The Majority Opinion: Legal Blog

This week, I came across several articles on right to work.  Not withstanding Ohio Governor John Kasich's pledge that the state would not pass a right to work law so long as he is in office , for another four months, there have been some developments in New Mexico and Michigan that I want to highlight for readers. As always, below are a couple articles that caught my eye this week. $15/Hour Minimum Wage Coming to New Jersey...At Some Point Matt Arco wrote an article late last week that noted while New Jersey Governor Phil Murphy made a $15/hour minimum wage a major campaign pledge last year, there appears to be a delay in the New Jersey Legislature in regard to actually getting a minimum wage bill before the Governor by the end of the year.  The sticking point?  Some in the Legislature want carve outs so the $15/hour minimum wage hike would not apply to farm workers and teenagers.  However, apparently Governor Murphy does not want carve outs in any minimum wage bill tha

Automation in some industries has become a major talking point over the past few years as employers seek to offset rising labor costs by eliminating some jobs and replacing those workers with robots, machines, and other automated equipment .  It is worth noting that while manufacturing positions have a long history of automation, some positions (including in the hotel industry) have largely avoided being phased out by the increase in technology in the workplace.  However, thousands of workers at Marriott have recently voted to authorize their union, Unite Here, to strike at locations stretching from Waikiki Beach to San Diego to Detroit and all the way to Boston.  Their reasoning?  In part, asking the hotel chain to adopt procedures to protect workers affected by new technologies.  This is likely due in part to an agreement that Marriott reached with Amazon to have the Echo put in hotel rooms across Marriott's properties.  For those unaware, the Echo is a voice controlle

On September 17th, Democratic Senators Elizabeth Warren, Kirsten Gillibrand, Mazie Hirono, Tammy Baldwin, and Cory Booker sent a letter to the Chairman of the National Labor Relations Board ("NLRB") John Ring and urged him to ensure that Board Member William Emanuel is recused from participating in a case in which his former employer, Littler Mendelson, currently represents a party.  (Quite a mouthful, right?  Let us break things down a bit further to make sure we are all on the same page.) Purple Communications In 2014, the NLRB issued a ruling in Purple Communications that found that when an employer grants workers access to company e-mail, the employer cannot interfere with the workers using that e-mail on non-working time to organize and advocate for better working conditions.  That decision was met with much angst among employers and pro-business groups.  Currently, that case is on appeal before the Ninth Circuit Court of Appeals. Currently, the NLRB has

Last week, the D.C. Council continued to confer on rescinding Initiative 77, despite increased opposition from voters and labor advocates.  As a refresher, back in June, voters in the District of Columbia approved Initiative 77 which would raise the hourly pay rate of tipped workers in the city from the present rate of $3.33/hour up to $15/hour in the coming years.  Despite Initiative 77 being approved by approximately 55% of voters, there was widespread speculation that the D.C. Council might step in and attempt to curb the implementation of this ballot measure .  It turns out that speculation might have been correct as the D.C. Council has started to hear testimony about rescinding Initiative 77. While nothing is official and the approval by voters of Initiative 77 has not been reversed, I would certainly expect the D.C. Council will move to amend the approval of a higher hourly pay rate for tipped workers in the District.  Stay tuned. For additional information:  http:

The battle over classifying workers as independent contractors rather than employees...a tale as old as time.  The Atlantic examined the cannabis industry in California and pondered whether workers being reclassified has been beneficial to either, both, or neither party.  With other related gig company workers seeking to be classified as employees rather than independent contractors , perhaps this situation in California could serve as a litmus test as to the viability of re-classifying workers in this industry? As always, below are a couple articles that caught my eye this week. Long Island Target Workers Reject Union Representation Back in 2015, I had highlighted an attempt by workers to unionize at a Target store in Brooklyn .  That unionization effort was rare as Target has both been proactive in combating unionization of its workplaces as well as the fact that so few union elections had occurred at Target previously.  It has been somewhat quiet since that time in regar

At long last, on September 14th, the National Labor Relations Board ("NLRB") published in the Federal Register the proposed joint employer standard, based upon the vacated decision in Hy-Brand Industrial Contractors, Ltd .   Readers might recall that ever since the NLRB had majority control by Republicans, employers and pro-business groups pushed for a change to the Browning-Ferris joint employer standard (established during the President Barack Obama NRLB era) that stipulated that joint employer liability could exist if an employer exercised direct or indirect control over a separate employer's employees. Under this proposed rule, an employer may be considered a joint employer of a separate employer's employees only if the two employers share or co-determine the employees' essential terms and conditions of employment, such as firing, discipline, supervision, and direction.  Going one step further, this rule would establish that the putative joint employe

In a potentially far reaching, coordinated effort, McDonald's workers across the country are set to strike at lunchtime today to bring attention to on the job sexual harassment and demand better pay.  This strike comes on the heels of complaints against the company by 25 women that alleged the company failed to enforce rules against sexual harassment in the workplace.  The strike, inspired by the #MeToo movement, has been organized by women who filed complaints with the Equal Employment Opportunity Commission as well as groups such as the Fight for $15 movement. As of this writing, McDonald's has not addressed whether it plans to close, ahead of today's strike.  However, a spokesperson has stated that the company opposes harassment or discrimination of any kind at McDonald's and has policies, procedures, and training in place to prevent sexual harassment. Whether today's strike brings the desired change to McDonald's is difficult to say.  At the ve

EEOC v. Costco - Seventh Circuit Court of Appeals Facts :  Dawn Suppo ("Suppo") worked at Costco and during the course of her employment there, was stalked by Thad Thompson ("Thompson"), a customer.  Suppo encountered Thompson for the first time in May or June of 2010.  Thompson asked her personal questions such as where she lived.  After several encounters over the course of a couple months, Suppo related them to her direct manager, Don Currier ("Currier").  Currier instructed Suppo to notify him if she saw Thompson again.  Subsequent to this conversation, Suppo saw Thompson in the store watching her.  Currier, an assistant manager, and a loss prevention officer brought Thompson into a Costco office and told him to avoid talking to Suppo.  Thompson agreed to stay away from Suppo and Suppo contacted the police to report his behavior.  After finding out about her police report, the assistant general manger yelled at Suppo and told her to "be fri

I found it tougher to narrow things down this week.  Rather than posting a far reaching "What I've Been Reading This Week" post and bombarding readers with a few too many articles, I want to keep this one more concise and to the point. As always, below are a couple articles that caught my eye this week. Elon Musk, Pot, & An Employer’s Ability To Discipline An Employee For Usage Last week, readers might have seen that Elon Musk went on Joe Rogan’s podcast and appeared to smoke pot at one point during their discussion.  Using that as an example, Catherine Ho at The San Francisco Chronicle wrote an article that addressed whether employers (specifically ones in California) can lawfully discipline or terminate an employee for smoking weed.  Even for employers or employees not in California, this is a good article to page through for a bit of background on how even in states where smoking weed is legal, an employer can still have disciplinary policies in place f

Sharbano v. Northern States Power Company - Eighth Circuit Court of Appeals Facts :  James Sharbono ("Sharbono") worked at Northern States Power Company ("Northern").  In 1991, he was injured by an electric shock while at a jobsite.  As a result, he suffered damage to his left foot that required amputation and surgical reconstruction.  After rehabilitation, Sharbono returned to work as a journeyman lineman.  Before 2008, Northern had a policy that required certain employees facing hazardous work conditions to wear "safety-toe footwear" that met the requirements of American National Standards Institute standard Z-41.  Northern did allow an exception based on a "statement from the employee's doctor stating he/she cannot wear safety toe footwear."  Sharbono did not wear a steel-toed boot prior to 2008.  However, as of 2008, Northern's policy no longer provided for exceptions and Sharbono was required to wear steel-toed boots.  Throug

With November’s midterm elections fast approaching, the Ohio Democratic Party finds itself in a somewhat perilous position as the Campaign Workers Guild has accused the Party of failing to fully engage in contract negotiations and instead claims the Party has hired a union busting firm to represent them in the negotiations.  This all came about after the Ohio Democratic Party voluntarily recognized its midterm election campaign workers union, the Campaign Workers Guild, back in July.  In doing so, the Ohio Democratic Party became the first state political party with a unionized organizing staff. However, things appear to have gone south, based upon the accusations made by the Campaign Workers Guild.  In particular, the union claims that the Ohio Democratic Party’s failure to meet face to face in these opening negotiations has stalled any progress on a resolution to pay, age, mileage reimbursement, and a fair disciplinary program.  While I would not necessarily say this is the d

Confirmation hearings for a new United States Supreme Court Justice, Brett Kavanaugh, have made headlines this week.  Unfortunately for readers of this blog, Judge Kavanaugh's position on employment and labor law related matters has not taken center stage.  In an effort to remedy that, I want to lead this post off with an article which touches on a wide range of his prior opinions in an effort to predict how he might rule on similar cases, should he be appointed to the Supreme Court. As always, below are a couple articles that caught my eye this week. How Would a Supreme Court Justice Kavanaugh Handle Employment Law Matters? Readers might have seen some of the confirmation hearings that have occurred this week for President Donald Trump's Supreme Court nominee, Brett Kavanaugh.  When President Trump nominated Judge Kavanaugh, currently a Judge on the D.C. Circuit Court of Appeals, earlier this summer, Fisher & Phillips LLP took an in depth look at how Judge Kava

Yesterday, the Republican controlled Michigan House & Senate approved a minimum wage and paid sick leave bill, over the objection of many Democrats in the state’s Legislature.  In order to keep things straight, let us take a closer look at both bills. Michigan One Fair Wage This bill will raise the hourly minimum wage rate in the state from $9.25, up to $12 by 2022.  Perhaps one of the more talked about portions of this bill is the fact that tipped workers will also see a pay raise, going from a current hourly rate of $3.52 up to the minimum wage rate by 2024.  Members of the Legislature approved the bill with a 78 - 28 vote. MI Time to Care As for the paid sick leave legislation, the proposal would allow employees to earn one hour of paid sick leave for every 30 hours worked.  Depending on the size of the employer, employees could have the option to earn up to 9 days of paid sick leave per year.  This bill was also approved with a 78 - 28 vote. Now for the questi

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. Recently, the House of Representatives Small Business Committee Chairman Steve Chabot (Republican from Ohio) and Henry Cuellar (Democrat from Texas), introduced a bill that would clarify that licensing trademarks and controlling or exercising those trademarks does not create an employment relationship.  This bill, the Trademark Licensing Protection Act of 2018 (a/k/a H.R. 6695) would bar franchisers from being classified as a joint employer (and consequently liable for labor law violations of its franchisees and contractors) if the franchisers took actions to enforce trademark protection standards. This proposed legislation would update the Trademark Act of 1946 by clarifying that a franchiser that enforces trademarks "may not be construed as establishing an employer or principal-agent relationship bet