The Majority Opinion: Legal Blog

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. Age Discrimination Suit Settled for $30,000.00 Against Llanerch Country Club Earlier this month, the EEOC announced a settlement had been reached with Llanerch Country Club ("LCC") after the employer agreed to pay $30,000.00 to settle an age discrimination lawsuit.  The suit arose out of a claim that LCC began to treat its oldest groundskeeper in the grounds maintenance department differently than younger workers.  LCC was apparently laying the oldest groundskeeper off during the winter season.  As recently as December of 2016, the oldest groundskeeper was laid off for the winter but was later informed he would not be recalled or rehired in 2017 because LCC was "looking to take the staff in a younger direction".  Less than three weeks later, LCC hired nine other groundskeepers that were signif

Last week, two different minimum wage bills passed the Senate Public Affairs Committee and are now to be taken up by another Senate Committee, the Senate Corporations and Transportation Committee, in the New Mexico Legislature.  While both minimum wage bills would provide a boost to minimum wage workers in the state, they do differ in some respects.  Of note, the statewide minimum wage rate in New Mexico is currently set at $7.50/hour for most workers and $2.13/hour for tipped workers.  (However, some cities in the state have a higher minimum wage rate for hourly workers, including Santa Fe at $11.40/hour, Las Cruces at $10.10/hour, and Albuquerque at $9.20/hour.) House Bill 31 This legislation, proposed by Representative Miguel Garcia, would raise the statewide minimum wage rate to $10/hour this July and provide a phased in increase to $12/hour in 2021.  Under this proposal, there would be inflation adjusted increased after 2021.  This past Saturday, House Bill 31 advanc

As with many employment and labor law related cases (and bills) being litigated around the country, there are always a few that stand.  This is one to keep an eye on. Last Wednesday, the Colorado Senate Judiciary Committee held a hearing on the Equal Pay For Equal Work Act which was recently introduced in the Colorado General Assembly.  Notably, this legislation would prohibit an employer in the state from discriminating between employees on the basis of sex (or on the basis of sex in combination with another protected status) by paying an employee of one sex a wage rate less than the wage rate paid to an employee of a different sex for substantially similar work.  (Exceptions are carved out, however, for seniority, merit, or a system that measures earnings by quantity or quality of product.). The bill would also require employers in the state to post salary ranges during the application process, ban retaliation for filing complaints, allow an easier path for lawsuits, and pr

Non-compete agreements are always a favorite topic of mine.  This week, I came across a similar type of agreement used in the employment context (although different in many respects), "No Poaching" agreements.  As Janette Levey Frisch writes, while some employers may utilize these "No Poaching" agreements, the recent crackdown by the Department of Justice in regard to the use of these agreements should serve as a warning to employers:  be careful, be very careful . As always, below are a couple articles that caught my eye this week. Salary History Bans: An Overview HRDive recently published an overview of the cities and states that have enacted bans on employers asking applicants about their salary history.  This particular article provides information on each ban, such as when the ban went into effect as well as some of the specifics of each particular ban (including links to the text of each law/ordinance as well as any amendments.)  Next week, I wil

Parker v. Reema Consulting Services, Inc . - Fourth Circuit Court of Appeals Facts :  From December 2014 until May 2016, Evangeline Parker ("Parker") worked for Reema Consulting Services, Inc. ("Reema") at a warehouse facility.  She was promoted six times and ultimately became Assistant Operations Manager in March of 2016.  Approximately two weeks after she obtained the Assistant Operations Manager position, she learned that certain male employees were circulating within Reema "an unfounded, sexually-explicit rumor about her" that "falsely and maliciously portrayed her as having [had] a sexual relationship" with a higher ranking manager, Demarcus Pickett ("Pickett"), in order to obtain her promotion.  The rumor apparently started with Donte Jennings ("Jennings"), another Reema employee, that had started working at the company at the same time as Parker but because of Parker's promotions, came to become jealous and ho

This is turning into the month of minimum wage updates, right?  On February 5th, in a 5 - 2 decision, the Florida Supreme Court dismissed an appeal over a Miami Beach minimum wage ordinance that would have raised the hourly minimum wage rate in the city up to $13.31/hour by 2021.  That ordinance, approved in 2016, would have set the hourly minimum wage rate in the city above that of the statewide rate (the statewide hourly minimum wage rate was previously set at $8.10/hour in 2016 and currently sits at $8.46/hour today).   However, business groups and some Republicans in the state cried foul over the ordinance, pointing to a 2003 state preemption law that bars local municipalities from setting their own minimum wage rates.  Miami Beach attempted to argue that the wage hike was needed as hourly workers could not afford to make ends meet.  Subsequently, litigation commenced and Miami-Dade County Judge Peter Lopez issuing a ruling that Miami Beach’s minimum wage ordinance did indee

Recently, the Eleventh Circuit Court of Appeals agreed to undertake a full court review of a 2015 Alabama law which prohibits cities or local municipalities in the state from adopting their own laws in regard to minimum wages, leave benefits, collective bargaining, and other employment related matters.   In order to follow how this case came about, let us start at the beginning.  The Birmingham City Council passed a resolution in 2015 that called on the Alabama Legislature to raise the state's hourly minimum wage rate up to about $10/hour.  After the Legislature declined to do so, the Birmingham City Council passed a local ordinance to increase the minimum wage rates for all hourly workers within the City's boundaries.  The Birmingham local ordinance sought to raise the hourly wage rate from $7.25/hour (the statewide and federal hourly wage rate) up to $10.10/hour.  However, the Alabama Legislature quickly sought to preempt this (and other related) local laws and passed

Following former National Labor Relations Board Member Mark Gaston Pearce withdrawing last week from being reappointed to his old position, I wanted to highlight that pivotal development for readers.  With that being said, there have been quite a few other labor law related developments that are worth highlighting this week, such that I want to dedicate this post to that very topic. As always, below are a couple articles that caught my eye this week. Craft Breweries & Unions: The Next Frontier? Saddle up to the bar for a minute, partner.  Alex Press at In These Times wrote an article last Friday that recognized a recent rally by workers at Anchor Brewing Company that are seeking to unionize.  Following a rally in the Mission District in San Francisco, the crowd split up to canvas the neighboring area to bring awareness to their unionization effort.  This rally came on the heels of Anchor Brewing Company receiving notice of the unionization effort by employees.  Notably

Walt Disney Parks and Resorts U.S. d/b/a Walt Disney World Co. - NLRB Facts :  Walt Disney World ("Disney") and the Services and Trades Council Union ("Union") are parties to two collective bargaining agreements:  one covering all regular full time employees and the other covering all regular part time employees, who are employed by Disney in specific job classifications listed Addendum A in the collective bargaining agreements.  Among the job classifications in Addendum A are bus drivers, whose primary function is to operate buses for Disney at the Walt Disney World Resort in Bay Lake, Florida.  These bus drivers operate along a specific route, stop at each assigned stop until the route is completed, have no authority to deviate from their assigned routes unless authorized to do so, play prerecorded audio messages over the public address system while carrying passengers to their next destination, among other tasks.  Also included in Addendum A are parking hos

Hogan v. SPAR Group, Inc. - First Circuit Court of Appeals Facts :  SPAR Business Services, Inc. ("SBS") is a staffing company that provides personnel to businesses.  Hogan and SBS entered into an "Independent Contractor Master Agreement" ("Agreement').  The Agreement contained a provision that required all disputes be resolved through arbitration.  SBS subsequently engaged Paradise Hogan ("Hogan") as an independent contractor to perform services for SPAR Group, Inc. ("SPAR").  However, SPAR was not a party to the Agreement. Hogan proceeded to file a putative class action against both SBS and SPAR, alleging they misclassified him and other Field Specialists as independent contractors rather than employees.  After SBS and SPAR moved to compel arbitration or dismiss Hogan's complaint for failure to state a claim, Hogan requested to amend the complaint to "narrow the scope of his claims."  Upon Hogan amending his co

Stop me if you have heard this before:  a newly elected Democratic Governor, who made increasing the hourly minimum wage rate in the state a major campaign theme during the election, quickly moves to pass legislation approving a minimum wage hike upon taking office.  No, I am not talking about New Jersey, although Democratic Governor Phil Murphy did recently sign off on a bill to raise the hourly minimum wage rate in the state to $15/hour .  Instead, I am referencing J.B. Pritzker, the Democratic Governor of Illinois that took office last month.  During the campaign against incumbent Republican Governor Bruce Rauner, Pritzker made no secret of his desire to hike the hourly minimum wage rate in the state if he were to be elected.  As of this writing, Democrats in the state are on the fast track to approving this wage hike. Last Thursday, the Illinois Senate approved a bill with a 39 -18 vote, along party lines, that would raise the state’s hourly minimum wage rate from $8.25/hou

Readers might have seen some of the testimony in the House Education and Labor Committee yesterday (note, the YouTube link to the hearing itself is available on demand...all 7 + hours of it) in regard to the Raise the Wage Act of 2019 which seeks to raise the federal hourly minimum wage rate to $15/hour by 2024 .  Between that hearing, New Jersey raising hourly wage rates in the state, and a recent report suggesting that a hike in the federal hourly minimum wage rate could impact nearly 40 million workers in the country, I think it is appropriate to focus on those two developments this week. As always, below are a couple articles that caught my eye this week. New Jersey Becomes Fourth State to Boost Hourly Minimum Wage Rate to $15/Hour A few weeks ago, I noted that Democrats in New Jersey were on the verge of implementing a $15/hour minimum wage hike for most workers in the state .  It did not take long.  On Monday, New Jersey Governor Phil Murphy signed legislation

This morning and into the afternoon, the 50 member House Education and Labor Committee is holding a hearing to hear testimony and further review the Raise the Wage Act of 2019.  In January, Democrats in the House of Representatives introduced legislation that seeks to raise the federal hourly minimum wage rate from its current rate of $7.25/hour up to $15/hour by 2024 .  While Democrats appear to have the votes to get the bill out of the House, it is expected that it will face resistance from Republicans that maintain majority control of the Senate. With this proposed legislation, several business groups have argued that increasing the federal hourly minimum wage rate to $15/hour will ultimately result in employers cutting jobs and hours to offset the rising labor costs.  While some large employers might be able to bear the brunt of this proposed wage increase, smaller businesses have expressed concern over their ability to stay open.  Notably, the Chamber of Commerce ha

At the end of last month, the National Labor Relations Board ("NLRB") issued a much anticipated decision in SuperShuttle DFW, Inc. in which the NLRB reverted to its long standing independent contractor standard, favoring the traditional common law standard.  (The common law standard is derived from the 1958 version of the Restatement of Agency, a treatise that provides ten non-exhaustive factors for determining whether a worker is an independent contractor or employee.  These ten factors include the level of control a business exerts over a worker, the method of payment, and the amount of supervision of the worker, among other factors).  The decision in SuperShuttle DFW, Inc. overruled a President Barack Obama era 2014 NLRB decision in FedEx Home Delivery in which the NLRB had severely modified the applicable test for determining independent contractor status by limiting the significance of a worker's entrepreneurial opportunity for economic gain. In this parti

I will be honest, the title of this post might have readers wondering who (or what) is Scabby the Rat.  For those unaware, Scabby the Rat is an inflatable 12 to 30 foot tall rat with claws raised, bloodshot eyes, and its teeth barred.  (See The New York Daily News link below for a picture of Scabby).  Scabby, who often appears at picket lines, is routinely photographed and has come to symbolize unions and their protests of employers using replacement (often referred to as scab) workers when a union strikes.  (Scabby has been around since 1990...and boasts over 8,000 Twitter followers.  Yes, really).  In fact, unions have long used inflatables to protest contractors that use non-union labor (known as secondary picketing). For nearly three decades, courts and the National Labor Relations Board (“NLRB”) have held that inflatables, such as Scabby, are permitted on picket lines under federal labor laws. As well, these inflatables have also been found to be symbolic speech that is p

One of the more timely articles that many readers will likely find useful is from The Wage & Hour Insights blog that addresses when an employer is required to pay employees when the office/workplace is closed because of weather.  While all of the below articles are well worth reading, this article in particular is well worth a review. As always, below are a couple articles that caught my eye this week. Work Closed Because of Weather...So Are Employees Entitled to be Paid? Well, It Depends... Every year, some part of the country inevitably gets hit with a major storm whether it be a hurricane, tornado, blizzard, etc. that results in employers having to close down the workplace/office for a period of time.  The question then arises, “Are the employees entitled to pay when the office/workplace is closed?”  As Bill Pokorny writes, the answer depends in part on whether the employee is exempt or non-exempt.  In particular, for those in the mid-west that have been dealing w