The Majority Opinion: Legal Blog

With nearly 200 posts this year, we have certainly run the gamut on employment and labor law developments, ranging from minimum wage hikes , President Donald Trump's first nominee for Labor Secretary unexpectedly withdrawing , right to work developments ( including right to work zones ), increased attention on sexual harassment claims in the workplace , the National Labor Relations Board taking on a 3 - 2 Republican majority , and the subsequent reversal of the 2015 Browning-Ferris joint employer decision . Of course, that is not even touching on the many decisions handed down by courts across the country over the past twelve months that addressed whether an employer discriminated against an employee with a medical marijuana card simply because she was a card holder ( Callaghan v. Darlington Fabrics ),  yet another case that considered if time spent in security screenings after clocking out was compensable time ( Vance v. Amazon.com, Inc. et al. ), a Fourth Circuit Court of

As always, there are some recent EEOC cases that jump out at me when I review developments on that front.  Below are a couple EEOC cases and settlements that stand out. Bojangles' to Pay $15,000 to Settle Sexual Harassment and Retaliation Suit Bojangles' Restaurants, Inc. had a lawsuit filed against it in which the EEOC alleged that the company unlawfully subjected a transgender employee to a hostile work environment because of gender identity and then unlawfully terminated the employee for reporting the sexual harassment.  The suit alleged that Jonathan (De'Ashia) Wolfe, a transgender employee that worked at a Bojangles' location, was repeatedly subjected to offensive comments about her gender identity and appearance.  In fact, managers and assistant managers apparently demanded Wolfe behave and groom in ways that were stereotypically male (since Wolfe was born male), although Wolfe identified as a woman.  Although Wolfe reported the comments on several occas

Earlier this month, the National Labor Relations Board ("NLRB") overruled an Obama era NLRB decision, Browning-Ferris Industries of California, Inc. , that expanded the definition of joint employer and placed a larger number of employers on the hook for labor law violations that were committed by their subcontractors.  In the NLRB's 3 - 2 decision in Hy-Brand Industrial Contractors, Ltd. , a "traditional" test will now be applied when considering whether an employer is jointly liable with a subcontractor for a labor law violation.  Under the traditional test, it must be shown that the employer had direct and immediate control over essential employment terms to support a finding that multiple entities (the employer, a subcontractor, etc.) are joint employers.  For those unfamiliar with Browning-Ferris , the joint employer tests, etc., this has been a somewhat hot button issue since the Browning-Ferris decision was issued in 2015.  In that decision, issue

I think I spent less time in the office this week than I have in any other week all year.  Hard to believe so many courts wanted to have hearings this late in the year...but perhaps it is a fitting way to end 2017.  With that being said, one of the more intriguing articles I came across dealt with service or assistance animals in the workplace.  While I cannot recall working in an office (or any work environment for that matter) with a service or assistance animal before, I think this is a topic that many employers will start to be confronted with over the coming years.  While the article below does not have a definitive answer for how employers should deal with this matter, it does provide some guidance and is a useful resource to consider. As always, below are a few articles that caught my eye this week. Will Service or Assistance Animals in the Workplace Become the Norm? File this one under a topic that I am on board with.  Patrick Dorian wrote an article last month that

For those readers who have been following this blog for a while, let us take a step back to 2015.  Back then, President Barack Obama was nearing the end of his second term.  The National Labor Relations Board ("NLRB") had a pro-employee/union tilt and employers were reeling from several decisions that had been issued.  One of those that was considered to be quite ground breaking was the NLRB's ambush election rule (aka "quickie" elections.)   That rule sped up the time frame in which a union election could occur by shortening the time between the filing of a certification petition and the commencement of an NLRB secret ballot election.  As a result, union elections could occur within 21 days of the filing of a certification petition which would limit the time in which employers could prepare for an election.  A common line of reasoning follows that with a shorter window between the filing of a certification petition and the actual election, the less time emp

Readers might remember that earlier this year, Maryland Governor Larry Hogan vetoed the Maryland Healthy Working Families Act which would have required businesses in the state with at least 15 employees to provide five paid sick days a year .  That legislation, supported by Democrats, met staunch resistance among business groups and Republicans.  Although Governor Hogan, a Republican, vetoed the bill and stalled the passage of paid leave, Democrats have not been deterred.  In fact, Democrats in the state have indicated that they intend to attempt to override the Governor's veto when the legislature reconvenes in January.  Assuming Democrats vote along party lines, they appear to have enough votes to override Governor Hogan's veto and make the Maryland Healthy Working Families Act a reality. Notwithstanding the (likely) override of Governor Hogan's veto by Democrats, late last month, the Governor announced a new piece of paid leave legislation, the Paid Leave Comprom

I came across quite a few articles this week in regard to minimum wage hikes/the future of minimum wage hikes in the country over the coming months.  Add in the fact that in the upcoming new year workers in several cities are soon to see a minimum wage increase, I think it is appropriate to dedicate one of the last ‘What I’ve Been Reading This Week’ posts for 2017 to this topic. As always, below are a couple articles that caught my eye this week.   Forget About That Wage Hike, Miami Beach Minimum Wage Workers As posted on the Tampa Bay Tribune website, this past Wednesday, an appeals court in Florida upheld a circuit judge's ruling and held that state preemption laws barred Miami Beach from setting its own minimum wage rate.  Last year, the Miami Beach City Commission passed an ordinance that would have raised minimum wage rates in the city to $10.31/hour in 2018 with wages going up $1/year to $13.31 on January 1, 2021.  However, the statewide hourly wage rate is only

Over the past year, I made note of a union election at Harvard by graduate students that sought to unionize .  After the election occurred, there were subsequent challenges made to several ballots cast as well as claims that Harvard prevented eligible students from participating in the election.  An objection was filed with the National Labor Relations Board ("NLRB") and in July, the NLRB's Regional Director called for a second election. Was that the end of things?  Of course not.  Harvard subsequently appealed to the NLRB and argued there should not be a second election to determine whether or not eligible students may unionize.  Last Wednesday, 75% of Harvard's Graduate Student Council voted in favor of a resolution urging Harvard to drop its NLRB appeal.  (A 2/3 majority vote of Harvard's Graduate Student Council was needed to pass the resolution.)  In short, the resolution argued that Harvard was attempting to change labor law via its appeal and that a

For many employers, this is the time of the year when office Christmas/Holiday/Winter/etc parties are held.  As would be the case any year, there are several key things for employers to keep in mind when planning the party in order to avoid (or at least minimize) potential issues that could arise.   This year is no exception, do in no small part to the increased attention that sexual harassment in the workplace has received as of late . While this post is not meant to serve as the definitive guide for employers to refer to on the topic (nor should it be construed as providing legal advice), it is meant to provide employers with a few things to keep in mind when planning these office get togethers. Prior to the Party, Review Anti-Harassment Policies With Employees A good rule of thumb is to review your company's anti-harassment policies with employees prior to the office party.  Do not have a policy in place?  Perhaps this is a good time to create

As with many employment and labor law related cases (and bills) being litigated around the country, there are always a few that stand out. This is one to keep an eye on. Last week, the House Education and Workforce Committee held a hearing to consider the Workflex in the 21st Century Act, a paid leave bill currently working its way through Congress.  The Committee, controlled by Republicans, have given proponents of this bill some hope that it will pass...as Republicans can choose what bills to send to Committee (and which bills to not, which often results in the bill dying.)  The bill, sponsored by Representative Mimi Walters (a Democrat from California) would exempt companies from state and local paid leave laws if these employers meet a minimum set of federal paid leave standards and flexible work requirements.  One executive that testified at the hearing, Barbara Brickmeier of IBM suggested that passage of this bill would gives businesses relief from local paid leave l

I come across minimum wage related articles routinely every week.  One of the questions that always runs through my mind when I read about minimum wage increases is whether employers actually comply with the new wage rates.  This week, The Chicago Tribune published a great article on that exact topic and the increased pressure on the City of Chicago to hold employers accountable that do not comply with the minimum wage ordinance previously passed for workers in the city.  That article is well worth a read. As always, below are a couple articles that caught my eye this week. Proposed Class Action Alleges Amazon Denied Workers Regular Breaks & Overtime Pay Recently, a proposed class action was filed in Sacramento County Superior Court in which the complaint alleged that workers at an Amazon shipping center were regularly denied breaks and overtime pay.  As Marissa Lang at The San Francisco Chronicle writes, the employee that filed the complaint asserted that he was regul

Marsteller v. Butterfield 8 Stamford LLC - United States District Court, District of Connecticut Facts :  Lauren Marsteller ("Marsteller") filed suit against Butterfield 8 Stamford LLC, Public House Investments LLC, John Gazzola, Douglas Newhook, and Ryan Slavin ("Defendants") and alleged unlawful sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 and Connecticut law, violation of the Fair Labor Standards Act and Connecticut Wage and Hour Act, intentional infliction of emotional distress, and common law privacy claims.  This suit brought by Marsteller arose out of claims that Newhook and Slavin (employees of the other defendants) sexually harassed her, watched her change clothes on a company security camera, and showed the video to other employees of defendants. In the course of litigation, Defendants sought access to Marsteller's social media accounts or in the alternative, copies of certain social media commu

Yesterday, the Department of Labor announced a proposed rule that would rescind an Obama era tip pool rule that prevented employers from redistributing servers' tips to back of the house employees.   Federal law has long held that employers cannot force employees to divide their tips with other employees if the tipped employees do not receive a base pay of at least the federal minimum wage.  The tip pool rule, in place since 2011, expanded this protection to all tipped workers and prevented employers from dividing tips and giving a cut to kitchen staff and others that do not directly receive tips.  Under the rule as enacted during President Barack Obama's administration, the tips were declared the property of the workers that collected them regardless of the base pay rate of the employee. Under the proposal from the Department of Labor announced yesterday, this rescission of tip pool rule would apply only to employees already making at least the federal minimum wag

Late last month, Raise Up Massachusetts announced that it collected enough signatures to get two measures on the ballot in 2018, one that would raise the hourly minimum wage rate in the state and another that would require employers to offer paid family and medical leave.  (Raise Up Massachusetts is a coalition of labor, religious, and community groups).  The minimum wage proposal seeks to raise the hourly minimum wage rate in the state from its current rate of $11/hour up to $15/hour by 2022.  The paid family and medical leave proposal would create a program that would require employers to offer most employees 16 weeks of paid leave to care for a new child or to care for a sick family member.  This proposal would also provide 26 weeks of leave for workers recovering from an illness. For those unfamiliar with the requirements to get a ballot measure approved, Massachusetts requires the signatures of 64,750 registered Massachusetts voters to get the measure on a ballot.  Raise U

One of the more interesting developments I came across this week was a development late yesterday in regard to the overtime rule and the most recent attempt by Democrats to get this back on track.  The "Restoring Overtime Pay Act" was announced yesterday by Democrats in an attempt to codify the original overtime rule proposed during President Barack Obama's administration.  While this is likely nothing short of a hope and a dream for the time being, as explained below, it has brought the overtime rule topic back into the forefront. As always, below are a couple articles that caught my eye this week. Restoring Overtime Pay Act Attempts to Codify Obama Administration's Overtime Rule Yesterday, Senators Sherrod Brown and Patty Murray (joined by Representatives Bobby Scott and Mark Takano) introduced legislation which seeks to codify the Obama Administration's proposed overtime rule which has stalled out in the courts.  The Restoring Overtime Pay Act woul

As always, there are some recent EEOC cases that jump out at me when I review developments on that front.  Below are a couple EEOC cases and settlements that stand out. American Airlines & Envoy To Pay $9.8 Million to Settle Disability Discrimination Claims Earlier this month, it was announced that Americans Airlines & Envoy would pay approximately $9.8 million (in stock) to settle disability discrimination claims that had been raised against the companies.  The allegations, in relevant part, alleged that the companies required all employees to not have any restrictions before returning to work from medical leave.  If an employee still had a restriction, they were not allowed to return to work as the companies apparently did not even provide an accommodation (nor even offer one).  This conduct violated the Americans with Disabilities Act (“ADA”) which prohibits an employer from discriminating against an employee because of a disability or refusing to offer a reasonable

EEOC v. Autozone - Seventh Circuit Court of Appeals Facts :  To make things concise, the Equal Employment Opportunity Commission ("EEOC") alleged that Autozone violated Title VII of the Civil Rights Act of 1964 when it transferred a Hispanic employee and an African American employee from one store to another in order to separate its workers at each store by race.  The EEOC alleged that Autozone was attempting to segregate its store employees by race and moving these two particular employees was done to accomplish that purpose.  A panel of the Seventh Circuit Court of Appeals ultimately found that no violation of Title VII had occurred in this instance.  The EEOC subsequently asked for an en bank rehearing of the panel's decision. Holding :  Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to "limit, segregate, or classify his employees...in any way which would deprive or tend to deprive any individual of employment opportunities

With a shorter week in the office this week because of Thanksgiving, I will keep this post shorter and to the point.  (Perhaps post Thanksgiving dinner, readers can peruse a few of these articles). As always, below are a couple articles that caught my eye this week. An Employee Gets Sick? It Is Probably Advisable to Have Them Stay Home If At All Possible We have all been there at one point:  You wake up in the morning and feel out of sorts.  Maybe it is constant sneezing or coughing, having the chills, running a temperature, etc.  Inevitably, the question arises whether you should tough it out and go into work.  As Daniel Victor at The New York Times advises, employers should encourage employees that are sick to stay at home until they get better.  Of course this is easier said than done for many employees.  Being out of the office/workplace means the work will back up, deadlines could be missed, conference calls will have to be re-set, etc.  However, the potential risk to

Huhmann v. Federal Express Corporation - Ninth Circuit Court of Appeals Facts :  Dale Huhmann ("Huhmann") was hired by Federal Express ("FedEx") in 2001 as a pilot.  (From 1985 until he retired in 2006, Huhmann was commissioned as an officer in the United States Air Force Reserve).  In early 2003, Huhmann was selected to begin training in a "wide-body" aircraft that would qualify him for a higher pay grade.  However, on February 7, 2003, he was mobilized for active Air Force duty and was deployed overseas until August 31, 2006. After completing his military service, Huhmann returned to active pay status with FedEx on December 1, 2006 and began training to become a first officer on the wide-body aircraft, as originally planned before he was deployed.  Huhmann did not fail any portion of his training or evaluation and was activated as capable of flying the wide-body aircraft on February 22, 2007. Note, Huhmann is a member of the bargaining un

I have wanted to dedicate a post to sexual harassment issues in the workplace for a few weeks, but first I wanted to find a few articles that covered a broad scope on the topic.  (Given the recent sexual harassment allegations made yesterday about a sitting Senator, I think this post is all the more timely.)  Starting with Daniel Schwartz's article on his prediction of a likely rise in sexual harassment claims (and settlements) all the way through how sexual harassment allegations are prevalent in not only conservative workplaces (such as Fox News) but also organized labor, no workplace is immune from sexual harassment allegations.  Employers take note, as many of the below articles imply, there is no sure fire way to avoid sexual harassment allegations in today's work environment.  Perhaps just as important, there is no "guaranteed" way to eliminate sexual harassment allegations either.  As Daniel Schwartz writes, it is quite possible we are on the cusp of a new w

Last Tuesday, the U.S. House of Representatives passed the Save Local Business Act by a 242 - 181 vote in favor of the legislation.  The legislation (H.R. 3441) would redefine the definition of "joint employer" under the National Labor Relations Act and the Fair Labor Standards Act and hold that a person or employer would be considered a joint employer only if it directly, actually, and immediately, and not in a limited manner exercised control over the seasonal terms and conditions of employment (such as hiring employees, discharging employees, determining individual rates of pay and benefits, day to day supervision of employees, assigning individual work schedules, positions, tasks, and administering employee discipline). Readers might recall that the National Labor Relations Board ("NLRB") issued a somewhat controversial decision in 2015, Browning-Ferris , which held that an employer can be considered a joint employer with a franchisee, staffing agency, s

Kaite v. Altoona Student Transportation, Inc. - United States District Court, Western District of Pennsylvania Facts :  Bonnie Kaite ("Kaite") began working as a school bus driver for Altoona in 2001.  In 2015, Altoona informed Kaite that in accordance with a newly enacted state law, Kaite would be required to undergo a background check to continue her employment.  The background check required Kaite to be fingerprinted.  Kaite, a devout Christian, told Altoona that according to her sincerely held religious beliefs, she believed the fingerprinting was the "mark of the devil" and if she were fingerprinted, she would not get into Heaven.  She subsequently asked for an accommodation such as a different type of background check that did not require her to be fingerprinted.  Kaite was subsequently informed there was no accommodation available and terminated her for failing to comply with the state's fingerprinting requirement.  However, at least one other emplo

Given the continued attention that Governor Bruce Rauner's veto has received in Illinois (regarding attempts by Democrats in the state to stymie right to work zones), I thought it would be appropriate to dedicate this post to that very topic.  Not only has there been a second attempt by Democrats to override the Governor's veto earlier this week, but there are developments nationwide in regard to other right to work laws (and a pending case before the United States Supreme Court). As always, below are a couple articles that caught my eye this week. Wisconsin Court of Appeals Upholds State's Right to Work Law A few months ago, readers might have recalled hearing that the Wisconsin Court of Appeals upheld the state's right to work law in the International Assoc. of Machinists District 10 and its Local Lodge 1061 v. State of Wisconsin case.  Ryan Wiesner at The National Law Review provides a good overview of the court's opinion and how this decision continu