The Majority Opinion: Legal Blog

Over the past year or so, N.F.L. cheerleaders have brought lawsuits against their teams and the league on the grounds that they have not been paid minimum wage for their work.  ( Oakland Raiders (1) ; Oakland Raiders (2) ; Cincinnati Bengals ; Buffalo Bills ; New York Jets ; Tampa Bay Bucs ).  Now, that focus has shifted to the N.B.A. as a former Milwaukee Bucks cheerleader has brought suit against the team for violations of the Fair Labor Standards Act ("FLSA").   In the suit, Lauren Herington, alleged that Bucks cheerleaders earned $65 per game, $30 per practice, and $50 for each special appearance.  Herington claims this did not meet Wisconsin's minimum wage of $7.25 per hour, based upon the time the cheerleaders worked.  According to Herington, the Bucks required the cheerleaders to arrive two and a half hours before games, rehearse 5 to 10 hours each week, and participate in workout sessions for 15 to 20 hours per week.  As Herington alleged in her petition, s

Huff v. Spaw - Sixth Circuit Court of Appeals Facts :  James Huff ("Huff") was Chairman of the Kenton County, Kentucky Airport Board.  While attending a business conference in Italy, he inadvertently placed a pocket-dialed call to Carol Spaw ("Spaw"), a Senior Executive Assistant to the airport's CEO, Candace McGraw ("McGraw").  Shaw could hear Huff talking with Larry Savage, the Airport's Vice Chairman, talking about the possibility of replacing McGraw as CEO.  Spaw and another colleague said "hello" several times but got no response.  Both Spaw and her colleague began to take notes of the conversation and even recorded a portion of the call after Spaw claimed that she heard Huff and Savage engage in a discussion to discriminate against McGraw.  The pocket-dialed call lasted approximately 91 minutes.  Spaw then turned over her typewritten report of the phone call and the audio recording to other members of the Airport Board.

Recently, the Department of Labor announced the minimum wage rate for federal contractors will increase from $10.10 to $10.15 per hour, beginning January 1, 2016.  Readers might remember President Obama's Executive Order 13658 that he signed last year which established the minimum wage rate for certain federal contractors to be adjusted on an annual basis.  Some might be surprised that it is only a $.05 increase per hour.  Perhaps more importantly, readers should note that while it may be a low hourly increase, per the Executive Order, this rate will be adjusted on an annual basis.  Have to start somewhere, right? For additional information, see the Press Release:  http://www.dol.gov/whd/flsa/eo13658/ For additional information on the wage increase, see the Federal Register:   https://www.federalregister.gov/articles/2015/09/16/2015-23235/establishing-a-minimum-wage-for-contractors-notice-of-rate-change-in-effect-as-of-january-1-2016

This was a tough week to narrow down the articles I wanted to highlight.  One of the more enjoyable notes I came across dealt with some rather "unusual" California Labor Code requirements.  Maybe unusual is not the right word...but I will say these are parts of the Labor Code that many might not have seen before or reviewed in a while.  Well worth a quick glance. As always, below are a few articles that caught my eye this week. A Closer Look at Making Unlimited Time Off Actually Work Ashley Speagle has a great article on how the recent announcements by several companies of unlimited time off or unlimited parental leave can actually end up working.  She has some good thoughts on instituting clear expectations and rules to ensure everyone is on the same page and even changing the "unlimited" language in policies to include "minimums".   Bernie Sanders Joins Fight For 15 Ahead of Pope's Visit to D.C. This is a good article from The Hill w

For those who have been following the recent litigation surrounding Uber, this is an update on the suit pending in a California District Court, O'Connor, et al. v. Uber Technologies, Inc .  Several Uber drivers filed suit against the company and alleged that the company violated the California Labor Code when it classified the drivers as independent contractors rather than employees.   Unsurprisingly, Uber has argued that it exerts insufficient control over the drivers' work to be considered their "employer".  Uber has pointed out that the drivers set their own schedules, work when they want to work, have the freedom to pick up whoever they want, act as their own boss, etc.  I know whenever I hear ads on the radio (or at least the podcasts that I listen to), Uber is always advertising for drivers and markets the position in a similar manner (ie "be your own boss", "set your own hours", "work when you want to work", etc).  Uber cer

Barber v. Von Roll U.S.A., Inc. - United States District Court Northern District of New York Facts :  Charles Barber ("Barber") worked at Von Roll U.S.A., Inc. ("Von Roll") as a quality control technician from 2004 until December 2013.  In 2011, one of Barber's coworkers, Scott Gilligan ("Gilligan") began exhibiting erratic and threatening behavior, including threats of physical violence towards his coworkers.  On several occasions, Gilligan threatened to slit a co-worker's throat, stab a co-worker in the neck with scissors.  After a co-worker complained to human resources of Gilligan's behavior, Gilligan stated "[I]f he gets me fired, I'm coming in here guns-a-blazing."  Von Roll took no action against Gilligan. In May 2013, Gilligan threatened to strike Barber in the head with a baseball bat.  In September 2013, Gilligan threatened to knockout a co-worker in front of a supervisor.  Even though Barber and the co-worker

After Ben Carson's recent comments at the Republican debate this past Wednesday on the minimum wage rate ( Ben Carson Proposes Indexed Minimum Wage Rate ), I wanted to focus this post on some minimum wage issues around the country.  With the presidential election coming up next year, I think this will be a hot button issue going forward, especially if the middle class continues to get continued attention. As always, below are a few articles that caught my eye this week. New York Raises Minimum Wage Rate for Fast Food Workers to $15/Hour Recently, it was announced that Governor Andrew Cuomo's administration will formally approve the increase of the minimum wage rate for fast food workers to $15/hour.  Note, this is the first time that any state has set the minimum wage rate that high.  At the announcement, Vice President Joe Biden stated that he and President Obama are committed to raising the federal minimum wage rate to $12/hour.  The clock is ticking to get that

For those keeping track, the campaign for President has produced a few noteworthy proposals on the labor & employment law front recently.  In the past few weeks, Carly Fiorina voiced her opposition to mandatory maternity leave ( Carly Fiorina Against Mandatory Maternity Leave ) and Wisconsin Governor Scott Walker proposed a host of measures intended to limit the power of unions ( Scott Walker Proposes Changes to the Union Landscape ).   At last night's Republican Presidential Debate in Simi Valley, California, candidate Ben Carson was presented with a question about minimum wage in the United States.  Carson stated that he was "probably" or "possibly" in favor of raising the minimum wage and suggested the federal minimum wage should be indexed.  Under this idea of indexing the minimum wage, the wage rate would increase automatically ever year (likely tying it to inflation).   Not to be done there, Carson also indicated that it might make sense to

Recently, Republican Governor Scott Walker of Wisconsin proposed several changes to curb the power of unions in a proposed policy change that would be implemented if he were elected President.  For those who do not know, Governor Walker has battled unions in Wisconsin since becoming Governor a few years ago.  With his poll numbers sliding in his campaign for President, he has gone back to the well and focused on one of the topics he is more comfortable addressing (and has had a record of success). Perhaps the most important changes in Walker's proposal include:  Making it illegal for federal employees to join a union; extending right to work laws across the country; and eliminating the National Labor Relations Board. Eliminate Unions for Federal Employees As for his proposal to eliminate unions for federal employees, Walker noted that in 2012, taxpayers apparently subsidized 3,395,187 hours of "official time" government union lobbying, including time spen

Mayo v. PCC Structurals, Inc. - Ninth Circuit Court of Appeals Facts :  Timothy Mayo ("Mayo") worked at PCC Structurals ("PCC") as a welder.  In 1999, Mayo was diagnosed with major depressive disorder and was on medication and treatment which allowed him to continue working incident free until 2010.  After Mayo felt he was being bullied by his supervisor, he told three different co-workers that he wanted to kill the supervisor.  Mayo told one co-worker that he felt like bringing a shot gun to work and "blowing off" the heads of the supervisor and another manager.  Mayo then told another co-worker that he wanted to "bring a gun down and start shooting people."  Not to stop there, Mayo even described the exact time of day he would shoot his supervisor when Mayo knew the supervisor would be around. After the co-workers reported the threats to the employer, Mayo told an HR rep that he "couldn't guarantee" that he would not ca

It was tough to narrow down this post to a few articles this week.  However, I think the ones I chose will give readers a few good points to consider.  In particular, pay attention to the "Ban the Box" article from Tara Eberline.  That was one of the better researched and thought out articles that I have read recently about the topic. As always, below are a few articles that caught my eye this week. "Ban the Box" is Moving Across the Country For those who have followed the blog, I have kept track of "Ban the Box" measures around the country over the past few years.  This particular article from Tara Eberline does a good job breaking down exactly what "Ban the Box" is (for those who do not know or are looking for a refresher) and follows up with a look at what jurisdictions have "Ban the Box" legislation in effect.  Well worth a review! Amazon: A Potential Issue For Employers to Consider Jeff Nowak has a good article t

Early last month, former football player and sports television personality Craig James ("James") brought a religious discrimination lawsuit against Fox Sports in Dallas County District Court.   Fox Sports had hired James in 2013 as a sportscaster then allegedly terminated him shortly thereafter for his religious beliefs.  In his complaint, James alleged that Fox Sports fired him because of his comments about marriage and his expression of those beliefs when he ran for the United States Senate in 2012.  During a Republican primary debate in 2012, James had indicated that his religious beliefs guided him to the ideal that marriage should only be between a man and a woman.  Consequently, James had stated that he did not support same sex unions.   In bringing his religious discrimination suit against Fox Sports, James contended that he was terminated solely because of his religious beliefs.  Bear in mind that at the time James had been hired, he had already made these

Earlier this year, I pointed readers to a case, EEOC v. CONSOL Energy, Inc. , that involved a religious discrimination claim brought by an employee against his employer in regard to hand scanners at work.  ( What I've Been Reading This Week ).  The employer had began to require its employees to use a hand scanner to clock in and out of work.  However, one employee, Beverly Butcher, Jr. refused to use the hand scanner on the grounds that doing so would imprint him with the "mark of the beast."  After the employer did not provide for Butcher's request for an accommodation, Butcher brought a religious discrimination claim.  A jury subsequently awarded Butcher a judgment of $150,000.00. On August 21, a federal court in West Virginia issued an order awarding a total of $586,860.00 in lost wages and benefits and compensatory damages and permanently enjoined the company from committing similar acts in the future.  This order came about after a two day, non-jury eviden

This week I came across several great HR related articles that I wanted point out for readers.  In particular, the article on the tips for investigating workplace complaints was one of my favorites and highly applicable to most/all employers. As always, below are a few articles that caught my eye this week. What Employers and Employees Can Learn From the Tom Brady Situation The HR Capitalist has some great HR related articles that I always enjoy reading through.  This particular note on the Tom Brady situation jumped out at me in particular, as it gives employers and employees some good advice on what to do when caught in a situation where an employee is accused of lying.  Regardless of whether you are "defending the wall" for Brady or think the N.F.L. is on a witch hunt, this article has some practical advice that is worth a review. A Few Tips For Investigating Workplace Complaints I would be hard pressed to think of many employers who have never had to

Schaffhauser v. United Parcel Service - Eighth Circuit Court of Appeals Facts :  Christopher Schaffhauser ("Schaffhauser"), a white male, worked for United Parcel Service ("UPS") as a manager.  In February 2012, Schaffhauser was talking with Neal Sharkey (an African-American manager), Quentin Goodwin (an African-American supervisor), and Harold Williams (an African-American supervisor).  Goodwin allegedly said "I wish Rodney Barefield would take a swing at me and I would knock that motherf**r out."  Schaffhauser then commented "If he ever hit me, I would hit him so hard it'd knock the black off him."   Although Schaffhauser acknowledged the comment and admitted it could be construed as racist, he claimed he was joking and did not intend it to be racist. In a report to the human resources director, Schaffhauser claimed his medical condition was a "contributing factor in [his] poor choice of words."  The human resources dir

Readers might recall the national attention that paid maternity and paternity leave programs have started to get. ( Netflix Announces Unlimited Parental Leave ); ( U.S. Navy & Marines Triple Amount of Paid Maternity Leave ); ( What I've Been Reading This Week: Paternity Leave Edition ). Recently, Republican Presidential candidate Carly Fiorina indicated her opposition to mandatory maternity leave.  However, before people jump in the gun, it is important to note that Fiorina clarified that she opposes the government mandating paid maternity leave.  Instead, Fiorina stated that individual companies should be free to make the decision on whether to offer paid maternity leave to their employees. Like the minimum wage fight that has become a hot button issue in politics lately, this parental leave issue is likely one that will become a major topic in the coming months.  Stay tuned. For additional information:  http://www.cnn.com/2015/08/09/politics/carly-fiorina-paid-m

Cheeks v. Freeport Pancake House, Inc. - Second Circuit Court of Appeals Facts :  Dorian Cheeks ("Cheeks") worked at Freeport Pancake House ("Freeport") for several years.  In 2012, Cheeks sued Freeport and sought to recover overtime wages, liquidated damages, and attorney's fees and asserted a claim for retaliation for previously having raised those claims under both the Fair Labor Standards Act ("FLSA") and New York Labor Law.  The parties reached a private settlement and filed a joint stipulation and order of dismissal.   However, the district court judge declined to accept the stipulation and instructed the parties to file a copy of the settlement agreement on the docket and "show cause why the proposed settlement reflects a reasonable compromise of disputed issues rather than a mere waiver of statutory rights brought by an employer's overreaching."  Instead of complying with the judge's instruction, the parties jointly