The Majority Opinion: Legal Blog

It was a busy week getting back from vacation and playing catchup, but I still found some time to read through some good articles and blog posts.  In particular, pay attention to the article on what wage deductions cannot be made by employers in California.  It is a very interesting, even for those employers and employees not in California. As always, below are a few articles that caught my eye this week. Wage Deductions that California Employers Cannot Make Employers beware, under California law, there are certain wage deductions that cannot be made from an employee's pay.  As the article notes, some might be somewhat common sense.  For instance, many states, including California, have laws in place that bar an employer from making wage deductions for business expenses.  However, as this article notes, one of the nuances of prohibited wage deductions in California include a ban that employers cannot require applicants or employees to submit a photograph without paying

Readers might remember a recent United States Supreme Court decision in June in which the Court considered an issue over whether an Abercrombie & Fitch store discriminated against an applicant because she wore a head scarf to her interview (which apparently did not conform with Abercrombie's "Look Policy").  ( United States Supreme Court Issues Opinion in Abercrombie & Fitch Case ). As a follow up, it was recently announced that the company and the individual who was not hired, Samantha Elauf, have reached a settlement in the case.  According to the terms of the settlement, Elauf will receive $25,670.00 in damages from Abercrombie along with $18,983.00 in court costs. Without knowing more of the details of how the settlement unfolded, this is a fitting end to one of the more intriguing employment law related cases to come from the Court recently.    For additional information:  http://www.natlawreview.com/article/abercrombie-resolves-religious-discr

This coming Saturday, the minimum wage in Minnesota will increase to $9/hour.  Note this is the second step in which the state will increase its minimum wage.  The final increase will occur next August when it will jump to $9.50/hour and then automatically rise with inflation from thereon out. As of this point, Minnesota will have the highest minimum wage rate of any state not along the East or West coasts.  As the Governor noted, workers in the state are spending these additional wages in the state.  In essence, these additional wages are going back into the Minnesota economy and helping the state continue to grow.     Time will tell if other states in the region increase their minimum wage as a result.  However, as noted in the article from The Star Tribune , efforts to increase minimum wage in Wisconsin have proven to be unsuccessful so far.  It will be interesting to see if Minnesota's efforts spur any other Midwestern states into action... For additional informat

Early last year, I had written an article on three former minor league baseball players who brought an FLSA suit against Major League Baseball, Bud Selig (Commissioner at the time), and three MLB teams.  In the suit, the former players alleged that MLB failed to pay overtime and minimum wages in violation of the FLSA and various state laws.  ( Minor Leaguers Bring FLSA Suit ).   In essence, the suit alleges that minor leaguers earn between $3,000 and $7,500 for playing a season of baseball...even though they often work over 70 hours each week (including, among other things, training and traveling).  For those interested, the case is still winding its way through the legal system.  At this point, discovery is ongoing with a current trial setting of February 2017 upcoming.  I had mentioned last year when the case was just getting off the ground that we were in the top of the first inning.  At this point, we have played three...batter up!

I read through a lot of good articles this week, especially from some of the blogs I routinely follow.  One of my favorites was on a recent EEOC suit against UPS in regard to the company's prohibition on beards and hair rules.  That article is certainly well worth a quick read! As always, below are a few articles that caught my eye this week. Older Workers Benefit Protection Act: Nice Try Hershey Managers Joanna Bowers has a somewhat humorous article on several former Hershey's managers who were terminated in 2009 and 2010, accepted severance pay and waived their claims against the company, then turned around and tried to sue Hershey's for age discrimination.  This is a good article that deals with issues surrounding the Older Workers Benefit Protection Act...and provides a thorough breakdown of why the managers' age discrimination claim failed. Key Amendments to California's Paid Sick Leave Law When I want to review some of the finer points of

It has been a little while since I have seen anything relevant come out in regard to Ban the Box measures across the country.  Sure enough, I recently saw an article on New York City's effort to Ban the Box.  Note, New York City could soon join its neighbor, New Jersey, as having passed Ban the Box measures.  New Jersey's Ban the Box law went into effect in March of this year.  ( New Jersey Ban the Box Passes ).  On June 10, the New York City Council passed the Fair Chance Act which now prohibits employers from inquiring into the criminal backgrounds of applicants in the initial stages of the employment application process. Under the new law, it would become an unlawful discriminatory practice under New York City's Human Rights Law to "make any inquiry or statement related to the pending arrest or criminal conviction record of any person who in the process of applying for employment with such employer or agent thereof until after such employer or agent thereof

BMC Software, Inc. v. Mahoney - United States District Court, District of Minnesota Facts :  Christopher Mahoney ("Mahoney") worked for BMC Software ("BMC") and held different positions while there, eventually becoming regional sales manager in the United States.  While at BMC, Mahoney signed an employment agreement and a confidentiality agreement (which included a nondisclosure and noncompete provision).  One of the provisions in the confidentiality agreement at issue in this case was a noncompete covenant that prohibited Mahoney from soliciting or selling any products that competed with BMC and also prohibited from working anywhere in the United States in a position that would be competitive with BMC.  The agreement further stated that Texas law would govern its provisions.  Mahoney subsequently signed the agreement in November 2012. In mid 2015, Mahoney eventually left to work for BMC's biggest competitor as a global sales manager.  BMC subsequentl

I came across some good articles this week, in particular the one on what happens when nonprofit volunteers get injured.  Definitely a different perspective that I think readers will enjoy. As always, below are a few articles that caught my eye this week. Nonprofit Volunteers: What Happens When a Volunteer Gets Injured? This is a great article from Ofer Lion on the risks that face nonprofits who use volunteers...and then a volunteer gets injured and wants to sue.  I have not come across an article like this in a long time and wanted to highlight it for readers if for no other reason than to bring something new to the table.  And for those readers out there who run/work for nonprofits, pay close attention! An Increase in the Use of ADR in Employment Cases Although this is an article from Mediate.com, I came across it from a mediator I have used on several occassions, Mel Wolovits, out of Dallas.  He always passes along some good ADR related articles.  This one was of sp

Back in May, I had posted a note on California Bill AB 202 that was moving through the California legislature.  ( AB 202 Could Provide Labor Protections For Cheerleaders ).  That bill proposed that cheerleaders for professional sports teams would be entitled to receive minimum wage, workers' compensation, and other employment benefits.  At the time, the bill had been approved by the state Assembly and was moving forward in the Senate.  Yesterday, California Governor Jerry Brown signed into law that piece of legislation.  This new law is groundbreaking in several respects, namely that the cheerleaders will now be designated as employees rather than independent contractors.  As a result, cheerleaders in the state will now be entitled to paid sick leave, meal and rest breaks, and other benefits that other workers in hourly jobs enjoy. This is a big change from how cheerleaders in California have typically been treated previously.  Some readers might remember that a lawsuit fr

Recently, I updated readers on California bill AB 357 which would have required 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.  ( Fair Scheduling Act of 2015 Advances ).  Of course this state wide bill followed closely on the heels of a similar bill passed in San Francisco.  However, recently it was announced that California Assemblyman David Chiu had shelved the bill on the grounds that he lacked the votes to pass it.  I had indicated previously that this bill had some momentum behind it as several labor groups were pushing for the measure to pass.  Given the success of passing a similar measure in San Francisco, there appeared to be a solid base to build upon.  With that being said, that turned out to not be the case...this year, at least.  Note that portions of this bill could still appear in other piece

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 :  Marvin Green ("Green") worked for the U.S. Postal Service and alleged that his employer retaliated against him after he made employment discrimination claims.  He was investigated, threatened with criminal prosecution and put on unpaid leave.  Shortly after he was put on leave, he was allowed to choose to retire or work in a position that paid much less and was about 300 miles away.  Green chose to retire.  He subsequently filed a lawsuit and his employer moved for summary judgment on the grounds that the constructive discharge claim was untimely filed.  Looking Back :  The Tenth Circuit Court of Appeals affirmed the lower court's ruling and held that the time limit to file a constructive discharge claim did not begin to run when Green resigned.  Instead, the time limit to file a construc

On June 16, 2015, Oregon Governor Kate Brown signed House Bill 3236 into law, which will now reduce the maximum enforceable duration of a noncompete agreement to 18 months.  This is another so called nail in the coffin of broad noncompetes in certain areas of the country.  While Oregon is one of the states that still allows noncompetes (unlike California), this is slowly chipping away at the use of noncompetes in the state. Note, the new law will take effect January 1, 2016.  Employers can take a deep breath though; this new law only impacts agreements entered into on or after the January 1 date.   For additional information:   http://www.lexology.com/library/detail.aspx?g=9f317ad2-2b91-420e-b952-c327bba145ea

It is a shorter week in the office with the a lot of traveling for work, but with that being said, I actually still found some time to do a little reading.   This week I found several great articles on paid paternity leave.  In recent weeks, I have seen more and more attention paid to this matter.  Given the increased attention to the lack of mandatory paid paternity leave in the United States, I think it is appropriate to dedicate this post to the topic. As always, below are a few articles that caught my eye this week. Paternity Leave: The New Frontier CBS News has a great article on the stigma that is attached to the idea of men taking parental leave to care for newborns.  This particular article notes an employee who works for PriceWaterhouseCoopers in Chicago who was able to take 6 weeks of paid paternal leave to care for his newly adopted son.  It is interesting to read through the article and see how there is a certain level of surprise (and maybe even

Lico v. TD Bank - United States District Court Eastern District of New York Facts :  Aida Lico ("Lico") worked at TD Bank ("TD") from September 2008 to May 2012. After giving birth, Lico returned to work in March 2012 from maternity leave.  At the time, Lico was nursing and needed to take lactation breaks while at work.  Her Branch Assistant Manager told her she was permitted to take only two daily lactation breaks and was required to use the restroom to do so.  When Lico objected to the bathroom on the grounds it was unsanitary, the Manager told her to use the mailroom.  Lico objected to the mailroom as a lactation room and claimed that since it had no lock, it did not afford her any privacy.  The Manager then instructed Lico to use the safe-deposit room for lactation breaks.  Lico also alleged that almost every time she asked her Manager permission to take a lactation break, she was denied the request and given additional assignments.  Lico subsequently

In late June, the United States Supreme Court ruled that same-sex marriage is a fundamental right under the 14th Amendment of the Constitution.  Naturally, a lot of people started to wonder how that would impact employment law matters.   Look no further!  I found a few articles that I think will help walk readers through some of the finer points of how this recent ruling will impact employers and employees alike. The Basics: What the Supreme Court's Decision Means for Employers Anne Knox Averitt has a very well thought out and well written article that really breaks down the basics of the Supreme Court's ruling.  Given the controversy in some states over this ruling (and subsequent decisions not to issue marriage certificates to same-sex couples), perhaps the most useful note in this article is the suggestion that employers could eliminate employment benefits altogether for all spouses if they do not want to afford these same rights to gay couples. How Do Em

I know, I know, Fridays are normally when I have a "What I've Been Reading This Week" post.  However, there have been two big dates this week that directly impact California employers and employees.  With today being the day the Retail Workers Bill of Rights goes into effect, I wanted to highlight that development instead of doing a recap of articles I read.  Do not worry though, with any luck I will be back next week with a "What I've Been Reading This Week" update! Anyways, quite a busy week in California, huh?  First, the Paid Sick Leave Law went into effect on Wednesday across the state ( Paid Sick Leave Law Effective July 1st ); and today, the Retail Workers Bill of Rights goes into effect for employers and employees alike in San Francisco.  In an effort to help readers understand and better follow the impact of this new law, I wanted to highlight a few articles for readers. The Who, What, Where, and When of the Retail Workers Bill of Ri

For those readers who follow the blog, I have had several updates on the California Paid Sick Leave Law which has a deadline of July 1, 2015 for employers to comply.  Given that today is the day, I wanted to highlight a few relevant articles that employers (and even employees too!) should give a quick read through. I guess you could even call this a mini "What I've Been Reading This Week"... California's Department of Industrial Relations - FAQs How about we start with the basics?  The California Department of Industrial Relations has published some helpful FAQs about the Paid Sick Leave Law.  Have a question or need more information on the law?  Start here! A 10 Point Checklist When Ensuring Compliance The California Employment Law Report always has some great articles on the Paid Sick Leave Law that are worth a review.  This one is no exception, as they provide ten things employers should review to ensure compliance with the new law.