The Majority Opinion: Legal Blog

On one of the spookiest days of the year, it only makes sense to have this month's EEOC Roundup be a "Halloween Edition."  Whether you are headed out to trick-or-treat this evening, staying in to hand out candy, or putting on a scary movie, use this EEOC Roundup as a timely reminder of the spooky situations that can arise in the workplace when employers run afoul of employment laws. 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 stand out. Halliburton to Pay $275,000 to Settle National Origin and Religious Discrimination Suit The EEOC recently announced that Halliburton would pay $275,000.00 to settle a charge that it subjected two oilfield workers to national origin and religious discrimination.  The suit alleged that one of the workers, Hassan Snoubar (of Syrian descent), was subjected to name calling in regard to both his national origin and his Mus

Garrison v. Dolgencorp, LLC - Eighth Circuit Court of Appeals Facts :  Rochelle Garrison ("Garrison") worked as a lead sales associate at Dollar General.  (Dolgencorp, LLC is a subsidiary of Dollar General.)  Garrison's immediate supervisor was Sandra Bell ("Bell") who, like Garrison, had a key to open and close the store.  The four "key holders" for this Dollar General store were required to coordinate schedules so that at least one of them could open and close the store each day. Garrison, suffering from anxiety, migraines, and depression, wanted to take a leave of absence due to her medical condition.  Following a doctor's visit, Garrison texted Bell and asked how to take a leave of absence.  Bell told Garrison that the district manager would be consulted.  A few days later, Garrison followed up with Bell and also asked about a rumor Bell allegedly spread that Garrison intended to quit.  When Bell finally responded, she had three mess

I came across quite a few good articles this week but perhaps one of the more thought provoking topics was an opinion piece which surmised that organized labor might be positioned for a major breakthrough.  Now many readers are likely aware that membership and the political influence of labor unions have been in decline for years...but perhaps there is a glimmer of hope here? As always, below are a couple articles that caught my eye this week. Florida Attorney Progresses With Attempt to Get $15/Hour Minimum Wage Proposal on 2020 Ballot Earlier this year , I made note of an attorney in Florida, John Morgan, that was spearheading an effort to get a constitutional amendment on the ballot in Florida in 2020 that would seek to raise the state's minimum wage rate from $8.46/hour to $15/hour.  As The Palm Beach Post reported earlier this month, Morgan's spending of millions of dollars to collect enough signatures to get the measure on the ballot in 2020 appears to be wor

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, a bi-partisan piece of legislation was introduced in Congress entitled the "Workforce Mobility Act of 2019" which is intended to curb the use of non-compete agreements in the workplace. The bill, introduced by Republican Senator Todd Young and Democratic Senator Chris Murphy, would aggressively reduce the use of non-competes and allow them to be used only for the "necessary instance of a dissolution of a partnership or the sale of a business."  With one recent study having found that non-competes have impacted nearly 40% of the workforce, the Senators have argued that non-competes are improperly infringing upon the ability of workers to move on to new jobs.  Consequently, this legislation seeks to scale back the use of non-competes and goes so far as to require em

Last week, reports emerged that the New Jersey Department of Labor and Workforce Development were investigating Uber & Lyft to determine if these gig companies had improperly classified drivers as independent contracts (rather than employees.) Drivers for these ride sharing companies have started to receive surveys from the Department of Labor and Workforce Development asking for information about their work arrangements and tax status.  For those unfamiliar with these ride sharing companies, drivers are traditionally classified by the companies as independent contractors rather than employees.  (As many are likely aware, if these drivers were classified as employees, they would be entitled to protections under the Fair Labor Standards Act, overtime pay, potential paid time off, unemployment benefits, have the right to unionize, etc.)  Like California, New Jersey utilizes the ABC Test to determine whether a worker is an independent contractor or employee .  With the ABC Tes

At the start of the month, the U.S. Supreme Court declined to hear an appeal from a Fourth Circuit Court of Appeals decision in Parker v. Reema Consulting Services, Inc . , a February 2019 case that found that the spreading of a false rumor that a female employee slept her way to a promotion could give rise to a hostile work environment claim under Title VII of the Civil Rights Act of 1964. In the case, Evangeline Parker ("Parker") claimed that she was discriminated against on the grounds that her employer allowed a hostile work environment to exist when it allowed a false rumor to spread that Parker got a promotion because she slept with a supervisor.  The facts in the record established that the employer knew of the rumor (originated by some co-workers of Parker), with one of the managers even excluding from a meeting in which the rumor was discussed.  As well, the manager went on to tell Parker that she could no longer be recommended for promotions or higher level t

While I watched some of the Democratic Presidential debate this past week to see if there were any breaking employment or labor law policies unveiled, nothing of substance was announced.  So while we could parse the specifics of the debate and try to find some way to shoehorn it into the blog, I think there are other developments that warrant more attention this week. As always, below are a couple articles that caught my eye this week. U.S. Soccer Federation Seeks to Block Class Action Certification in Gender Discrimination Suit Readers will likely recall that the U.S. Women's National Soccer Team has filed a gender discrimination suit against the U.S. Soccer Federation and garnered significant attention over the past few months .  After settlement talks broke down at mediation back in August, this case is slowly moving forward to trial next May.  However, there are likely still quite a few legal maneuvers that both sides will play, including the U.S. Soccer Federation

Salazar v. McDonald's Corp. - Ninth Circuit Court of Appeals Facts :  A class action was filed by McDonald's workers that worked at one of the company's franchises.  The 1,400 workers that were part of the class (hereinafter referred to as "the claimants") sued McDonald's and the Haynes Family Limited Partnership ("Haynes") (which operated eight McDonald's franchises) claiming that they were denied overtime pay, meal and rest breaks, and other benefits in violation of the California Labor Code.  The class alleged that McDonald's and Haynes were joint employers, therefore both were liable for these alleged violations. The evidence established that Haynes selected, interviewed, and hired its employees for each franchise location.  Haynes was responsible for training its new employees and setting their wages (which were paid by Hanyes.)  Haynes also set employee schedules and monitored their time entry.  There was no evidence that McD

LA Specialty Produce Company - NLRB Facts :  LA Specialty Produce Company maintained an employee manual which contained two rules which make up the basis of this dispute.  One rule, the Confidentiality and Non-Disclosure rule stipulated:   Every employee is responsible for protecting any and all information that is used, acquired or added to regarding matters that are confidential and proprietary of [LA Specialty Produce Company] including but not limited to client/vendor lists, client/vendor information, accounting records, work product, production processes, business operations, computer software, computer technology, marketing and development operations, to name a few.  Confidential information will also include information provided by a third party and governed by a non-disclosure agreement between [LA Specialty Produce Company] and the third party.  Access to confidential information should be disclosed on a "need-to-know" basis and must be authorized by manag

Evans v. International Paper Company - Fourth Circuit Court of Appeals Facts :  Deanna Evans ("Evans") began working for International Paper Company ("IPC") in 2007 as a process engineer.  Throughout the following years, Evans received promotions and strong performance reviews.  However, Evans apparently experienced problems while at IPC that she attributed to her race, African American, and gender.  Of note, Evans claimed that after she received a transfer, she heard two employees say that they did not want her there and were forced to take her.  After returning from maternity leave, Evans was told by her supervisor at the time, Gary Nyman ("Nyman"), that white, male employees had said they thought they had run her off.  Nyman was also alleged to have criticized Evans and her management skills and yelled at her on several occasions.   On another occasion, a white, male employee said during a meeting that Evans was at that another African Americ

We have a little bit of everything this week, right?  For those interested in a jurisdictional argument, we have a USERRA case pending in the Texas Supreme Court.  For those looking for a labor law development, we have a recent ruling from an administrative law judge in regard to a tweet by Tesla CEO Elon Musk.  As well, there is something for readers interested in an HR related matters, specifically as it applies to bullying in the workplace. As always, below are a couple articles that caught my eye this week. Texas Supreme Court to Address Whether USERRA Claim Can Be Brought Against the State of Texas Earlier this year, the Texas Supreme Court accepted a case, Torres v. Texas Department of Public Safety , and will consider whether a claimant can bring a USERRA claim against the State of Texas in state court (rather than federal court.)  (For those needing a refresher, the Uniformed Services Employment and Reemployment Rights Act of 1994, or USERRA for short, prohibits adve

Recently, California Senator Kamala Harris introduced a paid leave plan which would provide every worker with six months of paid leave. Senator Harris, running for the Democratic nomination for President, announced on Monday that under her plan, those workers making less than $75,000.00 a year would qualify for full wage replacement during their leave.  For workers making more than $75,000.00 a year, they would qualify for a lower wage replacement, although specifics were not given. As with any paid leave proposal, the question then turns to how it would be funded.  Under the plan, funding would come from an increase in payroll taxes, corporate taxes, and income taxes on the top 1% of income earners.  (However, specifics were not given as to how much of a tax increase there would be.) While the specifics are rather light at this time, this paid leave plan is rather expansive and perhaps the most far reaching among all the paid leave plans that have been proposed so far. 

This morning, the U.S. Supreme Court is set to hear oral arguments in three employment discrimination cases in what many legal observers are calling some of the most highly anticipated cases this term. For those unfamiliar, two cases ( Bostock v. Clayton County Georgia and Altitude Express, Inc v. Zarda ) ask the Court to address whether Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of...sex,” also covers discrimination based upon sexual orientation.  As a bit of background, Gerald Bostock (“Bostock”) and Donald Zarda (“Zarda”) both sued their employers after they claimed they were terminated because they were gay.   The Eleventh Circuit Court of Appeals eventually ruled against Bostock, finding that Title VII does not provide protections for discrimination based on sexual orientation.  In Zarda’s case, the Second Circuit Court of Appeals went the opposite direction and found that Title VII does in fact cover discrimination based upon sexual

Last Monday, Democratic Presidential candidate, Bernie Sanders (one of the Senators from Vermont) announced a sweeping proposal in which he has advocated for raising taxes on businesses that have CEOs which make at least 50 times more than their median worker. The Sanders Income Inequality Tax Plan would would apply only to those companies that make $100 million or more per year.  In regard to the actual tax increase itself, Senator Sanders has proposed raising the corporate tax rate up by .5 percent (if the CEO made more than 50 times but not more than 100 times the median worker) and up by 1 percent (if the CEO made more than 101 times and 200 times more than the median worker.) Long a champion of trying to combat large scale businesses, this proposal from Senator Sanders should not be much of a surprise.  Whether it gains any traction remains to be seen.  However, with an elevated national profile (thanks in part to his second run for the Democratic nomination for Preside

With a trial earlier this week and another one upcoming at the start of next week, I have been buried in trial prep most of the past week or so.  When I have had a chance to take a break, I have come across some good articles that are worth highlighting.  With several prominent developments on the labor law front over the past few weeks, I wanted to give readers a bit more variety this week.  (Of course, notwithstanding the article below in regard to how some of the Democratic Presidential candidates stack up in regard to their labor law positions...) As always, below are a couple articles that caught my eye this week. Grading the Labor Plans of the Democratic Presidential Candidates Last week, Steven Greenhouse wrote an article in which he gave an overview of the labor plans of several of the Democratic Presidential candidates and scored each one on how labor friendly it was.  (For kicks, Greenhouse scored President Donald Trump's labor positions as well.)  While some t

On Monday, California Governor Gavin Newsom signed into law a bill that makes California the twelfth state to allow child care workers to unionize. The law, also known as AB-378, has a potentially far reaching impact in the state as the more than 40,000 workers that provide child care services in the state will now have the right to unionize.  With the passage of this legislation, these workers will now be able to negotiate with the California Human Resources department in regard to wages and health care benefits as well as attend orientation meetings for child care workers.  Perhaps one of the big takeaways from this legislation is the fact that the state will now be required to give unions contact information for child care providers. The legislation made it through the California Legislature without too much difficulty, as Democrats lined up behind the legislation to help push it through with a 63 - 16 vote in favor of passage. For a copy of the legislation:  https://l

Readers will likely recall the long, hard fought struggle to get Assembly Bill 5 approved by the California Legislature and before Governor Gavin Newsome before the legislative session ended.  For supporters of Assembly Bill 5, that hard fought battle resulted in the measure reaching the Governor's desk and being signed into law. Many are likely wondering what happens next.  Before we get there, let us take a step back and look at the big picture.  Assembly Bill 5 sought to codify the ABC test ( created by the Dynamex v. Operations West, Inc. 2018 California Supreme Court case ) in which workers in the state could be more easily classified as employees rather than independent contractors.  This meant that many gig companies, such as Uber & Lyft which classify their drivers as independent contractors rather than employees, were at risk of having their workers potentially re-classified as employees which would open a host of "issues" for these companies.  (I us