The Majority Opinion: Legal Blog

On July 3rd, the National Labor Relations Board ("NLRB") issued a decision in Johnson Controls, Inc. which amended the test for determining the legality of an employer's withdrawal of union recognition prior to the expiration of a collective bargaining agreement ("CBA".) Precedent had previously established that when an employer received evidence, within a reasonable period of time before the CBA expired that the union that represented the employees no longer had majority support, the employer could give notice that it would withdraw recognition of the union when the CBA expired and the employer could  suspend bargaining or refuse to bargain for a successor contract.  However, this was done at the employer's own peril.  If the union proceeded to produce evidence that a majority of employees had either changed their minds or otherwise wished to retain union representation, the employer could be subject to an unfair labor practice charge for refusing t

Earlier this month, New York Governor Andrew Cuomo signed a bill into law that bars employers in the state from discriminating against employees based upon their natural hairstyles. The law updates the definition of "race" to include "traits historically associated with race, including but not limited to, hair texture and protective styles."  "Protective hairstyles" include "braids, locks, and twists."  Notably, the law goes into effect immediately which means employers in the state have no time to delay in taking steps to comply.  Readers will recall that California enacted a similar law earlier this month as well .  With New York following suit, it will be interesting to see if other states do so as well.  Perhaps New Jersey, Illinois or Massachusetts will be next? For additional information:  https://www.nbcnews.com/news/nbcblk/new-york-second-state-ban-discrimination-based-natural-hairstyles-n1029931

Nieto v. Clark's Market, Inc. - Court of Appeals of Colorado, Division IV Facts :  Carmen Nieto ("Nieto") worked at Clark's Market, Inc. ("Clark's") and accrued vacation time pursuant to clark's policy in the employee handbook.  The policy stipulated how vacation time was to be accrued, how it could be used, and ether and under what circumstances employees would be entitled to payment for any unused vacation time when they left Clark's.  The policy stated that an employee was entitled to payment for accrued but unused vacation time if he/she voluntarily resigned and gave at least two weeks' notice.  However, if Clark's terminated the employee for any reason, no reason, or if the employee failed to give at least two weeks' notice before quitting, the employee would forfeit all earned vacation pay benefits. When Nieto was terminated, it refused to pay her for the vacation time she had accrued but not used.  Nieto filed suit

Quite a few articles to pick from this week, but one of the more noteworthy topics has to deal with the unionization efforts by campaign workers at the 2020 Bernie Sanders Presidential campaign and in particular, their fight for a $15/hour minimum wage rate.  A lot has been written on that topic over the past week or so, but the below article from Newsweek summarizes things pretty well. As always, below are a couple articles that caught my eye this week. Senator Gillibrand Makes Sexual Harassment in the Workplace A Focal Point of Speech to Union Members Yesterday evening, New York Senator Kirsten Gillibrand spoke at a conference of female union members in Iowa City, in which Senator Gillibrand made pointed remarks about combating sexual harassment in the workplace and criticized her fellow Democrats for failing to take action on the matter.  Senator Gillibrand, who is running for the 2020 Democratic nomination for President, has not hesitated in regard to her advocacy

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. Recently, the New York State Legislature passed S2844B, a bill that would enable an employer's current or former employee or the New York State Department of Labor to place a lien on an employer's interest in real or personal property for the face value of a wage claim (plus liquidated damages.)  In New York, a wage claim is defined as a claim for a violation of New York Labor Law Sections 170 (hours for labor for domestic workers), 193 (deductions from wages), 196-d (gratuities), or 652 and 673 (minimum wages), as well as the related regulations and wage orders promulgated by the labor commissioner.  A wage claim also includes a claim for wages due to an employee pursuant to an employment contract that were unpaid in violation of that employment contract as well as a claim for a violation of the Fai

Following on the heels of efforts to stop the implementation of San Antonio's paid sick leave ordinance, beginning next Thursday, August 1st, the paid sick leave ordinance in Dallas is set to take effect for many, but not all, workers in the city.   For those needing a refresher, for employers with six or more employees, August 1st is the day the paid sick leave ordinance begins.  For employers in the city with five or fewer employees, the paid sick leave ordinance will go into effect August 1, 2021.  But let us get into some specifics here: Under the ordinance, "employee" is defined as "an individual who performs at least 80 hours of work for pay within the City of Dallas, Texas in a year for an employer, including work performed through the services of a temporary or employment agency." For employers with six or more employees in the trailing twelve month period, these employees must be provided one hour of paid sick leave for every thirty hours wo

Late Thursday evening, President Donald Trump tweeted out that he would nominate Eugene Scalia to fill the vacant Labor Secretary position, following Alexander Acosta’s abrupt resignation earlier this month. Scalia, a partner at the Washington office of Gibson, Dunn & Crutcher, heads into what is expected to be a contentious confirmation before the Senate.  Democrats have already started to make their opposition known, with Senate Minority Leader Chuck Schumer criticizing the pick as putting “corporate interests over those of worker rights.”  (Scalia does have prior experience representing employers, such as WalMart.)  With two 2020 Democratic Presidential candidates, Senators Bernie Sanders and Elizabeth Warren, sitting on the Senate Committee on Health, Education, Labor & Pensions that will hold initial confirmation hearings in the coming weeks, I would expect there to be a rash of media attention around the matter. As well, as some may have heard, Scalia is the son of

Yesterday morning, the House of Representatives approved a bill that would raise the federal minimum wage rate to $15/hour by 2025.  With minimum wage and the struggle of hourly workers to make ends meet being a hot button issue for many 2020 candidates for President, I would expect attention to now turn to the Senate with increased pressure put on lawmakers to approve a minimum wage hike.  Of note, with several Democratic Senators running for President and looking to make a name for themselves by pushing for a progressive piece of legislation, this is likely to remain in the news for the foreseeable future. As always, below are a couple articles that caught my eye this week. House of Representatives Passes Raise the Wage Act Yesterday, the House of Representatives passed the Raise the Wage Act which would gradually raise the federal minimum wage rate from $7.25/hour up to $15/hour by 2025 .  The House, controlled by Democrats, approved the bill with a 231 - 199 vote in fav

Employers at one point or another have encountered a situation where their employee(s) request time off to take a vacation.  Some employers have a policy in place to address this time off request.  Other employers take a more "fly by the seat of your pants" approach and wing it.  Regardless of how each employer handles the situation, there are several things to take into account and consider implementing.  Below are a few suggestions for how employers can manage an employee's request for time off...assuming that employee actually has vacation time to use.  ( Note, this post is not intended to address an employee's requested time off for a sickness, medical issue, etc. ) While this reference is not the definitive guide to the topic and not intended to serve as legal advice (those experiencing a similar situation should consult their HR representative and/or employment law attorney for guidance), it provides a framework that can be referred to when needed. I

Readers might have heard of a bill introduced in the Democratic controlled House of Representatives, the Raise the Wage Act.  This bill would do several things:  1) it would more than double the federal minimum wage rate up to $15/hour over approximately five years; 2) index future wage hikes to median wage growth; and 3) do away with the tipped minimum wage rate.  While there was some disagreement among Democrats in the House about the precise language of the Raise the Wage Act, there has been a gradual coalescing of Democrats around the legislation.  (For the most part, Republicans have criticized the bill as being too extreme in terms of the overall wage hike and the time period over which it would occur.) With that being said, the US Chamber of Commerce recently announced that it would throw its support behind a wage hike...with a few caveats.  (It would make too much sense for the Chamber to suddenly back the legislation, right?)  In a letter to the House of Representative

Mack v. Town of Pinetop Lakeside - Ninth Circuit Court of Appeals Facts :  Johnny Mack (“Mack”) worked for the Town of Pinetop Lakeside (“the Town”) in its town roads department.  Mack was the only African American employee in the department.  When Mack got a new boss and co-worker, Mack stated that over an approximate one year period, he heard his new boss and co-worker use the ‘n word’ three times and a racial slur aimed at Native Americans.  (Although the racial slurs were not directed at Mack, they were apparently made in his presence.)  Mack proceeded to sue the Town and other defendants and alleged harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964.  The district court granted summary judgment to the defendants as to Mack’s hostile work environment claim.  Mack subsequently appealed to the Ninth Circuit Court of Appeals. Holding :   Note, this case brief only examines the hostile work environment portion of Mack’s claim in regard to

Stop the presses!  This morning, President Donald Trump announced that Labor Secretary Alexander Acosta was resigning and would formally step down next week.  The announcement was made on the White House South Lawn this morning in which both President Trump and Secretary Acosta appeared.  Secretary Acosta was the first Labor Secretary under President Trump and had served in the role since 2017. Readers might be wondering why Secretary Acosta is resigning after a relatively smooth past few years at the Department of Labor.  For those unaware, Secretary Acosta had been a bit embattled in recent months over a 2008 plea deal he negotiated with Jeffrey Epstein while Acosta served as a US Attorney for the Southern District of Florida.  The plea deal was a non-prosecutorial agreement whereby the federal government agreed to halt a federal sex abuse investigation against Epstein in return for Epstein pleading guilty to a lesser offense.  That plea deal was criticized by many as being ov

What I thought was going to be a full week on the road ended up only being a handful of days out of the office instead.  However, being a bit under the weather left me trying to catch up on my sleep when I was not in Court or traveling for a hearing.  As a result, I tried to narrow things down and pick out the most relevant topics/articles I came across this week. As always, below are a couple articles that caught my eye this week. New EEOC Nominees Announced On July 3rd, the White House announced the two nominees for the Equal Employment Opportunity Commission ("EEOC").  The two nominees put forth for confirmation by the Senate are Wage and Hour Division official Keith Sonderling and current EEOC Member Charlotte Burrows.  Of note, Sonderling is the Republican nominee and Burrows is the Democratic nominee.  I would expect both nominations to proceed in unison with both Sonderling and Burrows confirmed to the EEOC.  Should that happen, the EEOC would have a 3 to 1

Many readers have likely heard that the US Women’s soccer team won the 2019 FIFA Women’s World Cup this past Sunday in France.  Prior to, and during the tournament itself, the issue of equal pay for these players was a major talking point.  (Remember, a lawsuit had previously been filed in relation to the equal pay fight by these players.  Currently, that lawsuit is still pending.) Following Sunday’s win, a bill was introduced in Congress by West Virginia Democratic Senator Joe Manchin which proposed withholding any federal funds from being allocated for the 2026 FIFA Men’s World Cup unless the US men’s and women’s national soccer teams are paid equally.  (For those unaware, the US is cohosting the 2026 tournament along with Canada and Mexico.)  If this legislation manages to pass, that would put a significant amount of pressure on the US Soccer Federation to pay both the men’s and women’s teams equally or risk a potential catastrophic financial shortfall in trying to host the

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. Recently, the California Legislature has passed a bill that would ban racial discrimination against people based on their natural hairstyle.  The bill notes that state and federal laws prohibiting racial discrimination in the workplace, dress and grooming codes, have a disparate and negative impact on African Americans.  In particular, SB-188 amends the definition of "race", for purposes of the anti-discrimination provisions of the Education Code and the Fair Employment and Housing Act, to include (not not be limited to) hair texture and protective hairstyles.  Protective hairstyles is written to include braids, locks, and twists. The legislation, previously approved by the Senate in April and approved by the California Assembly last week, was recently signed into law by Democratic Governor Gavin

On a short week with the Fourth of July holiday, I found myself on the road and away from my desk.  As I noted last year when I dedicated a post to podcasts, I recognize that many readers of the blog spend time away from their desk, computer, office, etc. and often drive or fly for work (or fun.)  As a result, some readers might not have the time to read through some of the articles I highlight.  To make things a bit easier for these readers (or those just looking for a change of pace), I invite you to give a few of the podcasts I have highlighted a listen.  Most of the below podcasts can be listened to on the linked website or on your podcast app of choice. As always, below are a couple podcasts that caught my ear this week. 2020 Democratic Presidential Candidate Andrew Yang, Automation, & The Future Workforce Pod Save America interviewed 2020 Democratic Presidential candidate Andrew Yang a few weeks ago.  For those unfamiliar with this candidate, Yang has several pro

On Monday, the Department of Labor issued an opinion letter following a request from an employer that sought guidance on whether its policy of rounding hours worked by its employees under government contracts that were subject to the Service Contract Act ("SCA") was permissible. In its two page opinion letter, the Department of Labor noted that the SCA generally requires government contractors to satisfy certain minimum compensation standards for employees under covered government contracts.  SCA regulations stipulate that contractors should calculate hours worked by using Fair Labor Standards Act ("FLSA") principles set forth in the regulations.  In relevant part, the regulations clarify that its is acceptable for employers to round time in determining an employee's hours worked provided that the rounding "will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked." In

Last Tuesday, Connecticut Governor Ned Lamont signed a paid family leave bill into law.  This is not just any paid family leave bill.  Perhaps we should instead be calling it an expansive paid family leave plan...in fact, one of the most expansive in the country. Starting in 2021, workers in Connecticut will get 12 weeks of paid leave to care for a new baby, a seriously ill family member or loved one, or to deal with an illness of their own.  As always, many are wondering how this paid leave will be funded.  The law provides a .5% payroll tax on workers to fund the paid leave.  Now for the expansive part of the approved legislation.  The paid leave will cover 95% of a workers' pay, up to $900/week.  (This is an extremely generous proposal as other states, take New York for instance, provide 66% wage replacement for a worker once that state's paid leave proposal takes full effect.) Going one step further, this paid leave law provides one of the most inclusive definit