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 Salvation Army to Pay $55,000.00 to Settle Disability Discrimination Suit A few weeks ago, it was announced that The Salvation Army would pay $55,000.00 to settle a disability discrimination suit after it refused to hire an applicant for a donation attendant position at a thrift store location in Alaska.  The applicant, Eric Yanusz, has an intellectual disability and would have been required to accept and sort donated clothing, furniture, and household goods.  After an apparent successful first interview, the EEOC alleged that The Salvation Army imposed a "highly unusual second interview" on Yanusz and ultimately chose not to hire him due to "unfounded concerns about his ability to interact with the public."  (Interesting enough, no details were given as to what all the second interview entailed

Late last year, I made note of a paid leave bill working its way through the New Hampshire Legislature.  At the time, the proposal appeared to have bipartisan support and there was speculation that after a few prior false starts on similar legislation, this version of paid leave might have enough support to become law.  Unfortunately for proponents of this bill, the measure failed yesterday after Republicans defeated the measure.  Although the fight for paid leave in the state might be on the back burner for now, I would expect supporters of paid leave to give it another go down the road.  The only question is how long they will wait to push another paid leave bill. As always, below are a couple articles that caught my eye this week. Bike Rider Terminated For Flipping Off President Trump's Motorcade Sues Former Employer Back in November, I pointed readers to an employee of a government contractor that was terminated after a picture of her flipping off President Donal

If readers recall, the National Labor Relations Board (‘NLRB’) had previously implemented what has become known as the ‘ambush election rule’.  This rule drastically shortened the period when a union election can occur, from a standard 38 days to as little as 10 or 11 days.  Employers and pro business groups cried foul after the rule went into effect in April 2015 and argued the rule improperly prohibited employers from educating their employees as to the negatives of unionization prior to an election occurring.  With such a tight window between when a petition is filed and when the election can occur as to whether to unionize, employers pointed out that much of their time would be spent on legal strategy rather than attempting to present counter arguments to what a union told employees about unionization. When the NLRB assumed a 3 - 2 majority of Republican appointed Board members, attention turned to whether the ‘ambush election rule’ would be rescinded, amended, or remain in

Readers who follow this blog are well aware of attempts by Republicans in Missouri to make the state the next right to work state in the country.  (States with right to work laws provide that employees cannot be forced to join a union as a condition of employment nor can employees be required to pay union dues if they are not a member of the union.  These non-member union dues are often called ‘agency fees’ and are collected by unions, from non-members, to help pay for the collective bargaining that a union does on behalf of all employees, regardless of whether the employee is a member of the union or not). After a few false starts over the past few years, Republicans in the state were able to pass a right to work bill last year.   Republican Governor Eric Greitens subsequently signed the bill into law and Republicans cheered ( while Democrats and labor unions simmered ).  However, pro labor supporters quickly regrouped and obtained enough signatures to put the right to work m

Vermont Senator Bernie Sanders is expected to announce his support for a bill that would provide a guaranteed federal job for all (with pay set at $15/hour) and also provide health care to these workers.  Advocates of this plan have hailed it as an ambitious proposal that would have a wide spread positive impact on American workers. Under this proposal, advocates have pointed out that any American that wants a job would receive one.  (It logically follows that the unemployment rate would subsequently drop, perhaps to an all time low).  In doing so, these workers could begin work on infrastructure projects, pursue health care or education positions, and other goals/projects that would require federal workers.  It has been suggested that this proposal would also spur employers to provide more benefits and better pay to attract (and retain) the best of the best.  (If not, these workers would presumably work for the federal government, with $15/hour pay and health care).  As a res

A few months ago, a proposed paid leave law was introduced that would allow new parents to ‘borrow’ from their Social Security benefits in order to take twelve weeks of paid leave.  The plan would in essence let workers take an early withdrawal from their Social Security benefits and obtain paid leave, but these workers would then be required to defer their right to receive their Social Security benefits later in life.  Several Republican Senators, including Joni Ernst, Mike Lee, and Marco Rubio voiced their initial support for the proposal and have appeared willing to attempt to turn the proposal into law.  However, critics quickly started to question whether it was wise to allow workers to borrow from their Social Security benefits now (to obtain paid leave), when many would likely need the Social Security benefits later in life (with little room to wait for any deferred time to pass). Recently, the Urban Institute released a report in which it found that under this propo

I spent more time on the road, in planes, and in hotel rooms this week than I have in recent memory.  So goes the life of a busy attorney.  As a result, excuse the brevity of this week's post.  With that being said, I do point readers to the ongoing minimum wage and paid leave "fight" in Massachusetts.  That is quite an interesting story as November approaches... As always, below are a couple articles that caught my eye this week. Starbucks to Conduct Nationwide Racial Bias Education Training Without getting too far into the weeds on this story, earlier this week, Starbucks announced it would close 8,000 locations next month to conduct racial bias training after an incident at one of its locations in Philadelphia recently.  The company announced that on the afternoon of May 29th, it would close its locations to conduct the training.  Employers that have heard about this development might want to use it as an opportunity to look at their own work environment a

Recently, the National Restaurant Association released a report in which 7 out of 10 Americans indicated they would support a higher minimum wage rate, even if that meant an increase in food and service costs.  This report from the National Restaurant Association is the first known poll from the industry itself which shows such broad support for a higher minimum wage. The National Restaurant Association identified the report as evidence that a wage solution "that balances the needs of customers, employees, and business owners" is needed.  However, the group pointed out that wage standards should vary by region as an hourly worker in New York City would likely "need" a higher wage (given the cost of living in the city), compared to an hourly worker in Tulsa, for instance. Whether this report moves the minimum wage fight along more quickly is still up in the air.  I do point readers to the somewhat surprising number of people surveyed that indicated they wo

Previously, I had noted a bill that was moving through the U.S. Congress that would have exempted businesses owned and operated by Native American tribes from the National Labor Relations Act (‘NLRA’).  For years, the National Labor Relations Board routinely applied the NLRA only to Native American owned businesses not on tribal land.  However, that changed in 2004 when the NLRB issued a decision in which it extended NLRA protection to workers that worked at Native American owned businesses located on tribal land. Proponents of this bill, The Native American Sovereignty Act, advocated for Congress to pass it to restore tribal self government and argued Native American owned businesses should not be treated any different than state and municipal workers that are excluded from the protections of federal labor law. Nevertheless, yesterday, Democrats used a filibuster to block the bill.  It is interesting to note that several Senators including Tim Kaine (Democrat from Virginia

I do not often post court opinions in the "What I've Been Reading This Week" posts, but this week was an exception after I read through the Texas Supreme Court opinion in a same sex sexual harassment case.  Although topping out at over 100 pages (including dissent), this opinion is worth a read as the Supreme Court parsed the Texas Commission on Human Rights Act and reviewed the facts in the record. As always, below are a couple articles that caught my eye this week. Spending Bill Exempting Minor League Baseball Players From FLSA Protections Could "Doom" Some Leagues Chris Dugan wrote an article last week in which he surmised that the omnibus spending bill passed by Congress and signed into law by President Donald Trump could put some independent minor leagues out of business.  As readers might recall, the spending bill included a provision that minor league baseball players be paid at least the federal minimum age rate for a 40 hour work week (rega

As some readers might have heard, this past Tuesday was Equal Pay Day across the country.  To commemorate this day, Democrats in Arizona attempted to have a vote in the state legislature on the Equal Pay Amendment to the U.S. Constitution.  (The Equal Pay Amendment broadly guarantees equal rights to men and women).  As a bit of background, the Equal Pay Amendment was introduced in the U.S. Congress back in the ‘70’s but failed to acquire the minimum 38 states needed to formally make it an amendment to the Constituion.  (That effort back in ‘72 only fell three states short).  As a result, the duty fell on the legislatures of each state to ratify the amendment.  As of this writing, 14 states have yet to ratify the Equal Pay Amendment. Turning back to Arizona, for the second straight year, Democrats sought to have a vote on the matter.  However, Republicans (who have majority control) voted along party lines, 32 - 25, to recess for the day and subsequently avoid a vote.  This proce

Recently, President Donald Trump nominated John Ring, a labor law attorney with Morgan, Lewis & Bockius, to fill a vacant seat on the National Labor Relations Board ("NLRB").  The nomination cleared the Senate Committee on Health, Education, Labor, and Pensions last month and proceeded to the full Senate for further debate and a final vote. The Senate is expected to hold a cloture vote on Ring's nomination in the next day or two, followed by up to 30 hours of debate on the nomination.  Those who are closely following Ring's nomination expect he will be confirmed along party lines (given that Republicans have majority control of the Senate).   Assuming Ring gets confirmed, his inclusion as a Board member will give the NLRB a 3 - 2 majority control among Board members appointed by a Republican president.  The question would then turn to whether the NLRB would again try and reverse the Browning-Ferris joint employer standard that went into effect a few ye

Some weeks seem to fly by; this one was no exception.  Before I realized it, it was Friday morning and I was putting the finishing touches on this post.  This week’s articles ran the gamut of labor law issues/updates, save for an article on separation agreements.  Even for those that might not be in the labor law field (or follow it very closely), I would suggest glancing through a few of the articles below.  I think both Illinois Governor Bruce Rauner’s longstanding opposition to big labor and the ongoing right to work fight in Missouri both have the possibility of getting more contentious and gaining increased national attention.  Buckle up, those two matters are far from over. As always, below are a couple articles that caught my eye this week. Illinois Governor Bruce Rauner's Fight With Unions Hits Close to Home Readers might recall that Illinois Governor Bruce Rauner, a Republican, has had an ongoing fight with unions, namely over right to work zones in the state .

Back in 2015, the National Labor Relations Board (‘NLRB’) implemented a new rule, known as the ‘ambush election rule’, that shortended the time between when a union election would occur.  In changing the median from 38 days to 23 days before an election occurred, employers were left scrambling as they had little time to prevent unions from winning workplace elections.  (The common thought is the less time that is allowed before an election can occur is typically good for unions as employers have less time to launch a campaign against unionization). However, back in December, the NLRB announced that it was seeking public input as to whether the rule should remain in place, be modified, or rescinded entirely.  Unsurprisingly, employers and pro-business groups jumped at the chance to weigh in against the rule.  What has caught the most attention, however, is the fact that dozens of U-Haul employees have recently submitted letters to the NLRB asking the rule be rescinded.  This alo

It is a rare when I post twice in a day, however, today is an exception, namely because of a decision issued by the United States Supreme Court a few hours ago.  Back in January, I had pointed readers to this case as one to keep an eye on .  The Court's decision in Encino Motorcars, LLC v. Navarro clarified that service advisors at auto dealerships are exempt from the FLSA overtime requirements.  In order to streamline the Court’s ruling and how we got to this point, let me break things down a bit. Procedural Background :  For several decades, the Department of Labor has interpreted the Fair Labor Standards Act ("FLSA") to exempt service advisors from overtime requirements.  The FLSA provides an exemption for "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles."  Although "service advisors" were not specifically identified in this exemption, many courts held that the service advisors actually fell within

Readers might recall that a few years ago, then President Barack Obama's Department of Labor proposed an overtime rule would have updated the threshold for overtime eligibility, from $23,660.00 to $47,476.00.  However, before the new overtime rule could be implemented, it was blocked in court when a nationwide injunction was issued that prevented the rule from going into effect.  As a result, no employees actually realized any change in their overtime pay, since the proposed overtime rule never became law. Last summer, a lawsuit was filed against Chipotle by a former worker that alleged she was not paid in accordance with the new overtime regulation, in violation of the Fair Labor Standards Act ("FLSA") and the New Jersey Wage and Hour Law .  Attorneys for the former employee argued that the proposed overtime rule was actually in effect and the injunction only limited the Department of Labor from implementing and enforcing the regulation (but not enforcement of the