The Majority Opinion: Legal Blog

Yesterday was one of the more noteworthy days in recent memory, in regard to employment and labor law related matters.  With the announcement of H.R. 3441, Congress will consider whether to amend the National Labor Relations Act and the Fair Labor Standards Act to establish that an employer will be liable for workplace conditions at another business only if the employer exercised 'direct control' over those conditions.  Readers might recall that a 2015 National Labor Relations Board ('NLRB') decision, Browning-Ferris , expanded the scope of joint employment and held that 'indirect control' was sufficient to establish a joint employer relationship (and thus liability for the employer).  Given the potential ramifications that the passage of this bill could produce (or the continued struggle and uncertainty for employers if this bill does not pass), I wanted to highlight a few articles on the matter. As always, below are a couple articles that caught my eye

A few years ago, the National Labor Relations Board ("NLRB") issued a decision in which it made it easier to hold employers jointly liable for workplace violations committed by their franchisees or contractors.  That decision, Browning-Ferris , dealt with a company that was held to be responsible for the treatment of its employees from a staffing agency (as the company was deemed to have control over wage and working conditions of these temp employees).  In doing so, the definition of "joint employer" was refined to allow for an employee to be considered an employee of both a temp agency and a company where they had been placed, despite the fact that the employee's supervisors lacked the traditional requisite degree of control over the employee.  This expanded, "indirect control" standard to establish joint liability has become a thorn in the side of many employers and pro-business groups around the country ever since the NLRB issued its decision.

Hanson Cold Storage Co. of Indiana d/b/a Hanson Logistics v. NLRB - Seventh Circuit Court of Appeals Facts :  Hanson Logistics ("Hanson") provides public-refrigerated warehousing and transportation services in the Midwest.  On February 4, 2016, the International Brotherhood of Teamsters Union Local No. 142 ("Local 142") filed a petition to be exclusive collective bargaining representative for a subset of Hanson's employees.  On February 29, 2016, the National Labor Relations Board ("Board") conducted an election to determine whether Local 142 would represent the group of employees.  The ballots instructed each voting employee to "mark an 'X' in the square of your choice." Thirty seven employees cast a ballot in the election that day.  Hanson and Local 142 did not dispute thirty five of the ballots (with eighteen cast in favor of Local 142's representation and seventeen cast against it).  At issue were two ballots:  Han

This past Friday, New Jersey Governor Chris Christie issued a conditional veto of a bill that would have expanded paid leave for many employees in the state.  In short, paid leave of up to 6 weeks is currently available to employees in the state who work for companies with at least 50 employees. The bill, A4927, would have increased the eligibility period for family leave to 12 weeks and raised the cap on the reimbursement an applicant could receive.  As well, the bill would have added siblings, grandparents, and parents-in-law as covered caregivers that would have been eligible to take the benefits.  In addition, paid leave would have been made available to employees who worked for companies with at least 20 employees. In his explanation for the veto, Governor Christie stated that bill would have resulted in increased taxes paid by employees in the state.  (Currently, New Jersey's paid family leave plan is funded by employees via a small payroll deduction of up to $33.

Although we are more than half way through the summer, The Economist published an article earlier this month which examined the decline of summer jobs available to teenagers.  Without providing a clear cut answer as to why less than half of the country's teenagers were employed last July (and I do not think there is a simple answer to this downturn in jobs), the article does provide an interesting analysis to address the topic. As always, below are a couple articles that caught my eye this week. NLRB Nominations Advance to Full Senate Vote On Wednesday, the Senate Health, Education, Labor, and Pensions Committee voted to confirm President Donald Trump's two nominees to the National Labor Relations Board .  Both nominees, William Emanuel and Marvin Kaplan, were confirmed by a 12 - 11 vote along party lines in the Committee.  As expected, upon confirmation by the Committee, the nominees now move to the full Senate.  There is no set timetable on when the Senate will vo

After last week's hearing before the Senate Health, Education, Labor, and Pensions ('HELP') Committee, President Donald Trump's two nominees to fill vacant seats on the National Labor Relations Board ('NLRB') are expected to be confirmed by the Republican controlled HELP Committee today.  (Readers might have heard that the nominees, William Emanuel and Marvin Kaplan, had relatively uneventful confirmation hearings last week...much to the chagrin of Democrats and union leaders).  Upon confirmation from the members of the HELP Committee, the nominations would then be sent to the full Senate for a final confirmation vote.  With a Republican controlled Senate, I think it is highly likely that both of President Trump's nominees will be confirmed.   Assuming this confirmation occurs without any hiccups, the NLRB would take on a more conservative tilt with Republicans having a 3 - 2 majority on the five member Board.  It is expected that once that happens,

EEOC v. AutoZone, Inc. - Sixth Circuit Court of Appeals Facts :  In May 2012, Gustavus Townsel ("Townsel") was transferred to an AutoZone store and made store manager.  Townsel could hire new hourly employees and write employees up for misbehaving but could not fire, demote, promote, or transfer employees.  Authority over firing, promotion, and transferring rested solely with Ira Graham ("Graham") the district manager. From August 2012 until November 2012 when Townsel was transferred to another store, several employees accused him of sexual harassment.  Specifically, LaKindal Smith ("Smith") alleged that Townsel made lewd and obscene sexual comments to her, among other sexually charged misconduct.  Smith talked with a co-worker, Robyn McEuen ("McEuen"), about Townsel's conduct.  McEuen said that when she had been subjected to similar alleged conduct by Townsel, she just brushed it off.  Another employee, Cherrelle Green (nee Willet

EEOC v. United Parcel Service, Inc. - Sixth Circuit Court of Appeals Facts :  Sinisa Matovski ("Matovski"), a disabled operations manager for United Parcel Service ("UPS"), filed an EEOC charge and claimed that UPS discriminated against him in violation of the Americans with Disabilities Act ("ADA") by publishing confidential medical information about him and other employees on its intranet page.  During the EEOC investigation, it issued a subpoena and requested information from UPS about how it stored and disclosed all employee medical information.  In relevant part, two broad groups of documents sought included:  1) UPS's internal injury and accident report from 2013 - 2015; and 2) UPS's "privacy case" criteria and all documents in regard to its implementation and creation. UPS opposed the subpoena and sought to have it modified on the grounds that the information sought was irrelevant to the specific charge brought by Matovs

The past week or so has certainly proven to be an eventful time in Washington (the state, not D.C.).  In between news of the passage of a paid leave bill along with the Washington Supreme Court holding no strict liability exists for a missed employee meal break , there has certainly been a lot to talk about.  Given the tenor on both sides of the aisle over paid leave as of late , I think it is appropriate to highlight a few articles on both paid leave and sick leave in able for readers to get a better grasp on where things stand nationwide on the matter. As always, below are a couple articles that caught my eye this week. A Possible Benefit of Offering Paid Leave? Employers Could Fill More Jobs Jessica Smith wrote an article on Wednesday in which she proposed the idea that if employers offered paid leave, they would in turn fill more open positions.  Of course it is not a stretch to think that the better the compensation package that is offered by employers, the more

Yesterday, the Seventh Circuit Court of Appeals upheld Wisconsin's right to work law, marking a major victory for Republican Governor Scott Walker and pro business groups in the state.  The law, originally approved in 2015, ended the ability for unions to establish labor contracts that required all employees in certain jobs to pay union fees even when those employees did not belong to the union.   Two local affiliates of the International Union of Operating Engineers (IUOE) sued over the legality of the law on the grounds that it violated federal labor laws and a portion of the Fifth Amendment (arguing that the right to work law prevented unions from collecting payment for services they were legally required to provide to non-union employees). In September of 2016, U.S. District Judge J.P. Stadtmueller upheld Wisconsin's law on the grounds that it was similar to Indiana's lawful right to work law and therefore not in violation of federal labor law or the Constitu

Brady v. Autozone Stores, Inc. - Washington Supreme Court Facts :  Michael Brady ("Brady") filed suit and sought unpaid wages for meal breaks that Autozone, his employer, allegedly withheld from employees.  After the case was removed to federal court, the district court held that employers have met their obligation under Washington law if they ensure employees have the opportunity for a meaningful meal break, free from coercion or any other impediment.  Consequently, the district court held that Washington had not adopted a strict liability approach to the taking of meal breaks and therefore class certification would be improper given the unique fact scenarios associated with each potential violation of Washington's meal break statute. Brady subsequently sought to certify two questions to the Washington Supreme Court:  1) Is an employer strictly liable under Washington's meal break statute?; and 2) If an employer is not strictly liable under this statute, d

With the 4th of July holiday this week, I would like to say I spent half the week on a beach or poolside with a drink in hand.  However, a few things at work kept me tied up and required me to be in the office a majority of the week.  However, during a few lunch breaks, I found time to read a couple good articles, in particular one that addresses the sexual harassment workplace issues continuing to face Fox.  The article from The Los Angeles Times gives a good context to the matter (and perhaps should give employers a reason to examine their own workplace culture to limit similar issues). As always, below are a couple articles that caught my eye this week. Fox Terminates Its Head of Sports Programming Over Sexual Harassment Allegations Recently, Fox terminated its head of sports programming, Jamie Horowitz, after initial investigations had been launched over allegations of sexual harassment in the company's sports division.  Horowitz, who had been a major player in the

Yesterday, Washington Governor Jay Inslee signed a bill into law which makes Washington the fifth state to guarantee paid family leave.  Beginning in 2020, the bill offers eligible employees 12 weeks of paid time off for the birth or adoption of a child or for the serious medical condition of the worker or the worker's family member.  Taking it one step further, the bill allows for 16 weeks of paid time off for a combination of both.  In addition, eligible employees may use an additional 2 weeks if there is a serious health condition with a pregnancy. Of course, there are some details that employers and employees in the state should note.  Employees must work at least 820 hours before they qualify for the paid leave.  In addition, both employers and employees will pay into the system (to help fund the paid leave) and weekly benefits will be calculated based upon a percentage of the employee's wages and the state's weekly average wage (currently at $1,082.00).  Howeve

Recently, a situation came across my desk in which an employee threatened violence in the workplace.  Now every situation or threat is different and not necessarily handled the same way (as any good HR representative would tell you).  While this resource is not the definitive guideline on the topic and not intended to serve as legal advice (those experiencing a similar situation should consult their own HR representative and/or employment law attorney for guidance), it provides a framework that can be referred to when needed. A Threat of Violence is Made in the Workplace So with that out of the way, let us address the matter head on.  An employee threatens violence in the workplace (whether it be assault, battery, homicide, etc.).  The question then arises:  What should I, as the employer, do when an employee threatens violence in the workplace?  As the Department of Labor notes, violence or threats of violence in the workplace are unacceptable behavior.  As a result, esta