The Majority Opinion: Legal Blog

Tough to narrow things down this week as I came across quite a few articles worth pointing out this week.  Perhaps one of the more thought provoking articles comes from The New York Times in which the growing split in many workplaces (between full time and temp/contract workers) has become a glaring problem for some employers.  Using Google as an example, the article takes a look at how temp/contract workers are starting to fight for better pay, benefits, and time off (traditionally only provided to full time workers.) As always, below are a couple articles that caught my eye this week. To Pay or Not Pay Summer Interns: The Age Old Adage Matt Durham recently wrote an article which addressed the situation that confronts many employers this time of the year:  Should their interns be paid?  While this is often a rather complicated question, Matt does a good job breaking down the 7 key factors that courts look at when determining whether an intern should be entitled to compen

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 month. O'Reilly Automotive Stores Sued for Sexual Harassment & Retaliation Earlier this month, the EEOC filed suit against O'Reilly Automotive Stores on the grounds that the company subjected a class of female employees at a store in Orlando to sexual harassment and retaliated against one female employee and forced her to quit after she complained of the harassment.  According to the suit, a supervisor at the Orlando store subjected female employees to a hostile work environment by making sexually charged comments.  After several female employees complained directly to the supervisor, O'Reilly managers allegedly laughed and retaliated against the employees that complained.  The suit claims that one female employees was subjected to abusive conduct and retaliation after she complained which cul

American Airlines recently filed suit against two unions that represent the airline’s mechanics, alleging that the mechanics are intentionally working slowly in order to gain leverage in contract talks.  The suit requests that the Northern District of Texas federal court halt the slowdown. American Airlines claims that the two unions, the Transport Workers Union of America and the International Association of Machinists, have instructed the mechanics to intentionally slow down in order to cause disruptions.  Since February, there have been 650 flight cancellations and more than 1,500 maintenance delays (which have been blamed on the alleged slowdown by the mechanics.)  The argument follows that this slowdown is being done to give the unions more leverage in the ongoing negotiations over a new contract (which have been ongoing since 2015.) Now labor issues among airlines are nothing new .  With that being said, this particular matter has escalated further, with the filing of

A week ago, Democratic Senator Kamala Harris announced her proposal to eliminate the gender pay gap by proposing an aggressive equal pay policy.  Under the proposal, companies would face a 1% profit fine for every 1% wage gap that they allowed to exist.  Senator Harris predicts that nearly $180 million would be collected in fines within the first decade of this proposal being put into place.  As well, employers would be banned “from implementing policies that perpetuate the pay gap” including forced arbitration agreements for pay discrimination complaints. For employers (with more than 100 employees) to avoid paying these fines, they would be required to achieve a new type of “equal pay certification” every two years under a new federal program regulated by the Equal Employment Opportunity Commission.  Notably, Senator Harris would place the burden on employers to prove they are not discriminating, as opposed to the burden currently being on employees to prove their individual

It has been some time since I highlighted a few HR related articles for readers.  While I am aware that we have several HR readers that follow along with this blog, I think it is appropriate to dedicate this post to that very topic.  And of course, even for those readers that have little or no interest in HR related matters, I think there still might be an article or two here that you might find useful. As always, below are a couple articles that caught my eye this week. Conducting a Workplace Investigation? Great! But First, a Few Thoughts Every so often, I come across an article that delves into workplace investigations and often provides a few suggested dos and don'ts.  This article from the Texas Labor Law Blog provides a few well thought out suggestions on what employers and those in HR might want to keep in mind when deciding to conduct a workplace investigation. Your Job Is Not Providing the Job Flexibility You Were Led to Believe. Now What? Ah yes,

Recently, the Bernie Sanders campaign and its campaign staff ratified a union contract, marking a major step forward for unions in the country.  ( This comes on the heels of the Sanders campaign voluntarily recognizing the union back in March .)  With the ratification of the union contract, it is believed that the Sanders campaign for President is the first Presidential campaign to be unionized.  The union that will be representing the Sanders 2020 campaign workers, the United Food and Commercial Workers Local 400, lauded the ratification as a win for the working class. The contract appears to include full health benefits (including the campaign covering the entire health insurance premiums for those workers making under $36,000.00), a minimum $20/hour in pay for interns, overtime pay for all hourly employees, "robust anti-discrimination protections," up to 20 days of vacation pay, regularly scheduled staff breaks throughout the day, and time off between long shifts. 

At the end of April, National Labor Relations Board ("NLRB") General Counsel, Peter Robb, issued a memorandum in which he wrote that nonunion members that pay union dues will be able to more easily challenge the expenses required to be paid for the costs of collective bargaining and other nonpolitical activities.  (Section 8(a)(3) of the National Labor Relations Act allows employers and unions, in non right to work states, to enter into agreements that require union membership as a condition of employment.  These agreements allow unions to collect forced fees (a/k/a "agency fees") from all workers.  These agency fees are intended to prevent "free riders" from benefiting from the collective bargaining of the union without providing any financial support/compensation to the union itself.  However, certain union expenses have been found to not be chargeable to nonmembers, including the cost of lobbying, salaries, and benefits.) The memorandum notes th

Earlier this month, Democratic Representative Alexandria Ocasio-Cortez tweeted out a new paid parental leave policy she was implementing for her staff.  According to her tweets, every new parent on her staff will receive three months of paid leave. According to the policy, the twelve weeks of paid leave do not need to be taken all at once.  In fact, Representative Ocasio-Cortez indicated it was at the discretion of the worker on how to use the paid leave time.  (For those wondering, the Family and Medical Leave Act ("FMLA") requires public agencies to offer employees twelve weeks of unpaid leave.  As for each member of Congress, it is up to them to determine how much paid time to offer.  Needless to say, Representative Ocasio-Cortez's policy is quite generous, when viewed in the scope of what is specifically required under the FMLA.) Interestingly, she made a specific point of mentioning that the paid leave applies to both mothers and fathers, whether it be to ca

Last week I dedicated the post to a few relevant EEOC matters I had come across.  This week, I came across a wealth of labor law related topics that I think merit a post dedicated to the topic.  (And that is not even taking into account the advice memo released by the NLRB on Tuesday which concluded that rideshare drivers should be classified as independent contractors rather than employees .)  Of course, even for those that might not find labor law (or the National Labor Relations Board) to be entertaining, I still think there is something here for everyone. As always, below are a couple articles that caught my eye this week. Fight Intensifies Over Unionization Efforts By Delta Flight Attendants & Ground Workers Late this week, the ongoing fight by Delta flight attendants and ground workers to unionize took a turn when a complaint was filed with the National Mediation Board alleging Delta was engaged in “systematic, widespread, and egregious forms of interference with

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. On May 2nd, H.R. 2474 was introduced in the U.S. House of Representatives by Democratic Representative Bobby Scott.  This legislation provides that if an employer is found to have interfered with a union election, workers can vote by turning in union authorization cards.  If a majority of those in the proposed bargaining unit signed the cards, the employer would then be required to bargain with the union. For those unfamiliar with card checks, the National Labor Relations Act originally allowed workers to unionize via a card check.  However, the 1947 Taft-Hartley amendments ended unionization by card check, except for when management agreed not to oppose the union.  If that exception did not exist, unionization could only occur through a secret ballot election overseen by the National Labor Relations Boa

In an advice memo that could shake up the ongoing independent contractor v. employee classification dispute over rideshare drivers, the National Labor Relations Board ("NLRB") Associate General Counsel Jayme L. Sophir, stated that rideshare drivers are independent contractors rather than employees. The memo, dated April 16, 2019 but not released until yesterday, addresses several cases submitted to the NLRB for advice as to whether rideshare drivers are employees of the company they work for or instead are independent contractors.  The advice memo noted that when applying the factors set forth from the SuperShuttle DFW decision , the great weight of evidence established that rideshare drivers were independent contractors.  Notably, rideshare drivers set their own hours, own their own cars, and are free to work for another competitor if they choose.  Consequently, when applying a common law agency test, the Associate General Counsel concluded that these rideshare driv

Vazquez v. Jan-Pro Franchising International, Inc. - Ninth Circuit Court of Appeals Facts :  A putative class action was filed several years ago against Jan-Pro Franchising International, Inc. ("Jan-Pro"), a janitorial cleaning business.  The suit alleged that Jan-Pro had developed a "three tier" franchising model to avoid paying its janitors minimum wage and overtime by allegedly misclassifying the workers as independent contractors rather than employees.  The claim was severed with the Northern District of California hearing a portion of the claim against Jan-Pro. In this instance, following the California Supreme Court issuing its decision in Dynamex Operations West, Inc. v. Superior Court last year in which a new "ABC" test was established when considering an independent contractor v. employee dispute , the Ninth Circuit Court of Appeals addressed whether the ABC test should be applied retroactively. Holding :  The Ninth Circuit recogni

Last Thursday, New Hampshire Republican Governor Chris Sununu vetoed a paid family leave bill that was approved by the New Hampshire Legislature. The legislation, Senate Bill 1, would have required employers in the state to provide paid family leave insurance to all employees , whether through employers' own efforts or a statewide program that would require 0.5% of weekly wages to be paid to the Department of Employment Security.  That 0.5% deduction could have been covered by employers or been deducted from employees' wages.  As for the specifics of the paid leave itself, employees could have received up to 12 weeks of paid time off at 60% of wages.  The paid leave could have been used for births, adoptions, non-employment related health emergencies, or family illness.  If employers chose to offer an alternative paid family leave plan, they had the ability to do so, so long as it would have provided employees the equivalent of what Senate Bill 1 offered. Now reader

What is this?  A post dedicated to the Equal Employment Opportunity Commission (“EEOC”) that is not a “Great EEOC Roundup:  XYZ Month Edition”??  Indeed.  Earlier this week, I made note of a relevant EEOC related case, Fort Bend County v. Davis , currently pending before the U.S. Supreme Court.  Having highlighted that particular case at the start of the week, I have subsequently come across a few other intriguing EEOC related matters that are worthy of giving special attention.  (And that is not even taking into account the fact that the EEOC has regained a quorum after confirmation of Janet Dhillon's nomination earlier this week .) As always, below are a couple articles that caught my eye this week. EEOC to Begin Collecting Salary Data From Employers By September On April 25th, U.S. District Judge Tanya Chutkan ordered employers to report salary data by race, gender, and job title to the Equal Employment Opportunity Commission ("EEOC") by this September.

At long last, the Equal Employment Opportunity Commission ("EEOC") has regained a quorum after a prolonged period of only having two EEOC Commissioners (short of the three needed for the EEOC to have a quorum). Yesterday, the U.S. Senate approved EEOC Chair nominee Janet Dhillon with a 50 - 43 vote in favor of her confirmation.  Ms. Dhillon's nomination had been pending since 2017 when she was nominated by President Donald Trump.  Readers will recall that there was a stalemate among Republicans and Democrats over nominees to the five member EEOC.  In fact, in a somewhat unprecedented move, Republican Senator Mike Lee successfully blocked the re-nomination of Chai Feldblum, a Democratic nominee, a few months ago ...much to the consternation of Democrats.  In doing so, that left the EEOC with only two Commissioners, Victoria Lipnic (a Republican nominee) and Charlotte Burrows (a Democratic nominee).  As a result, with three seats remaining open, the EEOC lacked a qu

Monday evening, the Portland City Council voted down a proposed paid sick leave ordinance that would have affected over 19,000 workers in the city.  (Bear in mind, this is Portland, Maine we are talking about...not Portland, Oregon.)  Under the proposal, most workers in Portland would earn one hour of paid sick leave for every 30 hours worked (with a maximum 40 hours or 5 days of paid sick time being able to be accrued.)  Notably, this paid sick leave ordinance would have applied to full time, part time, seasonal, and per diem workers. As with many fights over paid leave bills and ordinances, opponents argued that it would place an undue burden on smaller employers in Portland.  (There was apparently a carve out, however, for businesses with fewer than 10 employees.)  However, supporters of the ordinance pointed out that the ordinance was necessary to provide a "safety net" for sick workers to take time off work without risking losing additional pay. While the vote

In an announcement that caught many by surprise, last Friday, the National Labor Relations Board ("NLRB") granted a request by Volkswagen to put an indefinite hold on a union election at its Chattanooga, Tennessee plant .  As a bit of background, workers at the pant had filed a union election petition last month with the NLRB seeking to have the United Auto Workers represent them.  Volkswagen sought to stop the union election on the grounds that all workers at the Volkswagen plant should have been included, rather than just a smaller group of workers. Without providing an explanation for its decision, NLRB Chairman John Ring and Member Marvin Kaplan issued a single sentence opinion in which it was announced that the union election would not proceed.  Member Lauren McFerran, the lone Democrat on the NLRB, issued a dissenting opinion that Volkswagen "has not established that such extraordinary relief is necessary." This is another chapter in the drawn out s

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. Late last month, the United States Supreme Court heard oral arguments in Fort Bend County v. Davis , a case that centers on whether the requirement that employment discrimination claimants present their claims to the Equal Employment Opportunity Commission ("EEOC") before filing suit is a jurisdictional prerequisite or instead a claim processing rule. In this case, Lois Davis sued Fort Bend County for religious discrimination despite the fact that she never filed a charge of religious discrimination with the EEOC before filing suit.  As readers might be aware, Title VII of the Civil Rights Act of 1964 requires claimants to exhaust claims of employment discrimination with the EEOC (including by filing a charge with the EEOC) prior to filing suit.  This exhaustion requirement ensures the EEOC has

Every week I try and find a wide array of articles that cover a host of topics so that readers have a variety of topics to read.  Some weeks I find more than others.  This week, in particular, I think we have a little something for everyone:  Labor law, paid leave, a labor union endorsement in the race for President, allegedly unpaid wages for undocumented workers, and Congressional intern pay rates.  For those looking for even more variety, bear with me.  There is always next week! As always, below are a couple articles that caught my eye this week. The NLRB Might Soon Weigh In on Whether Unpaid Interns Can Organize Unpaid interns have long been a topic of much debate, on both sides of the argument.  Ruth McCambridge at Nonprofit Quarterly wrote a well thought out article on Tuesday in which she speculated that the National Labor Relations Board might take up a case that addresses whether or not unpaid interns can organize.  (The case involves the executive director at A

Stop me if you have heard this before:  Gig workers have long argued that they are employees, not contractors, and therefore are entitled to the protections afforded under the Fair Labor Standards Act ("FLSA") .  (For those readers that have been following along over the past few years, this argument should not come as much of a surprise.  After all, the Department of Labor has previously been thought to being ready to weigh in on the issue before ...as has the Ninth Circuit Court of Appeals , a UK Court of Appeal , and a New York State Labor Review Board , among others.) Well on Monday, the Department of Labor issued an opinion letter in which it said that gig workers at an unidentified company were contractors and therefore not employees entitled to the protections afforded under the FLSA.  (This particular company "connects service providers to end-market consumers to provide a wide variety of services, such as transportation, delivery, shopping, moving, cleanin