The Majority Opinion: Legal Blog

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. The Cheesecake Factory to Pay $15,000 to Settle Disability Discrimination Claim A few weeks ago, the EEOC announced that the Cheesecake Factor and its wholly owned subsidiary would pay $15,000.00 and implement changes to settle an Americans with Disabilities Act ("ADA") claim brought by a former employee.  The facts alleged that the employee, who was deaf and had just been hired as a dishwasher, was subsequently terminated for issues associated with his disability.  Apparently the Cheesecake Factory denied the employee's request for orientation training either with closed captioned video or an American Sign Language interpreter.  As some readers are likely aware, the ADA requires employers to provide reasonable accommodations to an employee (or job applicant) with a disability, unless doing so would ca

Connors v. Jim Shorkey Family Auto Group, et al - United States District Court, Western District of Pennsylvania Facts :  Lauren Connors ("Connors") worked for Shorkey Kia as a sales person from September 4, 2013 until October 31, 2016.  On October 18, 2015, Connors was sexually assaulted by a coworker, Todd Holland ("Holland"), during a work related trip.  Connors suffered severe emotional distress as a result of the sexual assault.  After an investigation and the sexual assault allegations were found to be true, Holland given the option to resign.  As a result of his resignation, Holland was entitled to severance pay and his commissions. In October of 2016, Connors was informed that Holland would be rehired.  Connors repeatedly stated that she would be very upset if that happened and her mental health would deteriorate if Holland returned.  Connors proceeded to send multiple e-mails to her employer detailing how Holland's rehiring would negatively

Today, the United States Supreme Court heard oral arguments in Janus v. AFSCME .  Readers might remember this case as it is one I have highlighted in the past , given the increased attention this labor law case has received leading up to oral arguments before the Court.  As a refresher, the case deals with whether a state employee can be required to pay dues to a union (known as "agency fees"), even if that employee is not a part of the union, to cover the costs of a union representing all employees in the collective bargaining process.  For those wondering, these agency fees are normally more than half (and sometimes up to 100%) of actual union dues.  (That begs the question of whether these agency fees are actually union dues "in disguise"). How We Got Here Let us start at the beginning so that readers can understand how we got to this point. At the outset, I will note that a 1977 decision from the Supreme Court in Abood v. Detroit Board of Education

Early next week, the United States Supreme Court is set to hear oral arguments in Janus v. AFSCME , one of the most closely watched cases before the Court this term.  I was actually talking with a colleague about this case yesterday and the importance it has for labor and unions long term.  For readers that might have forgotten about this case, the Court will consider whether workers that do not join a union can be forced to pay agency fees (a/k/a "fair share" fees) to cover the costs of having the union represent them. While unions are legally required to represent all employees in a bargaining unit (including those employees that are not a part of a union), unions have long argued that these agency fees are vital.  Without these agency fees, unions have pointed out that employees would have no incentive to join a union (and pay union dues) but could instead remain non-union members and still enjoy the benefits of having the union represent them without having to pay a

Late last week, an Associate General Counsel for the National Labor Relations Board ("NLRB") concluded that Google did not violate federal labor law when it terminated an employee after he circulated an internal memorandum that suggested women were not as biologically suited for coding jobs as men. The employee, James Damore ("Damore"), worked at Google and was terminated shortly after he circulated the internal memorandum that both criticized his employer and also made statements about women in the workplace.  Following his termination, Damore filed a complaint with the NLRB and argued that Google violated Section 8(a)(1) of the National Labor Relations Act ("NLRA") on the grounds that he was unlawfully terminated for engaging in protected activity.  However, the Associate General Counsel disagreed and held that although Damore's memorandum contained protected statements (in regard to his criticism of Google), he was ultimately terminated for s

Vasquez, et al v. Whole Foods Market, Inc. - United States District Court, District of Columbia Facts :  Victor Vasquez, Nadeem Sheikh, Katia Sadoudi, Svetlana Bautista, Ibrahima Ba, Nicholas Miano, Pa M. Mjie, Michael Amegnaglo, and David Berger ("Plaintiffs") worked as Store Team Leaders at different Whole Foods stores in the Washington, D.C. area.  During their time working at Whole Foods, Whole Foods used a profit sharing program called "Gainsharing".  Under this Gainsharing program, Whole Foods awarded bonuses to employees whose departments performed under budget by distributing the surplus savings among the employees in that department.  However, the Plaintiffs claimed that Whole Foods undermined this program by imposing a nationwide scheme of "shifting" labor costs.  Under this alleged scheme, if a department came in over budget, Whole Foods corporate leadership instructed store leadership (including Store Team Leaders) to "shift" th

This week turned into one of my busier ones with several work trips out of town. While that enabled me a bit of time to read through some articles on my flights, it has been a non stop week with little time to write a proper What I’ve Been Reading This Week post.  With that being said, I did come across a couple good articles that I wanted to highlight, in particular the Bloomberg article about a rise in union influence at airports across the country.  As always, below are a couple articles that caught my eye this week. Does a Lack of Paid Sick Leave For Many Employees Actually Hurt Employers? Christopher Ingraham at The Washington Post published an article this past Tuesday which addressed the negative impact that a lack of paid sick leave can actually have on employers (not just employees).  When these sick employees lack paid sick leave, they inevitably decide to go into work rather than forgo a day's pay.  That leads to these sick employees infecting other empl

On Monday, President Donald Trump's administration rolled out its 2019 budget request and addendum which includes a proposal for 6 weeks of paid leave for new mothers and fathers (including those who adopt).  As always, many will now ask, "Ok, how are you going to pay for it?"  Under the 2019 budget request, these 6 weeks of paid leave would be funded through state unemployment insurance.  (Readers might recall that this is nearly identical to last year's proposal in the 2018 budget request).   This proposal has started to gain traction among ranking Republicans in Congress, including Mike Lee (from Utah) and Jodi Ernst (from Iowa).  However, there have been critics (on both sides of the aisle) that have argued that funding paid leave through state unemployment insurance is an idea destined to fail...given that it could further hamper already cash-strapped state unemployment insurance.  That could lead to states choosing to raise taxes to cover this paid leave

Cooper Tire & Rubber Company v. National Labor Relations Board - Eighth Circuit Court of Appeals Facts :  Cooper Tire & Rubber Company ("Cooper") employed Anthony Runion ("Runion") at one of Cooper's manufacturing plants in Ohio.  In late November 2011, Cooper locked out all union-represented workers from the plant and prohibited them from working until a new collective bargaining agreement was reached.  During the course of the lockout, the union peacefully picketed outside the facility.  In early January 2012, Runion and another worker on the picket line gave the middle finger to replacement workers that were being bused into the plant.  Runion was also heard stating "Hey, did you bring enough KFC for everybody" as well as "Hey, anybody smell that?  I smell fried chicken and watermelon." in reference to African American replacement workers that were arriving at the plant.  However, there was no evidence to show th

The news out of Maine yesterday in regard to efforts by some lawmakers in the state to slow the minimum wage hike approved by voters in 2016 is somewhat eye opening.  I paid little attention to the topic since voters in the state had approved annual minimum wage hikes up to $12/hour in 2020, but this recent effort by Republicans to delay (and limit) the wage hike is interesting, to say the least.  As the article I noted below points out, this is a highly partisan issue and one that will likely continue to play out over the coming months. As always, below are a couple articles that caught my eye this week. A Refresher on the NFL Cheerleader Wage Fight It has been quite some time since I addressed the ongoing wage fight by NFL cheerleaders (as well as NBA cheerleaders).  Ruth Reader at The Fast Company wrote a good article recently which addressed the fight by these cheerleaders for higher wages and tracked the developments over the past few years.  While there is not a lot o

Earlier this week, it was announced that the Department of Labor's Inspector General will launch a probe into claims that the Department of Labor withheld an analysis that showed a proposed tip pool rule could actually cost tipped workers billions of dollars.  Readers might remember that back in December, the Department of Labor announced a proposed rule that would allow employers to distribute servers' tips to back of the house employees .  However, Democrats and many pro-employee groups were quick to criticize this proposed rule as a power grab by employers and an improper attempt to take money from hourly workers, due in part to to the widespread wage theft that occurs in the restaurant industry and concern that employers would actually pocket the tips instead rather than distributing them. The announcement that the Department of Labor's Inspector General intends to conduct a probe comes on the heels of a report that the Department of Labor shelved an economic an

For readers that watched President Donald Trump's State of the Union last week, you might have caught the brief reference by the President in regard to his support of a nationwide paid leave bill.  Perhaps wanting to strike while the iron is hot, Florida Senator Marco Rubio has started to make waves recently with his work on a new paid leave proposal alongside Ivanka Trump.  ( Readers might remember that Ivanka Trump has been eyeing a paid leave proposal for some time now .)  While still in the early stages and without much of a draft of a proposed bill, this proposal is somewhat innovative in that it would allow workers to dip into their Social Security benefits when they want to take time off to care for a new child or take care of a sick family member.  I will let you read that last sentence again.  This proposal would let workers use paid leave by "borrowing" from their Social Security benefits . Let us use an example to better illustrate this proposal:  A wo

It has been quite some time since I have covered a ban the box measure/bill/law/ordinance.  With that being said, I want to point readers to a development out of Kansas City yesterday on the topic.  While Missouri has banned the box for state hiring a few years ago (and the Kansas City government previously implemented the policy for many city employees), this is still a big step for ban the box advocates. As always, below are a couple articles that caught my eye this week. Paid Leave Appears to Be Full Steam Ahead in Maryland Recently, I had pointed readers to an update in Maryland in which, after the General Assembly overrode a veto by Governor Larry Hogan, the state was on track to implement paid leave this month .  However, there was some concern that such a quick implementation of the law gave employers in the state little time to prepare and plan accordingly to ensure compliance.  As Scott Dance at The Baltimore Sun writes, an attempt was made to delay implementation o