The Majority Opinion: Legal Blog

With a busy week of work, I had limited time to page through articles.  However, one article that touches on the initial impact of Janus v. AFSCME is fascinating and worth a read.  If I had to guess, I would say this is only the beginning of a prolonged downturn among public sector unions for the foreseeable future. As always, below are a couple articles that caught my eye this week. An Uphill Fight For Victims of Sexual Harrasment? Possibly Lauren Edelman over at the Harvard Business Review , citing a string of relevant cases stretching back nearly half a century, opined that victims of sexual harassment are confronted with a seemingly insurmountable barrier when they file a sexual harassment suit against their employers.  While I do not necessarily agree with the entire scope of this theory, the cases cited by Edelman seem to establish a clear cut framework in which this barrier exists:  courts tend to view that an employer with anti-harassment policies in place and a m

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 University of Wisconsin System Hit With Age Discrimination Suit At the start of the month, the EEOC announced that an age discrimination suit had been filed against the University of Wisconsin System after a 53 year old former employee applied for six different positions, and although apparently well qualified with 25 years of experience, the University instead hired a 23 year old candidate with less than 2 years of experience.  The suit alleged that the University refused to hire the former employee because of her age.  If this conduct is proven to be true, it would be in violation of the Age Discrimination in Employment Act of 1967 which prohibits an employer from discriminating against an employee or applicant on the basis of their age. EEOC Files Sexual Harassment and Retaliation Suit Against Piggly Wiggly

Next week, Vermont Senator Bernie Sanders is set to introduce legislation which would require large employers such as Walmart, Amazon, and McDonald's to fully cover the cost of food stamps, public housing, Medicaid, and other federal assistance programs that their employees receive.  Senator Sanders has stated that the goal is to force these large employers to pay their employees a living wage and cut back on the nearly $150 billion in taxpayer dollars that go toward funding these federal programs every year. As for the specifics, a 100% tax on government benefits received would be imposed on government benefits received by workers at companies with 500 or more employees.  For instance, if a Walmart employee received $500 in food stamps, Walmart would be taxed $500. To call this proposed legislation groundbreaking would be an understatement.  I would expect that Senator Sanders, an Independent that caucuses with Democrats, is going to face an uphill battle getting this o

Scudder v. Dolgencorp, LLC - Eighth Circuit Court of Appeals Facts :  Samuel Scudder ("Scudder") worked at a Dollar General store in Arkansas and was later promoted to store manager.  (Dollar General is a d/b/a of Dolgencorp, LLC).  In April 2014, he was deployed to Afghanistan as part of the Arkansas National Guard.  He coordinated his military leave through Dollar General's third party leave coordinator, Matrix Absence Management ("Matrix").  After being wounded in Afghanistan, Scudder was assigned to a unit in Missouri from December 2014 to February 2016.  While in Missouri, Scudder provided notice to Matrix of his continued military leave and was approved for leave through April 1, 2016. On March 31, 2016, Scudder spoke with a Matrix claims examiner.  Scudder apparently told the claims examiner that he could not get a return phone call as to whether he needed to return to work and did not know if he needed to put in his two weeks notice because of

While this blog is far from a political commentary post or analysis of related topics, the recent news of a former White House staffer that recorded conversations in the White House has caught my attention.  A recent article from The Washington Post , below, addressed some of the more nuanced discussions that have resulted over whether employees have a right to record conversations with their bosses in the workplace.  While the law can vary from state to state, this is a highly relevant article to page through. As always, below are a couple articles that caught my eye this week. NLRB: Hospital Cannot Bar Off Duty Employees in Public Cafeteria From Soliciting Other Employees On Off Duty Time Earlier this month, a three member panel of the National Labor Relations Board ("NLRB") issued a decision in which it found that the employer, a hospital, violated the National Labor Relations Act ("NLRA") when it barred off duty employees from distributing union fly

A few weeks ago, a co-worker approached me with a question about what to do about another employee that refused to sign a performance improvement plan.  As a bit of background, this co-worker oversees a team of several other employees and noticed that one particular member of this team had a performance record that was lacking.  A performance improvement plan was drafted and the employee was asked to sign it.  However, the employee apparently refused to do so and my co-worker was left wondering...what now? While this resource is not the definitive guide to the topic and not intended to serve as legal advice (those experiencing a similar situation should consult their HR representative and/or employment law attorney for guidance), it provides a framework that can be referred to when needed. Disciplinary Notice/Performance Improvement Plan Issued Let us start at the beginning.  The employer or supervisor issues an employee a disciplinary notice, performance improvement plan,

Norris v. Glassdoor, Inc. - United States District Court, Southern District of Ohio, Eastern Division Facts :  Stacy Norris ("Norris"), a U.S. Navy veteran, worked at Glassdoor after she received an honorable discharge.  (Her husband also served in the Navy during and after a few events that gave rise to this lawsuit.)  Norris's job was to monitor the Glassdoor website postings to flag, approve, or disapprove reviews as necessary.  To do her job, Norris was allowed to work remotely.  When her husband was deployed to Virginia Beach for two years, Norris planned to join him for the duration of the deployment.  When Norris notified Glassdoor about her plan to relocate and continue to work remotely, Glassdoor told her she would lose her job unless she maintained Ohio residency and would have to resign if she moved to Virginia.  In exchange for her resignation, Glassdoor agreed to rehire Norris for "a position she was qualified for" when she came back to Ohio

Spending a good deal of time this week on the road for work gave me some downtime on flights to read through some good articles.  In particular, I came across a wide range of articles dealing with all sorts of employment discrimination matters.  It has been a while, in fact this might be the first, since I dedicated a "What I've Been Reading This Week" post to employment discrimination...and there is no time like the present. As always, below are a couple articles that caught my eye this week. California's Adoption of New Regulations to Define National Origin Discrimination Could Be Far Reaching Earlier this week, Kathryn Mantoan and Kourosh Jahansouz had a good update on a new regulation adopted in California, and effective July 1, 2018, that specifically defines national origin under California law and provides examples of prohibited practices.  This newly added section, 11027.1, specifically defines national origin and perhaps most notably defines "

Capital Medical Center v. National Labor Relations Board - D.C. Circuit Court of Appeals Facts :  Capital Medical Center ("Capital") is an acute-care hospital that was involved in a labor dispute after Capital's technical employees, represented by United Food and Commercial Workers ("Union"), had their collective bargaining agreement expire.  The Union sought to engage in picketing and handbilling outside Capital to advocate for a new collective bargaining agreement.  With Capital's permission, a few employees went onto Capital's property to hand out leaflets and hold signs alongside two non-emergency entrances.  The signs contained the messages "Respect Our Care" and "Fair Contract Now".  Although some hospital personnel told these employees they could not stand on hospital property with their picket signs, the employees declined to leave.  Capital's labor relations counsel told Union representatives that if the employees

Lindeman v. Saint Luke's Hospital of Kansas City - Eighth Circuit Court of Appeals Facts :  Todd Lindeman ("Lindeman") worked at Saint Luke's Hospital of Kansas City ("St. Luke's) for over eight years in various positions.  Lindeman, who suffered from obsessive compulsive disorder, attention deficit disorder, bipolar disorder, and other physical limitations, had a good employment record for most of his tenure at St. Luke's.  However, when Todd Isbell and Rosa Parodi became his new supervisors, Lindeman claimed they became more demanding and less pleasant to work with than his previous supervisor, Lorra Embers. St. Luke's had a progressive disciplinary policy in place under which an employee would be terminated upon receiving their fourth infraction.  In early 2014, Lindeman received a warning after he became argumentative over his failure to return a supervisor's phone calls.  Later that month, Lindeman again received a warning for fail

After long last, we have some finality as to the ongoing right to work fight in Missouri.  As readers are aware, this has been a long, hard fought struggle for many years.  After Missouri Republican Governor Eric Greitens signed a right to work bill into law, unions rallied to get the matter on the ballot for voters to decide whether Missouri would become the 28th right to work state.  Upon obtaining enough signatures, the matter was placed on the ballot and moved up to an August 7th vote.  Critics of the right to work law claimed this was an attempt by Republicans to move the right to work vote from the November general election, since voter turnout in August would be lower (and potentially more Republican leaning).  Nevertheless, unions and their supporters raised nearly $16 million dollars in a get out the vote effort to rally opposition to the referendum, Proposition A, and educate voters of the "dangers" of Missouri becoming the next right to work state.  Supporters o

EEOC v. Dolgencorp, LLC d/b/a Dollar General Corporation - Sixth Circuit Court of Appeals Facts :  Linda Atkins ("Atkins") worked as a sales associate at Dollar General.  Atkins is a type II diabetic and on occasion suffered from low blood sugar.  To prevent passing out, Atkins had to quickly consume glucose.  When Atkins asked her manager if she could keep orange juice at her register in case of emergency, her request was denied.  On two occasions, she suffered two episodes while working alone.  Both times, she responded by drinking orange juice from the checkout cooler, paying for it immediately and reporting the incident to her supervisor.  Dollar General proceeded to fire Atkins and the Equal Employment Opportunity Commission ("EEOC") proceeded to file a suit under the Americans with Disabilities Act ("ADA") on her behalf.  Atkins intervened and her reasonable accommodation and discriminatory discharge claims proceeded to trial before a jury. 

At long last, after several months of back and forth between labor unions and pro-employer groups, voters in Missouri will head to the polls today and cast their vote on Proposition A (also known as the right to work law signed by then Governor Eric Greitens last year).  Readers will recall that after Governor Greitens signed the legislation into law, an effort was launched by labor unions and their supporters to get the matter on the ballot.  After obtaining the necessary signatures to force a vote on the matter, Proposition A was put on the ballot...but was eventually moved up by the State Legislature for an August 7th vote, rather than in the general election in November. Since the matter was put on the ballot, labor unions have been aggressive in raising money (in excess of $16 million) to fight the right to work ballot measure.  On the other hand, supporters of right to work in Missouri have garnered a fraction of that amount, with reports putting those fundraising amounts

Given that Senator Marco Rubio finally introduced his paid family leave proposal this week (after several false starts), I think it is appropriate to lead off this post with a closer examination of his proposal.  This one still has a long ways to go before becoming law, but some of the specifics of the bill are worth a read. As always, below are a couple articles that caught my eye this week. Senator Marco Rubio Formally Unveils Economic Security for New Parents Act At long last, Florida Senator Marco Rubio has rolled out his proposed paid family leave plan yesterday, dubbed the "Economic Security for New Parents Act".  I have attached a fact sheet from Senator Rubio's website which breaks down some of the specifics of the plan.  Readers might recall that this proposed paid family leave bill would allow workers to borrow from their Social Security benefits in order to cover their paid leave .  In return for borrowing from their Social Security benefits, these

Troester v. Starbucks, Corp. - California Supreme Court Facts :  Douglas Troester ("Troester") worked as a supervisor at Starbucks.  His duties included working a closing shift in which he clocked out before initiating Starbucks's computer software for "close store procedure" which transmitted daily sales, profit and loss, and store inventory data to Starbucks's corporate headquarters.  After finishing this task, Troester activated an alarm, exited the store, locked the door, and walked his coworkers to their cars in accordance with Starbucks's policy.  These various  off the clock tasks took between four and ten minutes per shift.  Over the course of his seventeen months of employment, Troester alleged that Starbucks owed him $102.67 in unpaid time, not including any penalties or other remedies. Troester proceeded to file suit on behalf of himself and a putative class of all non-managerial California employees at Starbucks that performed clos

If readers recall, President Donald Trump recently nominated D.C. Circuit Court of Appeals Judge Brett Kavanaugh to fill a vacancy on the United States Supreme Court.  Shortly after his nomination to the highest bench in the country, attention turned to his prior opinions in an effort to gauge how he might rule on cases if confirmed as the next Supreme Court Justice.   Of particular note, a few of his prior labor law opinions have started to catch the eye of some legal scholars.  In particular, Judge Kavanaugh ruled in favor of Trump Entertainment Resorts in 2012 in a case in which an effort was made to prevent a unionization drive at the Trump Plaza in Atlantic City.  That case centered on a unionization effort at the hotel back in 2007.  At the time, the United Auto Workers ("UAW") held a media event with a group of supportive federal and state lawmakers and claimed that they had counted union cards and confirmed the union had majority support.  Six days afterward, t