The Majority Opinion: Legal Blog

Excuse the brevity of this post, but I am wrapping up breakfast at Whole Foods this morning before heading into a mediation.  Thankfully I have had less time on the road for work the past few weeks so I have been able to read through more articles than normal.  Perhaps one of the more interesting articles had to do with a proposed 'answer' for why wages in the fast food industry have long since stagnated.  While there is likely no definitive answer as to why wages in this industry have, for the most part, failed to take off, this New York Times article gives some thought provoking insight. As always, below are a couple articles that caught my eye this week. Is a Little Known Clause in Fast Food Franchise Agreements Keeping Wages Down? Rachel Abrams at The New York Times wrote an article this past Wednesday that shed some light on why hourly wages in the fast food industry have failed to take off (as much as some would like.). There is apparently a clause in

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: EEOC Charges Pizza Studio Restaurant Violated the Equal Pay Act A Delaware company that operated a Pizza Studio restaurant in Kansas City, Kansas has been charged with violating the Equal Pay Act by withdrawing job offers to two teens after the women complained they were being offered less pay than their male counterparts.  Under the Equal Pay Act of 1963, employers are prohibited from paying women and men unequally and retaliating against those who complain or support a claim of unequal pay.  Readers might recall that equal pay was a hot topic during the presidential election a year ago.  While some of that chatter has died down in recent months, as evidenced by this lawsuit, it is still a major factor in workplaces across the country.  Wynn Las Vegas Faces Disability Discrimination Suit The EEO

At the start of this week, the U.S. Senate confirmed President Donald Trump's second nominee to the National Labor Relations Board by a 49 - 47 vote in favor of confirmation, in spite of opposition from Democratic Senators.  The nominee, William Emanuel, was expected to be confirmed as Republicans hold a majority in Congress.  ( Readers might recall that President Trump's first nominee, Marvin Kaplan, was confirmed by a 50 - 48 vote earlier this year. ) Once Emanuel is sworn in, he will become part of a three member Republican majority on the NLRB.  The current Chairman of the NLRB, Philip Miscamarra, is expected to step down after his term expires this December.  However, Republicans are not expected to lose majority control of the NLRB as President Trump would again have the opportunity to appoint another member to the Board (and also select a new Chairman.) With Republicans having majority control of the Board for the first time in nearly ten years (and a host of

Carle v. Red Threat Spaces, LLC - United States District Court, District of Connecticut Facts :  Robert Carle ("Carle") worked as an installation foreman for Red Thread Spaces, LLC ("Red").  Given his position, he was prohibited from using marijuana by Red's Anti-Drug and Alcohol Misuse Policy and was subject to random urinalysis drug testing.  Under Red's policy, an employee that tested positive for drug use or alcohol misuse would be immediately suspended without pay and evaluated by a Substance Abuse Professional.  The Substance Abuse Professional would then recommend a course of substance abuse treatment fort the employee.  If the employee completed that treatment, they would be eligible for ultimately returning to their position at Red.  However, if an employee refuses to take a required drug test, they will subject to possible termination. Carle, who used marijuana on an almost daily basis, was subjected to a random drug test on November 6,

Williams v. The Bethel Springvale Nursing Home - United States District Court, Southern District of New York Facts :  Nicola Williams ("Williams") was employed by the Bethel Springvale Nursing Home ("Bethvale")  as a nurse.  Williams filed a collective action against Bethvale on the grounds that she (and other nurses) were subjected to working conditions in violation of the Fair Labor Standards Act ("FLSA").  Specifically, Williams alleged that she (and other nurses) were required to work overtime or through lunch breaks without being paid for the time worked.  Bethel apparently required all nurses that worked overtime to have overtime approval forms signed at the end of the given pay period.  However, supervisors at Bethel allegedly refused to sign the forms even when the nurses worked beyond their scheduled shifts and through meal breaks. Bethel subsequently moved for summary judgment. Holding :  In the case of motions for summary judgment

I came across a couple articles this week (namely on union and labor law related issues) that serve as somewhat of an update to prior posts.  While I could highlight several articles on other topics, I think it is appropriate to dedicate this post to the recent decision of a union president to run for governor of Iowa as well the continued efforts of Columbia University graduate students to have the University bargain with their union. As always, below are a couple articles that caught my eye this week. SEIU Local President Formally Announces Run For Iowa Governor Readers might recall that earlier this year, SEIU Local 199 President Cathy Glasson announced that she was "exploring" a run for Governor .  On Tuesday, she made it official and formally announced she was running for Governor of Iowa in 2018.  She has based her campaign in part upon a pledge to raise minimum wage rates in the state to $15/hour and expand union rights.  Currently there are six other Democ

Stewart v. Belhaven University - United States District Court, Southern District of Mississippi, Northern Division Facts :  Erica Stewart ("Stewart") sought a job in the Online Admissions Department of Belhaven University ("Belhaven").  She knew the director of that office, Tarold Durham ("Durham") through "social channels".  Durham apparently led Stewart to believe there would be a vacancy at his department.  Stewart and Durham proceeded to exchange a series of sexually explicit text messages and photos.  Durham indicated he wanted sexual favors in exchange for a job offer while Stewart kept up a flirtatious banter to try and get the job.   When the job offer failed to materialize, Stewart filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") and subsequently filed suit against Belhaven and Durham and asserted claims under Title VII of the Civil Rights Act of 1964 and Mississippi state law. 

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. Senate Bill 63 (often derided as a "job killer" bill) which would provide 12 weeks of unpaid maternity and paternity leave, is on its way to California Governor Jerry Brown's desk for signature.   Currently, businesses in the state that employ at least 50 workers are required to provide unpaid maternity and paternity leave.  State Senator Hannah-Beth Jenkins introduced a bill last year which would have required business with at least 20 workers to provide 6 weeks of unpaid protected leave.  After that bill cleared the State Legislature, Governor Brown vetoed it.  Not to be undone, Senator Jenkins came back to the table with Senate Bill 63 (which as noted, doubled the required unpaid leave that would be required of employers). Last Tuesday, the Assembly floor voted 51 - 15 in favor o

Tomorrow, the Ninth Circuit Court of Appeals is set to hold oral arguments as to whether Uber drivers were misclassified as independent contractors and therefore whether the company is in violation of the California Labor Code by not reimbursing the drivers for certain expenses.  (At present, the Court has certified a class to pursue the reimbursement claim and the tip claim in regard to whether Uber improperly failed to pass along tips to its drivers).  Uber has continued to argue that because it exercised minimal control over how drivers set their own work hours and schedules, its drivers cannot be considered employees (and therefore no violation of the California Labor Code occurred). About a year ago, a settlement had been agreed upon that would have resulted in a $100 million settlement (and resolution of the case), however a judge in the Northern District of California rejected that deal on the grounds that it favored Uber and did not decide how to classify its drivers.

It has been several weeks since I dedicated a post to a particular topic, let alone labor law.  However, having read a good article on Canada's recent attempts to get the U.S. to do away with right to work (which I find somewhat amusing), I think it is appropriate to focus on labor law developments this week. As always, below are a couple articles that caught my eye this week. In NAFTA Talks, Canada Pushes U.S. to Ban Right to Work Laws Sean Higgins at The Washington Examiner wrote a recent article on how Canada is attempting to get the U.S. to pass a federal law which would ban states from having right to work laws.  The reason Canada has made this request?  Apparently right to work laws put Canadian businesses at too much of an economic disadvantage.  (At present, 28 states have right to work laws in place which stipulate that workers cannot be forced to join or support a union as a condition of employment.)  Perhaps unsurprisingly, the U.S. is opposed to this reques

Owens v. Old Wisconsin Sausage Company, Inc. - Seventh Circuit Court of Appeals Facts :  Jamie Owens ("Owens") worked as the manager of Old Wisconsin Sausage Company, Inc.'s ("Old Wisconsin") HR department from June 2011 until April 2012.  At the time of her hiring, Owens was told by the HR manager she was replacing, Jeff Thiel ("Thiel"), that Old Wisconsin tended to be a "boys club".  Thiel indicated that Old Wisconsin hired Owens because she was female and that he Vice President of HR thought bringing in a female would help evolve the culture of the company. While Owens worked as an HR manager, Matt Kobussen ("Kobussen") applied for an open position at the company as a retail store supervisor.  (Kobussen had applied for a position at Lakeside Foods when Owens was the HR manager there.)  Owens was involved in the first interview Kobussen had at Old Wisconsin but did not disclose the relationship they had nor the fact that

Moody v. Atlantic City Board of Education - Third Circuit Court of Appeals Facts :  Michelle Moody ("Moody") was hired by the Atlantic City Board of Education ("Board") in November of 2011 to work as a substitute custodian.  After not receiving a lot of work hours, Moody was told to talk to the custodial foremen at various schools in the district.  At one of the schools, the custodial foreman, Maurice Marshall ("Marshall"), started assigning Moody regular work.  (The Board acknowledged that when Moody was working at Marshall's school, Marshall was acting in a supervisory capacity.)  Moody claims that beginning around October of 2012, Marshall began making sexual comments and advances toward her via text and in person.  After Moody rebuked Marshall's advances, she still continued to receive assignments at his school.  However, Moody claims that a new female substitute custodian started to receive work hours instead of her. In February of

I intentionally do not focus on employment and labor law matters outside of the U.S. for the simple reason that although many developments in other countries are often quite intriguing, they more often than not do not have much applicability to developments here in the U.S.  With that being said, a week or so ago I highlighted the labor reforms that French President Emmanuel Macron is attempting to implement .  And now this week, we have a development out of Europe in regard to e-mail privacy of employees in the workplace.  At this rate, international employment and labor law developments might just deserve their own dedicated post... As always, below are a couple articles that caught my eye this week. Are You a Worker in Europe? If So, Your Employer Is Now Required to Notify You If They Monitor Your E-mail This past Tuesday, the Grand Chamber of the European Court of Human Rights issued a decision in which it held that companies in Europe can monitor their employees' e

As many readers are likely aware , during the Obama administration, a new overtime rule was introduced which would have resulted in massive increases in salary for many workers across the country.  Under the proposed regulation, it would have required employers to pay overtime to workers that earned less than $47,476.00 per year (up from the current "cut off" of $23,660.00 per year).  Critics of this proposed increased argued it would decimate the labor market, result in an increase in costs passed on to consumers, and place a tremendous burden on employers. Shortly before the overtime rule was set to take place (on December 1, 2016) a preliminary injunction was issued by a Federal Court Judge in November of last year which put the overtime rule on hold.  (Interesting to note that the Judge, Amos Mazzant, had been appointed by President Obama).  After President Donald Trump took office, the Department of Labor appeared willing to back away from defending the overtime

Ag Spectrum Company v. Vaughn Elder - Eighth Circuit Court of Appeals Facts :  Vaughn Elder ("Elder") became a sales representative for Ag Spectrum ("Ag"), an Iowa business selling fertilizer, nutrients, and crop-management services, in 2000.  In 2005, Elder stopped working as an Ag employee and became an Ag "Area Manger."  In doing so, he formalized an Agreement with Ag in which he agreed to only sell Ag product in exchange for a 1% loyalty payment every five years.  The Agreement further provided he was not an employee for tax purposes, "engaged in [his] own independent business" and thus prohibited from participating in an Ag employee benefit plan, would not be covered by Ag's workers' compensation policy, and would not compete with Ag by marketing to, selling to, or consulting with Ag's customers about similar products for three years following termination of the Agreement. During the scope of his work, Elder sold Ag pro

Every so often I come across an interesting ERISA case or compelling article on the topic.  This week, I read a thorough case analysis of a recent ERISA case out of the Seventh Circuit Court of Appeals that dealt with a venue selection clause.  While ERISA might not be an everyday matter that readers deal with in the workplace, I highlight this article to give readers a broad overview of a wide range of employment and labor law topics. As always, below are a couple articles that caught my eye this week. Consistency Is Key With Restrictive Covenants in Employment Agreements Consistency, consistency, consistency.  If there is one takeaway from Melissa Dunn's article about employers attempting to utilize and enforce restrictive covenants, this is the message to key in on.  I point readers in particular to the "lessons for employers" provided at the end.  However, note that while consistency (in terms of enforcement) is vital, Melissa is careful to differentiate an