The Majority Opinion: Legal Blog

Some of you may have read the Fifty Shades of Grey book or went to see the movie the past few weeks.  I came across a rather timely article on the topic that I wanted to lead this "What I've Been Reading This Week" post with.  I do want to suggest that employers be mindful that allowing employees to openly discuss this book and/or movie is a potential hostile work environment claim waiting to happen... As always, below are a few articles that caught my eye this week. Fifty Shades of Grey & the Workplace Suzanne Lucas has a good article on how the new Fifty Shades of Grey movie can lead to a sexual harassment lawsuit and what employers can do to head off the issue.  For those who do not know, there are some rather "suggestive" parts of the book that may be appropriate for a book club discussion, but not fit for the workplace.  Suzanne included a few ideas on what employers can do to limit potential liability when this topic is brought up

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 :  A Rhode Island graduate student filed a lawsuit late last year against a textile company on the grounds that it discriminated against her because she used medical marijuana and was a registered medical marijuana card holder.  Apparently the company rescinded a paid internship offer to the student, Christine Callaghan, after Callaghan disclosed that she used medical marijuana because of migraines she suffered.  After Callaghan disclosed her use to a Darlington HR representative, Callaghan was contacted shortly thereafter and told she would not be offered the internship because of her status as a medical marijuana card holder and user. Looking Back :  As noted over on the Orrick Blog , this suit appears to be the first to invoke the anti discrimination provisions of Rhode Island's medical marijuana la

Recently, it was announced that South Carolina is taking a somewhat drastic step and ban the use of social media by state workers beginning in July (note that other employees will still be able to use social media, depending upon the employer's social media policies of course).  This new law will prohibit state employees from using social media on state equipment unless it is a part of that employee's actual job.  What's the reason for this new law you ask?  According to the State Employee Code of Conduct Task Force report, the new rule will provide "clear, easy to understand guidance to state employees and will provide the public with greater trust and confidence in state government."  Hmmm, ok.   As others have noted, this new law could backfire as social media is often useful to allow employees to reduce stress, interact with friends and family, and take a moment for some personal downtime.  Taking away social media can lead to increased stress on the j

It was a busy week for me so I did not have as much time as I would have liked to read through my normal amount of articles and cases.  With that being said, I did find a few articles dealing with social media in the workplace that I wanted to highlight. As always, below are a few articles that caught my eye this week. Want to Fire Someone For Their Social Media Activity? Ok, But First a Few Thoughts This is a rather well written piece by Michael Haberman that deals with who (and how) an employer can fire for social media activity.  The article breaks down who is covered by the protections of the National Labor Relations Act ("NLRA") and what kind of discipline an employer can levy.  I would suggest employers give this one a read through...there are several important things to keep in mind when an employer wants to fire an employee for their social media activity and this article does a good job addressing that. Searching an Employee's Device? Employe

Recently, I have gotten a few questions about what pregnancy discrimination laws are in place to protect pregnant employees in the U.S.  Some states have pregnancy discrimination laws that have become very prominent lately (ie Delaware's pregnancy discrimination law which passed late last year), while other states have pregnancy discrimination laws that do not get as much "fanfare". In an effort to make things easier to follow,  I wanted to highlight the Department of Labor ("DOL") which published a breakdown of each state's pregnancy discrimination laws, including what pregnancy accommodations employers must be make for their employees.  The DOL made it easy to navigate by publishing a map of the U.S. which allows users to click on any given state and see not only what laws apply in that state, but also what state agency to contact for additional information. This is one of the better pregnancy discrimination resources I have seen lately.  Granted,

Thibodeaux-Woody v. Houston Community College - Fifth Circuit Court of Appeals Facts :  Margaret Thibodeaux-Woody ("Woody") applied for a position at Houston Community College ("HCC") for a faculty position.  At the interview, after being told she would receive $41,615.00 in salary, Woody informed her interviewer that she would like to negotiate more.  However, the interviewer told her that was the salary offered was "set" and there would be no negotiations for a higher salary.  Woody accepted the position shortly afterward. Around the same time Woody accepted the position, HCC offered another candidate, Alan Corder, a similar position as Woody's.  Corder was male.  However, the male candidate made a counteroffer on this salary for $60,000.00.  HCC came back with a counteroffer of $52,000.00 which the candidate accepted.  After Woody and Corder had worked in their positions for over a year, Woody learned that he made more than she did.  When

Late last year, the Retail Workers' Bill of Rights emerged as a potentially big ordinance that would directly impact employers and employees in the San Francisco.  ( Retail Workers' Bill of Rights - Blog ).  On November 25, 2014, the San Francisco Board of Supervisors passed these ordinances which address scheduling, hours, and retention at retail establishments in the city.  Now that the ordinances have passed, the San Francisco Office of Labor Standards Enforcement has released preliminary information.  Perhaps the most important thing that I wanted to highlight is the news that the operative date for the ordinances is July 3, 2015...right before the 4th of July holiday weekend.  As a result, all affected employers must ensure they are in compliance with the ordinances no later than July 3, 2015 or risk being exposed to liability for violating the Retail Workers' Bill of Rights. Additional information can be found here:  http://sfgsa.org/index.aspx?page=

I do not come across too many articles that also fall into the immigration category, even though I have several friends and readers of the blog who practice in that field.  With that being said, I recently came across a ruling that dealt with an I-9 related issue that proved to be very costly for the employer (to the tune of over $200,000.00 in penalties).  So for those of my readers who also practice in the immigration field, this post is for you! As always, below are a few articles that caught my eye this week. Ensuring There are No Hiccups When Implementing a Sick Leave Plan This is a really well written article from the Orrick Blog .  They really know their stuff and write several articles that I always enjoy reading.  This particular one deals with how an employer can ensure there are limited hiccups when a sick leave plan is implemented.  Granted, there are bound to be obstacles and unforeseen issues that crop up, but this is worth a read on how some of those pitfalls c

Late last month, Republican Senators Mitch McConnell and Lamar Alexander proposed legislation which would overhaul the National Labor Relations Act and subsequently the National Labor Relations Board ("NLRB").   A few key parts of this bill: The NLRB would go from 5 members to 6, requiring an even split among Republicans and Democrats.  All decisions would subsequently require the agreement of at least 4 members. The five year term of Board members would be synched up so that a Republican and Democrat seat are up for nomination at the same time. Parties in a case would have 30 days to seek review of a general counsel's complaint in federal court and would create new rights that would allow them to obtain documents relevant to the complaint within 10 days. Funding would also be reduced 20 percent if the Board is not able to decide 90 percent of its cases within one year over the first two year period post reform.  (Talk about lighting a fire under the NLRB to

Recently, the Connecticut Department of Labor issued updated guidance for employers in regard to compliance with the state's Paid Sick Leave law.  While this update is somewhat lengthy, even for those employers who follow the laws closely, this is something that is worth a read to confirm that there are no potential compliance issues sitting out there. As well, the Connecticut Department of Labor updated the poster that employers must use in regard to the Paid Sick Leave law.  Employers need to ensure that this is posted immediately in the workplace and also take down any old posters that might still be up. For guidance on complying with Connecticut's Paid Sick Leave Law:   http://www.ctdol.state.ct.us/wgwkstnd/SickLeaveGuidance.pdf A copy of the poster can be found here:  http://www.ctdol.state.ct.us/wgwkstnd/NoticeSickLeavePoster2014%20.pdf

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 :  In 2008, the Equal Employment Opportunity Commission (EEOC) received a charge of discrimination filed by a woman who claimed that Mach Mining had denied her applications for a coal mining job because of her gender.  After investigating the cause, the EEOC determined there was reasonable cause to believe a discrimination claim existed.  In 2010, both parties subsequently discussed a possible resolution but no agreement was reached.  In 2011, the EEOC informed Mach that it had determined the conciliation process had been unsuccessful and further attempts would be futile.  The EEOC filed suit against Mach and Mach raised several defenses, namely that the EEOC failed to conciliate in good faith.    Note that Section 706(b) of the Civil Rights Act of 1964 requires the EEOC first determine whether reasonable

One of the articles that really caught my eye this week was a blog post about several pending pieces of employment law legislation in Florida.  The article did a great job highlighting some of these bills and is something that I thought readers would enjoy glancing over. As always, below are a few articles that caught my eye this week. Religious Objections to Hand Scanner Case Gets a Resolution The Pittsburgh Post-Gazette has a good article on a recent religious discrimination case that finally came to a resolution.  The suit was brought by Beverly Butcher, Jr., who worked at a Consol Engery mine.  When Consol implemented a hand scanner for employees to clock in and out of work, Butcher refused to use the scanner because he thought the scanner would imprint him with the "mark of the beast."  Rather than work with Butcher on an accommodation, Consol mandated he use the scanner and Butcher subsequently quit.  This article has a good insight into the jury's verd

It is not uncommon for an employee who is injured on the job to file a workers' compensation claim as a result of the injury.  In fact, employers should expect this will happen.  However, once the workers' compensation claim is filed, employers often take offense and seek to discharge the employee. A note of caution though:  many states, such as Texas, dictate that an employer cannot discharge an employee who has filed a workers' compensation claim in good faith.  Tex. Labor Code Section 451.001.  This includes a prohibition on any retaliatory action by an employer if the employee even hires an attorney to represent the employer in the workers' compensation claim.  Of course, employees have the burden to show a link between a discharge and the filing of the workers' compensation claim.  Employees can prove the link by either direct or circumstantial evidence.  However, there is a somewhat heightened standard to clear, as the employee must demonstrate th

The National Labor Relations Board ("NLRB") certainly had a busy end to 2014.  Notwithstanding the ground breaking ruling in Purple Communications which allows employees access to employer e-mail systems to engage in union organizing, the NLRB also issued new rules for ambush elections (or "quickie elections") in representation proceedings which means union elections are likely to occur within 21 days.   The new rule, set to take effect on April 14, 2015, will drastically shorten the time between the filing of a certification petition and the conduct of an NLRB secret ballot election.  Note, the new rule does not require that an election occur within a certain period of time, but by overhauling the NLRB representation case procedures, I would expect it would reduce campaign time to 21 - 24 days, and maybe even less than that.  That ultimately means that union elections will occur at a much quicker pace and time frame than employers prefer.  Perhaps one o

Tilley v. Kalamazoo County Road Commission - Sixth Circuit Court of Appeals Facts :  Terry Tilley worked for the Kalamazoo Road Commission back in 1993.  Beginning in 2011, Tilley began having a difficult working relationship with a superior.  Note that for an employee to qualify for FMLA leave, three basic steps must be satisfied: The employee has been employed by a covered employer for 12 months; The employee has worked 1,250 hours during the 12 month period before the requested leave began; and The employee works at a location where his employer employs 50 or more employees within a 75 mile radius of that location. However, Kalamazoo had the following FMLA policy in place:  "Employees covered under the Family and Medical Leave Act are full time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months."  Notice how the third FMLA factor was not included in Kalamazoo's FMLA Policy?  That turned out to

After a few months of not posting the EEOC Roundup, I wanted to get back into the swing of things and highlight a few EEOC matters from the past month.  Coincidentally enough, two of the cases that I wanted to highlight both deal with religious discrimination claims involving the same religion, Rastafarian. 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: Triangle Catering Sued for Religious Discrimination Recently, the EEOC brought suit against a Raleigh, North Carolina company on the grounds that it failed to accommodate an employee's religious beliefs and subsequently fired him because of his religion.  The company, Triangle Catering, allegedly told an employee, Michael Reddick, Jr., that he had to remove his religious head covering while he worked for the company.  Reddick had been a practicing Rastafarian for over 15 years and wore a small