The Majority Opinion: Legal Blog

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. Burgers & Beer Agrees to Pay $150,000.00 to Resolve Sex Discrimination Claim Burgers & Beer, a Southern California eatery, agreed to settle a sex discrimination claim for $150,00.00 after it was alleged that the entity disqualified male applicants and employees from server positions based solely on their sex.  As a result, the suit alleged that Burgers & Beer had an almost all female server workforce since 2015.  This alleged conduct is in violation of Title VII of the Civil Rights Act of 1964 which prohibits employers from discriminating on the basis of sex with regard to hiring and/or promotions. Uber Settles Sexual Harassment & Retaliation Claim For $4.4 Million A few weeks ago, Uber settled a sexual harassment and retaliation claim brought against the company.  The laws

With Christmas being midweek this year, I spent little time in the office and therefore away from my work computer and with less downtime to read through articles (given some last minute shopping.)  However, given that this is the last "What I've Been Reading This Week" for 2019, I wanted to take a moment to recognize a few of the landmark cases, bills, and developments in the labor and employment law field over the past twelve months. The U.S. Supreme Court was rather busy, issuing several notable decisions including New Prime, Inc. v. Oliveira (in which the Court held that independent contractors in the transportation industry may not be forced into mandatory arbitration).  As well, at the start of October, the Court heard oral arguments in three employment discrimination claims that asked the Court to consider extending the protections of Title VII to cover sexual orientation.  And to wrap up the year, the Court heard oral arguments in Intel Corp. Investment P

Simmons v. Pacific Bells, LLC - Fifth Circuit Court of Appeals Facts :  Max Simmons ("Simmons") worked at a Taco Bell restaurant beginning in February of 2017.  (The Taco Bell restaurant location was operated by Pacific Bells, LLC "Pacific Bells".)  In July of 2017, Simmons received a jury summons that required he appear for jury duty on July 31, 2017.  After receiving the summons, Simmons apparently told Carolyn Henderson "Henderson", the regional general manager of the Taco Bell location where Simmons worked, about the summons.  Henderson allegedly told Simmons to "find a way to get out of jury duty."  Simmons proceeded to request time off for jury duty as well as additional time to visit family.  That request for time off was made two weeks in advance. Notwithstanding the request for time off, Henderson scheduled Simmons to work.  Simmons texted Henderson on July 23rd with a reminder about the jury duty and a request to not be sched

During the past few weeks, the National Labor Relations Board (“NLRB”) has been quite busy, issuing several prominent decisions that favor employers.  With Board Member Lauren McFerran’s term ending this Monday, that leaves the NLRB with only three (Republican appointed) Board Members, out of five total Board Member positions.  (Readers will recall that three Board Member positions are traditionally comprised of Board Members appointed by the political party in power while the remaining two Board Member positions go to the minority party.  In this case, Republicans are currently the majority party; Democrats being the minority party.)   With President Donald Trump not appearing eager to appoint a Democrat to the two vacant seats (and with Congress likely focused on an upcoming impeachment trial next year), I would expect for the foreseeable future that the decisions issued by the NLRB will continue to use to favor employers.  Of course, even if either open Board Member position

Last Friday, the National Labor Relations Board (“NLRB”) announced it was had finalized a change to the rules in regard to union elections and how quickly they can occur. Readers will recall that since the ‘Ambush Election Rule’ came into effect in 2015, employers have cried foul over how quickly a union election can occur (which often leaves employers limited time in which to mount a campaign against unionization.)  The ’Ambush Election Rule’ allows a union election to occur as quickly as 13 days from the date a petition is filed.  Needless to say, this short timeframe has been viewed as more favorable to unions in so much as they can quickly get an election without employees often hearing the ‘other side’ from their employers. Following the NLRB assuming a more Republican tilt in recent years, attention had turned to when, not if, changes would be made .  With last Friday’s announcement, the NLRB announced that while it was not scrapping the ’Ambush Election Rule’ in its

Last week, two pregnancy discrimination suits were filed against Frontier Airlines by a group of eight Frontier Airlines pilots and flight attendants that claimed their employer discriminated against them by forcing them onto unpaid leave during their pregnancies and not making it possible for them to pump while working. Both lawsuits allege that "Frontier's policies and practices have...systematically discriminated against pregnant and breastfeeding pilots by signaling out pregnancy and breastfeeding for disadvantaged treatment and by failing to comply with Colorado laws that require employers to accommodate pregnancy and related medical conditions and specifically mandate the provision of break time and private time, sanitary location to pump."  In support of these allegations, one pilot alleged she was "subjected to disciplinary action for seeking accommodation related to pumping and was prohibited to pumping while in uniform."  Apparent accommodation

I found it difficult to narrow things down this week and not highlight article after article after article (although I was certainly tempted.)  With that being said, I call attention in particular to an article from James Petrie in which he has a few ideas on how employers can limit potential exposure when hosting office parties this month.  While all of the four articles I highlighted this week are worth reading, Petrie's article in particular might be of the most use to readers in the coming weeks. As always, below are a couple articles that caught my eye this week. Joe Biden Proposes Prosecuting Companies For Labor Law Violations Last weekend at a forum in Iowa, Democratic Presidential candidate Joe Biden stated that consideration should be given to prosecuting companies for labor law violations.  Currently, the National Labor Relations Board cannot impose punitive fines and instead can only collect back pay for workers, in the case of a violation of the National La

Earlier this week, it was announced that Congress has apparently reached an agreement in which it will provide approximately 2.1 million federal employees with twelve weeks of paid parental leave. This paid parental leave plan is included as part of the National Defense Authorization Act ("NDAA") (an annual bill that established budgets for the military.)  Interesting enough, the current version of the NDAA appears to have bipartisan support in both the House and Senate.   Readers will likely recall that paid leave has been an ongoing battle for both Republicans and Democrats for years.  What changed here?  Well for starters, this paid leave would apply only to federal workers rather than private employers.  That makes it somewhat easier to push through without Republicans being concerned about how a paid leave bill would impact employers and Democrats being concerned about how a paid leave bill would be paid for.  As well, the apparent bipartisan approval for thi

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. A few weeks ago, a bill was introduced in the New Jersey Legislature which would codify a new standard to determine whether a worker is an independent contractor or an employee.   Readers will recall that earlier this year, California codified its ABC test...much to the chagrin of gig companies that operate in the state. Now, like California's AB 5 which codified the ABC test, New Jersey's proposed legislation, S4204, would codify the ABC test in the state but also go one step further.  The ABC test currently stipulates that a worker is considered an employee of the company unless:  A) The individual is free from control or direction over the performance of services; B) The service is either outside the usual course of the business for which it is performed, or the service is performed outside

Right to work laws, striking graduate students at Harvard, employee appreciation, and paid family leave...talk about running the gamut of topics this week.  While USA Today provided a few highlights this week, HR Dive and the Richmond Times-Dispatch provided a few good articles on the other matters. As always, below are a couple articles that caught my eye this week. Virginia Democrats’ Potential Repeal of Right to Work Law Takes a Hit In recent weeks, I had noted that with Democrats in Virginia taking control of the General Assembly for the first time in decades, there had been rumblings of the state’s right to work law being repealed . Last Monday, however, Democratic Governor Ralph Northam told the Governor’s Advisory Council on Revenue Estimates that this was not a priority, saying “I cannot foresee taking actions [that would include] repeal of the right to work law.”  As Michael Martz at the Richmond Times-Dispatch writes, Governor Northam’s comments are an effort

This morning, oral arguments are set in the U.S. Supreme Court in Intel Corp. Investment Policy Committee v. Sulyma , a case out of the Ninth Circuit that addresses whether the three year limitations period in Section 413(2) of the Employee Retirement Income Security Act ("ERISA"), which runs from "the earliest date on which the plaintiff had actual knowledge of the breach or violation" bars suit when all the relevant information was disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the complaint, but the plaintiff chose not to read or could not recall having read the information.  (Did you get that?  Go ahead and read it a second or third time if needbe.) Before we get into the more nuanced portions of this case and ERISA, let us first take a step back.  Section 1113(1) provides a six year statute of limitations for claims brought under ERISA.  That six year period applies, unless a plaintiff had " actual kno

Romero v. Razzle Dazzle Barbershop, Inc. - Eleventh Circuit Court of Appeals Facts :  Rosa Romero ("Romero") and Luis Mateo ("Mateo") worked as barbers at one of Razzle Dazzle's ("Razzle Dazzle") barbershops.  Romero and Mateo claimed that although they worked over 40 hours in a week, they did not receive overtime pay under the Fair Labor Standards Act ("FLSA").  They subsequently filed suit against their former employer.  Razzle Dazzle argued that its barbers were not entitled to overtime pay as they were independent contracts and therefore were exempt from the overtime provisions of the FLSA. At trial, evidence was presented to the jury by both sides.  Romero and Mateo introduced confidentiality and non-compete agreements which described them as "employees."  A staff manual was also introduced that detailed a dress code, attendance policy, and description of various job related duties.  Romero and Mateo testified that

Earlier this year, the New York State Legislature passed a bill that prohibits employers in the state from engaging in employment discrimination based on an employee’s or dependent’s “reproductive health decision making.”  New York Governor Andrew Cuomo signed the legislation into law last month. The legislation, which adds Section 203-e to the state’s labor law, does several things:  1) employers cannot access an employee’s personal information in regard to the employee’s (or employee’s dependent’s) reproductive health decisions without the employee’s informed written consent, 2) employers cannot discriminate or take any retaliatory action against an employee in regard to compensation, terms, conditions or privileges of employment because of or based on the employee’s (or the employee’s dependent’s) reproductive health decisions, and 3) employers are barred from requiring employees to sign a waiver, or other document, that purports to deny employees the right to make their own

Mental health is a topic that many employers (and employees) try to skirt and avoid entirely.  While every situation is different and I am not here to suggest that employers and employees will tackle every single mental health issue in the workplace, I think it is important to have an open dialogue on the topic.  Following a recent World Wrestling Entertainment situation this past weekend in which an announcer, Mauro Ranallo, deleted his Twitter account and has gone radio silent following a critical tweet my a fellow co-worker, mental health has become a more common talking point in recent days.  (Ranallo has previously been open about his mental health and his struggles as a result.)  Given that this is a shorter work week for many with Thanksgiving tomorrow, now is as good of a time as any to talk about this matter. I will remind readers that for those dealing with mental health issues, it is important to talk with a trained professional.  Although the below articles provi

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, Republican Senator Joni Ernst introduced the Fair Access for Individuals to Receive Leave Act (also known as the FAIR Leave Act) which proposes to modernize the Family Medical Leave Act ("FMLA") to enable married couples that work for the same employer to not be restricted in the amount of leave they can take. The FMLA allows eligible workers to take up to twelve weeks of unpaid, protected leave for specified family and medical reasons.  (Those family and medical reasons can include the birth of a child; to care for a newborn child within a year of their birth; the placement of a child for adoption or foster care; to care for the employee's spouse, child, or parent that has a serious health condition, as well as a few other narrow reasons.)   However, for married coup

Last Thursday, it was announced that a group of campaign workers of 2020 Democratic Presidential candidate Pete Buttigieg, the Mayor of South Bend, were unionizing. Buttigieg has chosen to voluntarily recognize his campaign workers' decision to unionize, rather than requiring a secret ballot election.  (This is not necessarily surprising.  If Buttigieg had chosen to not recognize the union and instead required an election, critics would be quick to paint him as anti-union...a label he can ill afford to have placed on him while he courts the labor friendly voting block, imperative to any Democrat's effort to win the 2020 Presidential nomination.) Following the announcement of some of the campaign workers unionizing, this marked the sixth Presidential campaign that has unionized so far this election cycle, coming on the heels of campaign workers for New Jersey Senator Cory Booker, Vermont Senator Bernie Sanders, Massachusetts Senator Elizabeth Warren, Representative J

Heading into the homestretch of November normally means things are slowing down a bit with hearings, trial, etc., but I have found myself traveling more over the past few weeks than normal.  While that has kept me tied up, I did take some time the past few days to read through a few articles worth pointing out to readers.  Of course, with the 2020 Presidential elections upcoming, I expect we will come across more articles on how the candidates stand on particular labor and employment law related matters.  Consider the below two articles on 2020 candidates as an appetizer. As always, below are a couple articles that caught my eye this week. The Danger of Allowing “Ok, Boomer” In the Workplace The phrase “Ok, boomer” has started to become more pronounced in recent weeks, as millennials and Gen-Z use it as a term to deride and dismiss baby boomers.   The National Law Review weighed in last week and pointed out that if the phrase is used in the workplace, there is the risk of em

Today, the U.S. House of Representatives is expected to vote on H.R. 1309, a workplace violence prevention bill for healthcare and social workers. Currently, there is no nationwide law in place that requires employers to have violence prevention protections in place for these workers.  Of note, there has been a 70% increase in intentional injuries toward nurses by their patients from 2012 to 2018.  H.R. 1309 would require the Labor Department to issue a rule that requires healthcare and social service employers to implement workplace violence prevention plans.  The legislation defines workplace violence as any act or threat of force against an employee that could result in physical injury, psychological trauma, or stress.  Of note, any instance in which a firearm or improvised weapon is used would “qualify” as workplace violence. I would expect H.R. 1309 to find enough support in the House of Representatives to pass during today’s vote.  Whether this legislation gets very f

Last Tuesday, McDonald’s was hit with a proposed class action lawsuit, alleging that the company and one of its Michigan franchises engaged in unlawful sexual harassment. In the complaint, filed in a federal court in Michigan, a former employee complained that a co-worker assaulted her, groped her, and called her names in front of other co-workers.  Complaints to management apparently did not remedy the situation.  When the sexual harassment allegedly extended beyond a year, the victim was transferred to another location but her alleged attacker remained. The lawsuit, which seeks more than $5 million in damages, seeks class action status.  Whether a class will be certified is unclear at this time, but with a growing number of sexual harassment claims having been asserted against McDonald’s as of late, it is possible this class will be certified (which would expand the scope of claimants and potential recovery.)  With that being said, the American Civil Liberties Union, Fight

Last week, Chicago Mayor Lori Lightfoot, announced her proposal for hourly workers in the city to earn $15/hour by 2021, four years sooner than the rest of the state.  However, this proposal would only see tipped workers in the city earning 60% of that. Many readers are likely wondering what the specifics are of the Mayor’s proposal.  Let us take a closer look: Chicago’s $13/hour minimum wage rate would rise to $14/hour on July 1, 2020 and then again to $15/hour in 2021.  Further wage hikes would be guaranteed and tied to the consumer price index.  However, further wage hikes would be capped at 2.5%.  Hourly workers under the age of 18 would be able to obtain a $15/hour wage more gradually, eventually reaching that wage rate by 2024.  By 2025, the city would abolish the minimum wage exemption for teen workers.  Employers with 20 or fewer employees would be given more time to raise their hourly pay rates, eventually reaching $15/hour by 2023. Employers with 4 or fewer em

Every so often I come across a jury verdict that catches my attention.  This week, a case out of a federal court in Texas piqued my interest in so much as a jury was asked to decide whether an employee was discriminated against because that employee chose to attend church rather than work...and was subsequently terminated by the employer.  Quite the intriguing read. As always, below are a couple articles that caught my eye this week. Effort to Slow Minimum Wage Hike in New Jersey Falters On Wednesday, a scheduled vote in New Jersey’s Senate Labor Committee was shelved on a bill that would have allowed for a slowdown to the state’s minimum wage hike .  The proposed legislation sought to allow for temporary suspension of scheduled minimum wage hikes in the state, depending upon whether economic conditions worsened or unemployment rates rose.  Readers might recall that a minimum wage bill had been signed into law which would gradually raise minimum wage rates from $10/hour up

Yesterday, the California Trucking Association filed suit in federal court, seeking to block implementation of Assembly Bill 5. Readers will recall that the California Legislature passed Assembly Bill 5 recently, which Governor Gavin Newsom signed into law .   As a refresher, Assembly Bill 5 codified the ABC test, created by a California Supreme Court decision .  That ABC test makes it easier for workers to be classified as employees rather than independent contractors.  (The new law is set to go into effect January 1, 2020.)  Many large scale employers in the state, including Lyft & Uber , have since gone on the offensive as they seek to be exempt from the new law. The California Trucking Association’s lawsuit claims Assembly Bill 5 runs afoul of federal law because the ABC test is preempted by constitutional clauses regarding federal supremacy and commerce.  Further, the lawsuit alleged that the ABC test conflicts with federal laws for motor carriers and transportation

Yesterday, Hawaiian Airlines flight attendants began what is expected to be a week long picket.  The picket, underway at Honolulu International Airport, is an effort to call attention to stalled contract negotiations with the airline. The flight attendants claim their pay has fallen, in comparison to flight attendants at other airlines, while cost of living and medical expenses continue to rise.  ( Readers might recall a contract dispute earlier this year between Frontier Airlines and its flight attendants which involved a similar dispute .)  The Association of Flight Attendants-CWA have argued that the airline has only offered a minimal increase in pay while seeking to scale back 401(k) benefits and healthcare premiums.  Hawaiian Airlines has noted that it has apparently reached an agreement on several matters with the union, while continuing to work on the remaining matters still yet to be negotiated. As of now, the flight attendants are considering whether to vote to aut

While this week’s election might have caught the attention of some readers, I suspect that in the run up to the 2020 election next year, we will come across quite a few more relevant topics to cover here. With that being said, there are rumblings out of Virginia that Democrats in the state are already planning to repeal the state’s right to work law.  As the below article points out, with Democrats having gained majority control of the Legislature after Tuesday’s election, that topic will be something to keep an eye on in the coming weeks and months. As always, below are a couple articles that caught my eye this week. Minimum Wage Rates: Think Global, Act Local? Nelson Schwartz at The New York Times wrote an article this past Sunday in which he pointed out that while the fight to increase the hourly minimum wage rate across the board in the U.S. has (and continues to remain) a partisan quagmire, there is some reason for a sense of optimism among minimum wage advocates.  

At the start of the month, the National Labor Relations Board (“NLRB”) announced that it had extended the time period for public comment on whether profane or offensive language in the workplace is protected under the National Labor Relations Act (“NLRA”.) For those needing a refresher, General Motors LLC is a case currently before the NLRB .  That case centers around whether a worker who was a union official lost NLRA protection when he threatened to “shove” an item up the backside of a supervisor and spoke in “slave like vernacular.”  Currently, such conduct is protected under the NLRA, but the NLRB is grappling with the question of whether this conduct is in fact outside the scope of what is acceptable (and protected) workplace behavior. As of this writing, the NLRB announced it would continue to accept briefs on the topic up until November 12th.  For those that feel strongly on the matter, get writing.  That clock is ticking. For additional information:   https://ww