The Majority Opinion: Legal Blog

Of all the years that I have been writing this blog, this year’s readership was head and shoulders above any prior year by far.  I suppose that should not be much of a surprise, given the wide range of labor law developments over the past twelve months including the United States Supreme Court issuing the much anticipated decision in Janus v. AFSCME , the NLRB vacating the Browning-Ferris joint employer decision and its subsequent move to formally codify the Hy-Brand joint employer standard , Missouri voters rejecting the state's right to work law with nearly 68% voting against it , the Seventh Circuit issuing an opinion in September that struck down right to work zones in Illinois , the Fifth Circuit issuing an opinion in the summer that held that In-N-Out Burger cannot prevent employees from wearing "Fight for $15" buttons on their uniforms , the Department of Labor ("DOL") implementing an 'amnesty' program for employers to pay back wages to empl

As always, there are some 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. Cato Corporation Pays $3.5 Million to Settle Systemic Investigation The EEOC announced that the Cato Corporation will pay $3.5 million and update it’s reasonable accommodation policies for disabled or pregnant employees in order to resolve a nationwide, systemic investigation launched by the EEOC.  The investigation found that the Cato Corporation denied reasonable accommodations to certain pregnant employees or those with disabilities, made certain employees take unpaid leaves of absence, and/or terminated them because of their disabilities.  Failing to accommodate pregnant employees can place an employer in violation of Title VII of the Civil Rights Act of 1964.  As for denying disabled employees job modifications, leaves of absence, or a return to work, this conduct can have employers run afoul of the Americans wi

Brumley v. United Parcel Service, Inc . - Sixth Circuit Court of Appeals Facts :  Melissa Brumley (“Brumley”) worked at United Parcel Service (“UPS”) as a sorter.  This role involved taking small packages (weighing about 10 pound or less) from a conveyor belt and placing them in various slots depending upon their final destination.  Sorters were then required to bundle the packages into a bag and place them on trucks.  These bags could weigh up to 70 pounds, although Brumley acknowledged that she never lifted any 70 pound bags.  Brumley also served as a temporary driver on occasion to cover for sick or vacationing full time drivers.  This role required Brumley to potentially lift packages weighing up to 70 pounds.  Brumley stated that as a temporary driver, she had lifted 70 packages. In December of 2015 while on a delivery route, Brumley injured her back while unloading packages from a truck and received workers’ compensation benefits.  In January of 2016, Brumley assumed a

Readers will recall that the President Barack Obama era National Labor Relations Board (“NLRB”) turned things upside down when a decision was issued in Browning-Ferris which established that a company could be held to be a joint employer (of a contractor or another business) if the company exerted direct or indirect control over the terms of the worker’s job.  This changed the ‘traditional’ joint employer standard which stipulated that direct and immediate control was required for joint employer liability to exist.  Since the Browning-Ferris decision, which allowed for indirect control to also be an avenue to establish joint employer liability, employers and business groups began to urge the NLRB to revert the joint employer standard to its traditional form, prior to Browning-Ferris . After several false starts, including the Hy-Brand Industrial Contractors, Ltd.  decision which was vacated due to ethical concerns over the involvement of NLRB Board Member Emanuel in the Hy-

Closing in on the end of the year has me rushing to tie up some loose ends in the office and get a few things off my desk before the start of the new year.  Before I post next week’s ‘What I’ve Been Reading This Week’ post in which I will highlight some of the more popular/noteworthy topics from 2018, I think it is appropriate to first take the time to note a few articles this week that readers would enjoy reading through. As always, below are a couple articles that caught my eye this week. In A Tight Labor Market, Some Employers Are Offering Additional Benefits to Retain (& Attract) Employees Let us call this article from RestaurantDive  one of the best articles I have come across in recent weeks.  Many employers have likely noticed that the labor market has gotten rather tight in some industries, especially in hourly wage positions such as the fast food industry.  The issue that has started to confront many employers is how to retain (& attract) employees as the

While a threatened federal government shutdown has garnered a lot of attention lately, Utah Senator Mike Lee’s opposition to an Equal Employment Opportunity Commission (“EEOC”) nominee, Chai Feldblum (Feldblum”), threatens to throw the EEOC into chaos by the start of next year. Feldblum, currently one of five EEOC Commissioners, has a term that ends at 11:59 PM on December 31st.  President Donald Trump has nominated her for another term, after she was nominated by President Barack Obama and confirmed by the Senate in 2010.  (The party that holds the presidency nominates three EEOC Commissioners, the minority party nominates the other two.  In this case, Democrats chose Feldblum to again serve another term and President Trump put her up for nomination before the Senate.  This is common, notwithstanding political climate in Washington, DC as of late).  The Senate usually fast tracks the process and confirms EEOC nominees as a group, often with unanimous approval by Republicans and

Fast v. Cash Depot Ltd. - United States District Court, Eastern District of Wisconsin Facts :  Timothy Fast (“Fast”) filed suit against his former employer Cash Depot Ltd. (“Cash”) on the grounds that Cash failed to pay himself and other similarly situated employees overtime wages in violation of the Fair Labor Standards Act (“FLSA”).  After retaining counsel, Cash reviewed its records and determined that these employees were in fact due additional compensation for their overtime work.  Cash proceeded to tender these employees the additional compensation and then asked the Court dismiss Fast’s case.  The Court denied the motion to dismiss in part because Fast disputed whether the appropriate amount of compensation had actually been paid.  While the Court recognized that a class action claimant such as Fast could decline an offer to settle for the full value of his individual claim so as to not render the class action moot, the Court pointed it that if Cash had remedied the FLSA v

Janus v. AFSCME .  Readers have likely heard about that case and the significant impact it has had in regard to unions in the country ever since the United States Supreme Court issued its decision this past summer.  A recent case in Washington state that came about as a result of Janus is well worth a review, if for no other reason than similar cases are likely to follow suit...regardless of the Court's dismissal of the claim. As always, below are a couple articles that caught my eye this week. A Few Tips on How to "Control" An Office Holiday Party Robin Shea wrote a great article a few weeks ago that offers employees six things to keep in mind to help control an office holiday party and limit potential liability that often arises with these type of work events.  One idea in particular, to have reliable employees serve as "chaperones" to help keep an eye on things and tactfully step in, could be of use to some employers...especially when alcohol is i

In February, the Seventh Circuit Court of Appeals issued a decision in a case that dealt with the ministerial exception in regard to discrimination claims brought against employers.   Facts :  The case, Grussgott v. Milwaukee Jewish Day School, Inc. , dealt with a Hebrew teacher, Miriam Grussgott ("Grussgott"), that sued her former employer on the grounds that she was improperly terminated in violation of the Americans with Disabilities Act ("ADA").  The employer, the Milwaukee Jewish Day School, Inc. ("Day School"), argued that Grussgott's religious role at the school fell within the ministerial exception and thus barred her ADA claim. For those unaware, in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC , the United States Supreme Court adopted the ministerial exception to employment discrimination claims.  Under this exception, religious organizations were given leeway to hire and fire their ministerial leaders without gove

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. Facts :  Helix TCS ("Helix") is in the business of providing security, inventory control, and compliance services to the marijuana industry in Colorado.  Between February 2016 and April 2017, Robert Kenney ("Kenney") worked at Helix as a security guard.  Kenney's duties included patrolling assigned locations, investigating and documenting all facility related incidents, and enforcing client, local, state, and federal policies and regulations.  Although Helix classified Kenney as an exempt employee under the Fair Labor Standards Act ("FLSA"), Kenney claimed that he and other similarly situated employees frequently performed non-exempt job duties.  As a result, Kenney filed suit and alleged that he was not an exempt employee under any applicable exemption of the FLSA and was

Netter v. Sheriff BJ Barnes and Guilford County Sheriff’s Office - Fourth Circuit Court of Appeals Facts :  Catherine Netter (“Netter”), a Black and Muslim woman, worked for the Guilford County Sheriff’s Office for about nineteen years.  For nearly sixteen years, she had a clean disciplinary record.  However, in April of 2014 she received a disciplinary sanction that prevented her from testing for a promotion.  She proceeded to file a complaint with Guilford County Human Resources and the Equal Employment Opportunity Commission (“EEOC”).  An investigator from Human Resources followed up with Netter and asked her if she had any evidence to support her claim that similarly situated officers, that were not Black or Muslim, had not been similarly disciplined.  Netter proceeded to review, copy, and supply the investigator with the confidential personnel files of five employees.  Netter apparently acknowledged that she knew the files were confidential and did not seek approval of any

Perhaps I should have called this the "Right to Work" edition...given that several posts this past week touched on right to work related topics.  With that being said, the news that the Marriott hotel strike ended earlier this week deserves to take center stage, given the long drawn out (and often times contentious) nature of that strike. As always, below are a couple articles that caught my eye this week. With Approval of New Contract, Strike By Marriott Workers Ends Readers will recall that the strike by Marriott hotel workers had gained widespread attention over the past couple of months .   While workers in Hawaii recently approved a new contract and ended their strike , other hotel workers remained on strike.  At long last, on Monday, the strike officially ended when hotel workers in San Francisco approved a contract that will see many receive pay raises and better protections against sexual harassment.  While progress was somewhat slow in contract negotiatio

Recently, the American Federation of Government Employees, the National Federation of Federal Employees, and the National Association of Government Employees filed a lawsuit against the Department of Veterans Affairs (“VA”) after the VA made a determination that Title 38 VA employees would no longer be able to perform any union representational activities while on “official time”.  Broadly speaking, official time is time granted by a governmental agency to allow an employee to perform representational functions on behalf of a union without requiring the employee to use personal leave or incurring a loss of pay while that employee would otherwise be in the course of their ordinary work. In this instance, the unions claim that the VA has usurped its authority by unilaterally withdrawing official time from these Title 38 employees. According to the lawsuit, several collective bargaining agreements were entered into between the unions and VA and remained in effect at all relevant t

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 month, Ohio Representatives John Becker and Craig Riedel introduced House Bill 53 in the Ohio Legislature which seeks to make Ohio the next right to work state.  As a refresher, this type of right to work bill would prohibit public employee unions from requiring union membership or membership fees (also called agency fees, which are what non-union members pay to receive the collective bargaining benefits of the union).  Representative Becker pointed out that passage of House Bill 53 would "align Ohio law to federal case law."  (He is referring to the Supreme Court case from this past summer, Janus v. AFSCME .  Readers will likely recall the importance of that case).  Representative Riedel has argued that allowing an individual to be terminated because they chose not to be a part of the union i

Back in September, the Michigan Legislature approved a minimum wage and paid sick leave bill over the objection of many Democrats .   Passage of the minimum wage bill would result in the hourly pay rate in the state rising from $9.25/hour up to $12/hour by 2022.  For tipped workers, their hourly wage rate would go from $3.52/hour up to the minimum wage rate of $12/hour by 2024.  As for paid sick leave, the Legislature approved a bill that would allow employees in the state to earn one hour of paid leave for every 30 hours worked, depending on the size of their employer. Democrats were quick to call foul, mainly because they wanted voters in the state to approve the measures.  Since the Michigan Legislature approved the legislation prior to a November vote, the Legislature retained sole authority to amend either piece of legislation by a majority vote before the minimum wage hike and paid sick leave went into effect next March. Well it turns out that the Legislature did just

The week back after Thanksgiving break is normally always hectic.  This year in particular was no exception.  While I would normally prefer to highlight several articles, this week I am going to keep it brief as I have been traveling for work quite a bit and have not had as much time as I would have liked to read through articles. As always, below are a couple articles that caught my eye this week. Austin Court of Appeals Issues Injunction to Block Austin’s Paid Leave Ordinance A few weeks ago, a three judge panel from the 3rd Court of Appeals in Austin issued a temporary injunction to block Austin’s paid leave ordinance passed by the City Council back in February .  That paid leave ordinance, a rarity in Texas, would have required most employers in the city to offer their employees six to eight days of paid leave for a year of work, depending on the size of the employer.  Critics of the ordinance scrambled to block its implementation before its expected start, October 1

As always, there are some 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. Whole Foods Settles Disability Discrimination Suit Whole Foods has agreed to pay $65,000.00 to settle a disability discrimination suit filed by a former cashier at one of its locations in Raleigh, North Carolina.  This particular employee, hired in 2005, suffered from a kidney disease.  In 2009, she had a kidney transplant.  In 2015, she was hospitalized for a few days as a result of her condition and missed work.  Although Whole Foods was notified of the situation and the employee’s request for time off for her kidney impairment, Whole Foods ended up terminating her employment because of the absences.  This conduct is in violation of the Americans with Disabilities Act (“ADA”) which prohibits employers from discriminating against employees because of a disability and requires employers to provide disabled employees w

Earlier this week, Rick Santorum (former Republican Senator from Pennsylvania and Republican presidential candidate) wrote an article in which he advocated for Congress to embrace paid family leave and work to pass a bipartisan bill.  Some might not call this groundbreaking news.  However, it is noteworthy in so much that a (former) major player among Republicans has come out so openly in support of the measure.  (Of course, Santorum does not have the same power/reach that he did several years ago.  Although his stature among Republicans does still give him a voice on critical matters). Readers will recall that Democrats will retake control of the House of Representatives next year while Republicans will retain control of the Senate.  That means that in order to pass any legislation, it will become imperative for both parties to work together.  As Santorum writes, a paid family leave bill makes sense for working Americans in all areas of the employment field.  He notes that whil

Given that many readers are likely not working tomorrow or Friday, I wanted to get this post up before many left the office/workplace for the week.  With any luck, things will be slowing down by the end of this afternoon and this post will help readers get across the finish line into the Thanksgiving break. As always, below are a couple articles that caught my eye this week. A Breakdown of State & Federal Meal and Rest Breaks By State The title says it all, really.   SwipeClock has provided a rather comprehensive list, by state, of the rest and meal breaks that are required by law.  This is well worth a quick review for employers and employees alike. Stop WalMart Act Introduced in U.S. Congress Last week, a bill was introduced in Congress that is designed to prohibit large employers from buying back stock unless they up worker wages to at least $15/hour, scale back pay for CEOs to no more than 150 times the mediation pay of all staffers, and allow employees to ear

Doe v. Virgin America, Inc. , et al. - United States District Court, Northern District of California Facts :  Jane Doe ("Doe") worked as Vice President of Research Now, a global expert in online marketing research.  Doe's job responsibilities including "building and maintaining key strategic relationships with loyalty professionals, including airline representatives."  In October of 2016, Doe attended a conference in Toronto, Canada attended by professionals in the travel industry.  At the time, Stuart Dinnis ("Dinnis"), served as Virgin America, Inc.'s Director of Loyalty.  Dinnis also attended the conference in Tornoto.  Doe was informed that Dennis was an important person that she would need to meet with while at the conference.   At a conference related party, Doe introduced herself to Dinnis.  Dennis, who was "noticeably drunk", later spilled a drink on Doe.  When Doe and her colleagues returned to their hotel, Dinnis was

Last week, the Department of Labor issued an opinion letter in which it rescinded guidance that said tipped workers that are paid less than minimum wage must spend most of their time performing tipped-wage duties.  That guidance, implemented during the President Barack Obama era Department of Labor (often referred to as the 80/20 rule ) required that the tipped workers spend 80% of their time performing tipped-wage duties such as waiting tables rather than folding napkins or cleaning dishes. In its letter, the Department of Labor noted that it intended to clarify the Field Operations Handbook section 30d00(e), which previously had resulted in some confusion and inconsistent application.  With the issuance of its opinion letter, the Department of Labor stated that the letter was intended to clarify FOH section 30d00(e) in a manner that not only ensured consistent application of the Fair Labor Standards Act ("FLSA") but also gave employers a level of clarity to determin