The Majority Opinion: Legal Blog

Back in April, I had noted that the Department of Labor issued a publication of the new "Persuader Rule" .  That rule would require extensive disclosures from employers or consultants to report any arrangement to persuade employees in regard to the right to organize or collectively bargain.  Many in the labor field were taken aback by the far reaching impact this new rule would have.   At the time, I pointed out that several cases had been filed to contest the Persuader Rule.  Earlier this week, a federal judge in the Northern District of Texas issued a nationwide injunction that blocks the implementation of the Persuader Rule...for the time being.  In the order, the Court wrote that the National Federation of Independent Business (among other plaintiffs) that had filed suit to challenge the rule were likely to succeed on their claims that the Department of Labor exceeded its authority and promulgated a rule that was arbitrary, vague, and violated federal law and the C

Earlier this year, West Virginia became the 26th right to work state after the Republican controlled state legislature overrode the Democratic Governor's veto of the legislation.  (The right to work law would allow employees in union shops to opt out of paying union dues.)  The new law, known as the "Workplace Freedom Act", is set to go into effect on July 1, 2016.  However, on Monday, eleven state labor unions filed suit to challenge the right to work bill.  The labor unions argued that the right to work law is an illegal taking of union property and resources as it allegedly enables nonmembers of unions to get union services for free. It will be interesting to see how this one plays out.  Something tells me this is not the last challenge we will see to the new right to work law in the state... For additional information:  http://wvpublic.org/post/labor-unions-file-lawsuits-challenging-right-work-law

Late last week, the New Jersey Legislature approved a bill that would raise the minimum wage rate in the state to $15/hour by 2021.  In doing so, the bill now goes to Governor Chris Christie for his approval or (expected) veto. Readers might remember that last month, Governor Christie vetoed an equal pay bill .  Many who follow politics in New Jersey expect Governor Christie will also veto this minimum wage bill on the grounds that a $15/hour minimum wage rate in the state would hinder New Jersey's economy and potentially kill job growth.  This is not anything out of the ordinary when it comes to arguments against the Fight for $15 movement.   I would certainly expect Governor Christie will veto this bill as he has had somewhat of a pro business leaning over the years.  While this minimum wage hike would impact nearly 1 million workers in New Jersey, I would expect the Governor to point to the fact that since New York State passed legislation to raise the minimum wage ra

Busy week of travel so I unfortunately had little time to read through articles.  With that being said, I did come across two great articles that I think readers will enjoy. As always, below are a couple articles that caught my eye this week.   Fifth Circuit Court of Appeals Upholds NLRB's Ambush Election Rule As The National Law Review writes, earlier this month, the Fifth Circuit Court of Appeals issued s ruling in which it upheld the NLRB's ambush election rule.  Readers might remember that rule which came into effect in April of last year.  In part, the ambush election rule shortens the time period between the filing of a union election petition and the election itself.  This isn't the first time a court of appeals has upheld the ambush election rule.  Something tells me it won't be the last time a court of appeals considers the issue either. Senator Bernie Sanders Pays Interns $12/Hour The Washington Free Beacon has a somewhat humerous note, a

Yesterday, it was announced that lawmakers in the District of Columbia had unanimously approved a measure to raise the minimum wage in the District from the current hourly wage rate of $10.50 to $15.00 by 2020.  Note, this increase will impact approximately 77,000 hourly workers in he District.  While the hourly wage rate was already set to go to $11.50 this July, this approved measure will raise the hourly wage rate by about $.70 over the next few years.  As with other states and cities that have approved minimum wage hikes, once the hourly wage rate hits $15/hour in 2020, further increases will be automatic and tied to inflation.   It goes without saying that is a huge development on the minimum wage front.  After both New York and California approved $15/hour wage rates across both states earlier this year, Washington D.C. jumps in as one of the 'leaders' at the forefront of this issue. Although, note, that for tipped workers, the hourly wage rate will only go u

Heffernan v. City of Paterson, New Jersey - United States Supreme Court Facts :  Jeffrey Heffernan ("Heffernan") worked as a police officer in Paterson, New Jersey.  Heffernan worked in the office of the Chief of Police who supported the incumbent mayor who was up for re-election.  Heffernan's mother supported the mayor's challenger and asked her son to pick up a sign supporting the challenger.  When Heffernan went to get the sign and talked to campaign staff of the mayor's challenger, other members of the police force saw him doing so and reported Heffernan to the Chief of Police.  The next day, Heffernan's supervisors demoted him from detective to patrol officer and assigned him to a "walking post".  This was apparently done to punish Heffernan for what his supervisors thought was "overt involvement" in the challenger's campaign for mayor.  (However, Heffernan was simply picking up the sign for his mother and was not involved i

Shorter week in the office, but I still found some time to read through a couple good articles.  In particular, the update on the extension of the time limit in which to file a constructive discharge claim was an interesting development. As always, below are a couple articles that caught my eye this week. Time Limit Extended For Constructive Discharge Claims to Be Filed Jon Hyman over at The Ohio Employer Law Blog has a good note on a recent United States Supreme Court case that has extended the time limit for when a constructive discharge claim must be filed.  Field trip version of the Court's ruling:  The statute of limitations begins to run when the employee resigns.  But take a few minutes to read through Jon's thoughts on the ruling...well worth it for the additional analysis he gives. English Only Policies in the Workplace The American Bar Association has previously written an article on whether English only policies are enforceable in the workplace.   I

Los Angeles area employers and employees likely are aware that in less than a month, a raise in the minimum wage rate will occur.  For those that are not aware or simply forgot, take note! On July 1, 2016, Los Angeles City or County employers with 26 or more employees will be required to pay an hourly rate of $10.50.  For those employers with 25 or fewer employees (or non-profits with 26 or more employees that have approval to pay a deferred rate), the minimum wage increase will be deferred for a year.  The hourly rate will continue to rise every July 1 thereafter for several years until it reaches $15.00/hour.   Of course, the question arises of what kind of penalties will be put in place for a violation of this new ordinance.  An employer who violates the ordinance is liable to the employee for payment of back wages and an additional penalty of $100/each day the violation occurred (or continued).  Note, there are also administrative fines that will apply to each violatio

ManorCare of Kingston PA, LLC v. National Labor Relations Board - United States Court of Appeals for the District of Columbia Circuit Facts :  In 2013, the Laborers International Union of North America, Local 1310 began to organize the employees at ManorCare of Kingston ("ManorCare").  In August, ManorCare and the union reached an agreement to conduct an election limited to a unit of certified nurses' aides.  The election was to occur on September 6, 2013 and the union ultimately won a narrow victory (34 in favor, 32 against).  ManorCare subsequently objected to the election results a week later on the grounds that several employees eligible to vote in the election threatened to physically harm other employees and their property.   Several incidents were alleged by ManorCare to challenge the election.  One instance occurred between two nurses (Harriet Robinson and Lucy Keating) on a smoke break shortly after the election petition was filed.  Robinson stated tha

It was difficult to narrow things down this week as I came across several great articles that I thought readers would appreciate reading.  In particular, I want to highlight the article on USERRA.  Given the ongoing war on terror, I think many employers will continue to be confronted with USERRA issues.  This particular article highlights one of the finer points of that Act. As always, below are a few articles that caught my eye this week. EEOC Issues Final Rules for Wellness Programs Under the ADA and GINA Last month, the EEOC issued a final rule for employer wellness programs under the ADA ("Americans with Disabilities Act") and GINA ("Genetic Information Nondiscrimination Act").  The California Labor & Employment Law Blog posted the final rules that I think readers should take a look at.  While this may not impact everyone, it is worth a brief review at the very least. Reminder: An USERRA Cause of Action Requires An Adverse Employment Action

Earlier this year, I had pointed readers to a new ordinance in Santa Monica that would require employers to provide paid sick leave to its employees .  A few weeks ago, it was announced that the implementation of the paid sick leave portion of that ordinance would not go into effect until January 1, 2017, rather than July 1, 2016 as originally planned.   As a result, the paid sick leave requirement will be phased in over a couple years.  Under the first wave, set to take effect on January 1, 2017, small businesses (employers with 25 or fewer employees) must allow a "rolling cap" of 32 hours of paid sick leave for employees (larger businesses will be capped at 40 hours). Under the second wave (to take effect on January 1, 2018), an increase in the caps to 40 hours for small businesses and 72 hours for larger businesses will become effective. In the interim, Santa Monica employers will have a few extra months to ensure they are in compliance with this ordinance.  How

By now, many readers will have likely heard about the new overtime rules announced by the Department of Labor recently .  It goes without saying that this new rule will likely impact many employers and employees across the country when it goes into effect on December 1, 2016.  Although I had written about the new overtime rules a few weeks ago, I wanted to take a minute to highlight a couple articles that I think readers will find useful on the topic.  This will serve as a mini "What I've Been Reading This Week". Millions Set to Benefit From New Overtime Rules I think the title says it all, millions of employees across the country will likely stand to benefit from the new Department of Labor overtime rules.  While many employees will likely benefit from higher pay as a result of the new rules, employers will likely cast an unfavorable eye in anticipation of preparing for the December 1 implementation of the new rules.  This article is well worth a review to catc

Harbourt v. PPE Casino Resorts Maryland, LLC - Fourth Circuit Court of Appeals Facts :  PPE Casino Resorts Maryland, LLC ("PPE") owned and operated a casino in Maryland.  After the state legalized gambling starting April 11, 2013, PPE decided to offer a free twelve week training course (called a "dealer school") to approximately 830 dealers who would operate gambling tables at the casino.  Claudia Harbourt, Michael Lukoski, and Ursula Pocknett (the "Trainees") applied for a dealer position with PPE.   After interviews, PPE offered the Trainees (among others) an opportunity to attend the dealer school.  The dealer school consisted of four hours of daily instruction (Monday through Friday) in four hour time periods.  Although the school was to run for twenty hours/week for twelve weeks, it consumed more time as a result of "numerous delays" caused by PPE staff.  The dealer school, completely run by PPE, had attendees complete employment f

The past few weeks have been very busy.  In between several work trips, I have had less time than I would have liked to read through articles and cases.  With that being said, I came across several good articles, including one that a loyal reader (and labor law guru) of the blog pointed out.  That particular article deals with a recent NLRB decision from the earlier this week in regard to actions an employer took to deal with striking workers.  The Board's 2 - 1 decision is groundbreaking and the reason I chose to lead off this week with that article. As always, below are a few articles that caught my eye this week. Employer Violated Federal Labor Law By Hiring Permanent Replacements for Striking Workers I will write more about this one next week, but in the meantime, Jay-Anne Casuga posted an update a few days ago in regard to a recent NLRB decision that held an employer in California violated federal labor law by hiring permanent replacements for striking workers in an

As with many employment and labor law related cases (and bills) that are being litigated around the country, there are always a few that stand out.  This is one to keep an eye on. Readers might remember that about a year ago, I noted that California Bill AB 357 ( the Fair Scheduling Act of 2015 Bill ) had been shelved because of a lack of support.  That bill sought to require food and retail establishments provide their employees with two weeks advance notice of their schedules and additional "predictability pay" when the employer cancelled or rescheduled its employees' shifts. This year, SB 878 is a similar bill working its way through the California legislature.  This version of the Fair Scheduling Act would require California grocery, retail, and restaurant employers to provide employees advance notice of their work schedules (at least 7 calendar days) and to pay the employees "modification pay" for any unilateral changes that the employer would ma