The Majority Opinion: Legal Blog

The week back after Thanksgiving break is normally always hectic.  This year in particular was no exception.  While I would normally prefer to highlight several articles, this week I am going to keep it brief as I have been traveling for work quite a bit and have not had as much time as I would have liked to read through articles. As always, below are a couple articles that caught my eye this week. Austin Court of Appeals Issues Injunction to Block Austin’s Paid Leave Ordinance A few weeks ago, a three judge panel from the 3rd Court of Appeals in Austin issued a temporary injunction to block Austin’s paid leave ordinance passed by the City Council back in February .  That paid leave ordinance, a rarity in Texas, would have required most employers in the city to offer their employees six to eight days of paid leave for a year of work, depending on the size of the employer.  Critics of the ordinance scrambled to block its implementation before its expected start, October 1

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. Whole Foods Settles Disability Discrimination Suit Whole Foods has agreed to pay $65,000.00 to settle a disability discrimination suit filed by a former cashier at one of its locations in Raleigh, North Carolina.  This particular employee, hired in 2005, suffered from a kidney disease.  In 2009, she had a kidney transplant.  In 2015, she was hospitalized for a few days as a result of her condition and missed work.  Although Whole Foods was notified of the situation and the employee’s request for time off for her kidney impairment, Whole Foods ended up terminating her employment because of the absences.  This conduct is in violation of the Americans with Disabilities Act (“ADA”) which prohibits employers from discriminating against employees because of a disability and requires employers to provide disabled employees w

Earlier this week, Rick Santorum (former Republican Senator from Pennsylvania and Republican presidential candidate) wrote an article in which he advocated for Congress to embrace paid family leave and work to pass a bipartisan bill.  Some might not call this groundbreaking news.  However, it is noteworthy in so much that a (former) major player among Republicans has come out so openly in support of the measure.  (Of course, Santorum does not have the same power/reach that he did several years ago.  Although his stature among Republicans does still give him a voice on critical matters). Readers will recall that Democrats will retake control of the House of Representatives next year while Republicans will retain control of the Senate.  That means that in order to pass any legislation, it will become imperative for both parties to work together.  As Santorum writes, a paid family leave bill makes sense for working Americans in all areas of the employment field.  He notes that whil

Given that many readers are likely not working tomorrow or Friday, I wanted to get this post up before many left the office/workplace for the week.  With any luck, things will be slowing down by the end of this afternoon and this post will help readers get across the finish line into the Thanksgiving break. As always, below are a couple articles that caught my eye this week. A Breakdown of State & Federal Meal and Rest Breaks By State The title says it all, really.   SwipeClock has provided a rather comprehensive list, by state, of the rest and meal breaks that are required by law.  This is well worth a quick review for employers and employees alike. Stop WalMart Act Introduced in U.S. Congress Last week, a bill was introduced in Congress that is designed to prohibit large employers from buying back stock unless they up worker wages to at least $15/hour, scale back pay for CEOs to no more than 150 times the mediation pay of all staffers, and allow employees to ear

Doe v. Virgin America, Inc. , et al. - United States District Court, Northern District of California Facts :  Jane Doe ("Doe") worked as Vice President of Research Now, a global expert in online marketing research.  Doe's job responsibilities including "building and maintaining key strategic relationships with loyalty professionals, including airline representatives."  In October of 2016, Doe attended a conference in Toronto, Canada attended by professionals in the travel industry.  At the time, Stuart Dinnis ("Dinnis"), served as Virgin America, Inc.'s Director of Loyalty.  Dinnis also attended the conference in Tornoto.  Doe was informed that Dennis was an important person that she would need to meet with while at the conference.   At a conference related party, Doe introduced herself to Dinnis.  Dennis, who was "noticeably drunk", later spilled a drink on Doe.  When Doe and her colleagues returned to their hotel, Dinnis was

Last week, the Department of Labor issued an opinion letter in which it rescinded guidance that said tipped workers that are paid less than minimum wage must spend most of their time performing tipped-wage duties.  That guidance, implemented during the President Barack Obama era Department of Labor (often referred to as the 80/20 rule ) required that the tipped workers spend 80% of their time performing tipped-wage duties such as waiting tables rather than folding napkins or cleaning dishes. In its letter, the Department of Labor noted that it intended to clarify the Field Operations Handbook section 30d00(e), which previously had resulted in some confusion and inconsistent application.  With the issuance of its opinion letter, the Department of Labor stated that the letter was intended to clarify FOH section 30d00(e) in a manner that not only ensured consistent application of the Fair Labor Standards Act ("FLSA") but also gave employers a level of clarity to determin

This past weekend, I was talking with an esteemed worker in the HR field and noted that this week, I would focus this post on HR related topics.  In doing so, I came across a few HR related articles worth highlighting.  Of note, I call attention to the first article that touches on the use of non-disclosure agreements for sexual harassment matters (in the workplace).  To the loyal HR readers of the blog, this particular article is worth a read, given the increased attention that sexual assault in the workplace has received. As always, below are a couple articles that caught my eye this week. An Emerging Trend: Non-Disclosure Agreements For Sexual Harassment Matters By now, readers are likely familiar with the #MeToo movement which has brought attention to sexual harassment matters in the workplace.  Kate Palmer over at The HR Director wrote an article which points out a troubling trend that she has found:  rather than non-disclosure agreements being used to protect a co

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. Following a lawsuit filed earlier this year on the matter , on Monday, Texas Republican Representative Matt Krause introduced HB 222 in the Texas House of Representatives.  That bill would prohibit cities in the state from passing ordinances, such as the paid sick leave ordinance approved by the Austin City Council earlier this year .  If readers recall, Austin approved a paid sick leave ordinance that required private employers in the city with more than 15 workers to provide at most 8 days of paid sick leave per year for its full time employees.  For private employers in the city with less than 15 employees, the ordinance required that these employers provide at most 6 days of paid sick leave per year.  San Antonio followed suit this past summer with a similar law while Dallas has reportedly been going back an

Mount Lemmon Fire District v. Guido - United States Supreme Court Facts :  To summarize, 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 discriminated against Guido and Rankin when they were chosen to be laid off. The District Court, relying upon precedent from the 6th, 7th, 8th, and 10th Circuits held that the Age Discrimination in Employment Act ("ADEA") has a 20 employee minimum "threshold" that applies to state and local employers.  As a result, the District Court found that the ADEA did not provide as cause of action for Guido or Rankin as the Mount Lemmon Fire District had fewer than 20 employees.  On appeal, the 9th Circuit reversed, with a holding that state and local governments with fewe

At the start of the month, a lawsuit was filed against the NBA's Cleveland Cavaliers by a former assistant coach, Jim Boylan, that alleged age discrimination against the team.  Boylan, 63, who served as an assistant coach with the Cavaliers from 2013 - 2018, did not have his contract renewed after the 2017 - 2018 season.  The suit names Koby Altman (the team's general manager), Dan Gilbert (owner of the team), Cavalier Holdings, LLC, and Cavaliers Operating Company, LLC as defendants in the case. According to the lawsuit, the head coach of the Cavaliers at the time, Tyronn Lue, left Boylan a voicemail in June of 2018 and said "...I [Lue] had a talk with Koby [Altman] yesterday.  He does not want to pick up your option.  He said that's way too much money.  They're not going to pay that kind of money for three assistants on the bench.  He wants to go younger in that position, and you know, find somebody that's a grinder and younger in that position.  And

As many readers have likely experienced, some workplaces are permeated with overtime abuse by hourly workers.  Whether this overtime abuse is intentional or not, it can lead to employers incurring unexpected (and avoidable) labor costs and other employees feeling a sense of resentment toward those co-workers that are ‘milking’ the system.  All of the below articles are worth a read, but I call particular attention to the EmpLAWyerologist article on the topic. As always, below are a couple articles that caught my eye this week. Following the 2018 Election, What Can Employees & Employees Expect From the New Congress On Tuesday, pro-business and pro-employer stalwarts, Bruce Rauner (Republican Governor of Illinois) and Scott Walker (Republican Governor of Wisconsin), were voted out of office after their reelection bids were sidelined by their Democratic challengers.  While the employment and labor law future for employers in those states look bleak, Fisher Phillips publi

Today, Google announced that it would end its policy of mandatory arbitration of sexual harassment and sexual assault claims at the company.  This comes on the heels of last week's walkout by many of the company's employees that sought to bring attention to how the company has handled such complaints against company executives in the past .  Google received bad press after it became well known that the company had apparently shielded and paid out $90 million to a company executive after sexual misconduct allegations were made against him. In the announcement to Google employees, the company's CEO, Sundar Pichai, recognized that the company had not always gotten things right in the past.  Apologizing for some of the company's shortcomings (in this case, having previously required arbitration of the sexual misconduct allegations), Pichai wrote that in addition to no longer requiring arbitration, Google would update and expand its sexual harassment training.  As an

Yesterday was Election Day across the country as voters in Missouri and Arkansas had their say in regard to two different minimum wage proposals on the ballot. In Missouri, Proposition B sought to raise the hourly minimum wage rate in the state from $7.85/hour up to $12/hour by 2023 .  As for Arkansas, voters in the state had their say on Issue 5 which would raise the hourly wage rate from $8.50/hour up to $11/hour by 2021 .  For those keeping score at home, these were the only two statewide minimum wage related matters on the ballot. In Missouri, voters approved Proposition B with approximately 61 percent in favor of the measure.  As a result, the hourly minimum wage rate in the state will increase to $8.60/hour on January 1, 2019 and then increase $.85/hour every year until 2023 when the hourly minimum wage rate will reach $12/hour. In Arkansas, voters approved Issue 5 with approximately 68 percent in favor of the measure.  As a result, the hourly minimum wage rate in the stat

A few weeks ago, it was announced that WalMart agreed to pay $65 million to resolve a case brought against the company in regard to a California law which requires employers in the state to allow their employees to sit “whenever the nature of the work reasonably permits”.   While the law has been in place since 1911, it has been amended and expanded several times throughout the years .  (Bear in mind that WalMart is not the only employer to have been confronted with a suitable seating case as CVS , Home Depot, and Target, among others, have dealt with related claims in recent years). In this instance, suit was filed in 2009 when a WalMart employee alleged that the company was in violation of the state’s suitable seating requirement.  The company based part of its argument on the idea that the nature of work performed by its cashiers does not reasonably permit the use of a seat as the cashiers would need to be able to move around, greet customers, and look inside carts, among ot

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. Tomorrow, voters in Arkansas will have final say (as many have already cast their vote during early voting) in regard to Issue 5 which seeks to raise the state's minimum wage rate up to $11/hour by 2021.  (The current hourly wage rate is $8.50).  Tomorrow's vote on Issue 5 follows an August announcement by the Arkansas Secretary of State that enough valid signatures had been collected to place the matter before voters. Some readers might recall that voters in the state had previously approved a prior hike to the state's minimum wage rate back in 2014.  That raised the minimum wage rate above the federal level of $7.25/hour to its current rate of $8.50/hour. Of course, readers might remember that voters in Missouri will also be deciding on a similar minimum wage hike proposal, Proposition B

While I could have lead this post off with a nod to the news earlier this week that the National Labor Relations Board has extended the comment period for its proposed rulemaking to determine joint employer status (thanks for the write up, HR Dive ), there is not a lot to say beyond the comment period has been extended into December.  As a result, I wanted to instead focus on next Tuesday and the employment law related referendums and propositions facing voters across the country.  In particular, Measure L, which is on the ballot in Anaheim this Election Day, is worth a review.  (Do not forget to also check out Proposition B, a minimum wage ballot measure facing voters in Missouri on Tuesday ). As always, below are a couple articles that caught my eye this week. Ahead of Tuesday’s Vote, Disney & Labor Unions Ramp Up Spending in Regard to ‘Living Wage’ Proposal The Los Angeles Times published an article earlier this month that focused attention on the millions of dol

Today, over 200 engineers at Google are set to walk out after it was announced that the company apparently shielded and paid out $90 million to Andy Rubin, creator of Android mobile software, after sexual misconduct allegations against him became known.   This walk out comes on the heels of allegations that Rubin had been involved in sexual misconduct with a Google employee.  After the company investigated the claims and found them to be credible, Rubin was asked for his resignation.  Rather than terminating Rubin (and potentially paying him very little upon his exit), Google instead gave him a $90 million exit package.  Once this information became more well known among Google employees, a meeting was held last week in an effort to address concerns about what Google did (or rather did not) do in regard to Rubin.  Following last week's meeting, an internal forum posting that suggested employees organize a walkout began to gain steam. Now of course there is still much tha