The Majority Opinion: Legal Blog

Doyle v. The City of New York - United States District Court, Southern District of New York Facts :  Plaintiffs were a group of individuals who performed services for the City of New York in exchange for dismissal of minor criminal charges.  The plaintiffs were not paid for completing the required community service.  These plaintiffs subsequently brought suit against the City and alleged that they qualified as employees for the work they performed, and thus were entitled to minimum wage for the services they rendered.  The City moved to dismiss the claims on the grounds that the plaintiffs were not "employees" under the Fair Labor Standards Act ("FLSA") and in the alternative, they fit within the statutory exemption for "volunteers".  Holding :  As the Court noted, this was an issue of first impression.  (For those not familiar with that phrase, the Court referred to the fact that this was the first time this type of legal issue had been raised. 

Excuse the abbreviated post, but I'm traveling through Chicago today. Makes it tougher to write a post when I'm at the airport and not at my desk.     This week, I came across a few good articles dealing with employee time off work issues that I think readers would enjoy paying closer attention to.  In particular, the article that addressed unlimited vacation time in some companies was a very interesting read and one that I wanted to lead this post with, if for no other reason than this might become a more common practice among employers in the coming years. As always, below are few articles that caught my eye this week. A Closer Look at Vacation Days: What's Next? Dan Schwartz has a good discussion on vacation days in the workplace today and how many employees take little, if any, vacation nowadays.  Of note, I wanted to highlight the end of his article in which he talks about some companies that allow "unlimited" vacation days for employees.  Might

Satterwhite v. City of Houston - Fifth Circuit Court of Appeals Facts :  Courtney Satterwhite ("Satterwhite") worked for the City of Houston ("City").  She reported a coworker, Harry Singh ("Singh"), for making a "Heil Hitler" comment during a meeting she attended in 2010.  (Singh claimed the said "you know, we're not in Hitler court.").  The Deputy Director of Human Resources verbally reprimanded Singh.  Singh later learned that Satterwhite had reported the comment.  After Singh became Satterwhite's supervisor in June, he reprimanded Satterwhite on various occassions:  Satterwhite apparently was not at his desk for prolonged periods of time without informing others of his whereabouts and Satterwhite apparently changed the policy regarding how the office handled incoming government mail without properly communicating information about the change.  After the first incident, Satterwhite became upset and yelled at Singh.

For those readers keeping track, I have documented several NFL cheerleader lawsuits over the past year or so that have alleged potential wage and hour issues.  One of the cases filed was by a group of Tampa Bay Buccaneers cheerleaders who brought suit on the grounds that they were unlawfully compensated by the team, in violation of the Fair Labor Standards Act ("FLSA").  ( Tampa Bay Buccaneers Cheerleaders File Wage & Hour Suit - Blog ).   Earlier this month, the Buccaneers cheerleaders and the team agreed to settle the suit for $825,000.00, on a claim that originally demanded $661,000.00.  Note that once the $264,000.00 in attorney's fees are taken out, the remaining settlement amount will be split among more than 90 cheerleaders (which amounts to about $6,000.00 for each member of this class action).  This one is surprising, in that it settled rather quickly (given that it was one of the later FLSA cheerleader lawsuits filed last year).  With that being s

Earlier this month, several unions in Illinois filed a lawsuit in state court to block an Executive Order signed by Illinois Governor Bruce Rauner in February which would bar unions from requiring all state workers to pay the equivalent of dues.   Note that in Illinois, employees who decline to join a union are required to pay "fair share" fees under the theory that these employees enjoy the benefit of higher wages and benefits the union negotiated on their behalf.  By law, these fees cannot be used for political reasons, however Governor Rauner claimed it is impossible to separate political activity from union bargaining because public sector employees negotiate directly with the government.  As a result, Governor Rauner's Executive Order would end the practice of forcing state workers who choose not to join a union from having to pay "fair share" fees to fund union activity.    The unions which brought the lawsuit ask the state court judge to put a

Every so often, a find a few articles any given week on labor & employment law related issues in a particular state that I think deserve special attention.  In this case, there are several good articles on a few different labor & employment law related issues in California that I want to highlight.  This post runs the gamut from office betting pools, to days of rest under the California Labor Code, all the way to Oakland's new minimum wage and paid sick leave laws (and do not forget the additional article on document review workers and their FLSA fight)...wow! As always, below are a few articles that caught my eye this week. Office Betting Pools in California: Legal...or Not? Anytime there is a big sporting event, whether it be the Super Bowl, March Madness, the World Series, etc., office betting pools start up.  The question then becomes, are these pools legal?  Jeffrey Polsky has a quick note on how these office betting pools are "technically"

National Football League Players' Association (on behalf of Adrian Peterson) v. the National Football League - U.S. District Court of Minnesota Facts :  For those unfamiliar with Adrian Peterson's legal issues, Peterson was disciplined by the NFL for alleged misconduct in May 2014 when Peterson caused injury to his child when he was disciplined.   As a result of an outcry against the rather lenient punishment Baltimore Ravens running back Ray Rice got for knocking out his fiance (initially, Rice was given only a two game suspension), in August 2014, the NFL Commissioner issued an enhanced personal conduct policy and increased penalties for violations of the policy.  Even though Peterson's actions occurred in May 2014, Commissioner Roger Goodell enforced the new policy against Peterson and suspended him for the remainder of the 2014 season, fined him six weeks pay, and ordered him to participate in counseling and treatment.  The Commissioner further stated that if

It is time to celebrate...it is St. Patrick's Day 2015!  For those of us working today (or supervising others), however, that celebration might need to wait a little bit.  Given that a lot of people celebrate St. Patrick's Day in one way or another, I wanted to take the time to remind employers & employees alike of a few things to help avoid potential liability and unwanted lawsuits. Office Parties :  Having an office party?  Ok, but remember it is an office party, not a college party.  There is a time and a place to take your shirt off and do shots.  An office party with coworkers and your bosses is not that time.  Remember as well to keep drinking in line.  You do not want to be the supervisor who makes "suggestive" comments to a subordinate, thus triggering a harassment lawsuit.  As well, you do not want to be the co-worker who gets verbally/physically aggressive with a co-worker/boss.  That spells trouble on all fronts. Drinking at Office Parties :  Sp

On March 3, the Washington D.C. Protecting Pregnant Workers Fairness Act of 2014 (a law that was passed last year) became effective.  Washington D.C. joins a growing group of other cities & states that have passed pregnancy discrimination related laws, including Philadelphia, New Jersey, and New York City, among others.  In essence, this particular law provides increased protections for pregnant workers and requires that employers provide reasonable workplace accommodations for workers whose ability to perform job functions are limited by pregnancy, childbirth, a related medical condition, or breastfeeding.   One of the more interesting aspects of this law is the provision that employers can require medical certification from an employee's health care provider in regard to the advisability of a request accommodation...provided that the request is no more demanding than certification required by the employer for other temporary disabilities.  It is important to note t

With the recent passage of the Right to Work Act in Wisconsin this week, I wanted to focus this post on the Right to Work Act, not just in Wisconsin, but around the country.  I found a few articles that I think readers will enjoy taking a look at, given that this issue will likely be in the forefront for a while (especially if/when Governor Scott Walker decides to run for President in 2016). As always, below are a few articles that caught my eye this week. New Mexico's Push to Pass Right To Work Legislation Earlier this week, Wisconsin Governor Scott Walker signed into law a piece of legislation which makes Wisconsin the 25th Right to Work state.  This was significant, given the impact it will have on labor unions in the state.  With the signing into law of that legislation in Wisconsin, there is an increased focus on other states which are attempting to pass similar Right to Work Acts, namely New Mexico.  This article has an intriguing look into the fight in that state a

Yesterday, Wisconsin Governor Scott Walker signed legislation which made Wisconsin the 25th state to approve the Right to Work Act.   For those unfamiliar with the Right to Work Act, the Act makes it illegal for private sector companies to enter into Collective Bargaining Agreements which contain Union Shop clauses which require all workers within the bargaining unit to be members of and pay dues to labor unions.  Right to Work laws prevent unions and employers from requiring employees to join a union or pay dues for representation.     For those unfamiliar with Governor Walker, a recall effort was led in 2012 in an attempt to remove him from office.  A lot of the support (and money) to remove him came from labor unions after Governor Walker had taken a hard line anti-union approach in regard to collective bargaining by state workers within the state.  Of course, Governor Walker's signing of the bill has brought about a lot of opposition, namely from those who critic

Williamson v. Lowe's - United States District Court for the District of Hawaii Facts :  In early 2011, Gregory Williamson applied for a position with Lowe's as a "receiver/stocker".  After multiple interviews, he accepted a position, contingent upon passing a drug test and background check.  In response to a form he was required to fill out, Williamson stated he had a felony conviction "previously discussed" during an interview for the position.   Shortly thereafter, Lowe's sent Williamson a letter and stated that information found in the consumer report could adversely affect Williamson's employment status.  The consumer report identified several convictions, beyond the one he had identified.  Williamson was given an opportunity to dispute the information in the consumer report, but failed to act.  Lowe's then left him a voicemail and stated he would not be hired because of his felony criminal record.  A subsequent letter was sent as

Shorter week than normal for me with a couple work trips at the start and end of this week.  As a result, I have not had as much time to read through things as I would like. With that being said, as always, below are a few articles that caught my eye this week. Firing An Employee For a Social Media Post? Consider a Few Things First! Erin Foley has a good note on what an employer could/should do when it is brought to their attention that an employee posted something on social media that could be taken as a fire able offense.  (In this article, there is mention of a "joking" tweet by an employee that they ran over someone on the way to the office).  The most important thing that this blog notes is that the employer should not panic and instead should conduct an investigation first without jumping to any conclusions.  This is very good advice that employers should remember when a similar situation arises! California Paid Sick Leave Update This is a good arti

Yeager v. FirstEnergy Generation Corp. - Sixth Circuit Court of Appeals Facts :  Donald Yeager ("Yeager") applied for an internship with FirstEnergy but the company refused to hire him because Yeager refused to provide a social security number.  Yeager claimed that he had no social security number because he disclaimed and disavowed it on the account of his sincerely held religious beliefs and did not want the "mark of the beast."  Yeager subsequently filed a discrimination claim against FirstEnergy and alleged violations of Title VII of the Civil Rights Act of 1964 and Ohio Revised Code Chapter 4112.   Holding :  The Sixth Circuit Court of Appeals held that Yeager's could not proceed on his claim and subsequently upheld the lower court's dismissal.  Note that to establish a "prima facie case of religious discrimination", a party must prove that (1) he holds a sincere religious belief that conflicts with an employment requirement; (2) he

I normally reserve the "One to Keep An Eye On" posts for employment and labor law cases that are being litigated around the country.  However, this one instead focuses on a piece of legislation in California that I think readers would be interested to follow. Recently, State Rep. Lorena Gonzalez, introduced a piece of legislation in California that would force NFL teams to pay cheerleaders minimum wage, overtime, and workers compensation.  This legislation is important, because if this bill is passed, it would treat cheerleaders as employees under California law.   Rep. Gonzalez has stated that "If you look at California law, it is clear that these girls [the cheerleaders] are signing as far as contracts they're being treated as employees if not compensated as employees."  I would agree with her in that regard as a few of the contracts I have seen (namely the contract to cheer for the Raiders) seem to set up the working relationship in the employee co

I came across a recent Family Medical Leave Act ("FMLA") case out of my hometown, Houston, a few days ago.  The case, Smith v. Genon Energy , highlighted a serious FMLA issue that I want to tie into a bigger article:  Is an employee required to work during FMLA leave? By way of background, 29 U.S.C. § 2615(a)(1) provides that it is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided."  Note that "interfering with" includes "not only refusing to authorize FMLA leave, but discouraging an employee from using such leave."  Now the court in which Smith v. Genon Energy was pending, the District Court for the Southern District of Texas, established that the Fifth Circuit had not previously considered whether requiring an employee to perform work while on FMLA leave amounted to interference.  As a result, it  became important to look at how courts in other circuits have