The Majority Opinion: Legal Blog

This year saw a wide range of labor and employment law issues:  We have had everything from proposals to drastically alter the NLRB and NLRA , Right to Work zones in Illinois , HR dilemmas over what to do when an employer requires employees to break the law , California passing legislation to provide labor protections to cheerleaders in the state , religious discrimination suits filed by television personalities , "unlimited" vacation days for Netflix employees , all the way to President Obama announcing his support of "Ban the Box" measures , Presidential candidates announcing support for minimum wage increases , and the first union election being upheld at a Target store in Brooklyn .  And that only grazes the surface of some of the developments over the past twelve months!   I certainly appreciate readers following along with me as I track these emerging issues and point out trends that have developed.  With this being the end of the year (and my final po

As always, there are some recent EEOC cases that jump out at me when I review recent developments on that front.  Below are a couple EEOC cases and settlements that stand out: EEOC Claim Against Costco to Proceed to a Jury Recently, a federal district judge held that an EEOC claim that alleged that Costco violated Title VII of the Civil Rights Act of 1964 (by failing to prevent a male customer from stalking and harassing a female employee) will proceed to a jury.  In denying Costco's motion for summary judgment, the court held that there was sufficient evidence to allow the claim to proceed.  Of note, the female employee was subjected to harassing behavior by the male customer for over a year and the conduct continued to escalate (including unwanted touching, "ominous" staring, and other intrusive actions.  The court found that there was evidence that Costco failed to take reasonable steps to stop the harassment, thus the hostile work environment claim was allowe

Recently, Hiscox put out a publication that has a fascinating look at the employee charge trends in the U.S.  This Guide to Employee Lawsuits has an in depth look at several areas of employment litigation that I think readers should note.  In particular: Across the U.S., companies had an 11.7% chance of having an employment charge being filed.  New Mexico has the highest percentage chance of an employment charge being filed (+66% above the national average), with the District of Columbia (+65%), Nevada (+47%), Alabama (+41%), and California (+40%) following close behind. 275 days was the average duration of an employment law matter. For employment law matters that did end up in court, the median judgment was approximately $200,000.00. 25% of cases that ended up in court resulted in a judgment of $500,000.00 or more. The article also includes a couple suggestions on what employers can do to prevent employment charges.  Some of these suggestions are common sense (making sur

Shorter week in the office with the Christmas break.  With that being said, I found more time than the past few weeks to read through some great articles.  In particular, the analysis of how the Democratic party has become so closely intertwined with the Fight for $15 movement was a fascinating read. As always, below are a few articles that caught my eye this week. Four Non-Compete and Confidentiality Agreement Issues On the Horizon for 2016 Over at Jackson Lewis, an article was recently put out in regard to four non-compete and confidentiality agreement issues that are likely to become major issues in 2016.  Readers should note that the article goes beyond just identifying these four big issues.  Instead, the article also points to recent cases from around the country and shows the split that exists among many states/circuits.  Well worth a read. The Fight for a $15 Minimum Wage & Its Ties to the Democratic Party Bryce Covert has a well written article that ties

Recently, the Florida Department of Economic Opportunity ("DEO") held that Uber drivers are independent contractors and therefore not entitled to unemployment benefits.  The issues arose after Darrin McGillis and Melissa Ewers both wanted to be Uber drivers in Florida.  They downloaded the driver app and started to work for Uber.  However, Uber ultimately revoked McGillis and Ewers' access to the app and they both filed for unemployment benefits.  Initially, the Florida Department of Revenue ruled they were both employees and entitled to benefits.  However, Uber appealed the ruling.   In the DEO opinion, it was noted that Uber allows drivers to use the app on their own terms.  Drivers can decide when and how long to drive (which gave the drivers "control over the details of their work"...that's a buzz word right there), use their own vehicles for work, choose customers, and can even work for competitors if they choose.  Therefore, Uber argued that it

Shorter week in the office coming back from New York and handling a few matters out of town for work.  As a result, it was another week where I only had a few spare minutes to read through some articles.  I normally do not post much in the way of international developments in the labor and employment law field.  However, this week I came across some good articles on developments in the UK and Russia that I think warrant a special post. As always, below are a few articles that caught my eye this week. Rising Minimum Wage in the UK to Cost Over 1 Billion Pounds Good article from Forbes on the predicted impact that the new minimum wage in the UK will have on businesses.  Chancellor George Osborne's decision to raise the minimum wage next year is predicted to cost private employers over 1 billion Pounds.  Note, these predicted costs include wages and non-wage labor costs (such as employers' National Insurance contributions).  Quite a steep cost for raising minimum wage r

Last week, the New York Industrial Board of Appeals upheld the proposed $15 per hour minimum wage rate for New York fast food workers.  Under the law, the minimum wage rate would increase in gradual increments to $15 per hour for New York City fast food workers.  The rest of the state would see the increase by 2021.   The National Restaurant Association had claimed the proposed law was unconstitutional on the grounds that it unfairly targeted restaurants that would have to pay each worker on average $11,000.00 more each year than non fast food and retail stores.  (Note, for those non fast food minimum wage employers, a $9 per hour minimum wage rate will go into effect on December 31, 2015.).  However, this argument did not carry much weight before the Industrial Board as it was soundly rejected.  Even with this ruling from the Industrial Board, the National Restaurant Association has indicated they will likely take their fight to court.  As well, for those who might be int

Maldonado-Catala v. Municipality of Naranjito - United States District Court, District of Puerto Rico Facts :  Maribel Maldonado-Catala ("Maldonado-Catala") held a position with the Municipality of Naranjito as an emergency medical technician that began in 2008.  In 2010, Maldonado-Catala suffered a work related accident and was ordered to stop working.  Later that year, she accompanied a co-worker to complain about harassment from an emergency medical office director.  Maldonado-Catala alleged that she had been called "machito" (translated to mean "manly") on a daily basis.  Other suggestive comments were made to her as well.  While on unpaid leave, Maldonado-Catala received several offensive Facebook messages and filed a police report.  Afterward, Maldonado-Catala tried to report to work but was informed her EMT license was expired.  She indicated she did not have the money to renew it. In 2012, Maldonado-Catala suffered another work related

Over the past week or so, I have had several trials which have kept me busy.  As a result, I have again not had as much time to read through articles as I would have liked.  With that being said, I came across several articles that I think readers will enjoy in regard to the recent wrongful termination suit filed by former Southern California Coach Steve Sarkisian.  This one is just getting started and warrants a special post. As always, below are a few articles that caught my eye this week. A Closer Look at Steve Sarkisian's Lawsuit Against Southern California Sports Illustrated has a well written, in depth look at the $30 million wrongful termination suit that former Southern California Coach Steve Sarkisian brought against the school after he was terminated earlier this year.  ( Coach Steve Sarkisian Fired From Southern California ).  In his suit, Sarkisian alleged that he was wrongfully terminated because of a disability, due to being an alcoholic.  Southern Califor

Recently, Democratic Presidential candidate Bernie Sanders introduced a bill that would allow a union to be certified as the exclusive bargaining representative based upon a card check process rather than the current secret ballot election that exists now.  This bill, the Workplace Democracy Act, would also allow a third party arbitrator to impose wages, benefits, hours, work rules, and other contract terms on parties that are unable to negotiate a contract within 120 days. Readers might remember that Hillary Clinton, another Democrat competing for the Oval Office, has traditionally enjoyed wide spread support among union voters.  Given that union voters make up a large swath of the Democratic voting base (especially in the upcoming primary and caucuses), if Sanders hopes to win the Democratic nomination, he is smart to play to this base of voters.  Sanders has noted that while Clinton has support of union leaders, he believes he has support among the "rank and file".

In October, a lawsuit was filed against Starbucks on the grounds that the company allegedly discriminated against a deaf employee because of her disability.  The suit, Roberts v. Starbucks Coffee Company, was filed in Federal District Court in Arizona. To prevail on her disability discrimination claim, Roberts needs to show she was a qualified individual with a disability (as recognized by the Americans with Disabilities Act) that could perform the essential functions of her job with reasonable accommodations, yet the company refused to provide those reasonable accommodations.  The main defense that Starbucks could raise to this type of ADA claim is to establish that allowing the reasonable accommodation would impose an undue hardship on the operation of the company's business and therefore not be feasible. In the lawsuit, Roberts claimed she repeatedly asked for reasonable accommodations on multiple occasions between March 2007 and January 2014, when she was ultimatel

This has been a busy week on my end, coming back from the Thanksgiving break and having a few trials this week out of town.  As a result, I did not get as much of an opportunity to read through articles like I normally do.  In any event, I found a couple good ones that I think readers will enjoy. As always, below are a few articles that caught my eye this week. Are Paralegals Entitled to Overtime Under the FLSA? This is a great note from Eric Meyer about whether paralegals are entitled to overtime under the FLSA.  In short, Eric reaches the conclusion that these employees likely are entitled to overtime (again, depending upon the situation).  Well worth a read. Labor Unions Ramp Up Opposition to Ohio Right to Work Bill The Columbus Dispatch has a good note on recent efforts by Ohio unions to thwart the proposed Right to Work bill in Ohio.  As the article notes, although the bill is still in the early stages of discussion, unions are already doing what they can

Huri v. Office of the Chief Judge of the Circuit Court of Cook County - Seventh Circuit Court of Appeals Facts :  In 2000, Fozyia Huri ("Huri") began working at the Circuit Court of Cook County ("Cook County").  During her time there, she work a hijab.  Huri alleged that Sylvia McCullum (executive director for all Cook County court system child care attendants) was unfriendly from the time they met and never bothered to introduce herself for two weeks.  Over the course of eight years, McCullum repeatedly told Huri one of her colleagues was a "good Christian" and a "good church going Christian", that the chief judge was a "good Christian" and that McCullum herself was a "good Christian".  (Modest, huh?).  In 2009, McCullum apparently told a co-worker to work with a "good Christian" rather than Huri who was "evil".  McCullum also held prayer circle gatherings at work.  As well, McCullum allegedly fals

As of this writing, there are currently twenty five states that have right to work laws in place.  Other states are considering passing right to work legislation ( From The Washington Post - Missouri Could Be the Next Right to Work Battleground State ), but news has come out recently that West Virginia could become the twenty sixth state.  For those unfamiliar with right to work issues, states without right to work laws can allow companies to require union membership as a condition of employment.  Unsurprisingly, unions despise right to work laws.  Without these laws in place, unions are free to bolster their ranks and increase the influx of union dues if union membership is required.  Recently, Republicans in the West Virginia Senate and House of Delegates have been looking at a study that found economic benefits associated with right to work laws.  ( A copy of the study can be found here ).  With some difficult economic conditions in the state, it is unsurprising that politi