The Majority Opinion: Legal Blog

Quite the week for several developments on the labor & employment law front.  With that being said, the seminal moment might have been the confirmation of Alexander Acosta as the next Labor Secretary.  For those readers who followed the struggle the original nominee for the position had, Acosta's relatively smooth confirmation process was likely a welcomed bit of good news by the Trump administration as the President approaches the end of his first hundred days in office.  As always, below are a couple articles that caught my eye this week. Senate Votes to Confirm Acosta as Next Labor Secretary As I mentioned above, late yesterday afternoon, the Senate voted to confirm President Donald Trump's nominee for Labor Secretary.  As expected, the vote fell mainly along party lines.  However, with Republicans having the necessary votes (a majority) to confirm Acosta without needing any Democrats, this nomination and confirmation were never really in serious doubt.  Sin

National Labor Relations Board v. Missouri Red Quarries, Inc. - Eighth Circuit Court of Appeals Facts :  Missouri Red Quarries, Inc. ("Missouri") operated a granite quarry in Ironton, Missouri.  Missouri is owned by Tom Oglesby ("Oglesby") who owns and oversees four other quarry operations.  As a result of not living in Ironton, Oglesby only visits the quarry about once a month.  Oglesby stays informed of events at the quarry by talking with Steve Johnston ("Johnston") for about ten minutes each week.  After an on-site supervisor left the Ironton quarry in June 2013, Oglesby implemented a decentralized system with four foremen and no named supervisors.  Johnston was named one of the foremen and took on administrative responsibilities.  (Approximately 90% of Johnston's time at work was spent performing typical bargaining-unit work and the remaining 10% was spent completing administrative tasks).  Employees at the quarry viewed Johnston as the he

North Carolina is a right to work state (and has been since 1947).  With that being said, Republicans in the state are seeking to add right to work to the Constitution via a voter referendum in November 2018.  In doing so, that would enshrine right to work in the state and make it much more difficult to overturn (compared to if right to work was not added to the North Carolina Constitution and a Democratic controlled Legislature could 'simply' pass a bill undoing right to work). Last week, the House Judiciary I Committee passed a bill along party lines, by a 6 - 5 vote, to allow for the voter referendum.  The bill is now on its way to the House Rules Committee.  With Republicans pushing this bill along, and appearing to have the necessary votes to approve the bill, this is certainly on the fast track.  However, Democrats in the Legislature have argued adding right to work to the Constitution is uneccesary with Democratic Representative Duane Hall going so far as to say

Vance v. Amazon.com, Inc. et al. - Sixth Circuit Court of Appeals Facts:  Tina and Aaron Vane (collectively referred to as "the Vances") worked at an Amazon.com warehouse fulfillment center in Kentucky.  Tina was an employee of Amazon and Aaron was a joint employee of Amazon and Kelly Services, a staffing agency.  Amazon tracked its workers hours with a time clock and had employees clock in at the beginning of a shift and clock out at the end of the workday.  However, before employees that had clocked out could leave, Amazon required them to go through a theft prevention security screening.  Employees went through a metal detector and security guards inspected bags and personal items.  If an employee set of the metal detector, a security guard would search them with a metal detecting wand.  Apparently, this screening took anywhere from 10 to 30 minutes.  The Vances were never paid overtime compensation for the time spent going through the security screening. The Vance

Every so often, I come across an article that turns the conversation on a particular topic on its head.  This was one of those weeks.  Dale Buss wrote an article earlier this week which makes a compelling case for why rising minimum wage rates across the country might actually be having unintended & unwanted consequences.  From depressed labor workforces in certain industries to a lack of a reduction in poverty among hourly workers, Buss makes a strong case for why rising minimum wage rates might actually be killing jobs and leading to higher costs that are passed onto consumers.  If you are going to read one article this week, this is the one to read. As always, below are a couple articles that caught my eye this week. A Sobering Look at the Realities of Rising Minimum Wage Rates Readers might recall minimum wage rates have been a hot button issue recently (well it has been for a while, but picked up during the past election cycle).  Dale Buss recently wrote an article f

On Monday, an age discrimination, hostile work environment, and retaliation lawsuit was filed against the Dallas Opera by a former horn player, William Scharnberg.  In the alleged facts, Scharnberg claims that after nearly 30 years playing for the Opera, he was terminated in May 2016 and replaced with a 'much' younger player in his 20's.  This came on the heels of a prior attempt following the 2014 - 2015 season by the Opera to terminate his employment on the grounds of his playing style (the facts do not go into specifics, but presumably the Opera believed his playing style fell off, was not in accordance with what was expected of a horn player, etc).  However, Scharnberg appealed that initial attempt to terminate his employment and a unanimous decision was reached to retain him.  However, Scharnberg was terminated in 2016 on the grounds of his playing style.  At the time of his termination, Scharnberg was 67. In the petition filed in Court on Monday, Scharnberg id

Linkletter v. Western & Southern Financial Group, Inc. - Sixth Circuit Court of Appeals Facts :  Gayle Linkletter ("Linkletter") signed an online petition in support of a Cincinnati's women's shelter after having accepted a position with Western & Southern Financial Group ("Western").  (Note, Linkletter had worked for Western before from 1997 through 2006.  This would have been Linkletter's second "stint" at Western).  Before Linkletter began her second work relationship with Western, the company rescinded its employment agreement with Linkletter apparently because she had signed the petition while Western was engaged in a "lengthy" real estate dispute with the women's shelter over its location in the neighborhood. Linkletter subsequently sued Western and claimed that in response to her support of the women's shelter and Western's decision to rescind her employment contract, the company had violated the F

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. Between its proposed minimum wage bills and this paid sick leave bill, Rhode Island has certainly been in the news as of late.  Last week, Rhode Island's Senate Labor Committee held a hearing on a proposed paid sick leave bill which would allow employees in the state to earn up to 56 hours (seven days) of paid sick leave and safe leave to care for themselves and their families (and to address domestic violence).   This bill, the Healthy and Safe Families and Workplaces Act, certainly appears to have momentum on its side with a majority of Democrats (89.5%) and Republicans (68.8%) in the state supporting paid sick leave.  In fact, Governor Gina Raimondo had stated earlier this year that paid sick leave was a top priority.  Whether that support will translate into the passage of this bill is no sure t

Contreras et al. v. Land Restoration LLC et al. - United States District Court for the Western District of Texas, Austin Division Facts :  Sergio Contreras and Alberto Sanchez ("Plaintiffs") brought suit on behalf of themselves and on all others similarly situated against Land Restoration LLC and Land Restoration Holdings LLC ("Defendants") on the grounds that Defendants violated the Fair Labor Standards Act ("FLSA").  The Plaintiffs alleged that Defendants, who run a residential and commercial landscaping business, violated the FLSA by failing to pay Plaintiffs overtime pay.  Plaintiffs alleged that even though complaints were made, Defendants ignored the complaints regarding compensation...an experience that was apparently typical of similarly situated laborers employed by Defendants. After suit was filed, Plaintiffs sought conditional certification as a collective action under the FLSA.  The Defendants subsequently opposed the Plaintiffs'

Book ending this week with a couple work trips to Dallas, so I have had a bit of extra time on the flights to read through some great articles.  I would highlight the lack of action on Alexander Acosta's nomination to become to next Labor Secretary.  However, with Congress not having voted on the nomination before they left for their two week break, there is little to discuss about that topic for the time being.  With that being said, an article that addressed how President Trump's 'infamous' tape is now part of the 21st Century Fox's HR training program was quite interesting (& perhaps timely for those in the HR field). As always, below are a couple articles that caught my eye this week. 21st Century Fox Utilizes President Trump's Tape in its HR Program Back in October, readers might recall a certain tape that leaked in which then presidential candidate Donald Trump made some off color comments in regard to women.  What was dubbed 'locker roo

Earlier this month, the Rhode Island House Labor Committee began to consider multiple minimum wage bills which would seek to raise the minimum wage rate in the state (with one bill proposing a $15/hour minimum wage rate by 2022).  For those unaware, the current hourly minimum wage rate in the state is $9.60/hour.  In order to streamline the bills and point out the differences, let me break down each proposed bill: H5057 - seeks to increase the minimum wage rate to $10.50/hour on July 1, 2017. H5595 - seeks to gradually increase the minimum wage rate to $15/hour by 2022. H5315 - seeks to raise the minimum wage rate for tipped workers by $.50/hour until the tipped minimum wage rate is equal to not less than 2/3 of the regular minimum wage rate. H5594 - seeks to establish a new minimum wage rate of $9.65/hour for employees under 20 years old. It is interesting to note that all the bills, except for H5594, have been introduced by Democrats.  With that being said, H5594, w

Richardson v. Northwest Christian University - United States District Court for the District of Oregon Eugene Division Facts :  Coty Richardson ("Richardson") worked for Northwest Christian University ("Northwest") as a professor of exercise science.  At Northwest, there was an expectation of its faculty to adhere to "Biblical Christianity".  In fact, Northwest only hired Christian faculty with an expectation that the faculty would integrate their Christian faith into their jobs.  Although Northwest did not have a written policy that addressed employees' sexual conduct, Northwest took the position that its policy requires faculty to live their lives in conformity with Biblical Christianity which includes a prohibition against [o]n going cohabitation and sexual relations outside of marriage."  In the Faculty Handbook, there was a provision that stated cause for termination would occur for professional incompetence, failure to meet performan

Last week, the Maryland General Assembly approved a bill that would require employers in the state with 15 or more full time employees to provide five days of paid sick leave to employees.  Businesses with less than 15 employees would be required to provide five unpaid sick and safe leave days.  Republican Governor Larry Hogan has dubbed the bill 'job killing' legislation and has stated he will veto it.  (As of this writing, the Governor has not taken any action on the bill).   The Governor and some Republicans have argued that this bill will hurt small businesses and should not be so broad.  In fact, the Governor had pushed a competing proposal that would have changed the threshold and only required that employers with 50 or more employees to provide paid sick leave (rather than employers with 15 or more employees).  However, this plan would have provided tax incentives for smaller employers who offered paid sick leave to their employees. Interesting to note that a

There have been quite a few developments in regard to right to work around the country over the past few weeks.  Whether it has been a further development in West Virginia, a proposed bill to turn Pennsylvania into the next right to work state, an attempt to block right to work in Missouri, or positive news out of Michigan about the impact of right to work in the state, there has been no shortage of news to follow.  I think it is a good time to take a break and look at what is going on with right to work issues around the country with an article dedicated to the topic. As always, below are a couple articles that caught my eye this week. West Virginia Senate Votes to Override Governor's Veto Readers might recall that West Virginia moved rather quickly to pass right to work legislation in the state which has since come under fire (with an injunction having been granted to halt implementation of the law for the time being).  The West Virginia Legislature subsequently pas

Yesterday, the full Seventh Circuit Court of Appeals held that LGBT employees are protected from workplace discrimination under Title VII of the Civil Rights Act of 1964.  ( Note, three judges on the Seventh Circuit who previously heard this case last year held that Title VII did not provide a cause of action for sexual orientation discrimination claims.  The full Seventh Circuit eventually heard arguments on the case and then issued this decision yesterday ).  The eight judges, who ruled in favor of the employee, expanded the scope of coverage that had traditionally been afforded to employees under Title VII.  Readers might recall that Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee based on their "race, color, religion, sex, or national origin."  However, Title VII does not explicitly define discrimination "based on sex".  Some courts have held that "sex" refers to only male or female, while

Let us call this a rather intriguing, if not potentially litigation likely, development out of Iowa.  Recently, the Iowa Senate gave final approval to House File 295 which would roll back minimum wage increases for many in the state.  Yes, roll back wages that have already gone into place. Under the bill, which was approved by a 29 - 21 vote in the Senate, local governments would be prohibited from raising hourly minimum wage rates above the state level.    Currently, the minimum wage rate in the state is set at $7.25/hour (which has not gone up in nearly a decade).  However, several counties in the state have approved higher minimum wage rates ranging from $10.10/hour to $10.75/hour.  In fact, one county approved a minimum wage hike to $8.20/hour the day after the Iowa Senate approved this measure. For those wondering, the bill had already passed the Iowa House.  With the Iowa Senate voting along party lines (with Republicans supporting the bill and all Democrats and one I