The Majority Opinion: Legal Blog

Having spent most of the week on the road for work. I had limited time between hearings and a trial to read through many articles.  Regardless, with a bit of spare time at hotels, I was able to multitask and read through a few good articles while also watching both nights of the 2020 Democratic Presidential debates to see how the candidates addressed relevant labor and employment law topics.  As always, below are a couple articles that caught my eye this week. D.C.'s Ban the Box Law Nets $500,000.00 in Fines Against Employers Since the District of Columbia passed a ban the box law prohibiting employers from asking applicants about their criminal history, there have been a host of fines imposed against employers for breaking this law.  With more than $500,000.00 in fines imposed, it is evident that even with a ban the box law in place, some employers are still running afoul of the law.  With that being said, as this article from The Washington Post notes, the number of

UPMC - NLRB Facts :  UPMC, a hospital system in Pennsylvania, ejected two union organizers from its 11th floor public cafeteria where the organizers were meeting with hospital employees to discuss union organizing.  A Security Operations Manager had told the union representatives that the cafeteria was only for the use of patients, their families and visitors, and employees.  However, there was nothing posted either inside or outside the cafeteria indicating who may use it.  There was evidence that UPMC had previously removed non-employees that were engaged in promotional activity. Analysis :  Notably, the United States Supreme Court issued a ruling in 1956 in NLRB v. Babcock & Wilcox Co. in which the Court held that the National Labor Relations Act ("NLRA") required employers to refrain from interfering, restraining, or coercing employee's exercise of their statutory rights.  However, the NLRA does not require an employer permit the use of its facilities

Richardson v. Chicago Transit Authority - Seventh Circuit Court of Appeals Facts :  Mark Richardson ("Richardson") worked for the Chicago Transit Authority ("CTA") as a bus operator beginning in 1993 until 2012.  In 2005, Richardson was reported to have weighed 350 pounds.  By 2009, he was reported to have weighed 566 pounds.  In February 2010, Richardson was absent from work because of the flu.  When he attempted to return, he was told he could not return to work until he controlled his blood pressure.  In September, Richardson was re-evaluated.  Concern arose over his weight as CTA bus seats were not designed to accommodate drivers weighing over 400 pounds.  However, weighing over 400 pounds did not automatically disqualify employees from working as bus operators.  An assessment was conducted which found that although Richardson could drive all of CTA's buses in a safe and trusted manner there were several safety concerns raised including the fact that

This week, we have a little something for everyone:  a proposed change to the overtime salary threshold, the ongoing gig economy worker classification fight in California, Nevada’s new law re hiring applicants with a positive marijuana test, an update on a parental paid leave policy in Congress, and a New York law that allows employees paid time off to vote.  This is quite the week of developments, to say the least.    As always, below are a couple articles that caught my eye this week. Ohio Senator Pushes For Higher Overtime Salary Threshold As WVXU writes, Democratic Senator Sherrod Brown has recently started advocating for a new overtime salary threshold that is higher than what had been proposed during the President Barack Obama administration ($47,476/year)  as well as higher than what has been proposed by the President Donald Trump administration ($35,303/year.)  Senator Brown has proposed raising the current overtime salary threshold from $23,660/year to $51,064/y

Late last week, four different 2020 Democratic Presidential candidates visited McDonald's picket lines in Nevada and South Carolina, drawing further attention to these striking workers. For those unaware, McDonald's workers across the country have taken to striking and forming picket lines, in an effort to push for unionization and higher wages, namely a $15/hour minimum wage rate.  These efforts have been met with some success but have gone unnoticed in some circles.  With that being said, a wave of 2020 Democratic candidates for President could soon change that.  California Senator Kamala Harris was in Las Vegas last Friday to join striking McDonald's workers.  South Bend Mayor Pete Buttigieg, former Texas Representative Beto O'Rourke, and New Jersey Senator Corey Booker were in Charleston, South Carolina over the weekend visiting with striking workers and participating in marches. This "attack" and increased attention on large scale employers suc

Late last week, another union election was held at a Chattanooga, Tennessee Volkswagen plant in which workers voted 833 - 776 against unionizing after a three day election.   For those unaware, this Volkswagen plant has been at the center stage of an ongoing unionization effort that has stretched out over the past few years .  (A 2014 election came close as well but ultimately failed.)  There has long been a simmering battle by the United Automobile Workers (the union that sought to represent workers at the plant) and those on the pro-employer side which have fought unionization efforts.  For labor leaders, they have viewed expanding into the south as paramount and have seen unionizing the Volkswagen plant in Chattanooga as the linchpin to starting that movement.  Of note, labor leaders have argued that a union is necessary to better advocate for the rights of workers in the south and fight for better wages and working conditions. However, there has been fierce resistance to

Mawakana v. Board of Trustees of the University of the District of Columbia - D.C. Circuit Court of Appeals Facts :  Kemit Mawakana ("Mawakana"), a black male, worked at the University of the District of Columbia ("University") as a law professor.  Mawakana was on a three year contract and in 2009 it was renewed.  In 2010, he was promoted to Associate Professor and he subsequently applied for tenure.  In 2012, he attended a meeting of the faculty subcommittee that was assigned to review his application for tenure as was told the application "was in good shape."  However, the subcommittee apparently told Mawakana soon after that it has concerns about his scholarship.  The dean of the law school and the chair of the subcommittee asked Mawakana to withdraw his application which he refused to do.  The subcommittee then denied Mawakana's request for tenure.  The University Provost adopted the recommendation of the subcommittee with the University Pres

Last week, Maine Governor Janet Mills signed a paid sick leave bill into law that will make the state the 11th in the country to have passed paid sick leave legislation. The law, set to take effect January 1, 2021, will provide that an employer with more than 10 employees must provide its employees with one hour of paid leave for every 40 hours worked.  The total amount of paid leave that an employee can earn will be capped at no more than 40 hours in one year of employment.  A win for many employees is the fact that they will be able to start accruing paid leave on their first day of employment.  However, the employer will be able to prevent this paid leave from being used until the employee has been employed for at least 120 days during a one year period. Many readers might now be wondering what the paid leave rate is that employees in the state will receive.  The approved legislation stipulates that the employee taking paid leave must be paid at least the same base rate

A few weeks ago we had posts dedicated to labor law and HR related matters.  Following several equal pay related posts over the past few weeks (and the fact that I came across several other equal pay related articles this week), I thought it appropriate to dedicate this post to that very topic. As always, below are a couple articles that caught my eye this week. Jackson Mississippi City Council Approves Equal Pay Ordinance A few weeks ago, the Jackson Mississippi City Council unanimously approved an equal pay ordinance for city workers, set to take effect on June 14th.  Of note, the ordinance prohibits city job applicants from being asked about their salary history as well as requiring city workers to be paid based on (and not deviate) from the city's official plan.  Private employers in Jackson are not covered under this ordinance; only city employees.  With that being said, this is a broad step forward for city workers. Toledo Equal Pay Ordinance Remains in Lim

Late last week, Massachusetts Senator Elizabeth Warren tweeted that she supported her campaign workers moving to unionize and be represented by the International Brotherhood of Electrical Workers Local 2320 (IBEW).  IBEW Local 2320 business manager Steven Soule noted that the Warren campaign was open to the idea of its campaign staff unionizing. Notably, the unionization effort by these campaign workers was done by way of an informal collection of authorization forms ( also referred to as a “card check”), rather than by a secret ballot election supervised by the National Labor Relations Board.  The card check is often a quicker, easier, and less expensive way for workers to unionize.  Readers might recall that the Warren campaign is not the only Democratic Presidential campaign to see its workers unionize this election cycle, with Vermont Senator Bernie Sanders, former Secretary of Housing and Urban Development Julian Castro, and California Representative Eric Swalwell, all bac

I wrote this note a few years ago during the 2014 World Cup.  Given that the 2019 FIFA Women’s World Cup in France is already underway (and the U.S. Women’s team has their first game this afternoon), I think it is timely to post this note again with a few additional thoughts.   We all know what time it is.  Every four years, for a couple weeks, the World Cup comes around.  With that, comes the inevitable crush of employees who now want to take time off work, whether it be vacation days or "sick" days to watch the matches.  For those employees who do come to work, many stream the matches on their computers, phones, tablets, etc. during the day.  Unsurprisingly, this leads to a decline in work production.  The question then becomes, what can be done to combat this? Some employers take a hard nosed approach and block any websites that employees could access to watch or listen to the matches, ban the use of employee phones or tablets at work, etc.  However,

On May 27th, the Texas Legislature's legislative session ended.  (For those unaware, the Texas Legislature meets only on odd numbered years and is limited to a regular session of 140 calendar days.  With that being said, the Governor may call a special session after the regular session ends.  Notably, the Governor is allowed to call as many special sessions as he/she wants.  However, a special session is limited to only 30 days and lawmakers are only able to consider those issues specifically designated by the Governor.) During this past legislative session, the Texas Legislature was considering legislation which would have prohibited local municipalities from passing their own paid leave laws.  (Readers will recall that Austin , Dallas , and San Antonio have been at the forefront of this matter, having passed their own paid leave ordinances.)  The Texas Senate, under majority control by Republicans, indicated that passing a bill banning these local ordinances was a priori

In between a mid week trial far from home and having to prepare several witnesses for cases next week, I had very little time to read many articles this week.  Nevertheless I found a few that I wanted to highlight for readers.  Of note?  Senator Bernie Sanders is in the news again, fighting for increased wages for the working class & taking aim at corporate America. As always, below are a couple articles that caught my eye this week. Senator Bernie Sanders Pushes WalMart to Raise Wages At WalMart’s annual shareholder meeting this past Wednesday, Vermont Senator Bernie Sanders appeared and criticized the company for paying many of its workers “starvation wages.”  Senator Sanders, who spoke at the meeting as a proxy for WalMart’s workers right group, called WalMart’s resistance to raising wages to $15/hour as “grotesque” and “absurd.”  As readers will recall, Senator Sanders recently spoke out in support of workers at McDonald’s that staged a walk out in recent weeks in t

As some readers might have heard, the 2019 FIFA Women's World Cup starts tomorrow.  With that being said, equal pay has again become a focal point for many, as many of the soccer players have started to use their voices to make their discontent known. Earlier this year, 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 that the U.S. Soccer Federation was engaged in "institutionalized gender discrimination" against the women's team.  The U.S. Soccer Federation has argued that any pay discrepancies are a result of "differences in the aggregate revenue generated by different teams and/or any other factors other than sex."  That suit is currently tied up in litigation. However, one particular member of the U.S. Women's National Team, Alex Morgan, has started to speak out further in support of equal pay among members of the Men's and Women's Nation

Yesterday, the U.S. Supreme Court released its decision in the Fort Bend County v. Davis case, which addressed whether an employment discrimination claimant’s requirement that they present their claim to the Equal Employment Opportunity Commission (“EEOC”) before filing suit is a jurisdictional prerequisite or a claim processing rule.  The Fourth, Ninth, and Eleventh Circuits have held that the exhaustion requirement to an employment discrimination claimant is jurisdictional, thus courts lack subject matter jurisdiction over claims that were never presented to the EEOC.  Eight Circuits go the other way, however, characterizing the exhaustion requirement as a claim processing rule that is subject to waiver, forfeiture, or other equitable defenses. At the District Court level, after years of litigation, Fort Bend for the first time raised the defense that since Davis did not properly present her religious discrimination suit to the EEOC before filing suit, her case should be dism

A week or two ago, Colorado Governor Jared Polis signed the Equal Pay For Equal Work Act into law which is set to take effect January 1, 2021. This new legislation prohibits employers in the state from paying their employees different wages based upon an employee’s sex or the basis of sex in connection with another protected status (ie disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry) unless one of the Act’s exceptions applies.  As well, employers will be prohibited from asking about an applicant’s wage rate history or discriminating or retaliating against an applicant for failing to disclose their wage rate history. As noted, there are certain exceptions provided for by the Act that allow an employer to pay different wages based on sex if the employer is able to establish the difference in wages is reasonably based upon any of the following factors:  a seniority system; a merit system; a system that measures earnings by qu