The Majority Opinion: Legal Blog

I found myself short on time this week with several work trips, but I did manage to come across a few good updates (in regard to right to work and minimum wage).  In particular, I call attention to a Court of Appeals decision from earlier this week.  That case is one to keep an eye on going forward. As always, below are a couple articles that caught my eye this week. A Closer Look at the Unique Nature of the Upcoming Rught to Work Vote in Missouri As I have covered over the past few months, this August, voters in Missouri will have an opportunity to cast their vote in regard to whether the Missouri Legislature’s passage of a statewide tight to work law will remain in place.   Brian Hausworth at Missourinet notes that this upcoming vote is on an actual referendum, something that has not occurred in the state in more than 35 years.  Hausworth does a good job summarizing the right to work fight up until this point, and notes the poor performance of referendums in the state

Rodriguez v. Taco Bell - Ninth Circuit Court of Appeals Facts :  Bernardina Rodriguez ("Rodriguez") worked at Taco Bell.  During her employment, she had a 30 minute meal break and had the voluntary option to purchase a meal at a discount, provided the meal was eaten at the restaurant.  Taco Bell implemented this policy to prevent theft.  Rodriguez proceeded to file a putative class action against Taco Bell on the grounds that she was entitled to paid for the time spent on the premises eating the discounted meal during meal breaks.  Rodriguez argued that since Taco Bell requited the discounted meal to be eaten at the restaurant, she was under "sufficient employer control" to render this time compemsable. The district court ruled in favor of Taco Bell on the grounds that the employees were free to use the 30 minute break however they wanted and were only subject to the restriction to stay on premises if they voluntarily chose to purchase a discounted meal. 

This morning, the House Committee on Education and the Workforce is set to hold another hearing on the Workflex in the 21st Century Act (H.R. 4219 (115)).  Readers might recall that last year, I highlighted this bill , sponsored by California Republican Representative Mimi Walters (and co-sponsored by Washington Republican Representative Cathy McMorris Rodgers and New York Republican Representative Elise Stefanik).  For those needing a refresher, the Act would exempt companies from state and local paid leave laws if these companies met minimum federal paid leave standards and flexible work requirements.  This bill is considered a "first of its kind" in so much that it would combine guaranteed paid leave and increased workplace flexibility under one piece of legislation. As for the specifics of the paid leave portion of the bill: Paid leave would be extended to all full time and part time employees. Employees could accrue leave over the course of a plan year or em

Recently, the New York State Labor Review Board made a ruling and determined that three former Uber drivers were actually employees, rather than independent contractors, for unemployment insurance purposes.  (Perhaps most importantly, this ruling applies to those three drivers and "similarly situated" drivers). For those that have been following the ongoing fight in the "gig economy" in regard to whether these workers are actually employees or independent contractors (as they have mainly been classified), this ruling could mark a major turning point in this struggle. The question now turns to what Uber (and other related gig economy companies) will do.  Uber's official statement so far is that it disagrees with the ruling and is reviewing its options to determine how to proceed.  If Uber chooses to contest the New York State Labor Review Board's ruling, it will have to do so in court. Should this ruling remain in place and Uber decide to abide by

Paid family leave has been a major talking point among both Republicans and Democrats in Congress for some time.  With one of President Donald Trump's daughters, Ivanka Trump, bringing more awareness to the matter, members of Congress have started to give paid family leave more attention.  As a result of a few developments on the national (and local) stage in regard to paid family leave, I think it is appropriate to dedicate this post solely to that topic. As always, below are a couple articles that caught my eye this week. A Closer Look At The Two Major Paid Leave Proposals After last week's Congressional hearing on paid family leave, The Huffington Post published an article that laid out some of the strengths (and weaknesses) of the two major paid family leave proposals that have been supported by Republicans and Democrats in Congress.  As further explained in another article, below, New York Senator Kirsten Gillibrand has proposed a paid family leave proposal th

Let us file this one under the "unsurprising" category.  Yesterday, the Department of Labor formally rescinded the 'Persuader Rule', marking yet another blow over the past few weeks for labor unions .  The Persuader Rule, introduced in 2016 during President Barack Obama's administration , would have required employers or consultants to disclose any money paid for legal services when those services included "indirect persuasion" activities, including advice on what is to be said to employees in connection with a union organization campaign, as well as communications about the status of collective bargaining and contract proposals with rank and file employees. Supporters of the Rule argued that its implementation was necessary in order to make union organization and elections more transparent.  (Of course, supporters of this Rule operated under the assumption that employers were engaging in underhanded and somewhat nefarious tactics to counter the g

Last Friday, two Michigan business groups filed challenges with the Secretary of State in an effort to oppose ballot measures that would raise the state's minimum wage rate and mandate paid sick leave.  At this point, irrespective of these challenges made to the ballot measures, voters in the state appear likely to be able to vote on the matters this November.  (However, the State Elections Bureau is currently conducting a review of the petitions and will present a recommendation later this month on the viability of either ballot measure making it before voters in November). Minimum Wage Ballot Measure A hospitality industry group, Michigan Opportunity, is opposing efforts by Michigan One Fair Wage committee to raise the state's minimum wage rate from $9.25/hour up to $12/hour by 2022.  Increased after 2022 would be tied to inflation.  Taking it one step further, this ballot initiative would phase out the tipped minimum wage rate by 2024. One Fair Wage

Earlier this year, Florida passed a law that requires that membership in teachers unions in the state must be at least 50% of a district's teaching staff or the union could be disbanded.  Representative Scott Plakon, a sponsor of the bill, argued that its passage was necessary as he had seen that because some teachers unions had low membership totals for many years, it was indicative that the unions might not actually be doing a good job advocating for its members.  The theory went that if a teachers union could not maintain at least a 50% membership, this was evidence that it was not doing a good job advocating for its members and therefore should be disbanded.  (The bill originally sought to include police, firefighters, and correctional officers from other public employee unions, but was stripped down to only include teachers unions).  Once that bill became law earlier this month, a lawsuit was filed by the Florida Education Association that argued the bill was actually a uni

Given the recent vacancy on the U.S. Supreme Court, and the potential replacements which were reported to include Judges Brett Kavanaugh, Amy Coney Barrett, and Raymond Kethledge, there has been significant attention given to the prior rulings by these Judges in an effort to glean any sort of insight into how they might rule, should they be confirmed by Congress.  Robin Shea has great articles that I enjoy reading through and her article from last Friday on the actual nominee to the high court (and some of his prior cases) is well worth a quick read. As always, below are a couple articles that caught my eye this week. Boston Symphony Orchestra Flutist Files Equal Pay Lawsuit Last week, a day after the new Massachusetts Equal Pay Law went into effect, a principal flutist of the Boston Symphony Orchestra ("BSO") sued on the grounds that the BSO discriminated against her on the basis of her gender by paying her a wage that was substantially less than other comparable

Following President Donald Trump's mention earlier this year in his State of the Union address about his support for paid family leave, Florida Senator Marco Rubio and one of President Trump's daughter, Ivanka Trump, began to discuss the options for advancing a paid family leave proposal through Congress .  After meeting with several members of Congress on the matter, Senator Rubio and Mrs. Trump outlined the basics of a paid family leave proposal that would allow workers to borrow from their Social Security benefits in order to obtain paid family leave.  For those needing a refresher, the proposal would allow workers to draw from their Social Security benefits for up to 12 weeks each (or a total of 24 weeks for both spouses combined) for each child born or adopted.  In return for allowing these workers to draw from their Social Security benefits, their retirement benefits would be deferred for the amount of time necessary to offset the cost of obtaining the paid family

In-N-Out Burger, Inc. v. National Labor Relations Board - Fifth Circuit Court of Appeals Facts :  In April of 2015, several employees at an In-N-Out Burger in Austin wore buttons that demonstrated their support for the "Fight for $15" movement to raise hourly minimum wage rates.  In-N-Out had a policy in place that required its employees to follow a detailed dress code and required its employees to wear company issued buttons twice a year.  However, In-N-Out prohibited its employees from deviating from this dress code and barred employees from wearing "Fight for $15" buttons.   After an unfair labor practice charge was filed with the National Labor Relations Board ("NLRB"), an Administrative Law Judge ("ALJ") held a hearing in which In-N-Out sought to demonstrate its interest in maintaining a unique public image and its concerns with ensuring food safety amounted to a "special exception" sufficient to justify its "no pin

Having finished up in court in Dallas for the morning, I find myself at Whole Foods for a late breakfast, watching the Uruguay v. France World Cup quarterfinal, and finishing up this post.  Given that July 1st was only a few days ago, I thought it appropriate to lead off this post with a reminder of several recent minimum wage increases that went into effect earlier this week. As always, below are a couple articles that caught my eye this week. Reminder! July 1st Marked the Start of Minimum Wage Increases For Many Employees For those not aware, Sunday was the day that minimum wage increases went into effect for many workers across the country.  For those unfamiliar with where hourly minimum wage rates went up earlier this week, I refer you to the attached chart for reference. Most Age Discrimination Goes Unreported MarketWatch published an article recently that reported that approximately only 3% of age discrimination claims are actually reported.  That number i

Garcia v. Wells Fargo Bank - Ninth Circuit Court of Appeals Facts :  Paola Garcia ("Garcia") worked at Wells Fargo until she was subsequently terminated while on leave after her pregnancy.  Prior to her termination, Garcia sought a promotion to a Loan Doc Specialist position.  At the time she sought the promotion, she was not visibly pregnant.  However, Garcia did not get the promotion which instead went to an unnamed "Melissa Doe" that Wells Fargo hired. Garcia filed suit against Wells Fargo based upon a claim of discrimination, retaliation and violation of the California Family Rights Act ("CFRA").  The district court granted summary judgment in favor of Wells Fargo as to all claims.  Garcia subsequently appealed.  Holding :  The Court of Appeals noted that based upon the causes of action alleged by Garcia, the McDonnel Douglas burden shifting analysis would be applied:  After Garcia established a prima face case, the burden would then s

Goplin v. WeConnect, Inc. - Seventh Circuit Court of Appeals Facts :  Brooks Goplin ("Goplin") worked for WeConnect, Inc.  At the start of his employment, he signed an arbitration agreement called the "AEI Alternative Entertainment Inc. Open Door Policy and Arbitration Program".  The arbitration agreement referred to AEI throughout but never mentioned WeConnect. Goplin proceeded to file a Fair Labor Standards Act and a class action under Wisconsin law, however WeConnect filed a motion to dismiss and compel arbitration.  Included in its motion, WeConnect included an affidavit from its Director of Human Resources that stated, among other things, "I am employed by WeConnect, Inc. - formerly known as Alternative Entertainment, Inc. or AEI - as Director of Human Resources."  Goplin countered and argued that since WeConnect was not a party to the agreement, the arbitration provision could not be enforced.  Goplin pointed the district court to WeConne