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. EEOC Files Suit Against Staffing Solutions for Alleged Discriminatory Hiring Practices Earlier this month, the EEOC announced it had filed suit against Staffing Solutions on the grounds that the company either refused to hire highly qualified Black applicants or placed them in the least desirable jobs.  The suit also alleged that the company's owner routinely used derogatory language toward Black applicants, instructed staff to comply with clients' race and sex preferences, placed employees in positions based on race and sex, and rejected pregnant applicants.  Going one step further, the suit claimed that applicants over 50 years of age, applicants with disabilities, and those that the company deemed disabled, were routinely rejected by Staffing Solutions.  An office manager that complained of these hiring prac

As many readers are likely aware, yesterday, Starbucks closed approximately 8,000 of its stores in the afternoon to conduct racial bias training for its employees.  Coinciding with this training was an impromptu press conference in Miami held by Unite Here, in which minority employees at a Starbucks at Miami International Airport demanded a $5/hour minimum wage hike.  A Unite Here spokeswoman, Rachel Gumpert, implored the company to raise wages for its employees to prove its commitment to racial justice.  (The Starbucks workforce is approximately 43% minority). Now bear in mind that the Miami-Dade County Commission passed an ordinance on May 15th by a 7 - 5 vote that would require wage hikes for all businesses that rent space from the county. (This would include retail space at Miami International).  Under this ordinance, this mandatory minimum wage hike would only apply once an employer’s current lease expired.  That wage hike would amount to a cost of living increase which wou

Recently, the San Francisco Board of Supervisors amended the City's Fair Chance Ordinance.  This Ordinance, in effect since 2014, limits an employer's consideration of criminal history in making employment decisions.  One of the key amendments that was approved now prohibits employers from making employment decisions about applicants and employees based upon convictions for crimes that have since been decriminalized.  (This mainly applies to marijuana convictions.)   As a reminder, California law, specifically California Labor Code 432.8, prohibits employers from inquiring about or basis employment decisions on certain non-felony marijuana convictions that are more than 2 years old.  However, this amendment takes things one step further and expands Labor Code 432.8's restriction to include marijuana convictions (including those that are less than 2 years old), as certain offenses for non-commercial use and cultivation of marijuana has now been legalized in the state.

This week was certainly a mix of several different employment law matters, ranging from wage and hour developments, employee bonus pay, all the way to FMLA matters.  Needless to say, I think readers will find at least one of these articles relevant, although given that a few of these articles are rather short, I think they are all worth a quick read when you have a minute. As always, below are a couple articles that caught my eye this week. Trends in State & Local Wage and Hour Laws Jeffrey Ruzal, Adriana Kosovych, and Judah Rosenblatt recently authored an article that identified recent trends in the area of state & local wage and hour laws.  Notably, this concise overview gives readers an idea of recent some recent developments on the minimum wage front (in California, Washington, D.C., and New York City, among other states and cities) as well how overtime pay is calculated (and when overtime pay actually kicks in) for employees in certain states.  This article is w

Davenport v. Edward D. Jones & Company, L.P . - Fifth Circuit Court of Appeals Facts :  Tyanne Davenport ("Davenport") worked at Edward D. Jones & Company, L.P. ("Edward Jones") as a Branch Office Administrator starting in October of 2014.  Davenport was hired by Coyne (no first name was given in the Court's opinion) and was alleged to have created a hostile work environment.  Despite Coyne's conduct, in March of 2015, he conducted a review of Davenport's work, noted she was "exceeding expectations" and approved a $400 bonus. In September of 2015, after learning a wealthy client was interested in dating Davenport, Coyne said Davenport should take the client in exchange for a big bonus.  Although Davenport declined, Coyne repeated the offer approximately three times within thirty days.  On October 1, 2015, Coyne completed Davenport's annual review and rated Davenport as "exceeding expectations" and recommended she

Over the past few years, N.F.L. (and N.B.A.) cheerleaders have filed a wide range of Fair Labor Standards Act ("FLSA") and discrimination claims against their teams and the leagues.  For those needing a refresher, we have had several teams involved in these suits including the Raiders , Bengals , Bills , Jets , Buccaneers , Raiders (again) , Bucks , and Saints .  While some cases have resulted in settlements, others have continued on without a resolution as of yet.  The sticking point for many of these cases is that they involve mandatory arbitration provisions...which would take the cases out of the court system and prevent class actions. Earlier this week, the Houston Texans joined the list of teams that have been confronted with FLSA and discrimination claims.  Yesterday, an amended lawsuit was filed in the U.S. District Court for the Southern District of Texas which seeks class action status.  The suit claimed that while the cheerleaders were paid $7.25/hour (the ho

Jones v. Smith, Jr. a/k/a Busta Rhymes and Starbus LLC - United States District Court, Eastern District of New York Facts :  David Jones ("Jones") worked as a chauffeur for Tahiem Smith, Jr. a/k/a Busta Rhymes ("Smith") and was employed by both Smith and Starbus, LLC.  Jones filed a lawsuit against both defendants and claimed they failed to pay him required overtime compensation under the Fair Labor Standards Act ("FLSA") and subjected him to verbal harassment and discrimination based on his age.  After litigating the case for a year, the parties agreed to a settlement and submitted a letter to the Court asking for guidance on how to submit the agreement for approval.  Defendants' counsel indicated the agreement did not need to be filed publicly because four of the five claims brought by Jones were non-FLSA claims and did not require judicial approval and since the agreement contained a confidentiality provision (because of Smith's celebrit

Earlier this morning, the United States Supreme Court issued a much anticipated ruling that addressed whether employers can impose mandatory arbitration agreements on their employees that would bar an employee's right to join a class action lawsuit against their employer.  The Court's decision resolved three different cases before the Court ( Epic Systems Corp. v. Lewis , Ernst & Young LLP et al. v. Morris , and National Labor Relations Board v. Murphy Oil USA, Inc., et al. ) in which an employee that signed an employment agreement which contained an arbitration provision attempted to file a lawsuit in federal court on both individual and collective causes of action.  The employers in these cases argued that under the terms of the arbitration agreements, the employees needed to individually arbitrate their claims and therefore were barred from proceeding with class actions. In a 5 - 4 decision in favor of employers, Justice Neil Gorsuch authored the majority opinion

This week, I came across several well researched FMLA articles that I found to be relevant and useful to employers and HR readers alike.  While some employers or HR professionals might not deal with FMLA matters often (if at all), FMLA is such a hot button issue for many that I think it is appropriate to dedicate this post solely to that topic.  I remind readers, as always, to consult the law in their particular state/circuit as to any FMLA issues they may confront before deciding how to act on a particular situation.  However, the below articles are well worth a read for all, regardless of the state/circuit you find yourself. As always, below are a couple articles that caught my eye this week. Reminder to Employers: Make Sure to Notify Employees When Their FMLA Leave is About to End A few attorneys at Jackson Lewis have been writing a series lately on common mistakes employers can make in regard to FMLA leave.  In this most recent article, they remind employers to ensure

The Missouri Legislature has been busy this week.  In fact, I would go so far as to say they have maintained a frantic pace to push through two different right to work measures ahead of the end of the legislative session this Friday evening. For those that have not been following the right to work fight in Missouri, let me streamline the long and drawn out process.  Republicans in the state managed to pass a right to work bill late last year.  The Republican Governor, Eric Greitens, proceeded to sign the bill into law.  Before it could take effect, however, opponents of the bill managed to collect enough votes to put the right to work measure on the ballot for voters to decide whether the bill would become law.  As a result, voters in Missouri would be charged with having the final say as to whether Missouri's right to work bill would actually go into effect.  While it was presumed that voters would have a say on the matter in November, there has recently been a push to put

Last Thursday, the Nevada Labor Commissioner announced that minimum wage rates in the state would remain at $7.25/hour (for employees with health benefits) and $8.25/hour (for employees without health benefits).  The hourly minimum wage rate is required to be recalculated every year in Nevada based upon increases in the federal minimum wage rate or by the cumulative increase in the cost of living (if that is greater). Readers will recall that there has not been an increase in the federal minimum wage rate as of late, so that "option" was out.  As for the cumulative increase in the cost of living, I find it somewhat surprising that did not trigger an increase in the hourly minimum wage rate.  Given that the hourly minimum wage rate in Nevada has not increased since at least 2013, it is curious to see what will ultimately result in an increase in hourly wage rates in the state.  For the time being, however, minimum wage rates remain unchanged in Nevada. For additi

As a result of several major developments out of New Jersey as of late, I think it it only makes sense to have an article dealing with the state's new paid sick leave bill lead off this post.  The one thing I am curious to see is whether other states follow New Jersey's lead and attempt to pass similar legislation.  As this first article addresses, the impact (both positive and negative) of this new paid sick leave bill could be telling as to whether any states do indeed follow suit. As always, below are a couple articles that caught my eye this week. Looking Ahead to the Impact of New Jersey's New Paid Sick Leave Bill After New Jersey Governor Phil Murphy signed a paid sick leave bill into law last week, attention has now turned to the impact this bill will have on employers and employees alike in the state.  Although the law will not go into effect for about 180 days, now is the time for employers to ensure they are in compliance.  As Jennifer Fischer and

As readers are likely aware, the President Obama era National Labor Relations Board (‘NLRB’) issued a decision, Browning-Ferris , which was met with much disdain from pro business groups and employers alike.  Much of the criticism focused on the new, relaxed joint employer standard that was created which held that employers could be liable for labor violations of a contractor or franchisee if the employer exercised direct or indirect control.  Prior to Browning-Ferris , the joint employer standard had been only direct control.  However, once Republican appointed Board members gained a 3 - 2 majority vote of the NLRB, a December 2017 decision was issued,  Hy-Brand , which reversed Browning-Ferris and reverted the joint employer test back to its orignial standard. That ‘victory’ for pro-business groups and employers was short lived, however, after the NLRB vacated its decision in Hy-Brand  in February on the grounds that one of the Republican appointed Board members, William Em

New Jersey has been on quite the roll lately, right?  Last week I noted the paid sick leave bill that Governor Phil Murphy signed into law .  This week, I want to note an equal pay bill that Governor Murphy recently signed into law as well. Readers might recall that a similar equal pay bill was vetoed by former New Jersey Governor Chris Christie a few years ago when he was Governor of the state .  But as the saying goes, there is a new sheriff in town.  (And this particular sheriff, well Governor, has made signing an equal pay bill a major focal point of his administration). The Diane B. Allen Equal Pay Act is the nation's strongest law that combats both gender pay discrimination and wage discrimination in New Jersey.  (The Act is named after a former New Jersey state senator that was a victim of pay discrimination).  The Act addresses wage discrimination in several ways:  1) it increases the possibility that women can uncover wage discrimination (pay differences among

The City of Austin recently approved a somewhat controversial paid leave ordinance on February 5, 2018 .  I call it controversial because pro-business groups and employers have been vocal critics of the ordinance for a handful of reasons (namely that the paid leave ordinance violates the Texas Constitution).   With the recent filing of a lawsuit in District Court in Austin and a few developments on the matter as of late, I thought it would be appropriate to dedicate this post to the topic. As always, below are a couple articles that caught my eye this week. Austin's Paid Leave Ordinance Goes to Court The National Law Review has a good overview of the lawsuit filed by several business groups and staffing agencies that are seeking to invalidate a City of Austin paid sick leave ordinance set to go into effect on October 1, 2018.  (While I linked readers to the petition, above, The National Law Review breaks things down in a concise and easy to follow format).  The ordi

Earlier this week, the California Supreme Court issued a ruling in Dynamex Operations West, Inc. v. Charles Lee, et al. , and in doing so, established a new test to determine whether a worker is an independent contractor or an employee.   The case revolved around a claim by two delivery drivers that claimed Dynamex (a nationwide package and document delivery company) misclassified its delivery drivers as independent contractors rather than employees.  Apparently, prior to 2004, Dynamex classified its drivers as employees (who performed similar pickup and delivery work as its current drivers performed).  That changed in 2004 when Dynamex adopted a new policy and considered all drivers to be independent contractors rather than employees. In the lower courts, the workers prevailed.  However, Dynamex appealed.  In the California Supreme Court's ruling on Monday, the Court made a landmark ruling that could turn the tide in how successful workers are going forward when present

Today, New Jersey Governor Phil Murphy is set to sign into law a paid sick leave bill after the New Jersey Assembly approved the measure by a 50 - 24 vote in March and the New Jersey Senate approved the measure with a 24 - 12 vote in mid April.  The bill, the New Jersey Paid Sick Leave Act, requires employers in the state to provide up to 40 hours of paid sick leave to their employees.  Employees will be able to earn one hour of paid leave for every 30 hours worked.  The Act provides a host of reasons for why an employee can use the paid sick leave, including for diagnosis, care, treatment, or recovery for a mental or physical condition; diagnosis, care, treatment, or recovery for a mental or physical condition of a family member; and time to attend a school related conference or meeting; among a few other permissible reasons.  Note, the Act apparently does not exempt smaller employers from the obligation to provide paid sick leave. The Act does preempt municipal paid sick leav