The Majority Opinion: Legal Blog

  Earlier this month, the EEOC published a proposed rule which would give employers guidance on how to operate wellness programs that consistent with the Americans with Disabilities Act ("ADA").  These proposed rules are paramount in that they would give employers guidelines on how to operate the wellness programs without running into interference with the ADA.  This is very important, given the EEOC's tendency to pursue employers recently for alleged ADA violations in regard to employer wellness programs. At this point, the comment period is open until June 19 for comments as to this proposed rule. EEOC Press Release:  http://eeoc.gov/eeoc/newsroom/release/4-16-15.cfm

Prewitt v. Walgreens - United States District Court for the Eastern District of Pennsylvania Facts :  In 2006, Rodney Prewitt ("Prewitt") was hired by Walgreens as a full time pharmacist.  At the time he was hired, Prewitt was 57.  In 2009, Walgreens began offering flu vaccines at Prewitt's store.  However, Prewitt was morally opposed to administering the flu vaccine because of a friend who died after receiving the vaccine.  After he voiced his concerns, Prewitt was permitted to not administer the vaccines.  However, in 2010, Walgreens changed its policy and required all pharmacists become certified to immunize and perform flu immuniations.  Prewitt again voiced his objections but signed up for the required certification course.  Of note, Prewitt was the only pharmacist employed in Pennsylvania who objected to immunizing. The District Pharmacy Supervisor believed Prewitt's objections were sincere and offered Prewitt different work schedules or a temporary t

As with many labor and employment law related cases and bills being debated around the country, there are always a few that stand out.  This is one to keep an eye on.   California bill SB 3 proposes to raise the minimum wage to $11 per hour by January 1, 2016 and to $13 by July 1, 2017.  When you look at this bill, it could potentially raise California's minimum wage by over 40% over the next two years.  Note, California minimum wage currently sits at $9 per hour.  The bill further provides additional, automatic wage increases based on future increases in inflation beginning January 1, 2019 and then again every January 1 thereafter.  For those keeping track, a similar bill was introduced last year which would have increased the minimum wage to $11 in 2015 and an additional $1 for the next two years.  That bill did not become law.  Given the highlighted focus recently in regard to minimum wage increases (and California's approval in 2013 of a bill that will

Recently, Illinois Governor Bruce Rauner has proposed Right to Work "zones" in the state in which voters and local communities could decide whether or not employees should be forced to join a union as a condition of employment.  Of course, this follows on the heels of the Governor's Executive Order in regard to "fair share" union dues ( Unions Sue to Halt Fair Share Executive Order ).   For those keeping track, 25 states have passed Right to Work legislation.  Unlike those states where Right to Work legislation impacts all workers in the state, these proposed Right to Work zones would mean that depending on what city/county a worker is in could determine whether the Right to Work Act applied.   Some readers might question why the Governor would not attempt to make this a statewide law.  For those not as familiar with Illinois politics, the state tends to lean Democratic (notwithstanding the fact that the state elected Republican Governor Rauner...). 

Finally have a few days back in the office where I was not on the road as much for work.  Given that extra time, I have had an opportunity to read through a few more articles than I had time for last week.  One of my favorites this week was the article on the illegal practice of docking the pay of a salaried, exempt employee.  As always, below are a few articles that caught my eye this week. California Bill Advances: Cheerleaders to Be Paid Minimum Wage? Earlier this year, I wrote an article about a California Congresswoman, Lorena Gonzalez, who introduced AB 202 in the California legislature which would require NBA and NFL cheerleaders to be paid minimum wage.  California's Committee on Labor and Employment recently approved the bill which will now proceed along for further debate before the bill could become a law.  This is one to keep an eye on. Docking Pay from Salaried, Exempt Employees This was one of the better articles I came across this week, as Chr

Symphony Diagnostic Services No. 1. Inc. d/b/a MobileEx USA v. Greenbaum - U.S. District Court for the Western District of Missouri, Central Division Facts :  Kimberly Greenbaum ("Greenbaum") began working as a mobile x-ray technician for Ozark Mobile.  Greenbaum subsequently executed a covenant not to compete with Ozark that contained a term of two years and a one hundred mile radius of a particular area.  Another employee, Josephine Tabanag ("Tabanag") began working for Ozark as a mobile x-ray technician and signed a similar covenant not to compete when she began employment.  Several years later, Ozark was sold to MobileX USA.  Both Greenbaum and Tabanag were offered positions with MobileX.  However, at the time of sale, Greenbaum and Tabanag did not contemporaneously consent to the assignment of their covenants not to compete.  Shortly after the sale of Ozark, both Greenbaum and Tabanag accepted positions at Biotech X-ray.   Mobile subsequently fil

Earlier this month, OSHA announced that was seeking input on how to improve worker safety in the communications tower industry.  As OSHA noted, 2013 was a deadly year for workers in this field as 13 communication tower worker deaths were recorded.  2014 saw another 12 communication tower worker deaths result as well.  Given these high death tolls, it is unsurprising that OSHA is seeking ways to make the work safer for these employees.  At this point, OSHA is seeking comments, up until June 15. A link to the OSHA request:  https://www.federalregister.gov/articles/2015/04/15/2015-08633/communication-tower-safety

Hilde v. City of Eveleth - Eighth Circuit Court of Appeals Facts :  LeRoy Hilde ("Hilde") was a lieutenant on the police force and when the city's Chief of Police retired, Hilde sought the position.  A three panel commission had a protocol for hiring a replacement and scored candidates on three criteria: weighted years of service, training and employment, and an interview.  The facts stated that Hilde was second in command, had the outgoing Chief's support, had spotless credentials, and had been heavily promoted for the past 22 years.  Hilde also had the highest service score of the candidates (73, compared to the next highest score of 43).   When it came to the interview, the three panel commission gave one candidate, Koivunen, (43 years old) perfect 100 scores on his interview.  However, Hilde (51 years old) got identical 69 point scores.  After the interviews, Hilde and Koivunen subsequently had a total of 143 points each, placing them in a tie for the p

The past week, there has been a lot of attention paid to the minimum wage fight as workers across the country have walked out, held rallies, and protested for an increased minimum wage rate.  This "Fight for $15" movement originally started with fast food workers back in 2012, but has now grown to included home healthcare workers, janitors, and others in low paying careers.  As a result, I wanted to focus this post on that topic so readers can get caught up on the issue. As always, below are a few articles that caught my eye this week. Workers in over 200 cities took part in rallies and protests earlier this week in an effort to raise awareness for a minimum wage increase.  Some rallies were smaller and were hardly noticed while others drew bigger crowds and massive media attention.  Perhaps the biggest win at this time (aside from an increased minimum wage rate), is the national (and international) attention that has been drawn to the issue. Tempe Area Workers

For those who follow the blog, I noted last year that Seattle was making moves to increase its minimum wage.  ( Seattle Minimum Wage To Increase in 2015 - Blog ).  As a reminder, that minimum wage increase for Seattle employees took effect on April 1, 2015.  I would remind employers to take steps to ensure they are now in compliance with the new minimum wage rates, as failure to comply exposes any employer to liability.  Liability that could be easily avoided, I might add, if employers took steps to ensure they stayed up to date with this new law.   Also of note, Seattle's Office of Labor Standards also released its final regulations under the new Wage Ordinance.   For readers who are interested in more information on this, follow the link:  http://www.seattle.gov/civilrights/labor-standards/minimum-wage

Note, I am sitting on the runway here in Phoenix now.  So as with my "What I've Been Reading" post a few weeks ago from when I was in Chicago, excuse the abbreviated post.  This was a shorter week in the office than I would have liked, but a few trips kept me out of the office and on the road.  In any event, I think readers will enjoy the note on the Young v. UPS case and what impact the Supreme Court's ruling will have.  Well worth a quick review! As always, below are a few articles that caught my eye this week. Young v. UPS - Now What? Recently, the United States Supreme Court decided the Young v. UPS case.  This is a good follow up article by Philip Miles that deals with how the Court's ruling will impact pregnancy accommodation laws in the U.S.  Well worth a read for those interested in pregnancy discrimination/pregnancy accommodation issues. 9 Tips To Help New Employees In the Workplace Dan Schwartz has a few helpful hints on how new e

J acobs v. N.C. Administrative Office of the Courts - Fourth Circuit Court of Appeals Facts :  Christina Jacobs ("Jacobs") worked at a North Carolina courthouse and was soon promoted to be one of thirty deputy clerks assigned to assist customers at the front counter.  However, Jacobs suffered from social anxiety disorder and other related mental illnesses.  After training began, Jacobs experienced extreme stress, nervousness, and panic attacks.  When Jacobs approached her supervisor with concerns, the supervisor advised Jacobs to seek treatment from her physician, which she did.  Four months later, Jacobs sent her supervisors an e-mail, disclosed her disability again and requested an accommodation.  Jacobs was told she would have to wait for a different supervisor to return from a three week vacation before the problem could be addressed.  Apparently, the vacationing supervisor only received one call while on vacation.  An assistant called to report that Jacobs w

Rodriguez v. Dynamesh, Inc. - U.S. District Court for the Northern District of Illinois Eastern Division Facts :  Martha Rodriguez ("Rodriguez") was hired by a screen printing supply business, Dynamesh, in 2006.  During 2013 and 2014, Dynamesh had 15 - 16 regular employees and had a staffing agency supply 8 temporary workers as well.  She alleged that in 2014, Dynamesh treated her differently than non-Hispanic, younger co-workers in regard to promotions, terms and conditions of employment, and discipline.  Shortly thereafter, Dynamesh terminated Rodriguez.   Rodriguez subsequently brought suit against Dynamesh and alleged age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA").  Dynamesh moved for summary judgment on Rodriguez's claim on the grounds that it was not an "employer" under the ADEA as it had less than 20 employees during 2013 and 2014; therefore Rodriguez could not bring a valid ADEA claim.

For those keeping track, pregnancy protection related bills are on the forefront of many states' agendas lately, with many cities and states having passed pregnancy protection related bills recently.  In late February, Kentucky took steps towards passing legislation to protect pregnant workers in the state.  Kentucky House Bill 218 (aka the Pregnant Workers Fairness Act) unanimously passed in Kentucky's House Labor & Industry Committee.  Under the law, pregnant women would get reasonable accommodations from employers (such as longer and more frequent breaks, time off to recover from childbirth, and temporary transfer to less strenuous positions, among others).  At this point, the next stage is for the bill to go before the full floor for a vote.  Time will tell if the bill actually passes and goes on to become law...but at this point, it is full steam ahead! For additional information:  http://go.nationalpartnership.org/site/News2?page=NewsArticle&id=

Every so often, I post a "What I've Been Reading This Week" article that focuses on a particular topic.  It has been a while since I dedicated a post to strictly HR related issues, and given that I came across several good articles on the topic, I thought readers might enjoy an HR related post. As always, below are a few articles that caught my eye this week. Using Private E-mail for Work: A Lesson This article from the HR Capitalist has a clever look at what employers and employees alike can learn from the issues surrounding Hillary Clinton's use of personal e-mail for work related matters.  The biggest takeaway that I think readers will find useful are the helpful "hints" on what employers and employees should consider before sending work related e-mails.  Well worth a read, if for nothing more than as a reminder to avoid potentially disastrous work related e-mails that could come back to bite you... Social Media & Work...a Dangero

Nealy v. City of Santa Monica - Court of Appeal of California, Second Appellate District, Division Eight Facts :  Tony Nealy worked for the City of Santa Monica as a waste equipment operator.  After he sustained work related injuries to his knee and back, he took several leaves of absence and had multiple surgeries.  Nealy's doctor reported that Nealy could return to work but was subject to certain restrictions, such as no kneeling, bending, stooping, walking over uneven terrain, running, prolonged standing, or heavy lifting.  When the City met with Nealy, it identified the essential functions of the position that it believed Nealy could not perform based upon his medical restrictions.   After discussions, the City concluded it could not reasonably accommodate Nealy in the position and offered to reassign him.  Nealy subsequently applied for a city planning staff assistant position.  However, he did not have the appropriate experience for this new position.  Although th

I had posted a blog previously about the Buffalo Bills cheerleaders who brought a suit against the Bills (and other) complaining of wage and hour violations, among other complaints ( From Pom Poms to the Courtroom, Pt. 3: Buffalo Bills Edition - blog ).  After a bit of research, I have been able to locate the Code of Conduct and Glamour Requirements that the cheerleaders are required to abide by. These documents are instructive for employers in many respects, especially when noting that while an employer can stipulate how an employee is to act/appear while on the job, there is a limit.  When the employee is required to pay for items on their own (such as uniforms, hair, makeup, etc.) and those expenditures result in the employee making less than minimum wage, potential wage and hour issues can arise.  This is a common complaint among the NFL cheerleaders who have had to spend significant amounts of their own money on their appearance, which resulted in many making less than min