The Majority Opinion: Legal Blog

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: Safeway to Rehire Store Clerk and Pay $27,000 to Settle Disability Discrimination Claim Earlier this month, it was announced that Safeway will pay $27,000.00 and rehire a store clerk in order to resolve a disability discrimination suit.  The lawsuit claimed that Patricia Bonds ("Bonds") worked at a Safeway location where she sustained a work related injury that limited her ability to lift items.  Although Bonds was initially accommodated, she was placed on indefinite unpaid leave on the grounds that she had exhausted her time limits for modified duty.  Under the Americans with Disabilities Act ("ADA"), employer discrimination because of an employee's disability is prohibited.  Further, an employer is required to provide reasonable accommodations to a disabled employee as wel

Earlier this month,  the Sixth Circuit Court of Appeals reversed a lower court's ruling and held that a local 'right to work' law enacted by a county in Kentucky was lawful.  In UAW v. Hardin County, Kentucky , a Sixth Circuit panel, comprised of three Republican appointed judges, held that Hardin County in Kentucky did not violate federal labor law when it banned the use of agreements between employers and unions which required employees to join a union.  The Court further held that counties have the same rights as states to bar these type of agreements. Note, although a statewide 'right to work' law has been attempted in Kentucky, efforts have proven to be unsuccessful.  As a result, counties in Kentucky are charged with having the ability to enact 'right to work' laws...with nearly a dozen counties haven done so.  And as the Sixth Circuit panel reaffirmed in this case, these counties have every right to do so.  According to the union's att

In what can only be considered another blow to President Obama's legacy, yesterday, Judge Mazzant III of the Eastern District of Texas issued a nationwide injunction which will block the implementation of the new overtime regulation previously announced earlier this year .  The regulation, which was set to take effect December 1, would have required employers to pay time and a half to employees who worked more than 40 hours in a week and earned less than $47,476.00/year (note, this was in increase over the current threshold of $23,660.00/year). Judge Mazaant III held that the Obama administration had exceed its authority by raising the overtime salary limit so significantly.  In this instance, the judge held there was nothing in the Fair Labor Standards Act which indicated that Congress intended the U.S. Department of Labor to define exemptions in the Act with respect to a minimum salary level (which was in fact what the Department of Labor was attempting to do with the new

Late last week, students at Harvard held an election on whether to unionize.  This election was unique for two reasons:  First, eligible voters included both graduate and undergraduate student research and teaching assistants (the first such vote to include both).  If these students vote to unionize, Harvard would become only the second private university to have a graduate student union (along with New York University).  In addition, this is the first union election at a university since the NLRB's August decision which held that graduate and undergraduate students can be recognized as workers (and therefore have the ability to unionize) . Back in February, it had been estimated that approximately 60% of graduate students that were considered 'employed' by Harvard had signed unionization cards.  Note, that was more than double the amount necessary to call for a union election.  Of course that does not necessarily mean that these students will actually vote to unio

On Wednesday, there was major news out of the Northern District of Texas when Judge Sam Cummings issued a permanent injunction to block the "persuader rule".  For those unfamiliar with the "persuader rule", this was a regulation pushed by the Obama administration which would have imposed significant reporting requirements that would mandate employers or consultants to disclose any arrangement to persuade employees in regard to the right to organize or collectively bargain .  It goes without saying that this is quite a development and therefore is one of the main articles I wanted to highlight this week. As always, below are several articles that caught my eye this week. Permanent Injunction Issued to Block the "Persuader Rule" Back in September, a temporary injunction was granted by Judge Cummings to block the "persuader rule" and the Department of Labor announced it would appeal the ruling to the Fifth Circuit Court of Appeals .

Thankfully, this is not a discussion on the electoral college, popular votes, transition teams, 2020 presidential hopefuls, etc.  Instead, I wanted to highlight a lawsuit that was recently filed by Democratic campaign organizer who claims that she (and others) were not paid overtime in violation of the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. According to the campaign organizer, she and others often worked 80 to 90 hours a week, but were not paid overtime by the Pennsylvania Democratic Committee (and the Democratic National Committee).  She has stated that after getting hired in June, she was to assist in a national effort to help the Democratic ground game drive up numbers on election day.  She spent time on the phone, solicited volunteers, assisted voters with registering, etc.  However, in August she decided to quit after continually putting in 12 to 14 hour days.   On November 9, suit was filed in Philadelphia and seeks class action status on behal

Yesterday, I had pointed readers to a pending vote by the San Jose City Council in regard to whether to accelerate a minimum wake hike for workers in the city .  While other cities in Santa Clara County had approved measures for an accelerated minimum wage hike (ahead of the statewide $15/hour minimum wage rate set to take effect in 2022), there was some mystery as to whether San Jose would follow suit.  While there had been several competing proposals to raise the minimum wage rate to $15/hour by January 1, 2019 or July 1, 2019, there was no guarantee the City Council would approve any measure. It turns out, the City Council approved the more ambitious measure and approved a plan to raise the minimum wage rate for workers in the city to $15/hour by January 1, 2019.  Note, this wage hike will be phased in as follows:  $12/hour in 2017, $13.50/hour in 2018, and $15/hour in 2019.  An automatic cost of living increase will go into effect every year thereafter.  In addition, this m

Today, the San Jose City Council will vote on whether to accelerate a minimum wage hike for hourly workers in the city.  While the state of California requires a flat minimum wage of $15/hour by 2022 across the state, supporters of this measure have long advocated that the wage hike should be accelerated, in part because of the high cost of living in many parts of the state.  In fact, labor unions and supporters of an accelerated timeframe for the minimum wage hike held a rally in front of city hall earlier in the day, before the Council Is to vote. Prior to the vote, there have been several competing measures to accelerate the minimum wage rate in the city.  One proposal, which has the support of Mayor Sam Luccido and other city officials, would raise the hourly wage rate to $15/hour by July 1, 2019.  Another proposal, supported by several Council members, proposes to raise the minimum wage rate to $15/hour six months earlier, by January 1, 2019.   Readers might be aware that

Smiley v. E.I. DuPont de Nemours and Co. - Third Circuit Court of Appeals Facts :  Employees at an E.I. DuPont de Nemours and Co. ("DuPont") manufacturing plant worked twelve hour shifts.  These employees were required to be onsite before and after their designated shift in order to "don and doff" uniforms and protective gear necessary to do their job.  DuPont also required these employees to participate in "shift relief" in which outgoing employees shared information on the status of work with incoming shift employees.  Approximately 30 to 60 minutes per workday were spent donning, doffing, and providing shift relief.   Of note, DuPont chose to compensate employees for meal breaks during the twelve hour shifts.  In doing so, DuPont included compensation for meal breaks when it calculated employees' regular rate for overtime purposes, and that compensation was subsequently included on the pay stubs of employees as part of their total hours w

A few readers might have heard about an election that happened earlier this week.  I think that got a little bit of press.  For those looking for an in depth analysis of Donald Trump or Hillary Clinton, I will refer you to NPR, CBS, NBC, The Washington Post , etc, etc.  In this instance, I wanted to take a moment to highlight a few of the ballot initiatives that were before voters on November 8th.  There were pretty much two big employment and labor law measures on ballots across the country on Tuesday:  Minimum wage and right to work.  Since minimum wage tends to be more of a hot button issue across the country (and got more national attention), I think it is appropriate to lead off with that.  As always, below are a couple articles that caught my eye this week. Readers might remember an article I posted recently on the recent influx of money into the minimum wage fights leading up to November 8th.   It looks like that money paid off, as Arizona, Colorado, Maine, and Wa

Siciliano v. Albert/Carol Mueller t/a McDonalds - Superior Court of Pennsylvania Facts :  Albert and Carol Mueller ("Muellers"), through a limited partnership, owned and operated 16 McDonalds franchises throughout Pennsylvania.  A class of current and former McDonalds' hourly employees brought suit against the Muellers and alleged violations of the Pennsylvania Wage Payment and Collection Law ("WPCL").  These employees claimed the Muellers violated the WPCL by paying employee wages from November 2010 to July 2013 by way of mandatory JP Morgan Chase payroll debit cards, instead of by cash or check.  After the class was certified, the lower court denied the Muellers' motion for summary judgment.  Included in the court's order were instructions that the decision could be immediately appealed.  The Muellers subsequently appealed to the Superior Court of Pennsylvania. Holding :  The Superior Court began its analysis with a review of Section 260.3 o

Williams v. Poarch Band of Creek Indians - Eleventh Circuit Court of Appeals Facts :  Christine Williams ("Williams") worked in the Health Department operated by the Poarch Band of Creek Indians ("Poarch Band") for more than twenty one years.  The Health Department is located on reservation lands and the positions within the Department are considered to be jobs of Tribal government.  Williams ultimately brought a discrimination claim against the Poarch Band on the grounds that the Poarch Band violated the Age Discrimination in Employment Act of 1967 ("ADEA") when Williams was allegedly terminated because of her age and replaced by a 28 year old who "did not have enough experience to be a lab manager."   The Poarch Band moved to dismiss the suit and argued the doctrine of tribal sovereign immunity prevented the court from having subject matter jurisdiction over the matter.  The Magistrate Judge entered a report and recommended that the

Tough to narrow things down this week as I came across several articles that directly tie into previous topics I have written.  In particular, I would point readers to the development in Seattle in regard to predictable schedules.  I do not think this is the last time we have seen this type of legislation be approved...the only question is what city (or state) will follow suit. As always, below are a couple articles that caught my eye this week. A Closer Look at the Predictable Schedules Legislation Approved in Seattle A few weeks ago, I had pointed out that Seattle and New York City were working towards passing predictable schedules legislation for hourly workers .  This type of legislation (often referred to as "secure scheduling") requires employers to post schedules in advance which allows their employees to have better control over their work/life balance.  If an employer changes the work schedule on short notice, they can be subjected to fines or the employ

A few weeks ago, I had pointed readers to Colorado's Amendment 70 that voters will decide upon this November .  Amendment 70 seeks to raise the hourly minimum wage rate in the state from $8.31/hour (the current hourly wage rate) to $12/hour by 2020. To date, there has been nearly $5 million raised in support of Amendment 70.  A good portion of the contributions have come from labor unions and other organizations in support of the minimum wage increase:  The Fairness Project ($875,000.00), Civic Participation Action Fund ($700,000.00), Center for Popular Democracy Action Fund ($650,000.00), SEIU C.O.P.E. ($405,000.00), and National Education Association ($250,000.00) have all been major players in support of Amendment 70.   Of course, there has been opposition to Amendment 70, but much less has been raised to oppose the measure.  A total of about $1.6 million has been raised from pro business groups this election cycle:  Workforce Fairness Institute ($850,000.00), Hospi

Jones v. Warren Unilube, Inc. - U.S. District Court - Western District of Texas, San Antonio Division Facts :  Lisa Marie Jones ("Jones") worked for Warren Unilube, Inc. ("Warren") and was paid different hourly rates depending upon the shift she worked, such as $8/hour when she worked between 7 AM and 3:30 PM, $9/hour when she worked between 3:30 PM and 12 AM, and $10.20/hour when she worked between 12 AM and 3 AM.  However, Jones claimed she was improperly classified as an exempt employee and therefore was not compensated for overtime hours she worked. Jones subsequently brought suit against Warren on behalf of herself and other similarly situated employees and claimed she was not paid overtime wages in accordance with the Fair Labor Standards Act ("FLSA"). Warren filed a motion to dismiss the claim on the grounds that Jones had not pled the existence of at least one specific workweek in which she worked over forty hours and was not paid overti