The Majority Opinion: Legal Blog

For those who are tired of spending the past few days reading about the Mueller report, Russia, Democrats, President Donald Trump, etc., I hope this week’s post can serve as a nice change of pace.  There are a good mix of topics, ranging from hostile work environments to equal pay matters all the way to a recent FMLA case. As always, below are a couple articles that caught my eye this week. Distinguishing Between A Hostile Work Environment & A Bad Boss Earlier this month, Johnny C. Taylor, Jr. fielded a few HR related questions for a USA Today article.  One of the questions had Johnny address the differences between a hostile work environment and "just" working for a bad boss/bully.  While the laws can differ in each state (and some states have even adopted anti-bullying laws), there is no federal law that directly prohibits bullying.  On the other hand, some workplace actions, communications or behaviors that are pervasive or serious enough to disrup...

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 caught my eye this week. Party City Hit With Sex & Disability Discrimination Suit Earlier this month, the EEOC announced it had filed suit against Party City Corporation on the grounds that one of its Texas stores terminated a pregnant employee after she presented the company with physical job restrictions from her doctor.  The suit claims that the employee experienced complications in her pregnancy which resulted in some medical restrictions being put in place for her work.  After these restrictions became known, she was fired because of her pregnancy and medical condition.  This alleged conduct is in violation of Title VII of the Civil Rights Act of 1964 which prohibits sex discrimination (including pregnancy) as well as the Americans with Disabilities Act which requires employers to try and make reasonab...

Yesterday, hundreds of Uber and Lyft drivers in Los Angeles held a one day strike in which they refused to pick up riders.  The strike, organized by RideShare Drivers United, was intended to bring attention to a recent wage cut that Uber put in place that Uber drivers strongly disfavor.  (RideShare Drivers United is a nonprofit that was started to help drivers for ridesharing companies organize across the world.  The group reported it has gone from a membership of about 300 drivers to about 3,000 in the course of two years.)  Uber's wage cut will see its drivers earn 25% less, earning 60 cents per mile driven now rather than 80 cents.  (The Lyft drivers went on strike as a show of solidarity for Uber drivers.  Although for those that have used Uber, Lyft, or another ridesharing app previously, many drivers drive for more than just one company.  As a result, it is likely that a majority of the drivers that went on strike yesterday drive for Uber and...

In recent months, flight attendants working for Frontier Airlines had started to make known their dissatisfaction with their rate of pay and the prolonged delay in ongoing contract discussions with their employer.   There is quite a bit to unpack here, so let us start at the beginning and work forward from there.  Flight attendants at Frontier have a history of being among the lowest paid in the industry, with flight attendants working at Frontier for a year or less making a base rate of $19.25/flight hour.  In contrast, flight attendants working at Alaskan Airlines that have worked for a year or less earn a base rate of $21.31 - $22.38/flight hour.  Flight attendants at Southwest Airlines that have worked for a year or less earn a base rate of $22.36 - $22.64/flight hour.  Flight attendants at American Airlines that have worked for a year or less earn a base rate of $24.18/flight hour.  Flight attendants at Hawaiian Airlines that have worked for a ...

This week, we have a little something for everyone.  Whether you are you interested in equal pay matters, potentially new discrimination protections, or the possible expansion of labor unions in the tech field, I think the three articles listed below will provide readers with good reading material. As always, below are a couple articles that caught my eye this week. U.S. Women’s Soccer Team Files Gender Discrimination Suit Two weeks ago, 28 team members of the U.S. Women’s National Team filed a gender discrimination suit against the U.S. Soccer Federation on the grounds that the U.S. Soccer Federation was engaged in “institutionalized gender discrimination” against the women’s team.  The suit alleges that the U.S. Soccer Federation has violated the Equal Pay Act and Title VII of the Civil Rights Act of 1964 by paying members of the men’s soccer team more than their female counterparts for the same job responsibilities.  Of note, the U.S. Soccer Federation is ...

Construction and General Laborers' Union No. 330 v. Town of Grand Chute - Seventh Circuit Court of Appeals Facts :  The Construction and General Laborers' Union No. 330 ("Union") learned that a masonry company working at Kolosso Toyota in Town of Grand Chute, Wisconsin ("Grand Chute") was not paying area standard wages and benefits.  The Union subsequently decided to engage in informational picketing at the dealer beginning March 31, 2014.  In the course of this picketing, the Union used a 12 foot inflatable Scabby the Rat which was set up in the median directly across the dealer.  (The below link to the Court's opinion includes pictures of Scabby the Rat on page 5 of the Court's opinion).  Scabby was tethered to stakes that were pounded into the ground.  Whenever Union members were not present, Scabby was deflated.  On April 1, Eric Thiel ("Thiel"), the Code Enforcement Officer for Grand Chute, went to the picketing site and told t...

Last Friday, it was announced that Senator Bernie Sanders’ campaign for President will be the first major presidential campaign to have a unionized workforce.  Senator Sanders, running for the Democratic nomination again after a failed bid in 2016, has long championed labor unions and hourly workers.  However, last Friday’s announcement was noteworthy as the campaign had stayed quiet during the organizing efforts.  It was not until a majority of the bargaining unit signed cards designating United Food and Commercial Workers Local 400 to represent them did the Sanders campaign voluntarily recognize the union.  Realistically, the campaign was smart to stay quiet, or risk being confronted with an unfair labor charge for improperly conducting itself during a unionization effort. So what does this actually mean for Sanders’ campaign workers?  For starters, negotiations on a collective bargaining agreement will begin shortly with the union set to represent all ...

Walker-Dabner v. Dart - United States District Court, Northern District of Illinois, Eastern Division Facts :  Patsy Walker-Dabner ("Walker-Dabner") worked at the Cook County Sheriff's Office beginning in July of 1991 and currently oversees the art program at the Cook County Jail.  As overseer of the art program, Walker-Dabner brought books, taught detainees how to draw and paint, and transported detainees to the dispensary, law library, chapel, the Board of Education, or to see a social worker.  In July of 2014, Walker-Dabner began a shift in which her assignment was to transport detainees from the "A pod" to the medical unit.  When Walker-Dabner went to the A pod, there were several detainees beating on the window, hitting the door, and yelling for attention.  Correctional Officer Black Bochnak ("Bochnak") was standing outside the closed door.  When Walker-Dabner asked Bochnak why the detainees were hitting the door, he responded "Those ...

With a trial yesterday, most of my week was spent preparing exhibits, witness testimony, trial briefs, etc.  Unfortunately, that left me with little time to read through articles and cases.  Nevertheless, I did come across two topics worth highlighting this week. As always, below are a couple articles that caught my eye this week. Amidst Legislative Efforts to Curb Minimum Wage Hike, Arkansas Governor Voices Opposition Earlier this week, a House panel in the Arkansas Legislature endorsed legislation which would curb minimum wage hikes for certain workers in the state, previously approved by voters last November.  Under the legislation currently pending in the House, small businesses, some nonprofits, and teenagers would be exempted from the minimum wage hike.  ( Readers might recall that voters had previously approved a minimum wage hike from $8.50/hour up to $11/hour by 2021 .). However, Republican Governor Asa Hutchinson stated his opposition to the legi...

Harrison v. Soave Enterprises - United States District Court, Eastern District of Michigan, Southern Division Facts :  Jacqueline Harrison (“Harrison”) began working for or with Soave Enterprises and Parts Galore in December 2005.  Parts Galore operates large vehicle yards and allows customers a self-service opportunity to salvage parts from vehicles in the yard.  As a Manager at one of the Parts Galore locations, Harrison’s duties included spot checking cars each day to ensure they were ready to be placed in the yard for customer use.  This required Harrison to look under the hood of each vehicle as well as under the vehicle itself.  To do so, Harrison was required to kneel down and look under the car.  At the time of her employment, Harrison weighed 300 pounds and suffered from a torn anterior cruciate ligament (“ACL”).  Harrison claimed that that her torn ACL qualified as a disability under the Americans with Disabilities Act (“ADA”) and lim...

Yovino v. Rizo - United States Supreme Court Facts :  Aileen Rizzo ("Rizzo") was employed by the Fresno County Office of Education.  From 1998 to 2015, new employees' salaries were set using their prior salaries.  Under what became known as "Standard Operating Procedure 1440", 5% was added to each new employee's prior salary and based on that figure, placed the employee on a corresponding "step" of the salary schedule.  The policy did not favor either sex.  However, Rizzo noticed that her pay was lower than her colleagues and subsequently filed a suit against the superintendent of the schools and alleged that the county was violating the Equal Pay Act of 1963.  Yovino argued the disparity arose based entirely on the policy's consideration of prior salary; that prior salary is a "factor other than sex", and that any wage disparity based on that factor was therefore permissible under the Equal Pay Act. On interlocutory appeal...

This past Thursday, the Department of Labor announced its proposed new overtime pay requirements that would expand overtime eligibility to include most salaried workers earning less than about $35,000.00 per year.  Under this proposal, most employees earning less than the proposed threshold would be entitled to receive time and a half pay when they worked more than 40 hours in a week.  It is expected that should this proposal take effect, over one million employees would be entitled to overtime eligibility. Readers might be aware that the current salary threshold is set at about $23,700.00 per year.  That threshold has been in effect since the President George W. Bush era Department of Labor implemented that change in 2004.  With that being said, this new proposal from the President Donald Trump era Department of Labor still falls short of what had previously been proposed in 2016.  At that time, the President Barack Obama era Department of Labor propos...

I have been fortunate enough to attend spring training in both Arizona and Florida and take in ballgames before the start of the regular season.  (For those that have never attended a Cactus or Grapefruit League game, I highly recommend doing so at least once.  As an added bonus, many teams traditionally have morning workouts before a game.  In the fields surrounding the main stadium, the teams will split up and have drills, conditioning, batting practice, mini games, etc.  Depending the team, access is relatively flexible, so it is easy to walk between fields and watch the players practice.). An article from earlier this week addressed the problem that many spring training players find themselves, with many struggling to make ends meet as they are not being paid for attending spring training (although they do receive a small stipend).  With the rate of pay for baseball players being an ongoing topic , I think it is appropriate to lead off this post with th...

Velarde v. GW GJ, Inc. d/b/a The Salon Professional Academy of Buffalo - Second Circuit Court of Appeals Facts :  Patrick Velarde ("Velarde") enrolled at The Salon Professional Academy of Buffalo ("Academy") in order to become a cosmetologist.  The Academy is a for profit cosmetology training school that offered individuals both classroom instruction and supervised practical experience in its student salon in which the public could receive cosmetology services and the Academy's students could practice their skills.  (The State of New York requires individuals seeking to become cosmetologists to undergo training before receiving their cosmetology license.)  After finishing eight weeks in the classroom, Velarde worked in the salon, under supervision, logging 34 unpaid hours per week for 22 weeks.  The salon offered "discounted prices" to the public but did not share these prices with the students.  Although students were allowed to receive tips, t...

Johnson v. Hyatt Corp. - United States District Court, Western District of Texas, San Antonio Division Facts :  Jasmine Johnson ("Johnson") worked as a cocktail waitress at a Hyatt hotel bar, Q Bar, in San Antonio.  At the time she was hired, Johnson received an employment handbook that included a copy of Hyatt's anti-harassment reporting policy.  The anti-harassment policy noted that employees that felt harassed should tell the individual to stop the harassing behavior.  Further, the harassed employee was instructed to then report the matter to Human Resources, their General Manager, or the Ethics Point Hotline.   Johnson's case against Hyatt centered on several interactions during the course of her employment: The first interaction was with a hotel guest, Chapman, who directed harassing behavior toward Johnson including both unwanted sexual advances and sexually explicit comments.  Johnson claimed the incidents happened every few month...

Late last week, three members of the Los Angeles City Council announced a proposed ordinance that would provide many retail workers in the city with a predictive work schedule.  Under the proposal, employees at retail businesses with 300 or more employees would have the right to written and posted work schedules, two weeks’ notice of their work schedules, the ability to request a flexible schedule and the right to decline work hours without retaliation from their employer, predictably in pay (by requiring employers to provide a ‘good faith’ estimate of weekly work hours at the time of hire), the right to at least 10 free hours between shifts (so as to not have to close and then open the next morning), and access to additional work hours. The crux of much of the support for the ordinance can be summed up by City Council President Herb Wesson:  “A retail job may not be a traditional 9-5, but these workers deserve scheduling consistency from their employers.  If you d...

Even though I spent most of the week in the office, for seemingly several weeks in a row now, and had plenty of time to read through several articles, I wanted to keep this post concise & to the point.  With that being said, with references below in regard to the government shutdown and a new Representative from New York, Alexandria Ocasio-Cortez, perhaps this should have been titled ‘What I’ve Been Reading This Week:  Government Edition’.  In all seriousness, the three articles I highlighted this week are all worth reading, politics aside. As always, below are a couple articles that caught my eye this week. Government Shutdowns & Employee Furloughs A few weeks ago, the shutdown of the federal government dominated news coverage.  With that prolonged shutdown, many government contractors were put in a tough spot:  they had contracts with the federal government but with the shutdown in place, there was no work do be done...which meant that t...