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 caught my eye this week. JBS Carriers to Settle Disability Discrimination Suit for $250,000.00 At the start of the month, the EEOC announced that JBS Carriers, a nationwide t idling company, was settling a disability discrimination suit for $250,000.00.  The suit against the company alleged that during the pre-employment screening of applicants, those with disabilities (that were otherwise qualified) were unlawfully screened out.  (JBS used a third party to administer the screening.) The screening included a medical history questionnaire for applicants to complete, a physical examination, and a nine point physical ability test.  If an applicant was unable to complete any of this screening, the third party gave JBS a negative job recommendation for that applicant.  JBS apparently  would withdraw a job offer based upon this nega

I am sure many readers have heard that former Senator and Vice President Joe Biden announced earlier this week his candidacy for the Democratic nomination for President.  With a background rooted in a blue collar/labor friendly mindset, I would expect to soon see labor/employee friendly policy proposals from him.  For the time being, we will wait to see whether any of those anticipated policy proposals gain enough traction to strengthen his position in the Democratic nomination process.  Stay tuned. As always, below are a couple articles that caught my eye this week. California Employers: Remember to Conduct Harassment & Abusive Conduct Prevention Training! As the heading notes, this article really only applies to California employers...namely those that employ more than five employees.  As Vida Thomas writes, effective January 1st of this year, employers in the state with five or more employees are required to provide one hour of harassment and abusive conduct preventi

Quicken Loans, Inc. - NLRB Facts :  Austin Laff ("Laff") and Michael Woods ("Woods") worked as mortgage bankers at Quicken Loans in Scottsdale, Arizona.  One day, Laff and Woods were in a restroom at work that was open to the general public and Quicken Loans customers.  While in the restroom, Woods complained to Laff about a client that had "been dropped into his [Woods'] pipeline" and that the client need to "quit wasting [Woods'] f***ing time."  (Needless to say, Woods used profanity to describe the client.)  Laff said he understood why Woods was upset.  Jorge Mendez ("Mendez"), a supervisor, overheard Woods and Laff and subsequently forwarded an e-mail to to all employees at the Scottsdale Quicken Loans office to remind them of proper employee conduct in public areas.  The e-mail admonished employees by stating "Never, EVER, should we be swearing in the bathroom especially about clients."  After Mendez sent t

With two issues all teed up for the United States Supreme Court to address, legal scholars and those in the LGBTQ community had been chomping at the bit, waiting to see if the Supreme Court would take up a case (or cases) to settle a dispute among circuits over whether federal law protects LGBTQ workers from workplace discrimination.  And for those wondering, on April 22, the Supreme Court granted certiorari in three separate cases that will address the matter:  Bostock v. Clayton County , Georgia ; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC . Before we get to those three grants of certiorari, let us take a step back and look at the big picture.  For those unaware, at least two circuits (the Second and Seventh Circuits) along with the EEOC have found that federal workplace laws prohibit discrimination based upon a worker’s sexual orientation.  The other circuits (and President Donald Trump era Department of Justice) have found no federal

Just when I think I get a chance to catch my breath and get a leg up on things in the office do I turn around and find out I have a busy next week ahead of me.  Although that has left me scrambling to get things prepped for a few work trips next week, I was able to find some time the past few days reading through some articles to highlight here. As always, below are a couple articles that caught my eye this week. 5 Things to Consider For Workplace Investigations In many workplaces, there are inevitably going be claims of harassment that are alleged.  For employers (or those in Human Resources), the investigation itself is a pivotal step in determining whether harassment actually occurred and what the next steps need to be.  Anthony Zaller at the California Employment Law Report provided five key things that each investigation could encompass, although the list is not exhaustive.  Rather, I think these five tips provide readers with food for thought in regard to how they can

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. Earlier this month, the Algorithmic Accountability Act ("Act") was introduced in Congress which seeks to require companies to study and fix flawed computer algorithms that produce inaccurate, unfair, biased, or discriminatory decisions.  Specifically, this bill would charge the Federal Trade Commission ("FTC") with creating regulations that require companies under its jurisdiction to conduct impact assessments of highly sensitive automated decision systems, require companies to assess their use of automated systems, require companies to evaluate how their information systems protect the privacy and security of consumers' personal information, and require companies to correct any issues they discovery during the impact assessments. It is important to note that this bill would only

Readers might recall that last year, the City of Austin approved a paid leave ordinance that would require most employers in the city to offer their employees 8 days of paid sick leave for a year of work (or 6 days for employers that employ fewer than 15 employees.)  Unsurprisingly, employers and pro business groups mobilized against the ordinance, immediately filing suit in District Court in Austin to block its implementation.  In fact, Texas Attorney General Ken Paxton filed a plea in intervention and argued that the paid leave ordinance was "an attempt to unlawfully and inappropriately usurp the authority of the state lawmakers..." by providing a higher rate of compensation than what was laid out in the Texas Constitution.  In a 24 page opinion, the Third Court of Appeals in Austin issued a ruling in November that found the paid sick leave ordinance to be unconstitutional and therefore invalid. With the Texas Legislature back in session this year (they convene on

Stop me if you have heard this before:  A Volkswagen plant in Chattanooga, Tennessee attempts to unionize, despite mounting pressure not to do so.  Sound familiar ?  Well it turns out there is another attempt to unionize that same Volkswagen plant in Chattanooga...the third petition seeking to unionize over the past five years.  As a bit of background, in 2014, the United Auto Workers ("UAW") lost an election by a margin of 712 to 626 votes.  In 2015, the UAW won an election among a smaller unit of maintenance workers by a margin of 108 to 44.  However, Volkswagen appealed that election and has continued to refuse to bargain with this micro-union, claiming the entire group of production and other workers should have been included in the vote.  That matter is currently before the National Labor Relations Board ("NLRB"). Last week, workers at the plant again filed another union election petition with the NLRB seeking to have the UAW represent them.  According

Over the coming months, we will start to see more and more coverage of candidates running for President in 2020.  For the sake of this blog, I will attempt to keep that topic focused on how the candidates stand on relevant labor & employment law matters.  In doing so, a recent article from Politico  offers a timely analysis of workplace harassment matters and a related piece of legislation that has been introduced in Congress (and supported by several Democratic Senators running for President.) As always, below are a couple articles that caught my eye this week. Tipping Hotel Housekeepers? Some Do, Others Do Not Tammy La Gorce at The New York Times wrote an article back in 2017 that provided readers with an interesting question:  In an industry where many employees often do not make much money, should it be customary for hotel housekeepers to be tipped by guests?  Although this article is from a few years ago, it is still timely and worth a read.  As the article notes,

Readers might recall that last year, the California Supreme Court created the "ABC test" in its Dynamex Operations West, Inc. v. Superior Court opinion .  The Dynamex case was pivotal in so much that it established a new test to determine whether a worker was an independent contractor or an employee.  The ABC test stipulated that a worker must be considered an employee unless:  a) the worker is "free from control and direction over performance of the work"; b) the work is "outside the usual course of business for which the work is performed"; and c) the worker is "customarily engaged in an independently established trade, occupation or business."  As a result of this new standard, many workers would be entitled to minimum wage and reimbursement for expenses.  Needless to say, this labor friendly ruling riled a lot of feathers among California employers. However, a challenge to the ABC test was made by a trucking organization (that repr

Senator John Kennedy (no, not John F. Kennedy...this is John N. Kennedy, the Republican Senator from Louisiana) is expected to introduce legislation in Congress shortly that would prohibit the use of non-disclosures in sexual harassment settlements when the alleged perpetrator is a public official or employee. In a speech on the Senate floor yesterday, Senator Kennedy advocated against sexual harassment and made a point of criticizing the entertainment industry as a prevalent source of sexual harassment complaints.  When the text of Senator Kennedy's bill is introduced, it is expected to increase transparency around sexual harassment settlements by allowing victims to speak out (as a result of a non-disclosure not prohibiting this discussion.)  As a result, by removing this restriction on victims of sexual harassment from speaking out, the expectation follows that there would then be more of a free flowing discussion of other sexual harassment complaints that might have gone

Perhaps one of the biggest news stories (in terms of labor and employment law matters) over the past week or two has been McDonald’s announcing it would no longer support lobbying efforts to prevent minimum wage hikes.  Although this is nothing short of a victory for minimum wage advocates, there have been some reports that McDonald’s workers still went on strike in different parts of the country earlier this past week to draw attention to their ongoing disputes with the company.  Regardless of the strikes, McDonald’s deciding to no longer support lobbying efforts to fight minimum wage hikes is a noteworthy development and well worth highlighting this week. Of course, that is not even taking into account the new minimum wage hike signed into law in New Mexico on Monday .   Earlier that morning , I had made note of the minimum wage bill, that was recently passed by the New Mexico Legislature, awaiting signature by the Governore before becoming law.  It turns out minimum wage advoc

As readers might recall, a few months ago Republican Senator Mike Lee successfully blocked the re-nomination of Commissioner Chai Feldblum to the Equal Employment Opportunity Commission (“EEOC”) .  As I noted at the time, this was a somewhat unprecedented move and had many Democrats crying foul.  (The five member EEOC Board is normally comprised of three Commissioners from the party that controls the White House and the other two Commissioners from the minority party.  It had been tradition for each party's nominees to be presented in unison and confirmed with little to no opposition.  That changed when Senator Lee voiced his opposition to Commissioner  Feldblum, one of the nominees of Democrats.). Nevertheless, Senator Lee was successful in so much that Commissioner Feldblum’s re-nomination faltered and she ended up not being confirmed for another term with the EEOC .  Many expressed concern as that failed re-nomination of Commissioner Feldblum (and others at the EEOC) res

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. Colorado sure has been busy this legislative session, hasn't it?  With Democrats regaining control of the State Legislature after about 4 years as the minority party, I suppose it should not be overly surprising that Democrats are aggressively pushing several pieces of legislation that cater to its base.  Readers might recall that in February, the Colorado Senate Judiciary Committee held a hearing on the Equal Pay for Equal Work Act which seeks to prohibit employers 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.  As for Senate Bill 19-188, the Family Medical Leave Insurance

Earlier last month, the New Mexico House and Senate compromised and agreed on a minimum wage hike for hourly workers in the state. Readers will recall that there were two "competing" minimum wage bills working their way through the New Mexico Legislature this session :  House Bill 31 (which would raise the state's hourly minimum wage rate to $12/hour by 2021 and tied to the inflation rate and increased thereafter) and Senate Bill 437 (which would raise the state's hourly minimum wage rate to $10/hour by next April, but not have any inflation adjustments).  While House Bill 31 had the support of many advocacy groups and union representatives, Senate Bill 437 enjoyed the support of chambers of commerce and business groups in the state.  One of the key areas of contention, besides the different wage rates, was the fact that Senate Bill 437 did not have the inflation adjustment. A few weeks ago, after much debate and disagreement over the competing bills, a com