The Majority Opinion: Legal Blog

Given that today is Halloween, and the end of the month, I think it I appropriate to style this EEOC Roundup as the Halloween Edition.  For those planning on going home to watch Hocus Pocus or waiting for the Great Pumpkin this evening, this EEOC Roundup will help pass some time.  Employers beware...the below EEOC updates should serve as a ‘fangtastic’ warning for what can happen when things run afoul in the workplace.  Spooky indeed! 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. Trick or Treat: EEOC Files Disability Discrimination Suit Against Family Dollar of Michigan At the start of the month, the EEOC announced it had filed a disability discrimination suit against Family Dollar of Michigan on the grounds that the company unlawfully refused to hire an applicant that suffered from a disability.  The applicant, who suffered from paralysis on his left s

For those readers that have not already early voted, some states still allow a few additional days to get your votes in.  For everyone else, next Tuesday is election day across the country.  While some readers might live in states where mail-in ballots are allowed, others have to go to a polling place in their community to cast their ballot.  However, many voters struggle with finding the time to go vote when they have work, family, childcare, and other life responsibilities that occupies a majority of their day when the polls are opened.  That often leaves precious little time to actually go to the polls and wait in line. With that being said, at least one employer, Cava, has been reported to be offering its 1,600 hourly employees two hours of paid leave to head to the polls today.  Some have reported that Cava is the first national restaurant group of its kind to offer this benefit to its hourly workers. Whether or not this trend (of large employers) offering paid time of

What turned into a busy week of work travel seems to be what I likely have scheduled for the next few weeks.  Excuse the brief post this week as spending a significant amount of time on the road this week left me with little downtime.  In the interim, I call attention to a proposition that will be on the ballot for voters in Missouri this coming Election Day.  If approved, hourly workers could see a minimum wage increase up to $12/hour within the next few years.  While here are several relevant employment law related measures before voters across the state next month, that one in particular is worth keeping an eye on.  As always, below are a couple articles that caught my eye this week. Can Foster Parents Take Additional FMLA Leave After They Adopt a Child? Jeff Nowak at FMLA Insights addressed a reader question earlier this week in regard to whether a foster parent is entitled to additional FMLA leave once they actually adopt the child.  While Jeff goes in depth and ful

Readers that are avid baseball fans have probably watched the first two games of the World Series between the Los Angeles Dodgers and Boston Red Sox.  As much as I would like to talk about the games themselves, this is not necessarily the right blog for that discussion.  With that being said, there has been quite a bit of rancor this week in regard to some off the field events involving the Dodgers.  In particular, I am talking about tension that has arisen in regard to where the Dodgers are staying while in Boston for the start of the World Series.  (Yes, that has become a major issue).   For those unaware, many hotel workers at Marriott have gone on strike recently and set up picket lines at Marriott properties across the country to advocate for better wages and better working conditions .  It turns out that the Dodgers are staying at a Ritz-Carlton (a Marriott property) while in Boston that just so happens to have a picket line in front of the hotel.  Hoping to avoid a public

Late last month, a three judge Seventh Circuit Court of Appeals panel unanimously struck down right to work zones on the grounds that Section 14(b) of the National Labor Relations Act ("NLRA") does not permit local governments to put right to work zones in place. For those needing a bit of a refresher, in 2015, the Village of Lincolnshire adopted an ordinance that created a right to work zone within its borders.  Right to work laws prohibit union membership as a condition of employment and allow employees to choose not to join a union but still benefit from the collective bargaining representation of the union. In a liberal state that has found little in the way of statewide right to work support, Lincolnshire's ordinance was viewed as a potential run around to the ongoing fight to make Illinois the next right to work state.  Illinois Governor Bruce Rauner, a Republican, has previously made his support of right to work in the state well known .  Unsurprisingly

I know that a lot of readers commute to and from work and oftentimes do not have an opportunity to read every article I highlight each week.  While I have highlighted podcasts episodes before, I have never dedicated an entire post to them.  In an effort to change things up, for those readers who are instead looking for something to listen to on their commute, rather than reading an article on the below mentioned topics, give a few of these podcasts a listen.  Most of the below podcasts can be listened to on the linked website or on your podcast app of choice. As always, below are a couple podcasts that caught my ear this week. Service Animals In the Workplace The title says it all as the Hostile Work Environment podcast jumps into some of the more nuanced parts about what constitutes a service animal, how to handle an employee that is allergic to another employee's service animal, etc.  Marc and Dennis, the hosts of the podcasts, often inject humor into some of the &q

Those in the Human Resources field might have taken note of an article I posted earlier this month about how artificial intelligence ("AI") has become more prevalent in the Human Resources field.  That article noted that some employers have started to use AI to help screen applicants for positions, sort resumes, and identify "ideal" candidates for the employer to consider.  Apparently, utilizing AI in these Human Resources roles has streamlined the hiring process for many employers and cut back on the oftentimes prolonged delay that come with hiring a new employee. For those in the Human Resources field that might have been starting to sweat the long term viability of their positions (with AI appearing to be on the cusp of taking some Human Resources positions), it appears that can wait, at least for some at Amazon.  It was announced last week that Amazon had previously scrapped an AI program that was created to review job applicants' resumes.  That prog

As with many employment and labor law related cases (and bills) being litigated around the country, there are always a few that stand out.  This is one to keep an eye on. New Prime, Inc. v. Oliveira - United States Supreme Court Facts :  New Prime, Inc. ("New Prime") is engaged in interstate trucking that has both company drivers and independent contractors operate its vehicles.  Dominic Oliveira ("Oliveira") is a former New Prime driver that was an independent contractor.  In two separate agreements, New Prime and Oliveira agreed that the working relationship was that of an independent contractor and any disputes would be resolved via arbitration.  Oliveira filed a putative class action against New Prime and New Prime moved to compel arbitration.   For those needing a refresher, the district court based its analysis upon the Federal Arbitration Act ("FAA").  The FAA, singed into law by President Calvin Coolidge in 1925, provides for the judi

Durham v. Rural/Metro Corporation - United States District Court, Northern District of Alabama, Middle Division Facts :  Kimberlie Durham ("Durham") worked at Rural/Metro Corporation ("Rural/Metro") as an emergency medical technician ("EMT").  The EMT position required the person be able to respond to emergency and non-emergency requests, transport sick or injured people, and lift/move up to 100 pounds.  Approximately 5 months after being hired, Durham told Mike Crowell ("Crowell"), who managed this particular Rural/Metro location, that she was pregnant.  Durham also told Crowell that her doctor restricted her from lifting more than 50 pounds during her pregnancy.  As an alternative to her usual work, Durham requested that Crowell move her to light duty or dispatch.  Rural/Metro had a written Light Duty Policy "to temporarily modify an employee's existing position or work schedule, or provide transitional assignments to accommodat

The Supreme Court's decision earlier this summer in Janus v. AFSCME has continued to reverberate in the labor law arena time and time again.  In particular, an article from The Huffington Post highlighted one union's efforts to stymie the potential negative impact of Janus .  Whether it will be successful (or even catch on elsewhere) is up for debate.  However, this union's efforts to survive in a post Janus world are worth highlighting. As always, below are a couple articles that caught my eye this week. Hurricane Michael, Work, & Whether An Employer Has to Pay Employees When the Office is Closed Hopefully readers that are (or were in the path of Hurricane Michael) are safe and managed to avoid the brunt of the storm.  For those that have had to deal with the hurricane this week, many likely had their work schedules disrupted.  The question inevitably turns to whether the employer still has to pay its employees when the office/workplace is closed because

Earlier this year, I made note of the Department of Labor’s Payroll Audit Independent Determination (‘PAID’) program which would allow employers to self report and remedy wage and hour violations without penalty, so long as employers got their ‘aggrieved’ employees their owed back pay and the employer was not a prior offender.  The PAID program went into effect April 3rd and was set to be in place for approximately six months before the Department of Labor would review the program to determine whether to extend, modify, or terminate it completely.  Critics quickly argued it was nothing more than a ‘get out of jail free’ card for some employers that failed to actually curtail wage and hour violators.  However, advocates of the PAID program pointed out that it remedied unpaid wage issues without an extended delay and did not require employees to shoulder legal fees to fight for the wages they were owed. On Tuesday, the Department of Labor announced it would extend the PAID progra

Consolidated Communications d/b/a Illinois Consolidated Telephone Company - NLRB Facts :  In 2012, in support of union bargaining demands, Patricia Hudson ("Hudson") along with another striker, Brenda Weaver ("Weaver"), were driving in separate cars on a four lane, public road.  They noticed a company truck ahead of them.  (The truck was driven by nonstrikers).  Hudson and Weaver apparently decided to follow the truck to see if lead to a worksite where their union could also picket.  Once Hudson and Weaver caught up to the company truck, Weaver used the left lane to pass both Hudson and the truck, and then merged back into the right lane in front of the truck.  Hudson used the left lane to pass the truck but remained in the left lane.  In doing so, Hudson and Weaver both prevented other cars from passing.  Once cars started to back up behind Hudson, she merged into the right lane ahead of Weaver and let the cars pass.  When the company truck tried to also use

This past June, voters in the District of Columbia approved a ballot measure, Initiative 77 , that would have eliminated the two tier wage system and was set to raise the hourly pay rate for tipped workers in the city from its current rate of $3.33/hour up to $15/hour in the coming years.  The first wage hike was set to go into effect today, October 9th.  While Initiative 77 was approved with room to spare, opponents of the measure started to urge the D.C. Council to take steps to repeal it.  Critics of Initiative 77 had long argued that the wording of the measure was needlessly complex and poorly worded, not to mention the claim that businesses in the District would struggle to cover these rising labor costs.  As a result, not long after Initiative 77 was approved by voters, the D.C. Council began to confer and hold hearings on whether to repeal or delay the implementation of the wage hike . Well lo and behold, last week, the D.C. Council held a vote and with an 8 - 5 vote aga

Payan v. United Parcel Service - Tenth Circuit Court of Appeals Facts :  Charles Payan ("Payan"), who is Hispanic, worked for United Parcel Service ("UPS") since 1991.  Payan was eventually promoted to Security Manager of the Desert Mountain Salt Lake Division in 2006.  In 2009, Charles Martinez ("Martinez"), also Hispanic, became Payan's direct supervisor.  While Payan had been a "Ready Now" candidate (which meant he could be considered for a promotion), Martinez informed him in 2010 that he was no longer a "Ready Now" candidate.  Martinez proceeded to rate Payan as needing additional time to develop at his current level before being promoted.  However, at this time, two other UPS employees with similar credentials were promoted to positions that Payan wanted but was not eligible for as he was no longer a "Ready Now" candidate. Payan claimed that Martinez constantly harassed him, with some of the interactions r

This week we have a little something for everyone:  minimum wage, ERISA, paid leave, and Human Resources topics.  With that being said, Amazon’s announcement on Tuesday that the company would implement an hourly wage hike up to $15/hour for all U.S. workers by November 1st takes the cake.  A lot has been written on the matter since Tuesday’s announcement by the company, although I have chosen to highlight the article from The New York Times as it provides one of the more concise summaries as to Amazon’s news.  As always, below are a couple articles that caught my eye this week. By November 1st, $15/Hour Wage Rate to Go Into Effect For Amazon Employees In a somewhat surprising announcement, on Tuesday, Amazon announced that it would raise the hourly wage rate for its U.S. employees to $15/hour, effective November 1st of this year.  As Karen Weise at The New York Times reports, this hourly wage increase will impact more than 250,000 employees including workers at Whole Food

As with many employment and labor law related cases (and bills) being litigated around the country, there are always a few that stand out.  This is one to keep an eye on. Mount Lemmon Fire District v. Guido - United States Supreme Court Facts :  In short, the Mount Lemmon Fire District's Chief resolved a budget shortfall by laying off two of the district's oldest employees, John Guido ("Guido") and Dennis Rankin ("Rankin").  The Equal Employment Opportunity Commission found reasonable cause to believe that the Mount Lemmon Fire District had discriminated against Guido and Rankin when they were chosen to be laid off. In relevant part, the Age Discrimination in Employment Act ("ADEA") defines "employer" as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year...The term also means (1) any

Late last month, a three judge panel from the Ninth Circuit Court of Appeals issued a 3 - 0 decision that reversed a class action certification in one of the most closely watched gig economy independent contractor v. employee cases currently pending.  That case, O'Connor v. Uber , revolved around an argument by Uber drivers that the company improperly categorized them as independent contractors rather than employees .  Class certification had been granted back in 2015 and a settlement was almost reached (but ultimately rejected by the judge overseeing the case).  However, the class certification was reversed late last month on the grounds that Uber's arbitration clause prohibited class actions (and therefore mandated individual arbitrations rather than litigation in the court system). This ruling not only overturned the class certification that involved thousands of California Uber drivers but also reversed a lower court's denial of Uber's motion to compel arbit