The Majority Opinion: Legal Blog

There are always a few good articles I come across throughout the month which are particularly noteworthy.  In particular, the case currently working its way through the U.S. Supreme Court that addresses whether LGBTQ workers fall within an already pre-defined protected class (and therefore ‘qualify’ as an aggrieved party that can bring a discrimination claim against their employer if they are discriminated against) has the potential to flip things on their head...depending how the Court rules on the matter.  The below article from Bloomberg is well worth a read. As always, below are a couple articles that caught my eye this week. NLRB Advice Memo: Employer Cannot Require Employees Use Their Real Names on Social Media Earlier this month, the National Labor Relations Board (“NLRB”) published an advice memo in which it found that employers are barred from implementing policies that require employees use their real names when using social media.  The issue came about as a res

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. Pier 1 Imports Agrees to Settle Race Discrimination Charge For $20,000.00 Prior to a suit being filed, Pier 1 Imports entered into the conciliation process to resolve a race discrimination claim brought by an applicant that sought an assistant manager at one of its stores in Montclair, California.  It was alleged that Pier 1 denied the applicant the position after conducting a criminal background check.  The EEOC's investigation determined that Pier 1's use of the criminal background check limited the employment opportunity of the job applicant based upon his race, in violation of Title VII of the Civil Rights Act of 1964.  While not admitting liability, Pier 1 agreed to pay $20,000.00 to resolve the charge. Hirschbach Motor Lines to Pay $40,000.00 to Settle Disability Discrimination Suit H

Late last week, Democratic Presidential candidate Beto O’Rourke wrote an op-ed, styled ‘A 21st Century Labor Contract’, in which he announced his plans to enact sweeping labor friendly proposals, should he be elected President in 2020. Of note, O’Rourke wrote that he would: Allow the National Labor Relations Board (“NLRB”) to impose monetary fines against employers that wrongfully terminate a worker or that in violating the National Labor Relations Act, cause a worker to suffer economic harm.  (Currently, the NLRB can order backpay or reinstatement, but cannot impose fines); Make officers and directors of an employer liable for labor violations if the officers and directors had prior knowledge; and Provide union leaders and managers the ability to agree on minimum standards for an industry, rather than require negotiation among each individual employer in that sector. As well, O’Rourke voiced his support for the prior joint employer standard enacted during President Barac

Perhaps we should have called this the Senator Warren week...given the two posts related to her involvement in California's codification of its ABC Test for independent contractor v. employee classification as well as the unfair labor practice charge filed against her campaign for President.  While she dominated much of the week, there are several other developments worth highlighting.  In particular, I call attention to ongoing discussions in Texas in regard to passing a statewide ban the box measure. As always, below are a couple articles that caught my eye this week. Texas Governor Backs Statewide Ban the Box Legislation Late last week, Republican Governor Greg Abbott voiced his support for a statewide ban the box measure.  For those unaware, Texas does not currently have any ban the box law in place, although attempts were made to pass legislation last session.  With the Texas Legislature not set to meet again until 2021, those in the state hoping for passage of thi

Last week, an unfair labor practice charge was filed against Senator Elizabeth Warren's presidential campaign on the grounds that the campaign was in violation of the National Labor Relations Act ("NLRA") by utilizing a confidentiality agreement with its staffers that allegedly unlawfully prevented them from speaking out on workplace issues within the campaign. The charge was filed by an attorney in Denver, Colorado that is coincidentally enough a Senator Bernie Sanders support.  (Senator Sanders is also running for the Democratic nomination for President against Senator Warren.) Some might be wondering why an attorney in Denver that is not an employee (let alone a part) of the Warren campaign can file an unfair labor practice charge.  In short, the National Labor Relations Board ("NLRB") accepts charges, even if the individual or organization that files it is not an employee of the organization/employer alleged to have violated the NLRA. At this

Bob's Tire Co., Inc. - NLRB Facts :  In 2015, a group of workers at Bob's Tire Co., Inc. ("Bob's") unionized.  Afterward, Bob's contracted with a staffing agency in which many workers that were provided to Bob's fell within the stipulated bargaining unit.  From 2008 through 2014, Bob's gave its employees a cash bonus at Christmas, ranging from $20 to $50 and then eventually $100.  However, a Christmas bonus was not paid in 2015. An unfair labor practice charge was subsequently filed alleging that Bob's violated the National Labor Relations Act ("NLRA") because Bob's failed to notify the union of the discontinuance of the bonus or offer to bargain.  The Administrative Law Judge found a violation of the NLRA had occurred and stated the "bonus was paid with sufficient regularity that employees would have been justified in expecting to receive such a bonus as part of their wages."  The National Labor Relations Board (

Last week, Democratic Senator Elizabeth Warren wrote an op-ed in which she advocated for passage of AB 5, a bill currently working its way through the California Assembly.  That proposed legislation would codify a 2018 ruling from the California Supreme Court, Dynamex v. Superior Court , which upended the test for determining whether a worker is an employee or independent contractor.  Of note, the newly created test from that ruling resulted in many gig workers in the state being found to be classified as employees rather than independent contractors (and imposed retroactive liability for employers in the state.) Readers might recall that Senator Warren is one (of many) Democratic candidates vying for the party’s 2020 Presidential nomination.  With her elevated profile and access to a wide range of media coverage, I would expect her support for the passage of AB 5 to continue to receive widespread attention and support from gig workers across the country. For those wondering

I think I spent more time on the road this week for work than I did at my desk in the office.  As a matter of fact, I know that to be the case.  As a result of rushing to catch several flights and driving for hours on end to get to courthouses in small counties, I had little time to read through articles this week.  With that being said, when the news broke Wednesday afternoon that an impasse had been reached in the mediation over the U.S. Women's National Team's equal pay suit , I knew that was a particular matter that I wanted to highlight this week. As always, below are a couple articles that caught my eye this week. Mediation Breaks Down in U.S. Women's National Team's Equal Pay Lawsuit As Liz Clarke writes, after a three day mediation of the U.S. Women's National Team's equal pay lawsuit against the U.S. Soccer Federation, talks broke down Wednesday with diminishing signs of a chance for the parties to reach a settlement before trial.  Both sid

Clark v. Charter Communications, LLC - Fifth Circuit Court of Appeals Facts :  Danielle Clark ("Clark") worked at Charter Communications, LLC ("Charter") as a specialist.  Charter, a telecommunications service provider, had approximately fifty specialists to monitor computer displays which tracked the network's status in real time.  When a system outage was displayed, a specialist would immediately dispatch a technician to the location.  Specialists would then monitor the progress of the technician's work and if the technician's work exceeded a certain timeframe, the specialist would notify supervisors.  Specialists at Charter were also required to monitor an e-mail account, respond to customer problems or questions, and monitor a phone line to communicate with technicians in the field.  Oftentimes the specialists would handle each responsibility alone on their shift. Beginning with her employment in fall of 2015, Clark would fall asleep.  She

Dave Portnoy, founder of Barstool Sports, came under fire yesterday when he tweeted several anti-union comments in regard to the possibility of employees at Barstool Sports organizing and forming a union.  (Portnoy founded Barstool Sports in 2013.  In its current form, Barstool Sports is a sports and entertainment network that includes a blog, podcasts, and a boxing promotion.  The company is owned by the Chernin Group, with the Chernin Group holding a 51% interest.) Before we get into the comments made by Portnoy, let us take a step back.  Some readers might have heard that the editorial staff at the Ringer (a similar sports and entertainment network headed by Bill Simmons, formerly of ESPN) announced earlier this week that they had formed a union.  On the heels of that announcement, Portnoy jumped into the fray and tweeted that he hoped his employees would form a union so he could “smash their little union to smithereens.”  When a staff writer at Live Science commented that c

In late July, the Department of Labor issued an opinion letter that addressed whether a motor carrier company was required to pay its drivers for time spent in the truck's sleeper berth, in accordance with the Fair Labor Standards Act ("FLSA").  Never let it be said that The Majority Opinion does not delve into the minutiae of the FLSA... To begin with, the facts which made up the opinion letter are as follows:  A motor carrier company employed drivers to undertake multi-day trips.  During these trips, the drivers would often spend time in the truck's sleeper berths.  In the example cited, on one of its driver's trips, 55.84 hours were spent driving, inspecting, cleaning, fueling, and completing paperwork and 49.96 hours were spent by the driver in the sleeper berth, during which the driver was permitted to sleep, did not perform any work, and was not on call.  As a result, the Department of Labor considered whether the motor carrier company was required t

With the United States Supreme Court set to hear several Employee Retirement Income Security Act ("ERISA") cases in the coming term, I thought it important to highlight a recent article on the topic.  For those waiting to hear oral arguments in those cases, including the most recent case accepted by the Supreme Court, out of the Eighth Circuit ( Thole v. U.S. Bank ), this article from The National Law Review should tide you over for a bit. As always, below are a couple articles that caught my eye this week. 2020 Democratic Candidates Court Union Vote in Nevada Last Sunday, nineteen of the Democrats running for the party's 2020 nomination for President appeared at a forum in Las Vegas, hosted by the American Federation of State, County and Municipal Employees, seeking to bolster their argument for why the traditional Democratic bloc of union voters should get behind their campaigns for President.  While the theme of increasing union membership and curbing the

On Tuesday, it was announced that New Jersey Democratic Senator Cory Booker’s campaign staff had unionized, via card check rather than by way of an election.  (A card check occurs when a majority within the bargaining unit sign union authorization forms.  This is a quicker and less expensive process in which unionization occurs, compared to an election.) As many readers are aware, Senator Booker is one of many candidates running for the Democratic nomination for President in 2020.  With labor being a sought after constituency among the Democratic candidates, I would suspect Senator Booker will use this unionization by his campaign staff (which he has agreed to recognize) to further his argument that he is the candidate best suited to advocate for unions if elected President.  However, with other Democratic campaign staffs having already unionized, whether this news gains Senator Booker much traction remains to be seen. For additional information:   https://www.google.com/amp/

Last month, the Chicago City Council approved what many have called the most expansive predictive scheduling ordinance in the country, the Chicago Fair Workweek Ordinance.  Set to take effect July 1, 2020, the Ordinance will apply to many workers in the city. Who the Ordinance Covers Of note, the City's Ordinance will apply to salaried employees earning no more than $50,000.00/year and hourly employees earning no more than $26/hour and who work in the building services, healthcare, hotel, manufacturing, restaurant, retail, or warehouse services industry.  The Ordinance applies to employers with more than 100 employees globally of which 50 of those employees meet the criteria of being covered by the ordinance.  For those employers in the restaurant industry, the threshold is 250 employees and 30 locations globally, and franchises with 4 or more locations in Chicago. Ordinance Requirements Now for the part that many employers and employees are likely looking for...

Ah yes, non compete agreements...a favorite topic of mine.  While some cities and states generally allow non compete agreements to be freely used, other cities and states look less favorably upon these type of agreements.  Of note, three states in New England have each made waives in regard to how non competes will be allowed to be utilized going forward.  Even for those employers or employees that are not in Maine, New Hampshire, or Rhode Island, the developments out of these three states are noteworthy and worth a review. Maine Beginning September 18, 2019, employers in the state will be barred from entering into non compete agreements with employees that earn at or below 400% of the federal poverty line.  (For reference, in 2019, that would be $49,960.00 for an individual.)  Under the law in Maine, a non compete agreement is defined as "a contract or contract provision that prohibits an employee or prospective employee from working in the same or similar fashion or

Recently, a coalition of business groups filed a lawsuit against the City of San Antonio, seeking to block the implementation of a paid sick leave ordinance that was set to take effect August 1st.  That ordinance requires businesses in the city with more than 15 employees to allow those employees to accrue 64 hours of paid sick leave per year.  For smaller businesses in the city, employees would be allowed to accrue 48 hours of paid sick leave per year. Readers might recall that San Antonio , Austin , and Dallas had all approved paid sick leave ordinance for workers in their cities in recent years.  A fight over Austin's paid sick leave ordinance quickly commenced with that fight still ongoing in court .  As well, the Texas Legislature had been on the verge of outlawing local paid sick leave ordinances across the state, but those efforts stalled out before the Legislature ended its session earlier this year .  Texas Governor Greg Abbott does not appear to be willing to call

Some readers might have seen that the two nominees to the Equal Employment Opportunity Commission had their nominations clear the Senate Health, Education, Labor, and Pensions Committee earlier this week.   The vote for the Republican nominee Sharon Fast Gustafson was along party lines, 13 - 10.  The vote for the renomination of current Democratic Commissioner Charlotte Burrows advanced 23 - 0.  Both nominees headed to the Senate for a final vote, in which they were both confirmed yesterday before Congress left for its August recess.  While that was newsworthy, I wanted to spend time looking at a few other developments this week that made headlines. As always, below are a couple articles that caught my eye this week. Bipartisan Paid Leave Proposal Introduced in Congress This past Tuesday, Republican Senator Bill Cassidy and Arizona Senator Kyrsten Sinema introduced a proposal that could garner support from both sides of the aisle.  Under the proposal from the Republican and