fact that the NLRB has tra

Shorter week in the office, as I had to cover a few different last minute hearings.  But in my downtime at the hotel, I read through some good articles on some developing labor issues around the country.  Perhaps the most noteworthy article concerned efforts by workers at Lyft, Uber, and other related companies to gain the right to collectively bargain.  Whether that will actually happen is still too early to say...but well worth the read! As always, below are a few articles that caught my eye this week. Unions Throw Support Behind Higher Wages for Bank Tellers Matt Austin has a good article on the the Communication Workers of America and its recent support of a higher minimum wage for bank tellers.  Whether the support of the union will have any impact on higher minimum wages for bank tellers is anyone's guess...but interesting to see this sector of the workforce get attention in regard to higher hourly wages. Hillary Clinton Ramps Up Efforts to Woo Unions Intere

This past week, Republican Congressman Joe Wilson announced a piece of legislation that could dramatically reshape the National Labor Relations Board ("NLRB").  The proposed bill, entitled the National Labor Relations Board Reform Act, would add a sixth member to the current five member board and provide greater reliability in board rulings while checking the power of the Board's general counsel.   Under Wilson's plan, the Board would be comprised of three Republicans and three Democrats and require a majority decision that would involve both parties.  In Wilson's opinion, a nonpartisan Board would "restore fairness and protect the rights of workers."   There is certainly something to be said for how partisan the Board has become.  And having an even split among Republican and Democratic Board members would be an interesting change.  However, I could envision things grinding to a halt as a majority decision that involved both sides would like

Hudson v. Leavenworth County Sheriff's Office - United States District Court, District of Kansas Facts :  Michael Hudson ("Hudson") was an African American employee at Leavenworth County Sheriff's Office ("Leavenworth") beginning in 2006.  Several instances happened during Hudson's employment that formed the basis of his claims against Leavenworth: In 2009 when Hudson spoke with a supervisor, Sergeant Ed Cummings, about moving to a house in Leavenworth County, Sergeant Cummings said "why don't you move in that house up the street from me so when them boys start burning crosses in your yard I can come help."  Sergeant Cummings was subsequently suspended for three days without pay but remained a supervisor to Hudson. In 2011, Hudson complained to another African American employee, Officer William Francis, about a confederate flag license plate on an employee's car in the parking lot.  After Francis took the complaint to his

Recently, Pennsylvania Governor Tom Wolf signed a bill into law that repealed a loophole that gave unions the right to stalk, harass, and even use a "weapon of mass destruction" if they were involved in a labor dispute in Pennsylvania, without fear of being charged with one of those three crimes. In the past, it had been well documented that unions harassed the children and spouses of business executives with violent taunts and even death threats.  A company official involved in a labor dispute in Philadelphia said that union workers had videotaped her children at sports events and threatened to shoot her.  A company executive for another company was talked by union workers.  When she went to a restaurant, she was taunted and threatened that she would be shot.  However, under the law at the time, these business people had no legal recourse to prevent the harassment or have those who perpetrated the crimes arrested.  In the instance of the executive who was stalked

The past few weeks have been very busy for me wrapping things up in the office to close out the end of last month.  I did find some time to read a few different articles this week.  One of the more informative articles (both for those who practice labor law or just have a passing interest) concerns what employers can and cannot say during a union organization campaign.  As always, below are a few articles that caught my eye this week. Employers: A Few Useful Tips on What to Say (& Not Say) During a Union Organization Campaign Ryan Kunkel and Todd Hanchett have written a very good article with a few tips for employers that are dealing with a union organization campaign.  In particular, the article suggests things that employers can legally say and things the employer is prohibited from saying during this organization campaign.  While every situation is different and this article is not exhaustive, this is well worth a quick review for employers struggling to deal with a

A week or so ago, Hillary Clinton announced her support for a $12 per hour minimum wage rate.  Some of you may have heard she is running for President...some of you may also know that as a Democrat, she has a base that she needs to cater towards if she wants to win the Democratic nomination.   In her announcement, Clinton indicated that she believes a $12 per hour minimum wage for federal workers is justified based upon the cost of living across the country.  However, Clinton's support of a $12 per hour wage rate is less than the $15 per hour wage rate advocated for by Bernie Sanders and Martin O'Malley.  Note, Sanders and O'Malley are Clinton's two main opponents for the Democratic nomination.  In a nod to her adopted home state of Arkansas, Clinton noted that $15 per hour in rural areas or smaller cities such as Little Rock might be too much.  Given the lower cost of living in these areas, Clinton suggested that $12 per hour is a more suitable wage rate. B

Benjamin v. B & H Education, Inc. - United States District Court, Northern District of California Facts :  Several individuals, Jacqueline Benjamin, Bryan Gonzalez, and Taiwo Koyejo, were students at the Marinello Schools of Beauty, owned by B & H Education.  Benjamin and Koyejo were cosmetology students while Gonzalez was a hair design student.  In order to become a licensed cosmetologist, students must receive hundreds of hours of clinical training.  This training includes hands on work and practicing hair and makeup techniques on actual people at a clinic.  Although patrons of the clinic paid for these hair and makeup services, students were unpaid and did not receive any of this money. Benjamin, Gonzales, and Koyejo brought suit against B & H on the grounds that they were employees during their time working in the salon and should be paid minimum wage and overtime for their work.  B & H filed a motion for summary judgment on the claim brought by plaintif

Earlier last week I had an update on the Cincinnati Bengals cheerleader wage and hour suit.  Now, I have an update on a new Paid Leave Law in the city.  Cincinnati is really giving us something to talk about lately, right? With that being said, Cincinnati has become the second major Ohio city to have enacted a paid law in the past few months.  After Akron enacted a paid leave law in August, Cincinnati's city council voted 7 - 2 in favor of allowing employees to take two weeks of sick or vacation time followed by four weeks of paid leave at 70% of their base pay.  For the remaining 30%, employees will be able to borrow against their sick or vacation time.   This is quite a step for Cincinnati to have taken.  Employers in the city should make note of this development!

This was one of those weeks where I found several great articles on employee or independent contractor misclassification issues that I wanted to highlight.  Something tells me these disputes have no intention of dying down anytime soon. As always, below are a few articles that caught my eye this week. Class Action to Proceed Against Uber Earlier this year, a lawsuit was brought by three Uber drivers against the company and demanded they be reclassified as employees rather than independent contractors.  In early September, a District Judge in San Francisco held that these employees can proceed with a class action against the company.  As a result, this class action will now cover around 160,000 Uber drivers in California.  Should these plaintiffs win, they seek expenses and the full amount of tips received on the job.  It goes without saying that the outcome of this case could have a huge impact on Uber and other similar companies such as Lyft, Grubhub, etc. Grubhub, DoorD

Earlier this week, President Obama was in New Jersey and announced a new Executive Order that would reduce potential discrimination against former convicts in the hiring process for federal government employees.  Under this plan, federal agencies will be prohibited from asking a candidate about their criminal record at the beginning of the application process.  Instead, a criminal record can be asked about only after an applicant's qualifications have been substantially evaluated. Note that President Obama's Order does not impact federal contractors.  Instead, the President appears to prefer that Congress pass this type of legislation (a bill was introduced in September).  President Obama joins several high ranking government officials, including New Jersey Governor Chris Christie, former Secretary of State/New York Senator Hillary Clinton, and Senator Rand Paul, among others, who have come out in support of "Ban the Box" measures. Of course, those who have f

Last week, it was announced that the class action wage and hour lawsuit filed by a Cincinnati Bengals cheerleader (note, the cheerleaders are called "Ben-Gals"...well played) had been settled.  Readers might remember that last March, a class action wage and hour lawsuit was filed against the team.  ( From Pom Poms to the Courtroom, Pt. 2 - Cincinnati Bengals Edition ).  In that suit, it was alleged that the team paid the cheerleaders less than minimum wage for their work.  In fact, the suit claimed that the cheerleaders worked about 300 hours a year and were paid, "at most, $90 for each home football game."  For those readers are not math majors, that is equivalent to about $2.85 per hour.   In the documents filed with the Court, the settlement reached provides that the Bengals will pay the Ben-Gal cheerleaders a total of $255,000.00 to settle.  For those covered by this class action suit, those cheerleaders who cheered for the team in the 2011 - 2013 seasons

Last week, four former Amazon Prime Now drivers sued Amazon and a carrier service, Scoobeez,and alleged the company violated minimum wage and overtime pay laws.  For those not familiar with Amazon Prime Now, the company now offers one to two hour delivery for many of its products in select cities around the country.   Note, the former drivers were not actually Amazon employees but instead were identified as "independent contractors" working on behalf of Scoobeez that apparently had a contract with Amazon.  Since these drivers do not work directly for Amazon, the company does not have to be concerned with payroll taxes, workers' compensation or unemployment insurance taxes.  Since the drivers were classified as independent contractors, Scoobeez also did not have to cover these costs.  As a result, the drivers had to cover their own work related costs such as vehicles, gas, insurance, etc.   These drivers have alleged that after paying their own automobile expens

I came across a lot of great articles this week, especially in regard to minimum wage issues.  Given that Halloween is tomorrow, I thought this would be a good time to highlight some articles on the topic.  It really is a 'trick or treat':  a trick for a lot of employers are terrified of impending minimum wage increases, but a treat for employees who have been fighting (and continue to fight) for an increase in their hourly pay. As always, below are a few articles that caught my eye this week. Where Do Republican Presidential Candidates Stand on Federal Minimum Wage Rate of $7.25/hour? Katie Little over at MSNBC has a good overview of where each of the Republican Presidential candidates stand on the federal minimum wage rate of $7.25/hour.  Unsurprisingly, the majority of candidates either do not support raising the federal minimum wage rate or only doing so if the wage rate increase is "reasonable".  Still worth a quick read through to get a feel for where