The Majority Opinion: Legal Blog

As always, there are some recent 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. Age Discrimination Lawsuit Against Montrose Memorial Hospital Settles for $400,000 Montrose Memorial Hospital in Colorado was alleged to have terminated or forced 29 employees to retire (aged 40 and older), in violation of the Age Discrimination in Employment Act ("ADEA").  The hospital apparently fired many of these older employees for supposed performance deficiencies, although younger employees were given more leniency.  This conduct was in violation of the ADEA which protects employees 40 years of age or older from employment discrimination based on their age.  Employers should use this case as a reminder that using age as a pretext for terminating (or forcing retirement) employees 40 years of age or older is never a good idea... Aloha Auto Group to Pay $30,000 to Settle Retaliation Claim Th

Today, the Massachusetts Labor and Workforce Development Committee is expected to hold a hearing on an initiative to boost the statewide minimum wage rate to $15/hour by approximately 2022 and another initiative that would require employers to offer 16 weeks of paid leave for medical reasons or to care for a new baby or family member. Last year, Raise Up Massachusetts garnered tens of thousands of signatures in support of both initiatives in an effort to get both matters before voters this November.  At this point, it appears the Massachusetts Legislature would have to act on both initiatives by June.  If no action happened, supporters of the initiatives would be required to gather more signatures in order to get the matter before voters in November.  Minimum Wage Initiative Some lawmakers have noted that while an increase in the statewide wage rate is likely needed (from its current hourly rate of $11), raising it to $15/hour does little good.  As Representative Hannah

This week, I came across several developments on one of my favorite labor & employment law topics, right to work.  With so many great articles and updates, I thought it was appropriate to dedicate this post to that topic.   For those needing a refresher on right to work laws, these laws prohibit "forced" union dues, often called agency fees, which require all employees, whether they belong to a union or not, to contribute fees to pay for collective bargaining costs by a union.  Needless to say, attempts to bring right to work to several states has proven difficult so far , somewhat "easier" for others , and an uphill fight for many .  And that is not even taking into account ongoing attempts to pass right to work laws on a local level . As always, below are a couple articles that caught my eye this week. Sussex County Votes Down Right to Work Ordinance A few weeks ago, I had pointed readers to a development in Sussex County Delaware in which t

Ever hear the phrase "pump the brakes"?  This is probably a good time to use it.  On Tuesday, I pointed readers to a development in Maryland in which the state Senate voted 30 - 17 to override Republican Governor Larry Hogan's veto of a paid sick leave bill .  The bill provides that workers in the state will be able to earn up to 5 days of paid sick leave per year (which equates to earning one hour of paid sick leave for every thirty hours worked). Democrats championed the legislation and the veto override as a win for employees in the state.  The only problem?  The law is set to become effective February 11, 2018 or 30 days after the final override vote was taken this month.  That has left businesses in the state scrambling to ensure compliance with the new law before it goes into effect.  In fact, concern over the ability of businesses in Maryland being able ensure compliance has reached such a fever pitch that lawmakers are considering passing a bill that would

Earlier this month, the Maryland Senate voted 30 - 17 to override Republican Governor Larry Hogan's prior veto of paid sick leave legislation.  This vote by the Senate came on the heals of the House voting to override the veto a day earlier.  As readers might recall, the Governor had vetoed this legislation previously on the grounds that he considered it flawed and damaging to small businesses.  The Governor subsequently proposed paid sick leave legislation of his own .  However Democrats announced that when the new legislative session began on January 10, 2018, they would move to override the veto.  With a veto proof majority, it was widely expected that Democrats would be able to pass their own legislation and would not be forced to bargain with the Governor over his proposed plan. With the passage of this legislation, approximately 700,000 workers in the state will now be able to earn up to 5 days of paid sick leave a year.  (The legislation provides one hour of paid sick

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. Encino Motorcars v. Navarro - United States Supreme Court Facts :  Respondents in the present case are service advisors at a car dealership whose primary job responsibilities include identifying service needs, selling service solutions to the dealership's customers, suggesting repair and maintenance services, selling new accessories and replacement parts, and recording service orders.  These service advisors argued they should be entitled to overtime pay, as provided by the Fair Labor Standards Act ("FLSA").  Note, under the relevant section of the FLSA however, "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles" is exempt from the overtime pay requirement. The Ninth Circuit Court of Appeals reversed the dismissal of the case by the distri

I always enjoy reading through different perspectives on the minimum wage hikes (and impacts they will have).  This week was no exception as an article from The Washington Post did a good job summarizing some reports and findings on the impact minimum wage hikes are already having around the country.  If you are going to check out one article on minimum wage hikes this week, I would start with that one. As always, below are a couple articles that caught my eye this week. The Gig Economy: The Next Frontier For Union Organization? Samuel Estreicher at Bloomberg wrote a thought provoking article on Tuesday which suggested that Uber drivers (or really anyone in the gig economy) should be able to organize and form a union that can collectively bargain on their behalf.  Samuel gets into some of the finer details in regard to the independent contractor v. employee debate that revolves around those involved in the gig economy and ultimately comes to the conclusion that these work

Late last week, President Donald Trump announced that he would nominate John Ring to fill a vacancy at the National Labor Relations Board ("NLRB"), after Philip Miscimarra's term ended.  Readers might recall that with the end of Miscimarra's term, the NLRB currently has a 2 - 2 split among Republican and Democratic Board members.  With Republicans having majority control in Congress, they are eager to move Ring's nomination along to resolve this split among the Board. For those unfamiliar with Ring, he is a management side labor and employment law partner at Morgan, Lewis & Bockius in Washington D.C.  Assuming Ring can get confirmed by a Republican Congress (which is widely expected at this point), the Board would regain a 3 - 2 Republican majority. At this time, no definitive timeline has been set on a confirmation hearing.  However, as noted, with Republicans having majority control of Congress, I would expect them to move quickly on the nominati

Radek v. Target Corp. - United States District Court, Northern District of Illinois, Eastern Division Facts :  Esmeralda Radek ("Radek") worked at a Target store in Illinois beginning in early 2012.  Prior to being hired, she passed a background check and nothing was mentioned in regard to issues with her social security number.  About a year after she worked for Target, Radek received a promotion and a "great" performance review.  In early 2014, the Target store manager at the location in which Radek work received a letter claiming that Radek was using a fraudulent social security number and stealing items from the store and selling them on eBay. About a week after receipt of the letter, a Target human resources representative accused Radek of using a fraudulent social security number.  Radek was asked to verify her social security number and Radek explained why there might be an issue (as she had been born in Texas and moved to Illinois, thus the issuin

Given the start of the year and several minimum wage hikes in cities, counties, and states across the country, I think it is fitting to dedicate this post to the topic.  I point readers in particular to the potential ramifications that are starting to come about from the minimum wage hikes, as employers are starting to look for new ways to cut back on rising labor costs. As always, below are a couple articles that caught my eye this week. An Overview of the Minimum Wage Hike in California Raul Zermeno wrote a comprehensive overview earlier this week that breaks down the minimum wage hike in California.  While the first increase to the hourly wage went into effect on January 1st of this year, some might not be aware that there will be additional increases to the hourly wage rate every January 1st until 2022.  As Raul notes, to make things even more complicated, the statewide hourly wage rate does not impact higher local minimum wage rates...thus some local ordinances will hav

Yesterday, the House of Representatives approved a measure that would exempt Native American owned businesses that operate on tribal land from the National Labor Relations Act ("NLRA").  The reason Republicans gave for backing the legislation?  It would save tribal businesses from burdensome compliance costs and fees.   In the interim, Democrats have cried foul and argued that rescinding the protections afforded under the NLRA would put thousands of workers on the tribal land from having a say in their workplace rights. For additional information:  http://docs.house.gov/billsthisweek/20180108/BILLS-115S140-RCP115-54.xml  

Last year, New York City enacted a law that allows fast food workers in the city to have their employers deduct money from each paycheck and forward it to a non-profit/non-union group of that employee’s choosing.  One of the key ‘restrictions’ is a requirement that at least 500 employees must agree to contribute to one of these outside groups before an employer is required to act.  In the grand scheme of things this makes sense as this restriction lessens the burden on employers having to deduct money from paychecks and forward it to potentially hundreds of different organizations if only a few employees want to contribute to each.  Instead, the 500 employee minimum benchmark provides a tangible goal for employees and employers alike to focus on. Recently, Fast Food Justice announced that nearly 1,200 fast food workers in the city had agreed to donate $13.50/month each to the group.  And what does Fast Food Justice plan to do with this newfound revenue stream?  Advocate for hig

With a short week after New Year’s and having to be in court three days this week, I unfortunately had little time to read through many articles.  With that being said, perhaps I should call this a labor law focused post, given the two labor law articles I highlighted below.  I point readers in particular to the article about a county in Delaware considering whether to approve a local right to work ordinance.  Something tells me we are likely to see another year ahead filled with right to work developments across the country, both at the statewide and local levels. As always, below are a couple articles that caught my eye this week. NLRB General Counsel Issues Memo Impacting Two Major Areas in Labor Law Recently, the National Labor Relations Board Board General Counsel, Peter Robb, issued a memorandum that outlined several changes that will impact employers and employees alike.  The first major change deals with the NLRB’s deferral policy which allowed the deferral of un

Non-disclosure agreements are commonplace for many employers and employees, especially in high level positions and technical fields.  It goes without saying that the term of a non-disclosure often extends beyond the length of employment.  As a result, employers and employees alike often have to remain silent, not share details of their work, etc. long after the employment relationship ends.  This can spell trouble for those employees who want to disclose specific parts of their prior employment to their new employer, other employees, a reporter, etc.   Enter Steve Bannon.  For those who do not recognize his name, he is the Executive Chairman of Breitbart News, was heavily involved in President Donald Trump’s campaign for President, and served as the White House Chief Strategist in the early days of President Trump’s administration until his departure late last year.  In his role with the campaign, he apparently signed a non-disclosure agreement which prevented him from disclosi

For those employers who have not checked or forgot about the change in mileage reimbursement rates, the IRS announced the optional standard mileage reimbursement rates have changed for 2018.  Beginning January 1, 2018, the reimbursement rates have increased, and are as follows: 54.5 cents per mile for business miles driven; 18 cents per mile driven for medical or moving purposes; 14 cents per mile driven in service of charitable organizations (same as current rate in effect). For those employers that use the standard IRS rates for mileage reimbursement, make sure to change your expense reimbursement policies.