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

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