The Majority Opinion: Legal Blog

It has been a busy couple of days of travel for work, but I still wanted to highlight some articles.  One of my favorites was from Kris Dunn on what employers can learn from the departure of Bill Simmons from ESPN.  Highly relevant and easy to follow. As always, below are a few articles that caught my eye this week. Update on Connecticut Legislative Bills Dan Schwartz has a good note on several bills pending in the Connecticut legislature.  As he notes, there are several pending, but the ones he highlighted are the bills that could have more of an impact.  Well worth a quick review. What An Employer Can Learn From ESPN's Firing of Bill Simmons Earlier this month, Bill Simmons and ESPN parted ways.  There have been a number of reports, rumors, articles, etc. about whether Simmons was fired or whether the parting was mutual.  In any event, Kris Dunn has a couple good thoughts on what an employer can take away from the situation, in regard to when a "star"

While it is generally illegal for an employer to require applicants from disclosing social media logins and passwords, Senate Bill 185 would take things a step further.  Oregon is poised to become the first state to expand its social media workplace laws and forbid employers from requiring their employees or applicants to have personal social media accounts as a condition of employment.  The bill made it through the Oregon House and Senate without a vote against it.  At this point, the only thing left is for the Governor to sign the bill into law.   Note that this bill would only impact social media accounts used exclusively for personal use and unrelated to any business purpose of the employer (or prospective employer). The bill also would not impact any social media accounts that are provided by or paid for by the employer (or prospective employer). A copy of the bill can be found here:  https://olis.leg.state.or.us/liz/2015R1/Downloads/MeasureDocument/SB185

Sweet v. LinkedIn Corporation - U.S. District Court for the Northern District of California, San Jose Division Facts :  Tracy Sweet ("Sweet") submitted her resume to a potential employer through LinkedIn and was invited to interview for the position.  Although she got word that she would be hired, the company called Sweet back and informed her they had changed their mind and would not hire her for the position.  When Sweet questioned what happened, the company told her it had checked some references, and based upon those references, had changed its mind.  Apparently the company had used the Reference Search function on LinkedIn to identify references of Sweet. Sweet, along with others, brought suit against LinkedIn on the grounds that the Reference Search violated their rights under the Fair Credit Reporting Act ("FCRA").  Holding :  The District Court held that LinkedIn's Reference Search is not a consumer report under the FCRA.  The purpose of t

As with many labor and employment law cases around the country, there are always a few that stand out.  This is one to keep an eye on. Facts :  Several former security guards brought a class action and alleged they were entitled to additional compensation as a result of having to monitor work radios and pagers while on unpaid breaks and respond if an emergency arose.  The guards claimed that because they were not relieved of all duties while on an unpaid break, there were entitled to compensation for this time spent monitoring work radios and being available to respond if needed.  The trial court agreed and awarded the plaintiffs a judgment of nearly $90 million. Looking Back :  Earlier this year, the California Court of Appeal, Second Appellate District, Division One, reversed an award of nearly $90 million dollars from the lower court and held that an employee who is on call during a break is not actually working and therefore is not entitled to be compensated for this time

There are always a few articles that I write about which I suggest readers keep an eye on down the road.  Some of my posts that I suggest readers follow up on focus on legislative bills or amendments, while others deal with pending employment and labor law issues in courts across the country.  This week, I wanted to take a look back at some big employment and labor law related issues that have recent updates which I think readers would enjoy. As always, below are a few articles that caught my eye this week. Buffalo Bills Cheerleader Suit Continues After N.F.L.'s Motion Denied The Buffalo News has an article from earlier this month and details a recent decision by a judge to deny the N.F.L's request to dismiss the league from the Buffalo Bills cheerleaders' wage and hour lawsuit.  ( Buffalo Bills Cheerleaders File Wage & Hour Suit ).  The N.F.L. had argued that it was not an employer of the cheerleaders and was not responsible for the pay/alleged misclassif

Late yesterday, it was announced that the Los Angeles City Council approved a measure to raise  minimum wage rates in the city to $15/hour by July 2020.  After much debate and discussion on the topic, the vote ended up with 14 in favor and 1 against.  Currently, minimum wage rates in the city sit at $9/hour with an increase to $10/hour coming in January.  As readers are aware, the push for an increased minimum wage has been a hot talking point lately, including with the recent "Fight for $15" rallies and protests a few weeks ago.  Some credit the City Council's approval of this minimum wage increase yesterday with the Council's approval last year of a $15.37 minimum wage rate increase for workers in the city's hotel industry.  ( Los Angeles City Hotel Workers Receive Minimum Wage Increase ).   At this point, the measure faces a final vote before it could be approved by Mayor Eric Garcetti.  The fight is not over, yet, but things are certainly looking go

Recently, I detailed the recent bill out of Wisconsin in which the state became the 25th state to pass Right to Work legislation ( Wisconsin Governor Scott Walker Signs into Law Right to Work Legislation ).  I also talked about the push in New Mexico to become the 26th state to sign into law this legislation ( New Mexico Pushes for Right to Work Legislation ).   However, news has come out that the bill, which would ban mandatory union dues as a condition of employment. has been tabled by the Democratically controlled New Mexico Senate.  Unsurprisingly, the bill passed the Republican controlled House who supported the Right to Work legislation.  That was not enough though to get past the Senate Public Affairs Committee who voted 5 to 3 to table it. At this point, with Democrats not on board with the legislation, it is next to impossible to get this bill through as is.   However, all New Mexico legislative seats are up for election in 2016.  For now, the issue is on hold.  Som

Last week, four bloggers from Barstool Sports were arrested at N.F.L. headquarters in New York for staging a sit in as a response to the N.F.L.'s suspension and fines associated with "Deflategate".  The owner of the company, David Portnoy, brought along three employees and engaged in a protest in front of the building, then later handcuffed themselves inside the lobby of the building and chanted pro-Tom Brady and anti-NFL messages.  Unsurprisingly, and as they had predicted before going to protest at N.F.L. headquarters, the NYPD arrested all four and held them overnight before going before a judge the next morning.   While all four maintained that they protested and were arrested without being forced to participate, this begs the question:  What does an employee do when their employer forces them to engage in illegal activity?   In this case, the employees who joined Portnoy had to know that once they handcuffed themselves in the N.F.L. lobby and refused to le

This week's post focuses on several articles/developments I have noted over the past few months and how things have progressed since that point.  In particular, pay attention to some developments at the state level, including in both the Colorado and California legislatures.  As always, below are a few articles that caught my eye this week. End of Colorado Legislative Session: Let's Take a Look at What Did Not Pass For those interested in what pending pieces of employment and labor law related legislation around the country came close to becoming law but ultimately did not pass, I wanted to highlight some recent bills that were pending in the Colorado legislature this past session.  The article highlights some of the more common bills such as minimum wage and overtime pay legislation, but also notes some lesser talked about employment law topics such as personnel file disputes and audits by the Department of Labor & Employment that were pending in the Colorad

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 AB 357 would require food and retail establishments to provide employees with two weeks' advance notice of their schedules and additional "predictability pay" when the employer cancelled or rescheduled its employees' shifts.  The bill also proposes that employees be allowed to take unpaid absences for up to eight hours twice per year to attend required appointments at county human services agencies.   For those readers who remember the San Francisco Workers' Bill of Rights law ( San Francisco Workers' Bill of Rights - Original Post ; San Francisco Workers' Bill of Rights - Update ), this state wide bill has been referred to the "Incredible Hulk" version. Unsurprisingly, there has been initial opposition to AB 357 as businesses have called this proposed b

Lucas v. Gregg Appliances, Inc. - United States District Court, Southern District of Ohio, Western District Facts :  Chris Lucas ("Lucas") suffered from paruesis (shy bladder syndrome).  As a result, he claimed he could not urinate in public bathrooms and would hold his bladder throughout the work day to avoid having to use the bathroom at work.  Lucas's employer, Gregg Appliances ("Gregg") maintained a drug free workplace which required periodic drug testing of employees.   When Luis was promoted to general manager, the position was contingent upon him passing a drug test.  When Lucas could not complete the drug test (because of his shy bladder), the testing clinic reported to Greg "PER COLLECTOR:  DONOR LEFT COLLECTION SITE BEFORE COMPLETION OF DRUG TEST."  When management confronted Lucas, he did not mention his difficulty urinating or his paruresis.  Lucas did not vist a physician for the condition until the day after Gregg fired him for

Last week, Illinois' House Speaker Michael Madigan announced he had scheduled a May 14th vote on Governor Bruce Rauner's proposed right to work zones.   For those who might not remember, in April, Governor Rauner proposed right to work zones in which individual communities could vote on whether to be right to work zones.  ( Illinois Governor Proposes Right to Work Zones ).  Unlike 25 other states which have passed state-wide right to work laws, this proposal would allow individual communities to decide whether or not employees should be forced to join a union or pay union dues as a condition of employment.  As I had noted previously, in a union friendly and liberal leaning state like Illinois, state-wide right to work legislation likely would not pass.  As a result, these proposed right to work zones are an interesting way of allowing parts of the state to adopt these laws without going through the process of trying to get a state-wide bill passed. However, even with

Earlier this year, I highlighted a case that I thought readers would want to keep an eye on.  The case, Mach Mining, LLC v. EEOC , was pending before the United States Supreme Court after being appealed from the Seventh Circuit Court of Appeals.  ( One to Keep An Eye On: Mach Mining, LLC v. EEOC ).   Background :  This case centered around whether the EEOC's conciliation efforts could be subjected to judicial scrutiny by a court once suit was filed.  For those not familiar with this issue, Section 706(b) of the Civil Rights Act of 1964 requires that the EEOC first determine whether reasonable cause exists to support a charge of discrimination.  Once a positive affirmation is made, "the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion."  If the EEOC has been unable to secure from the respondent [the employer] a conciliation agreement acceptable to the Commission, s

Lots of good articles this week.  It was tough to narrow things down given everything I came across.  One of my favorite articles dealt with harassment claims; specifically what employers can do to be proactive about it.  As always, below are a few articles that caught my eye this week. What an Employer Can Do to Be Proactive About Sexual Harassment Complaints Following a recent sexual harassment case out of California in which the jury returned a verdict for the employer, this article has a couple of good thoughts on what employers can do to be proactive about sexual harassment complaints in the workplace.  All too often, employers disregard sexual harassment complaints or fail to keep a record of any investigation that is done.  This article has three good suggestions on what employers can do to help ensure they are proactive about sexual harassment complaints, rather than being passive and dealing with a protracted legal battle. (D) Congressman Bill Foster's Spe

On March 23, 2015, Virginia Governor Terry McAuliffe signed into law a bill that will prohibit Virginia employers from requiring, requesting, or causing a current or prospective employee to disclose the username and password of that individual's social media account.  The law, set to become effective on July 1, 2015, also prohibits an employer from requiring an employee to add another employee, supervisor, or an administrator to the list or contacts associated with that individual's social media account.   Note that the new law does not restrict an employer from obtaining information that is in the pubic domain, conducting investigations, or complying with the requirements of a state/federal statutes, rules or regulations, caselaw, or other rules/regulations of self regulatory agencies.  In those instances, the employee's username and password can only be used for the purpose of a formal investigation or related proceeding. With the signing into law of this n

Sharp v. Best Buy - United States District Court, Western District of Kentucky, Bowling Green Division Facts :  Robert Sharp ("Sharp") was employed by Best Buy as an auto technician.  Since Sharp was diagnosed as having narcolepsy and cataplexy, Best Buy accommodated his conditions by excusing him from shift work.  However, complaints were made against Sharp that he made several sexually harassing comments toward a co-worker.  The co-worker subsequently reported this conduct to Best Buy's Human Resources Hotline.   After Best Buy investigated the sexual harassment complaints, Sharp was fired.  Sharp then responded by suing Best Buy for disability discrimination and retaliation.  Best Buy moved for summary judgment on Sharp's claims. Holding :  The District Court granted Best Buy's motion for summary judgment based upon the fact that the "business judgment rule" provided that the Court would not second guess Best Buy's personnel decision

On April 6, 2015, Tennessee Governor Bill Haslam signed into law a bill that prohibits employers from firing (or disciplining) employees with hand gun permits from bringing their firearms onto company property, so long as the gun or ammunition is kept locked in the vehicle out of "ordinary observation."   Perhaps one of the most prominent parts of this new law is the fact that it applies to all employers regardless of size.  However, the law only protects employees who possess valid handgun carry permits and does not impact an employer's right to prohibit guns in other places on the work places. The new law will apply to terminations and adverse employment actions that occur on or after July 1, 2015.  

Another week, another Friday on the road.  This time I find myself nearing Pittsburgh, ready to land, and working to finish up this post before getting to the gate.  With that being said, I found some great article that I think readers will enjoy. As always, below are a few articles that caught my eye this week.  LinkedIn and Non-Competes Dan Frith has some thoughts on what happens when an employee leaves a company and wants to post about it on LinkedIn...how does that coincide with non-competes?  While tailoring his discussion to how Virginia employers and employees can deal with the issue, the article provides an overview of how some other states handle the issue.  While a short article, it is well worth a read. Oilfield Service Providers & WARN Act Issues I typically do not come across too many WARN Act cases/articles that I think readers will get something out of.  With that being said, this article by Russell Cawyer has a unique insight into a potential WAR