The Majority Opinion: Legal Blog

I came across a lot of good articles this week but was able to narrow down the list a bit.  One of the better articles that I read was about the lost revenue that employees and employers alike deal with as a result of a delay in employees filling out time sheets.  It is one of the more logical problems in the employment setting, but one that I do not stumble across very often. As always, below are a few articles that caught my eye this week. Employees Delayed in Filling Out Time Sheets? Say Goodbye to Lost Revenue . We have all been there at one point or another, most likely:  your employer requires you to fill out a time sheet for your work.  Whether it be working in a factory, doing clerical work, or hourly billing at a law firm, recording time worked on a time sheet is vital to getting paid (not just for employees, but also for employers who bill others for the work done).  This article has a good insight into the tremendous amount of money lost from employees who dela

A few months ago, I wrote a note about a court in California which held that, under California Labor Code Section 2802, employees who must use personal cell phones for work are entitled to reimbursement for "some reasonable percentage" of the personal cell phone bill.  ( Employers Required to Reimburse Employees for Cell Phone Bills - Blog ) Late last year, the California Supreme Court denied a petition for review filed by Schwan's (the losing party at the Court of Appeal level) to review the appellate court's decision and also denied Schwan's request to depublish the Court of Appeal decision.  Unsurprisingly, the petition had wide support by employers who questioned the broad holding from the appellate court. At this point, now that the Schwan decision will not be overturned, it is interesting to see whether any other California court will follow the same line of reasoning by this Court of Appeal.  Employers would be wise to implement or update any mob

Note, there are two recent cases that deal with similar issues in regard to employees not being entitled to compensation when required to monitor work radios while on break.  As a result, I am posting both of these side by side so readers can follow the two cases more closely.  This is Part 2. Augustus v. ABM Security Services, Inc. - California Court of Appeal, Second Appellate District, Division One Facts :  The plaintiffs, former security guards employed by ABM, sued ABM on behalf of themselves and a class of similarly situated individuals on the grounds that ABM failed to provide rest periods as required by law.  Specifically, the plaintiffs claimed that ABM failed to relieve security guards of all duties during rest breaks and instead required its guards to remain on call during breaks.  After a class was certified, the plaintiffs moved for summary judgment on the grounds that undisputed evidence showed that the guards were required to keep their radios and pagers

Note, there are two recent cases that deal with similar issues in regard to employees not being entitled to compensation when required to monitor work radios while on break.  As a result, I am posting both of these side by side so readers can follow the two cases more closely.  This is Part 1. Ruffin v. MotorCity Casino - Sixth Circuit Court of Appeals Facts :  The plaintiffs in the case were current and former security guards at MotorCity Casino.  Under the parties' collective bargaining agreement, a guard who worked an eight hour shift was entitled to a paid, thirty minute meal period.  There was no dispute that the guards were free to do whatever they wanted during their break, though they were not allowed to leave the casino property, have food delivered, or receive visitors.  As a result, the guards spent their meal time in a large cafeteria or smaller break rooms.  While the guards were not "working" during this meal period, they were required to monit

Each state has a host of new employment and labor related laws that take effect in 2015.  This series focuses on several new laws from around the country that are of particular interest.   Earlier this month, the outgoing Governor of Massachusetts, Deval Patrick, signed a bill into law that will establish parental leave in the state for both female and male employees.  This amendment to the Massachusetts Maternity Leave Act ("MMLA") is groundbreaking in that prior to this amendment, the MMLA provided eight weeks of protected leave for only female employees for the birth or adoption of a child.  As a result of this amendment, however, the law is now "gender neutral", in a sense, as it grants male employees the same leave that female employees in the state have previously enjoyed.  Also of note, the new law applies to employers in the state with 6 or more employees.  (Contrast this Massachusetts law with the federal Family and Medical Leave Act which onl

Late last month, Michigan Governor Rick Snyder signed legislation that excluded public college and university athletes in Michigan from the definition of "public employees" entitled to collectively bargain under Michigan law.  The bill, H.B. 6074, in effect bars college athletes from unionizing.   Note that the legislation stated that the purpose of the bill was to ensure "that college athletes are students, first and foremost, and should not be treated as employees by their schools."  Interesting way to phrase it, though it is probably spot on. For those that have been keeping up, we are still awaiting word from the National Labor Relations Board on whether the football players at Northwestern University can unionize.  It is important to remember that a similar bill in Illinois would likely not have had any impact on the events at Northwestern University, as that is a private university.  The bill passed in Michigan last month impacts only public college

Even though I often see a lot of articles on smartphones in the workplace, I came across a very good article recently that I wanted to highlight.  Remember employers, you cannot have it both ways.  You cannot require (explicitly or not) that nonexempt employees check their smartphones for work related activities off the clock and then assume these employees are potentially not entitled to compensation for this extra time worked. As always, below are a few articles that caught my eye this week. Employers: Regroup for the New Year on Union Avoidance Strategies Even though we are already a few weeks into 2015, it is never too late for employers to re-examine their union avoidance strategies (especially in light of the recent NLRB rulings that allow access to employer e-mail systems for union organization as well as the new "quickie election" rules).   This is one of the better written articles that I have seen on union avoidance recently and one that employers should

Hargrove v. Sleepy's LLC - New Jersey Supreme Court Facts :  The plaintiffs were all hired to deliver mattresses ordered by customers of Sleepy's.  Even though all the plaintiffs signed an Independent Driver Agreement, they claimed they were misclassified as independent contractors and were therefore entitled to unpaid wages and overtime under New Jersey's wage and hour laws.   Suit was filed in district court and summary judgment was granted for Sleepy's on the grounds that the plaintiffs were independent contractors.  Plaintiffs appealed to the Third Circuit Court of Appeals, which subsequently filed a petition with the New Jersey Supreme Court to certify the question of which test should be applied to determine employment status under New Jersey law. Holding :  The New Jersey Supreme Court held that the "ABC" test applied and was therefore the proper test to determine whether a worker was an employee or independent contractor.  For those unfam

Earlier this month, the United States House passed H.R. 30 (the Save American Workers Act of 2015) which will impact how the Affordable Care Act (also known as Obamacare) will be applied to employers and employees alike.   Note that under this bill, it raised the threshold of what exactly constitutes full time work.  Under current law, full time employment is considered to be 30 hours per week.  The Save American Workers Act of 2015, however, would raise that number to 40 hours per week.   As a result, this bill, if approved by the Senate, would tweak the definition of full time workers who must be offered employer provided health care under the Affordable Care Act. For those unfamiliar with the Affordable Care Act, employers with more then 50 full time workers must offer health care coverage or face penalty payments.  This bill could impact a great deal of employers who would ordinarily be required to provide health care to its workers, but now these employers might be able

It was tough to narrow down which articles that I wanted to highlight this week, so I went ahead and included a few extras.  Naturally, the article on the Healthy Families Act was high on my list this week, given Obama's announcement of this yesterday.  There will inevitably be much more discussion and debate on this in the coming months, but this is a good article to start with in the meantime. As always, below are a few articles that caught my eye this week. Healthy Families Act: A View From the Other Side With yesterday's post about Obama's announcement of paid sick leave for many employees in the U.S., I wanted to highlight this article from Tim Worstall.  While the article is a somewhat critical look at the proposed legislation, there are a few arguments that Tim makes which are quite thought provoking.  In particular, I would pay close attention to his argument that if the Healthy Families Act actually passes, it could ultimately end up cutting wages. 

Today, President Obama is expected to call on Congress to pass a bill, the Healthy Families Act, that would require companies to pay for up to seven days of paid sick leave a year for their employees.  But as the saying goes, "Alright, how are you going to do it?"  Well, first of all, the bill would apply only to companies that employ at least 15 workers.  For those employees that qualify, they would earn one hour of paid sick leave for every 30 hours worked, up to 56 hours of paid sick time per year.  In an executive action, Obama is also expected to give at least six weeks of paid leave to federal employees after the birth or adoption of a child.  To take it one step further, Obama also plans to ask Congress to allocate approximately $2.2 billion to help states and cities set up paid family leave programs. For those who are readers of the blog (and those who aren't), remember that paid sick leave was one of the big issues that started to crop up last year.  S

Late last year, I wrote an article about the Citywide Hotel Worker Minimum Wage Ordinance that is set to impact a large group of hotel workers in Los Angeles in the coming years.  ( Citywide Hotel Worker Minimum Wage Ordinance - Blog ).  One of the more important aspects of the Ordinance is the fact that it is set to raise the minimum wage rate to $15.37/hour. Unsurprisingly, two hotel trade groups filed a lawsuit to challenge the Ordinance on the grounds that it violates federal law in several different respects, namely that the Ordinance improperly aids the Hotel Workers Union in its efforts to organize employees at the city's hotels that have resisted unionization.  Additionally, the complaint alleges that the Ordinance is pre-empted by federal law because it "disrupts the balance struck by Congress between labor and management" and therefore is void.  This is obviously still in the very early stages of litigation but is worth keeping an eye on as it progres

For those employers who have not checked or forgot about the change in mileage reimbursement rates, the IRS announced the optional standard mileage reimbursement rates have changed for 2015.  Beginning January 1, 2015, the reimbursement rates have increased, and are as follows: 57.5 cents per mile for business miles driven; 23 cents per mile drive for medical or moving purposes; and 14 cents per mile driven in service of charitable organizations (same as current rate in effect). For those employers that use the standard IRS rates for mileage reimbursement, make sure to change your expense reimbursement policies.

Last month, the National Labor Relations Board ("NLRB") handed down its full decision in Purple Communications .  The most significant note to come out of the decision is that employees now have a right to use their employers' email systems during non-work time to communicate about union issues.   This 3 - 2 ruling in favor of employees discarded decades of legal precedent and overruled Register Guard , which allowed employers to impose nondiscriminatory restrictions on employees' nonbusiness use of equipment.  According to the ruling from Register Guard, an employers' e-mail system should be treated like any other piece of employer equipment.  In light of this HUGE decision from the NLRB, employers should review, and if necessary, amend any e-mail and electronic communications policies to ensure they do not constrain employees from engaging in conversations about union issues during non-work time.  While some employers may allow employees to use their

It's the first full week of January and I'm still working on getting back into the routine.  Being out of the office a couple days this week in trial has pushed things back, however.  With that being said, I did read through several articles this week that were quite good, namely on background checks.  In particular, the one on potential FCRA Background Check Class Actions was one of the more thought provoking reads and the one that I wanted to highlight up top. As always, below are a few articles that caught my eye this week. Beware of Potential FCRA Background Check Class Actions Gregory Snell has a good note on the increased number of FCRA background check class actions that have arisen over the past year (the number of class actions more than tripled in 2014).  Snell does a good job pointing out the correct procedure that employers must follow to comply with the FCRA and using background checks in the hiring process.  As well, my favorite part was the inclusion

Late last month, Abdul Mohamed, a driver for Uber, filed a class action suit and alleged that Uber ran background checks on applicants without their knowledge or authorization and used the information to make hiring decisions.  Also included in the suit was Uber's wholly owned subsidiary, Rasier LLC and the employment screening agnecy, Hirease LLC.   Mohamed alleged that he went on Uber's website to apply for a different position within the company, as he was already a driver.  Part of the online application required Mohamed to complete a "FREE online background check."  Although the background check document included an authorization for Uber to access consumer reports, it allegedly did not conspicuously disclose in a separate document that the report may be used to make a hiring decision.  If true, this is a violation of the Fair Credit Reporting Act ("FCRA").  Once Mohamed completed the application, he was told he would need a new car for the p

I saw a little bit about this yesterday when I was in court and could not write a proper post about it until I was back in the office.  Something like this deserves some serious attention. Yesterday, U.S. District Judge David Campbell of Arizona, ordered an immediate halt to Arizona's enforcement of identify theft laws that penalize illegal immigrants in the country from seeking employment.  In his order, Judge Campbell pointed out that federal laws state that simply seeking employment is not a crime, no matter the person's immigration status.  Note, of course that federal laws prohibit using falsified documents (in the employment setting), but a distinction is drawn between identify theft and application to work.  Arizona, however, had changed the legal definition of identify theft and included in the definition any attempts at employment by immigrants in the country illegally.  The issues over this law arose after Maricopa County Sheriff Joe Arpaio was using Ar

Department of Health & Mental Hygiene v. Dillon - New York City Office Of Administrative Trials and Hearings   Facts :  Ronald Dillon worked for the New York City Health Department, and in his current position, took calls on an information-technology line from other city workers and the public.  For a sixth month period in 2012 and 2013, Dillon apparently abandoned service requests, improperly transferred tickets to another desk and failed to provide correct descriptions of requests.  Perhaps most important to this blog post, Dillon answered the phone in an "unprofessional, robotic voice" and stated:  "You have reached the help desk.  This is Mr. Dillon.  How may I help you?"  As the call went on, Dillon would apparently revert to a "normal tone", but callers complained and Dillon was warned to stop talking on the phone in a robotic voice.  When Dillon continued to answer the phone in this manner, he was suspended without pay for 20 days.  Dillo