The Majority Opinion: Legal Blog

As readers might be aware, Title VII of the Civil Rights Act of 1964 bars employers from discriminating based upon race, color, religion, sex, national origin, age, disability, or pregnancy.  While the Equal Employment Opportunity Commission (“EEOC”) has concluded that Title VII also prohibits sexual orientation discrimination in the workplace (as it has been found to be a form of sex discrimination), courts across the country have wavered on the applicability of the EEOC’s conclusion in recent years.  Currently, there is no federal law which has been passed to specifically include sexual orientation discrimination as a protected class under Title VII.  With that being said, the EEOC’s 2015 ruling was deemed by many to be historic and hailed by those in the LGBTQ community as a progressive step forward.  As such, in recent years, LBGTQ advocates have urged courts across the country (often via amicus briefs) to follow the EEOC’s lead and hold that Title VII prohibits sexual orientat

Earlier this month, the National Labor Relations Board (“NLRB”) issued a 3 - 1 decision in Alstate Maintenance, LLC in which the scope of what constitutes protected concerted activity under the National Labor Relations Act (“NLRA”) was narrowed.  Under Section 7 of the NLRA, employees have a right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  However, the question of what constitutes protected concerted activity has become somewhat of a blurred line over the years as the NLRB has issued decisions which have made it difficult to differentiate between protected group action and unprotected individual action.  Notably, a 2015 decision in Whole Foods Market held that “activity by one individual is deemed concerted activity if undertaken in an effort to enforce the provisions of a collective bargaining agreement or in order to initiate or induce group action.” In Alstate , a dispute arose over comments made by Trev

In 2016, the President Barack Obama era Department of Labor proposed raising the minimum salary level for exemption as an executive, administrative, or professional employee from $455/week ($23,660/year) up to $913/week ($47,476/year) .  (Under this proposal, positions that once were considered executive, administrative, or professional would be subject to overtime pay.  As a result, this proposal would have required employers to pay overtime to these employees that earned less than $47,476/year).  Employers and pro business groups were sent into a frenzy as they took steps to try and block this change from taking effect.  (Some employers even switched white collar employees from salaried positions to hourly positions to try and get ahead of the proposed overtime changes).   As readers will likely recall, a permanent injunction was issued in federal district court to block the implementation of this new overtime rule.  Once President Donald Trump took office, employers and pro

What turned into a full week in the office this week will lead to almost another full week in the office next week as well.  While productive and a boon to the firm’s bottom line with the hours I have billed this week, I have had limited time to read articles.  Nevertheless, I did come across a few that I wanted to highlight for readers.  While California Senator Kamala Harris has recently declared her intentions to run for President, I will save an overview of her labor and employment law policies for another week. As always, below are a couple articles that caught my eye this week. Department of Labor Accuses Oracle of Engaging in Pay Discrimination for Women & Minorities Ben Tobin at USA Today wrote an article earlier this week that made note of a Department of Labor lawsuit that alleges Oracle improperly engaged in a pattern of discrimination in regard to pay for women and minorities at the company.  According to the Department of Labor, Oracle’s alleged discriminat

This past Tuesday morning, Florida attorney John Morgan announced plans to take steps to put a minimum wage hike ballot measure before voters in 2020.  The ballot measure would seek to raise the hourly minimum wage rate in the state from its current rate of $8.46/hour up to $15/hour.  (The hourly wage rate would go up to $10/hour on September 30, 2021 and then rise $1/year until it hit $15/hour in September of 2026).  Notably, the proposal would place this minimum wage hike in the Florida Constitution as an amendment.  Within the past year or so, Morgan's law firm has raised nearly $500,000 for a committee that has been pushing for a minimum wage hike. Readers might wonder why a Florida attorney (that is not the Attorney General of the state nor a politician) would put such time and effort toward a ballot measure.  That is a good question.  It is worth nothing that in 2016, Morgan helped a ballot measure succeed that legalized marijuana in the state.  Building off that succe

Last Wednesday, New Hampshire Governor Chris Sununu and Vermont Governor Phil Scott held a joint press conference in which they unveiled their "Twin State Voluntary Leave Plan".  This proposal would provide voluntary paid family and medical leave to workers in both states.  Under the proposal, enrolled public and private sector employees in New Hampshire and Vermont would be eligible for 60% wage replacement for six weeks at competitive rates for qualifying events.  What would count as a qualifying event under this plan you ask?  The birth of a child, the adoption of a child, the fostering of a child, a serious health condition that makes the employee unable to perform essential functions of his/her job, an urgent situation involving a close relative that is an active duty member of the military, or the need to care for a close relative that faces a serious health program would all qualify. This inevitably then leads to the question of "Ok, how are you going to p

As with many employment and labor 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. Readers will recall that during last November’s elections, Democrats took back control of the House of Representatives.   As a result, many expected that once the new legislative session began earlier this month, House Democrats would seek to advance their agenda by introducing bills catered to their base.  It did not take long for that to happen.  Late last week, House Democrats introduced a bill, the Raise the Wage Act of 2019, that seeks to gradually raise the federal hourly minimum wage rate from $7.25/hour up to $15/hour.  While Democrats appear to have the votes to advance the bill to the Senate, that is where many expect it will meet the buzzsaw as Republicans still retain majority control of the Senate.  As readers are likely aware, a majority of Republicans (including in the Senate) have shown little int

With the update on the Supreme Court's decision yesterday in the New Prime, Inc. v. Oliveira case , I point readers to that update given the Court's unanimous decision finding that an arbitration provision was not enforceable.  For those that already checked out that article and are looking for something new, I came across a few articles this week worth highlighting.  In particular, I call attention to a new wrestling promotion that is making equal pay one of the tent poles of its new organization.  It will be interesting to see how that plays out. As always, below are a couple articles that caught my eye this week. New Wrestling Promotion Announces Equal Pay For Male & Female Wrestlers Some readers might enjoy watching wrestling, whether it be WWE, ROH, NJPW, or another indie promotion.  Of course, let us not forget UFC or Bellator for those looking for something a bit more physical.  Last week, it was announced that a new wrestling promotion was being created

Back in October, the United States Supreme Court heard oral arguments in New Prime, Inc. v. Oliveira .  The case, which came up on appeal from the First Circuit Court of Appeals, raised two primary questions for the Court to consider:  1) Whether a court should determine whether the Federal Arbitration Act's Section 1 exclusion for disputes involving "contracts of employment" of certain transportation workers applies before sending a case to arbitration (or if the matter should instead go straight to an arbitrator to decide the question of arbitrability), and 2) Whether the transportation worker, Dominic Oliveira ("Oliveira"), had a "contract of employment" that fell within Section 1's exception. At October's oral arguments, I made note of the Justices giving counsel for New Prime, Inc. ("New Prime") a rather rough go of it, based upon the tenor of their questions.  On the other hand, the questions aimed at counsel for Oliveira

Chances are, most readers have received a jury duty summons at some point in their lives.  Oftentimes it seems the jury duty summons occurs at the least opportune time:  with a pending deadline at work, childcare responsibilities, a trip planned, etc.  While some states allow a jury duty summons to be re-set (or excused in its entirety), sometimes it simply cannot be done and the employee will have to take time off work.  Unfortunately, some employers do not take kindly to the employee missing work for jury duty, with some employers even punishing or terminating the employee for missing work.  Employers, in a word:  Do not do this.  Instead, there are more appropriate/lawful ways to manage an employee’s jury duty summons without running afoul of the law. While this reference 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),

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. Recently, HB 1806 was filed in Virginia's House of Delegates by Democratic Delegate Lee Carter, that seeks to repeal the state's right to work law.  The law, in place since 1947, stipulates that workers in the state may not be forced to join a labor union or pay union membership dues as a condition of employment.  Up until a few years ago, the state's right to work law was viewed as relatively "safe" and was not under fire.  However, in recent years, Democrats in the state have started to lean further left and have made repealing the right to work law more of a talking point in their caucus. Delegate Carter previously campaigned on a pledge to introduce legislation to do away with Virginia's right to work law.  The filing of HB 1806 is the first step in accomplishing that goal.

Recently, Equal Employment Opportunity Commission Commissioner, Chai Feldblum, had her re-nomination on the brink, after Utah Republican Senator Mike Lee took steps to block it .  Readers might have heard that late last week, Commissioner Feldblum's re-nomination quietly slipped away and she tweeted out a thank you to supporters and friends, acknowledging that her time at the EEOC was over.  While there has not been much in the way of a further update in regard to that ongoing saga, we wait to see how things will play out at the EEOC, now that it has lost a quorum until additional Commissioners are confirmed by the Senate. For the time being, there are other developments for readers to review this week.  In particular, I call attention to the article on managing a wage & hour audit by the Department of Labor as well as steps an employer can take to better ensure compliance with the ADA. As always, below are a couple articles that caught my eye this week. Suspicionl

Last year, the Fifth Circuit issued a much anticipated decision in the In-N-Out v. National Labor Relations Board case .  That case arose out of a dispute over an employee's placement of a "Fight for 15" button on his work uniform.  As In-N-Out argued, it had a long history of not allowing employees to alter their uniforms.  In-N-Out pointed out that it had a decades old uniform policy that dictated the hats, hair, shirts, undergarments, jackets, pants, name tags/pins, aprons, socks/shoes, jewelry, fingernails, makeup/facial features, sunglasses, and prescribed transition lenses, personal hygiene, and tattoos of its workers.  Consequently, In-N-Out stated that the employee that placed a "Fight for 15" button on his work uniform was in violation of the company's uniform standard and had to take it off.  The employee filed an unfair labor practice charge and stated that he was protected under the National Labor Relations Act ("NLRA") and In-N-Out

Styczynski v. MarketSource, Inc. & Allegis Group, Inc. - United States District Court, Eastern District of Pennsylvania Facts :  Rachel Styczynski ("Styczynski") worked at MarketSource, Inc. ("MarketSource") and Allegis Group, Inc. ("Allegis").  (MarketSource is a wholly owned subsidiary of Allegis).  In her role, Styczynski was promoted several times during her four year employment.  Styczynski alleged that a male supervisor repeatedly harassed her, inappropriately touched her, and inquired about her sexual orientation and marital status.  According to Styczynski, MarketSource and Allegis' response was inadequate, discriminatory, and retaliatory.  Apparently the employer failed to address the harassment, commanded Styczynski continue reporting to and working alongside her harasser, and created the hostile work environment that ultimately forced Styczynski to resign. After filing suit, MarketSource and Allegis moved to dismiss the case on

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. Currently, Oklahoma's hourly minimum wage rate sits at $7.25, on par with the Federal hourly minimum wage rate.  Senate Bill 102, introduced by Democratic Senator George Young, seeks to raise the hourly wage rate in the state to "not less than $10.50 or the current federal minimum wage, whichever is greater".  If approved, the state's new hourly wage rate would go into effect January 1, 2020. Given the wide range of other states that have implemented hourly wage increases last year , it will be interesting to see if Oklahoma joins the ranks of those twenty states with a similar hourly wage increase.  It is worth noting that Republicans hold a sizeable majority in the Senate with 39 seats compared to just 8 for Democrats.  Things are not much better in the state's House of Representa

Readers might have seen that the 116th United States Congress was sworn in yesterday.  While we could spend all morning talking about the upcoming legislative agenda or what Nancy Pelosi will do now that she has become Speaker of the House again, perhaps that discussion is better served by watching C-SPAN .  On the topic of developments to start the year, there have been a range of hourly minimum wage increases across the country.  Given these hourly minimum wage hikes, I think it is appropriate to take a look at the impact these minimum wage hikes have had as well as consider whether other minimum wage hikes could be on the horizon. As always, below are a couple articles that caught my eye this week. A Closer Look at Hourly Minimum Wage Hikes in 2019 US News & World Report published an article recently that noted that hourly workers in 20 states and 24 cities and counties across the country will see a minimum wage increase this year.  The article does a good job dif

For many of us, at one point in time or another, we have all had to work with/report to a passive aggressive boss or supervisor.  I can recall one supervisor in particular:  He would never address a sensitive work issue with me in person.  Instead he would either leave the office and call me a few minutes later to address an issue over the phone, have a subordinate do it for him, or simply make the issue known to other coworkers who would then tell me what they heard.  He also had a tendency to send passive aggressive emails and end them with “: )”, “I am sure you have a good reason why you did not do this for me days ago”, or something similar to try and cushion the criticism/critiques.  Needless to say, this supervisor’s unwillingness to engage with me in person and discuss important matters led to a sense of frustration and lowered morale for myself and other coworkers that experienced similar conduct from our supervisor.   As we start the new year, I think it is appropriate

For those employees who have not checked or forgot about the change in mileage reimbursement rates, the IRS announced the optional standard mileage reimbursement rates have changed for 2019.  Beginning January 1, 2019, the reimbursement rates have increased, and are as follows: 58 cents per mile for business miles driven (up 3.5 cents from the current rate); 20 cents per mile for medical or moving purposes (up 2 cents from the current rate); 14 cents per mile driven in service of charitable organizations (same as the current rate in effect). For those employers that use the standard IRS rates for mileage reimbursements, make sure to change your expense reimbursement policies.