The Majority Opinion: Legal Blog

It turned out to be a busy week on my end and I spent more time away from my desk than I expected.  Even with a lot of work travel, I still read through some good articles that I wanted to highlight. As always, below are a few articles that caught my eye this week. A Closer Look at the Impact of the Ambush Election Rules Some readers might remember when the " Ambush Election " rules went into place last April.  Critics of the NLRB's proposed rules suggested that these new rules would unfairly skew the process and allow unions a better opportunity to organize.  Well, according to Connor Wolf over at The Daily Caller , it turns out they were right.  Union elections used to take on average 36 days before the Ambush Election rules were implemented.  That average is now down to 24 days.  Unsurprisingly, unions are winning about 3% more elections than they did in 2014 and approximately 8% more over 2012 and 2013.  Very interesting to follow along with Wolf's ar

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: Seymour Midwest to Pay $100,000 to Resolve Age Discrimination Suit Earlier this month, it was announced that Seymour Midwest, a hand tool manufacturing company in Indiana, would pay $100,000 to resolve an age discrimination suit.  According to the suit, Seymour Midwest selected Steve Maril from a group of applicants that had applied for its senior vice president of sales position.  One of the questions asked was whether Maril was within the "ideal age range" of 45 - 52.  When Seymour Midwest learned that Maril was older than that range, they refused to hire him.  As readers could likely guess, this conduct is in violation of the Age Discrimination in Employment Act.  The Act prohibits age based discrimination against individuals who are least 40 years old.  Employers should take care to refrai

Last summer, California Governor Jerry Brown signed a bill into law, Assembly Bill No. 987, which amended California's Fair Employment and Housing Act ("FEHA").  Under this amendment, an employer is prohibited from retaliating and/or otherwise discriminating against a person that requests an accommodation as a result of his/her disability or religious belief, regardless of whether the request for accommodation is granted. For those not familiar with California labor & employment laws, this bill was a result of a 2013 California Court of Appeal case that held a fired employee could proceed with a lawsuit against an employer who allegedly discriminated against the employee based upon his association with his disabled sister to whom he planned to donate a kidney.  In that case, Rope v. Auto-Chlor System of Washington, Inc. , an employee was hired by Auto-Chlor and informed them that he would need time off to donate a kidney to his sister.  The employee requested

As with many labor and employment law related cases that are being litigated around the country, there are always a few always stand out.  This is one to keep an eye on. Facts :  Encino Motorcars, LLC ("Encino") sells and services new and used Mercedes Benz cars.  The Respondents in the present suit before the United States Supreme Court are current and former employees of Encino.  In their employment at Encino, the Respondents would meet and greet car owners as they arrived in the service area, evaluate a customer's service and repair needs, suggest services be performed on the vehicle to address issues, and prepared estimates for repairs and services, among other tasks.  The Respondents claimed that they often worked more than 40 hours per week, yet Encino failed to pay them time and a half for overtime work.   In September 2012, Respondents filed suit and alleged several violations of the Fair Labor Standards Act ("FLSA") and the California Labor C

This week I came across several articles dealing with the minimum wage movement that is happening in towns, cities, and states across the country.  In fact, at the most recent Democratic Presidential debate this past Sunday, all the candidates stated that raising wages would be a top priority in the first 100 days of their administration (note that Senator Bernie Sanders and Governor Martin O'Malley both stated they supported $15.00 per hour while Senator Clinton did not 'commit' to a specific hourly rate.)  Given the increased coverage this movement has started to receive, I thought it would be a good time to dedicate this post to the topic. As always, below are a few articles that caught my eye this week. Santa Monica City Council Approves Minimum Wage Hike Earlier this month, the Santa Monica City Council approved a minimum wage hike that would raise wages at most businesses in the city to $15.00 per hour by 2020.  It is interesting to note that  businesses w

Ginn v. Stonecreek Dental Care - Court of Appeals, Twelfth Appellate District of Ohio Facts :  Dr. R. Douglas Martin ("Martin") sold his dental practice to an employee who worked there, Dr. David Ginn ("Ginn").  In doing so, Martin and Ginn signed a contract for the sale which contained a non-compete provision that prohibited Martin from engaging in business "within 30 miles" of the practice for five years starting from October 2010.  While Martin initially stayed on and worked with Ginn for a period, the relationship subsequently deteriorated between the two and Martin went to work for another dental office.  The new dental office was less than 30 miles away when measuring the distance in a straight line.  However, when driving between the offices, the distance was more than 30 miles. Ginn filed a claim against Martin on the grounds that Martin breached the non-compete.   At the trial court level, the court found that "within 30 miles"

Note, readers might remember the religious discrimination suit that television personality Craig James filed against Fox Sports last August .  Although that case is unrelated to this one, these both involve discrimination suits filed by television personalities versus Fox Sports.  In mid December, Fox Sports 1 personality Colleen Dominguez ("Dominguez") filed an age discrimination suit against the company.  Dominguez, 46 years old, was hired by Fox Sports 1 on March 1, 2014.  She says the company described her as a "key personality" in the agreement and expected her to play a major role in its coverage.   However, Dominguez claimed that her assignments soon began to diminish and even though she lined up interviews with professional golfer Rory McIlroy and San Francisco Giants pitcher Madison Bumgarner, Fox Sports 1 declined to approve the interview because "those interviews would 'muddy the waters' for FOX's other reporters."  As wel

Back in April 2014, five former Buffalo Bills cheerleaders brought a wage and hour suit against the team on the grounds that they were not paid minimum wage for their work.  ( From Pom Poms to the Courtroom, Pt. 3: Buffalo Bills Edition ).   Recently, the judge in the case ruled that "all Buffalo Bills cheerleaders and ambassadors since April 2008" can join the suit.  This class certification could potentially have a major impact in so much that Bills cheerleaders from 2008 - 2014 will now be allowed to join the class action.   The Bills have continued to argue that the cheerleaders are independent contractors rather than employees.  However, the judge held the cheerleaders were not independent contractors as based upon the cheerleader handbook from 2013 - 2014, everything from appearance to hygiene were closely watched and controlled by the team.   Note, since the filing of the lawsuit, the Buffalo Bills cheerleaders have remained inactive.  Given that this c

This week, I came across several great articles on paid leave.  Given this is an election year, it has become a major talking point among many candidates (mostly those on the Democratic side that is).  What better time to highlight the issue then now, right?  I would suggest readers start with The Baltimore Sun article which breaks down the attempts to get paid parental leave off the ground across the U.S. (with many failures and false starts along the way).  Then, move on and check out the articles comparing where several of the Presidential candidates stand on the matter.  Worthwhile to see where things might go, depending upon who is elected later this year. As always, below are a few articles that caught my eye this week. Is Paid Parental Leave About to Make Major Strides? The Baltimore Sun has a fascinating look at the possibility of paid parental leave becoming a reality sooner rather than later.  For those interested in how paid parental leave has developed over rec

Barrett v. Fontbonne Academy - Commonwealth of Massachusetts Superior Court Facts :  Matthew Barrett ("Barrett") applied for a job at Fontbonne Academy ("Fontbonne") in June 2013.  Fontbonne was a private Catholic school for girls in Massachusetts.  At the time Barrett applied for a position at Fontbonne, Barrett was married to his husband, Edward Suplee ("Suplee").  Barrett had several interviews at Fontbonne throughout June and July of 2013.  During one interview, he was told by the CEO of Fontbonne, Mary Ellen Barnes ("Barnes"), that every employee was regarded as a "minister of the mission".  Barnes went on to tell Barrett that he would be expected to model Catholic teachings and values and was asked if he could "buy into that."  Barrett stated that he could.   On that same day that he was informed of the expectations at Fontbonne, Barrett accepted a position at the Catholic school.  Barrett filled out an employ

Note, a couple of readers have pointed me to a few recent labor & employment law updates lately.  Last week, I posted an article that a reader mentioned to me in regard to the Eugenie Bouchard Unsafe Work Environment issue.  Yesterday, I had another regular reader of the blog point this Supreme Court case out to me.  Many thanks! As with many labor and employment 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 :  In California, every year, public school teachers are compelled to make hundreds of millions of dollars in payments to California Teachers Association and their local affiliates.  These payments are mandatory for every teacher working in an agency shop school.  (An agency shop is an arrangement where the employer can hire anyone regardless of their union membership status.  Employees are not required to join a union.  However, all non-union employees must pay an "

On December 24, 2015, the National Labor Relations Board ("NLRB") issued a 2 - 1 ruling that held that a Whole Foods policy which prohibited recording conversations or taking photos at work violated the National Labor Relations Act ("NLRA").  At issue was a provision in Whole Foods' General Information Guide which prohibited workers from taking photos or recording conversations inside a store "unless prior approval [was] received" by a manager or executive or "unless all parties to the conversation gave their consent."   Whole Foods had argued that this prohibition was not meant to intimidate employees or curb their rights, however, the NLRB disagreed with this reasoning.  The NLRB found that Whole Foods' prohibition reasonably tended to chill an employee's exercise of their Section 7 rights; a violation of the NLRA.   In this case, the restriction on photography and recording of conversations in the workplace were found to

There are some readers of the blog who specialize in Human Resources (or are casual "fans" of HR related issues).  Not wanting to disappoint, I thought this would be a good time to dedicate a post to HR related issues.  One of the more interesting articles I read this week had to deal with out of date minimum lifting requirements and the potential liability an employer could experience as a result.  As always, below are a few articles that caught my eye this week. Employers Beware! Out of Date Lifting Requirements Could Spell Trouble Ben Ford points out the dangers an employer can face with out of date minimum lifting requirements in their job descriptions.  Not only is an employer cutting off a potentially wide range of applicants, but there are potential discrimination claims that could arise from out of date minimum lifting requirements.  As the article notes, the EEOC warns employers that minimum lifting requirements must be "consistent with business nece

This past Monday, New York Governor Andrew Cuomo raised the minimum wage to $15 per hour for nearly 30,000 employees in the New York state university system ("SUNY").  Governor Cuomo announced at a rally in Manhattan that he will issue an executive order to increase the minimum wage for these SUNY employees.  This increase will likely be phased in until 2018, although some SUNY employees might see a pay increase sooner.   Not to let an opportunity pass, Governor Cuomo also announced at the rally his intention to take the fight to the state legislature, in his continued fight for a $15 per hour minimum wage for all employees in New York.  Readers might remember Governor Cuomo's success in getting a $15 per hour minimum wage for New York City fast food workers last month.  ( $15 per hour minimum wage a reality for New York City fast food workers ).  Governor Cuomo had tough words on Monday for those who might oppose the measure:  "...we're going to make sure

Note:  A loyal reader of this blog pointed this issue out to me previously and thought it would make for a good post.  Having reviewed the issue myself, I certainly agree and think this is one that readers would enjoy! Late last year, tennis pro Eugenie Bouchard filed a lawsuit against the United States Tennis Association after she slipped and fell in a locker room during the U.S. Open tennis tournament in New York.  According to her complaint, Bouchard claims her fall was caused by a "slippery, foreign and dangerous substance" on the floor in the women's locker room that was negligently allowed to exist, in spite of the danger the substance posed.  As a result of her fall, Bouchard said she hit her head and suffered a concussion which forced her to withdraw from the U.S. Open and a few other tournaments. I highlight this case so employers can take note that in the workplace, steps should be taken to ensure a safe work environment.  In this instance, if the Uni

For those employers who have not checked or forgot about the change in mileage reimbursement rates, the IRS announced the optional standard mileage reimbursement rates have changed for 2016.  Beginning January 1, 2016, the reimbursement rates have decreased, and are as follows: 54 cents per mile for business miles driven (down from 57.5 cents from 2015); 19 cents per mile driven for medical or moving purposes (down from 23 cents from 2015); and 14 cents per mile driven in service of charitable organizations (remains the same from 2015) For those employers that use the standard IRS rates for mileage reimbursement, make sure to change your expense reimbursement policies.