The Majority Opinion: Legal Blog

In between several flights, layovers, mediation, and trial, I spent most of the week on the road and therefore was busier than normal.  Unfortunately, I did not have much spare time to read through articles, but on a few delayed flights, I had some downtime and came across some great articles.  In particular, I point readers to the gender discrimination suit filed against the New Orleans Saints after a cheerleader was allegedly terminated for posting in a one piece on Instagram, in violation of team rules that apply only to cheerleaders but not the players.  This is one case in particular that readers might want to keep a close eye on.  As always, below are a couple articles that caught my eye this week. NLRB Inspector General Urged to Investigate Board Member Pearce’s Conduct As readers are likely aware, the National Labor Relations Board (‘NLRB’) recently vacated its decision in the Hy-Brand case...and in doing so, reverted back to the Browning-Ferri s joint employer sta

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. IT Staffing Company to Pay $50,000.00 to Settle Age Discrimination Suit Earlier this month, the EEOC announced that Diverse Lynx, LLC agreed to settle an age discrimination claim for $50,000.00.  The suit alleged that the IT staffing company discriminated against an applicant when, after learning of his age, sent him an email informing him he would no lingering be considered for a position because of his age.  This conduct was in violation of the Age Discrimination in Employment Act which prohibits employers from discriminating against an employee or applicant as a result of their age.  Note to employers, going forward, ensure you do not refuse to hire an applicant because of their age...and do not put in writing that you are not hiring an applicant because of his/her age.  Use Diverse’s situation as an example of wh

Yesterday, the Seventh Circuit Court of Appeals heard arguments on the legality of right to work zones in Illinois, specifically an effort by the village of Lincolnshire to implement a right to work zone in its town a few years ago.  That right to work zone was challenged by the International Union of Operating Engineers Local 150 and 399, the Chicagoland Regional Council of Carpenters, and the Laborers District Council of Chicago and Vicinity after Lincolnshire passed the right to work zone ordinance in 2015.  After a Circuit Judge ruled in favor of the unions last year, the appeal was taken to the Seventh Circuit Court of Appeals.  While I would not say that yesterday’s arguments gave a nod, either way, as to which way the Court will rule, it would not surprise me to see the Circuit Judeg’s ruling upheld.  The question would then turn to whether the Supreme Court would take up an appeal at that point. For readers that do not recall, right to work laws/ordinances prohibit union

For those that have not been following the recent news from the Department of Labor, a recent ‘amnesty’ program was announced in which employers would be given an opportunity to self report wage and hour violations, without legal consequences, so long as employers get back pay to affected workers and the employers are not prior offenders themselves.   The program, known as the Payroll Audit Independent Determination program (‘PAID’) has been pushed by Labor Secretary Alexander Acosta as an opportunity for all parties to benefit:  Employers can immediately remedy any wage and hour violations they have (without fear of penalty) while workers will be entitled to receive any back pay they are due. However, critics of the program have repeatedly referred to it as a ‘get out of jail free’ cars for employers that does not get to the actual root of the problem:  alleged repeated and systemic wage and hour violations that reestedly go unchecked.  Opponents of the PAID program have i

It has been another busy week in the office and on the road (and unfortunately will not slow down much next week).  However, I did have some time on a few flights to browse through some articles and found a few of note that I wanted to highlight for readers this week. As always, below are a couple articles that caught my eye this week. Work-Life Balance Programs a Win-Win For Federal Employees & Government A recent report from the U.S. Office of Personnel Management notes that recently implemented work-life balance programs are allowing federal employees to better balance their work and personal lives while also yielding higher job performance, job satisfaction, and an interest in staying in their government position.  These work-life balance programs allow many federal employees to telework and have flexible working schedules.  75% of federal employees that have the opportunity to participate in one of these work-life balance programs reported that it "improved

As with many employment and labor law related bills (and cases) being litigated around the country, there are always a few that stand out. This is one to keep an eye on. Yesterday, Democrats in New Jersey advanced a bill, NJ A3686 (18R) (also known as The Workplace Democracy Enhancement Act), out of the the Assembly Labor Committee by a 6 - 3 vote along party lines.  The bill, among other things, would require public employers to provide unions with greater access to the employees they represent.  The bill provides that unions would be allowed to meet with employees on the work premises (such as during lunch and other breaks) to discuss workplace issues, collective negotiations, and investigate and discuss grievances.   As well, unions would be able to meet with newly hired employees (without a charge to the pay or leave time of these employees) for a minimum of 30 minutes, within 30 days from the date of hire, during new employee orientations (or if the employer does n

Ralph Smith, et al. v. Allegheny Technologies, Inc., et al. - United States District Court, Western District of Pennsylvania Facts :  During a strike and lockout at a steel plant, the employer used a strike staffing company to hire replacement steelworkers to work.  In order to access the plant, these replacement steelworkers had to spend time commuting across the picket line in vans provided by the strike staffing company.  These employees filed suit on the grounds that this time spent commuting across the picket line was compensable under the Portal to Portal Act and not being paid for this time spent commuting was in violation of the Fair Labor Standards Act ("FLSA") and state wage laws.  A Magistrate Judge issued a report and recommendation that these claims be allowed to proceed.  The matter was then brought before the District Court Judge to make a final ruling. Holding :  In order to streamline the Court's analysis, I think it is wise to break the Court

For readers looking for a break in between March Madness games today, tomorrow, the day after, the day after next, etc., let this post serve as a chance to take a break from all the basketball.  I found it difficult to narrow things down this week to just a few articles, but an article from Jon Hyman in regard to the importance of going beyond just covering the basics in regard to harassment training in the workplace is well worth a read. As always, below are a couple articles that caught my eye this week. Washington State Passes Ban the Box Bill On Tuesday, the Governor of Washington, Jay Inslee, signed the ‘Fair Chance Act’ into law.  This law will bar employers from asking about an applicant’s arrest or conviction history until the applicant is determined otherwise qualified for the particular position sought.  The law, set to go into effect on June 6th, will apply to a majority of employers in the state but certain exceptions are carved out for law enforcement positions

KHRG Employer, LLC dba Hotel Burnham & Atwood Cafe - NLRB Facts :  Evan Demma ("Demma") worked as a server at the Atwood Cafe ("Atwood").  In 2014, Unite Here, Local 1, AFL-CIO, began a campaign to represent KHRG Employer, LLC's ("KHRG") employees.  Throughout the next two years, Demma participated in several union demonstrations and rallies outside Atwood Cafe.  In November 2014, Demma joined a group of other employees and a priest to present a petition about working conditions to KHRG's General Manager.  In October 2015, Demma and about 100 other employees from various employers in the Chicago area took part in a demonstration outside the hotel to make management aware of working conditions.  After the demonstration started, Demma led a group of 20 people (only six of whom were Hotel Burnham employees) to deliver another petition to the General Manager.  To do so, the group was required to enter a secured area of the hotel.  Demma fa

For those that are not aware, there is a special election today in Pennsylvania's 18th Congressional District between Democrat Conor Lamb and Republican Rick Saccone.  Traditionally, an off year Congressional election might not merit much attention, but given the fact that both Democrats and Republicans have spent significant time and money on the election and the fact that unions and labor law issues have become a focal point gives me reason to take note. Readers are likely aware that unions have seen a shrinking presence in the workplace and diminished political influence over the past few decades.  As a result, unions, a traditional supporter of Democrats, have had less impact on recent elections than in the past.  In the 2016 Presidential election, Democratic nominee Hillary Clinton struggled to draw (or even maintain) the traditional Democratic voting block of union voters.  In fact, it was actually President Donald Trump that was able to capture a larger share of union

I had intended to post an additional article earlier this week but got tied up with work on a trial.  With that being said, on my flight back home, I was able to find a few good articles that really ran the gamut of topics this week.  The one I would point readers to in particular is a Second Circuit decision that held that anti-gay discrimination in the workplace is prohibited under Title VII of the Civil Rights Act of 1964.  I suspect that this issue will eventually reach the Supreme Court, given an expected split among circuits on the matter.  However, as I note below, the Second Circuit opinion is worth a read. As always, below are a couple articles that caught my eye this week. Second Circuit Holds Anti-Gay Discrimination in the Workplace is Prohibited Under Title VII To call a Second Circuit ruling last week that held anti-gay discrimination in the workplace is prohibited under Title VII of the Civil Rights Act of 1964 "groundbreaking" is an understatement. 

Today, President Donald Trump's third nominee, John Ring, to the National Labor Relations Board ('NLRB') is set to have a confirmation vote on his nomination by the Senate Committee on Health, Education, Labor, and Pensions ("HELP"). As always, many readers might wonder what is next or what to expect with the confirmation vote.  Let us break things down to give a quick overview of what to expect moving forward. Ring is a labor attorney with Morgan, Lewis & Bockius with an expected tendency to side with employers in labor disputes, should he be confirmed.  President Trump nominated Ring a few months ago to fill a vacant seat on the NLRB.  Readers might recall that last week, the HELP Committee held a confirmation hearing on the nomination.  As expected, in light of the NLRB's decision to vacate its decision in Hy-Brand , many Democrats on the Committee chose to make conflict of interest matters a focal point and grilled Ring on the topic.  Despite t

Remember back in December when the National Labor Relations Board ("NLRB") issued a decision that overruled the Obama era Browning-Ferris decision ?  ( Browning-Ferris expanded the definition of joint employer and placed a larger number of employers on the hook for labor law violations that were committed by their subcontractors.  Conservatives and pro-business groups detested this decision and it quickly became a focal point of criticism for the NLRB at the time.) Of course, once Republicans gained majority control of the NLRB, they overturned Browning-Ferris in a 3 - 2 decision last December.  That decision, Hy-Brand Industrial Contractors, Ltd. , reapplied the "traditional" joint employer test and required that it must be shown that the employer had direct and immediate control over essential employment terms in order to find that multiple entities were joint employers. However, as Bloomberg wrote , a memo was obtained in which NLRB Inspector Gener

It has been some time since I dedicated a post to human resources related issues and topics.  However, knowing that there are several readers in the HR field that read this blog (and given that I came across a few relevant HR related articles this week), I think it is appropriate to dedicate this post to that topic. As always, below are a couple articles that caught my eye this week. Effective Communication: How It Can Boost Employees & Customers Alike Jennifer Rock and Michael Voss published an article last week that notes that an employer that is effective in communicating with his/her employees can see a more productive labor force and potentially happier clients.  The key?  Connecting with employees through transparent and authentic communication.  Rock and Voss suggest that being vulnerable can be vital as well.  Rather than ducking and dodging a situation so as not to appear weak or unknowledgeable, the article suggests employers confront a topic/situation head o