The Majority Opinion: Legal Blog

This past week, I came across several articles that dealt with "right to work" legislation in states across the country.  For those needing a refresher, right to work laws prohibit labor unions from collecting fees to pay for the negotiation and administration of collective bargaining agreements from workers who benefit from these agreements, but are not part of the union.  It should not come as much of a surprise that Democrats traditionally oppose these laws while Republicans tend to push for their passage.  But as for this week, having read several articles on the topic, I think it is appropriate to dedicate this post to right to work matters. As always, below are a couple articles that caught my eye this week. Could New Hampshire Become the Next Right to Work State? As The New Hampshire Union Leader writes, New Hampshire is poised to become the next right to work state, now that Republicans control both legislative chambers and the governor's office.  Gove

Last week, Ohio Governor John Kasich signed into law Senate Bill 331 which prevents cities in the state of Ohio from raising their minimum wage rates above the state's minimum wage rate (currently set at $8.10/hour, but going up to $8.15/hour next year).  There had previously been much back and forth on the matter with Cleveland attempting to raise minimum wage rates in the city to $15/hour. Readers might remember that opponents to the minimum wage hike in Cleveland (above the state's minimum wage rate) argued that it violated the state's constitution.  In fact, back in July, Ohio Attorney General Mike DeWine issued an advisory opinion in which he concurred with this interpretation of the state's constitution and argued that cities and municipalities in the state that sought to set higher minimum wage rates should not be allowed . For the time being, this puts the matter to rest.  However, it would not surprise me if proponents of a higher minimum wage rate tak

Non-compete agreements have become one of the emerging employment law topics as of late, as I have started to come across more and more articles on the matter.  In fact, an in depth analysis of a Nevada Supreme Court case from earlier this year was especially thought provoking and one that lead me to want to dedicate this post solely to this topic.  Even for the casual reader who does not come across non-competes often, there are a couple articles here that I think are worth a review. As always, below are a couple articles that caught my eye this week. Jimmy John's to Pay Illinois AG $100,000 Over Use of Non-Competes for Hourly Employees Samantha Bomkampt at The Chicago Tribune wrote an article earlier this month in regard to Jimmy John's agreeing to pay $100,000 and notify all current and former employees that it would not enforce their non-compete agreements.  Readers might remember that controversy had arisen last year when it became known that Jimmy John's

Yesterday, a Maricopa County Superior Court judge heard arguments in regard to a legal challenge that seeks to halt implementation of a minimum wage hike in the state that was approved by voters this past November.  Under the approved measure, Proposition 206, the minimum wage rate (currently at $8.05/hour) will rise to $10/hour and then ultimately $12/hour by 2020. For those who have not been following the matter, last week, the Arizona Chamber of Commerce filed suit to challenge the higher minimum wage rate.  The Chamber, joined by a few other pro-business groups, argued that the minimum wage hike violated the state's constitution because it failed to identify a funding source for its budget implications. For those who support a higher minimum wage rate in the state, I would not necessarily call this lawsuit disheartening.  Last Friday, a request to immediately block the minimum wage hike was rejected.  As a result, hearings were set on the matter for this week.  Of c

Berger v. National Collegiate Athletic Association - Seventh Circuit Court of Appeals Facts :  Gillian Berger ("Berger") and Taylor Hennig ("Hennig") were former students at the University of Pennsylvania ("Penn") and participated in the women's track and filed team.  Berger and Hennig sued Penn, the NCAA, and more than 120 other NCAA Division 1 member schools on the grounds that student athletes are "employees" under the Fair Labor Standards Act ("FLSA") and therefore entitled to a minimum wage.  The District Court granted a motion to dismiss filed by the schools and the NCAA on the grounds that Berger and Hennig lacked standing to sue and no valid claim was stated against Penn because student athletes are not "employees" as defined by the FLSA. Berger and Hennig subsequently appealed to the Seventh Circuit Court of Appeals. Holding :  The Court of Appeals first turned to whether Berger and Hennig had standi

Mayhew v. Hermitage Club, LLC - United States District Court, District of Vermont Facts :  Effie Mayhew ("Mayhew") worked as a grounds keeper for the Hermitage Club ("Hermitage").  In her position at Hermitage, Mayhew took an interest in the company's horses but observed a deficiency in the horse's care.  In particular, the horses' hooves were overgrown and cracked, their manes were matted and unkempt, and their legs appeared to be infected.  Mayhew shared these concerns with Benjamin Fritz, a supervisor.  Mayhew took her concerns to Hermitage's management and was told the Club was interested in opening an equestrian center.  Mayhew was encouraged by Fritz and other supervisors to help develop a business plan to make a profitable use out of the horses. Mayhew alerted Fritz to her concerns that poisonous plants apparently were growing in one of the horses' pastrues.  She told Fritz that if he disregarded her concerns and the horses were

Difficult to narrow things down this week, but I think it is appropriate to lead this one off with a note about President-Elect Donald Trump's nominee for Labor Secretary.  To the surprise of few, 'pro-employer' groups have cheered the news while labor unions have been quick to oppose.  Given that Republicans control Congress (and this nominee likely will not produce as much of a fight as say the nominee for Secretary of State or Attorney General), I think it is safe to assume Andrew Puzder will likely be confirmed.  For those who might have thought Tom Perez, the current Labor Secretary, was too 'union friendly', Puzder will likely be a breath of fresh air. As always, below are several articles that caught my eye this week. A Closer Look at Andrew Puzder, Labor Secretary Nominee Recently, President-Elect Donald Trump announced that he would nominate Andrew Puzder to serve as Labor Secretary in his administration.  For those unfamiliar with Puzder, Th

Recently, Kanawha Circuit Judge Jennifer Bailey heard arguments from lawyers for both the West Virginia government and labor unions in regard to the legality of Senate Bill 1, West Virginia's 'right to work' law.  The bill, introduced early this year ( subsequently passed by the West Virginia Legislature, vetoed by the Governor on February 11, and then subsequently overridden the next day ), would turn the state into the 26th right to work state in the country.   Critics of the legislation argue that not requiring employees, who join a workplace with a union, to have to pay union dues (regardless of whether they support the union or not) amounts to an unlawful taking.  Proponents of the right to work counter and argue that the right to participate in a labor union cannot be 'construed as a further right to compel other employees.' At this time, an injunction is in place to prohibit the legislation from being enforced .  In the meantime, we wait for Judge

At the end of November, the Los Angeles City Council voted to approve passage of the Fair Chance Initiative, a measure that will prohibit a majority of employers from asking about an applicant's criminal history until a conditional job offer has been made.  (Note, the measure passed with overwhelming support, with a 12 - 1 vote in favor of the Initiative.). As with many ban the ballot measures, the Fair Chance Initiative carves out some exceptions, such as for childcare and law enforcement positions. This ban the ballot measure will have a broad impact for many employers in the city:  Under the measure, all city employers and private employers with ten or more employees will be prohibited from enquiring about an applicant's criminal history until the conditional job offer has been made.  Employers do not have much time to prepare for this change in the application process...the Fair Chance Initiaive is set to take effect on January 1, 2017.  Employers would be wise to p

I came across several articles in regard to parental leave this week.  Although I am not basing this post entirely on the topic, I wanted to lead things off with a few articles that I came across.   As always, below are a couple articles that caught my eye this week. IKEA To Expand Parental Leave For its Workers As Claire Zillman over at Fortune writes, effective January 1, IKEA will offer up to four months of paid parental leave for nearly 14,000 salary and hourly workers in the U.S.  According to IKEA, this was done in an effort to attract workers to the company by way of offering a rather generous paid time off for birth, adoptive, and foster parents.  This is certainly one of the more expansive policies I have seen in recent memory.  The question is whether other companies will follow suit?  It would not surprise me if we see a few others follow suit, sooner rather than later. D.C. Mayor Wants Changes to Family Leave Plan Before She Will Approve It Earlier thi

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. Cooper Tire & Rubber Company v. National Labor Relations Board - Eighth Circuit Court of Appeals Facts :  Cooper Tire & Rubber Company ("Cooper") employed Anthony Runion ("Runion") at one of Cooper's manufacturing plants in Ohio.  In late November 2011, Cooper locked out all union-represented workers from the plant and prohibited them from working until a new collective bargaining agreement was reached.  During the course of the lockout, the union peacefully picketed outside the facility.  In early January 2012, Runion and another worker on the picket line gave the middle finger to replacement workers that were being bused into the plant.  Runion was also heard stating "Hey, did you bring enough KFC for everybody" as well as "Hey, anybody smell that?  I

EEOC v. Scott Medical Health Center - United States District Court, Western District of Pennsylvania Facts :  For about a month, Dale Baxley ("Baxley") was employed by Scott medical Health Center ("Scott") in a telemarketing position.  Baxley was supervised by Robert McClendon ("McClendon") who allegedly made offensive comments towards Baxley in regard to Baxley's sexual orientation.  McClendon was alleged to have made these comments at least three to four times a week.   In the course of an Equal Employment Opportunity Commission ("EEOC") investigation into charges of discrimination brought by five female co-workers of Baxley in regard to alleged misconduct by McClendon, the EEOC discovered the alleged harassment extended to Baxley as well.  A subsequent lawsuit was filed against Scott on the grounds that a violation of Title VII of the Civil Rights Act of 1964 occurred as a result of McClendon's conduct.  Scott moved to dismi

This has been a much shorter week in the office coming back from the Thanksgiving break and a couple work trips out of town.  With that being said, I did come across a few articles that I wanted to highlight, in particular what could be expected from a more employer friendly NLRB once Donald Trump assumes office.  Stay tuned on that one. As always, below are a couple articles that caught my eye this week. What a More Employer Friendly NLRB Could Look Like Under President Elect Trump With the election of Donald Trump earlier this month, it is expected he will appoint more employer friendly Board members once he takes office (and once those Board positions open up).   Anthony Glenn at The National Law Review offers a few thoughts on which Board rulings could be revisited, in particular some of the recent Board decisions that have come from the pro-union, President Obama appointed, NLRB. Browning-Ferris 'Joint Employer' Case Nears Resolution in D.C. Circuit Court

Today, it was announced that a notice of appeal has been filed after Judge Mazaant III of the Eastern District of Texas issued a nationwide injunction last week to block the implementation of the new overtime regulation that was set to take effect today, December 1.  The regulation would have required employers to pay time and a half to any non-exempt employee who worked more than 40 hours per week and earned less than $47,476.00 per year.   Needless to say, this would have been quite a boon to many hourly workers.  However, the judge's granting of a temporary injunction put a damper on this new regulation.  The White House spokesman, Josh Earnest, noted that the "injunction was granted to some large businesses and Republican governors who had colluded to try and disrupt the implementation of this rule.  And essentially continue to take advantage of more than 4 million of the hardest-working Americans."   Even though an appeal has been filed, I still question