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: Applebee's Faces Sexual Harassment Claim Earlier this month, the EEOC filed a sexual harassment claim against Applebee's on the grounds that a male assistant manager created a sexually hostile work environment for two female employees and restaurant management, apparently aware of the alleged harassment, allowed the situation to exist.  According to the suit, the male assistant manager sexually harassed the two female employees, both sisters, for several months in 2014.  This alleged harassment is in violation of Title VII of the Civil Rights Act of 1964 which prohibits employers from allowing a sexually hostile work environment to exist in the workplace. $57,000.00 Settlement Reached on Sex Discrimination Claim A settlement was reached between the EEOC and an education company recently in

Valdivia v. Township High School District 214 - United States District Court, Northern District of Illinois, Eastern Division Facts :  Noemi Valdivia ("Valdivia") worked for Township High School District 214 ("Township") as a secretary at Elk Grove High School from May 2010 until June 2016.  Valdivia alleged that during her employment, co-workers "regularly made derogatory remarks about Hispanic students and their families" which increased in frequency around September 2014.  In fact, Valdivia was told by another secretary at one point not to speak Spanish at work because they were in America.  Valdivia complained about the comments to Elk Grove principal Paul Kelly ("Kelly") "several times in 2015" and to assistant principal Val Norris ("Norris") in November of 2015.  Kelly and Norris both told Valdivia that there was nothing they could do to address the comments because the secretaries' union was too strong. A

Readers might be aware that President Donald Trump has been in the news lately.  Well, to be fair, he has been in the news pretty much since he announced his candidacy for President in 2015.  This week, President Trump's announcement of his proposed paid parental leave plan grabbed headlines and certainly warrants leading off this post. As always, below are a couple articles that caught my eye this week. President Trump Introduces Proposed Paid Parental Leave Plan As NPR writes, President Trump's proposal to provide six weeks of paid parental leave for mothers and fathers is a (welcomed) change from his support of only a paid maternal leave plan while he was running for President.  Under his proposed budget plan introduced this week, President Trump would require employers to provide six weeks of paid parental leave to new mothers and fathers (as well as parents who have just adopted a child).  The paid parental leave plan, which is expected to cost up to $18.5 bi

Jackson v. J.R. Simplot Co. - Tenth Circuit Court of Appeals Facts :  Stacey Jackson ("Jackson") worked as an Operator for Simplot at a fertilizer plant.  Operators were required to be able to carry more than fifty pounds and could be exposed to industrial chemicals, dirt, dust, gases, fumes, and odors.  In late 2013, Jackson began fertility treatments.  She requested to be transferred to a less physically demanding job or have light duty status.  As a result of submitting a letter from her doctor imposing a lifting restriction, Simplot temporarily assigned Jackson to operate the switch engine or loader.  In this type of administrative position, these employees were also exposed to fumes, dust, and gases.  (Although at this particular plant, Simplot did not employ administrative assistants and had few office positions).   A few weeks later, Jackson learned she was pregnant.  Her supervisor told her he could no longer accommodate her lifting restriction and referred

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. Two bills are working their way through the California Legislature, AB 353 and AB 1477, which would allow private employers to establish a veterans' preference policy and grant a hiring preference to veteran applicants, regardless of when the veteran applicant served.  Currently, Section 12940(a)(4) of the Government Code only allows a veterans' preference policy for Vietnam era veterans.  Needless to say, the proposed expansion of the statute would allow private employers to grant a hiring preference to a much broader scope of veterans without risk of violating local or state equal employment opportunity laws.  Bear in mind though, this proposed expansion of the veterans' preference policy could not be applied for the purpose of discriminating against another applicant on the basis of any prot

Santillan v. USA Waste of California, Inc. - Ninth Circuit Court of Appeals Facts :  Gilberto Santillan ("Santillan") worked for USA Waste of California ("USA Waste") as a residential garbage truck driver in Manhattan Beach, California for 32 years starting in 1979.  Although Santillan was rarely disciplined during his tenure with USA Waste, this changed in January of 2009 when Steve Kobzoff ("Kobzoff") was assigned as Santillan's new route manager.  Between January of 2009 and July of 2010, Kobzoff disciplined Santillan six times.  In March of 2011, USA Waste's garbage collection contract with the City of Manhattan Beach came up for renewal and USA Waste and Manhattan Beach homeowners specifically highlighted Santillan's exemplary service to the community.  USA Waste's contract was subsequently renewed.   On December 5, 2011, USA Waste terminated Santillan for the first time.  USA Waste said the termination was because Santi

I spent a lot of hours on the road this week for work, so this will be a bit briefer of a "What I've Been Reading This Week" than I would prefer.  Although I had limited time to read articles this week (not to mention with other news dominating the headlines this week...), the article by Anne Yuengert on ways employers can attempt to minimize potential sexual harassment claims was one of the more relevant and practical articles I have read within the past week or two. As always, below are a couple articles that caught my eye this week. A Brief Primer on Sexual Harassment Claims & How To Minimize Exposure Let me preface this with a word of caution:  When I say this article provides a guide on how to minimize exposure for sexual harassment claims, I am not saying this is a secret book of how to sexually harass co-workers or subordinates and get away with it.  Instead, Anne Yuengert's article gives readers a brief overview of what constitutes sexual harass

National Labor Relations Board v. Pier Sixty, LLC - Second Circuit Court of Appeals Facts :  Pier Sixty operated a catering company in New York.  In early 2011, many of its service employees began seeking union representation.  Ultimately, Pier Sixty employees voted to unionize in an October 27, 2011 election.  Two days before the election was to occur, Hernan Perez ("Perez") was employed at a Pier Sixty venue as a server.  A supervisor, Robert McSweeney ("McSweeney"), gave Perez and two other servers various directions in what was described as a "harsh tone" which Perez viewed as the latest instance of management's continuing disrespect for employees.  About 45 minutes later during an authorized break, Perez used his phone to post a message on Facebook in which he called McSweeney a "NASTY MOTHER F*****", used similar language in regard to McSweeney's mother and family, called McSweeney a "LOSER", and ended the post with

Last week, the California Legislature effectively put the brakes on taking any action on AB 5, the Opportunity to Work Act, for the time being.  The bill, as currently written, would add Section 559 to the California Labor Code and require employers with 10 or more employees in the state to offer additional work hours to existing nonexempt employees before the employer could hire additional employees or temporary employees.  Perhaps one of the more important carve outs in the bill is the fact that employers would not be required to offer additional work hours to existing employees if those hours would result in overtime compensation being paid. This bill was expected to face criticism from employers and pro-business groups with many viewing AB 5 as a burdensome restriction on an employer's ability to freely hire employees at its discretion.  With the California Assembly Appropriations Committee deciding to turn AB 5 into a two year bill (in essence meaning AB 5 will not move

It has been quite some time since I have come across a good article (or case) on non competes.  However, an article from Bloomberg BNA was too good to pass up and well worth highlighting this week.  Although I would lead this post off with that note, I think the development out of West Virginia in regard to the passage of a medical marijuana law (and how it will impact employers) is a bit more timely. As always, below are a couple articles that caught my eye this week. Employers Take Note: West Virginia Passes Medical Marijuana Law Last month, West Virginia became the 29th state to adopt a medical marijuana law.  As Christina Stoneburner over at Fox Rothschild writes, this will certainly impact employers in the state...but perhaps not as much as some might think.  While the law prevents employers from taking an adverse employment action against an employee simply because that employee has a medical marijuana card, no employer is required to make an accommodation for use of

Rizo v. Yovino, et al - Ninth Circuit Court of Appeals Facts :  Aileen Rizo ("Rizo") was hired as a math consultant (a position which was considered 'management-level') for the public schools in Fresno County, California ("County").  The County used a salary schedule to determine the starting salaries of management-level employees.  The schedule consisted of twelve levels, with each level having progressive steps within it.  To determine the step within Level 1 on which a new employee would begin, the County considered the employee's most recent prior salary and placed that employee on the step that corresponds to his or her prior salary, increased by 5%.  After she discovered that the County was paying her less than her male counterparts for the same work, she brought a claim under the Equal Pay Act ("EPA"), Title VII of the Civil Rights Act of 1964, and the California Employment and Housing Act. The County moved for summary judgmen

Holmes v. University of the District of Columbia - United States District Court for the District of Columbia Facts :  Kashawna Holmes ("Holmes") worked for the University of the District of Columbia ("University") as a Program Coordinator in March of 2013.  Although her position was described as a "temporary sponsored program appointment" (with the position being contingent upon the availability of grant funding), it had been funded continuously for approximately 30 years.  In November of 2013, Holmes began working for a new supervisor, Elgoria Harrison ("Harrison"), and learned of her pregnancy two months later.  Upon learning of her pregnancy, doctors advised Holmes that her pregnancy was "high risk". Although Holmes intended to keep her pregnancy to herself, at a staff meeting in early 2014, Harrison pointed to Holmes's stomach and asked "Is there something you need to tell me?"  After Holmes confirmed the pr

Recently, Senators Bernie Sanders (an Independent who traditionally will caucus with Democrats) and Patty Murray (a Democrat) introduced legislation in the United States Senate to raise the federal minimum wage rate to $15/hour.  Readers might recall that senator Sanders introduced similar legislation back in 2015.  However, that bill failed to garner much support (let alone enough support to make it a realistic possibility that the bill would actually pass). With that being said, the bill introduced last week has the initial support of nearly two dozen Senators and has garnered a great deal of media attention (due in large part to Senator Sanders having an elevated profile and 'rock star' status among the Democratic base after his run for President).   The bill proposes to raise the federal minimum wage rate from the current hourly rate of $7.25/hour to $9.25/hour this July, to $12/hour by 2020, and finally to $15/hour by 2024.  From that point forward, the hourly fede

I unfortunately had a rather busy week in the office and little spare time to read through articles.  Although the article on the NLRB Chairman was well worth a read (and a good follow up on my recent post about the topic) & one that I think readers would find to be quite insightful. As always, below are a couple articles that caught my eye this week. EEOC Brings Suit After Alleged Unlawful Ebola Virus Termination Recently, the Equal Employment Opportunity Commission ('EEOC') brought suit against the owner of a Massage Envy franchise location after he terminated an employee out of fear that she would bring back the Ebola virus after she went to Ghana to visit her sister.  Apparently, the employee was given the choice to either cancel her trip or face termination.  When the employee refused to cancel her trip, she was apparently subsequently terminated, in violation of the Americans with Disabilities Act.  I have to say, this is quite an interesting case and on

Daniel v. T&M Protection Resources LLC - Second Circuit Court of Appeals Facts :  Otis Daniel ("Daniel") filed a hostile work environment claim and alleged a violation of Title VII of the Civil Rights Act of 1964 against his employer, T&M Protection Resources, LLC ("T&M").  Daniel claimed his supervisor discriminated against him because of his race, sex, and national origin.  The District Court granted summary judgment in favor of T&M and Daniel appealed. Holding :  ( Note, this case analysis only analyzes the hostile work environment portion of Daniel's appeal ).  The Court of Appeals pointed out that in order for a plaintiff to proceed on a hostile work environment claim, it must be shown:  1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of that employee's work environment and 2) that a specific basis exists for imputing the conduct that created

Yesterday, the House of Representatives passed the Working Families Flexibility Act by a 229 - 197 vote, mainly along party lines.  Under this bill, employees in the private sector who work more than 40 hours in a week would have the choice of either getting paid time and a half pay (per hour) for overtime hours worked or receive time and a half compensation time (per hour) for overtime hours worked.  This bill is not necessarily a new concept as it takes a provision offered to federal workers (since 1985) and extends it to hourly workers in the private sector. According to the language of this bill, employers would have to opt in to implement this 'either/or' policy.  Note, however, that the choice of whether to receive overtime pay or comp time would be solely the decision of that particular employee.  If the employee chose comp time but decided later on that they would rather receive overtime pay, they could choose to 'cash out' and the employer would be req

Dawson v. National Collegiate Athletic Association - United States District Court, Northern District of California Facts :  Lamar Dawson ("Dawson") played college football for the University of Southern California ("USC") from 2011 to 2015.  He subsequently filed a putative class action claim, based upon violations of the Fair Labor Standards Act ("FLSA") and the California Labor Code, against the National Collegiate Athletic Association ("NCAA") and the Pac-12 Conference ("Pac-12") on the grounds that he was denied full pay for all hours worked (playing football), including overtime pay, and was frequently permitted to work without receiving required minimum wage payments.  Dawson also alleged that the NCAA and Pac-12 were joint employers of student athletes because the rules governing student athletes who play football are set by the NCAA and then adopted by the Pac-12.  Dawson's putative class sought to include student at