The Majority Opinion: Legal Blog

  At the end of every year, I traditionally do an overview of some of the key highlights (or perhaps lowlights) on the labor & employment law front around the country over the prior 12 months.  With the coronavirus dominating news coverage since at least early March (and the subsequent impact on workplace issues), I could spend hours going through labor & employment law developments that have arisen because of the virus.  However, rather than rehashing that matter, I think it is more appropriate to turn the page on 2020 and move forward into the new year. As always, below are a couple articles that caught my eye this week. COVID, the Vaccine, & Age Discrimination I intended to focus on a few non-coronavirus related topics this week, but this article is especially timely and worth highlighting at the outset.   The National Law Review recently wrote an insightful article on potential age discrimination issues that may arise for employers as the vaccine rolls out across the c

  Although we are still a few days away from the start of 2021 and while it is early in the ballgame, perhaps there is no time like the present to christen 2021 as the year of minimum wage hikes across the country. Why might 2021 be the year of minimum wage hikes?  Take for instance the fact that 20 states will raise minimum wage rates on January 1st.  Of note, those 20 states do not occupy one part of the country or “traditionally” employee friendly states such as New York, New Jersey, or California.  In fact, on January 1st, Alaska, Arizona, Colorado, Montana, South Dakota, Illinois, Florida, and Maine, among others, will raise their hourly pay rates.  There are of course a few notable “outcasts”, such as Texas, which are still holding steady at $7.25/hour (the federal minimum wage rate.)  However, with nearly half the country bumping up minimum wage rates on Friday, the tide is certainly starting to turn in favor of increasing wage rates for employees.  At this point, I do not see t

  Effective Friday, January 1st, the hourly minimum wage rate in Missouri will increase to $10.30/hour. Readers might recall that this minimum wage hike came about after voters approved the measure back in 2018.  This wage hike will apply to all employers in the state except for those retail and service employers whose gross sales are less than $500,000.00.  Based upon the language of Proposition B (the ballot measure), the hourly minimum wage rate will increase $.85/hour each year through 2023. For employers in the state, now is as good of a time as any to start making plans for the 2021 (and 2022 - 2023) wage hikes. For additional information:   https://ozarksindependent.com/2020/12/27/minimum-wage-in-missouri-tops-10-an-hour-friday/

  Rounding out a shorter week, I found a couple articles worth highlighting.  In particular, I call attention to a development at the Equal Employment Opportunity Commission which has the potential to dramatically impact how the agency (and its general counsel) litigate matters going forward. As always, below are a couple articles that caught my eye this week. Restaurant Owners, Rising Labor Costs, & Staying Afloat Jaya Saxena at Eater wrote an article recently that took stock among some restaurant owners in regard to how they were managing to pay their employees a living wage while also juggling increasing menu prices (to the chagrin of some customers.)  It should come as no surprise that with many employers increasing pay rates for their employees (whether voluntarily or by local ordinance/statute), that has resulted in increasing prices on the menu to offset the rising labor costs.  I will refer readers to the article for a survey of how some of these employers have implemented

  Last week, the New York City Council approved a bill that would prohibit fast food workers in the city from being fired without a “valid” reason and would these workers to appeal a termination through arbitration. Let us start first with a look at the prohibition on employers terminating fast food workers without a valid reason.  This is particularly troubling, from the viewpoint of an employer, given that New York is an “at will” employment state.  (For those unfamiliar with “at will” employment, an employer may terminate an employee for any reason or no reason, so long as the act of terminating an employee is not illegal or a form of retaliation.)  However, this bill seems to rewrite things by requiring fast food employers to have a “valid” reason for terminating an employee.  This is obviously a deviation from the “at will” standard already in place for the state. Moving to the second part of the bill which would allow these terminated workers to appeal the termination through arb

  Earlier this month, Pittsburgh Mayor Bill Peduto signed a new ordinance that will provide many workers in the city with leave to deal with a coronavirus sickness. The ordinance will supplement The Pittsburgh Paid Sick Days Act (“PDSA”) which took effect earlier this year.  Under the ordinance, covered employees are expressly permitted to use sick time under the PDSA before it is accrued so long as the reason for the leave is related to the coronavirus. Now for the all important specifics of the ordinance.  Employers in the city with more than 50 employees are required to provide paid coronavirus sick time to their employees for coronavirus related reasons such as the care of a family member due to a coronavirus related reason, a determination that an employee’s presence in the workplace could jeopardize the health of others because of the coronavirus, as well as an employee’s need to self isolate because of coronavirus related matters.  (The ordinance applies to employees that are wo

  I think one of the big developments this week was the updated guidance in regard to employers and employees and the coronavirus vaccine.  Many readers have likely seen the news reports this week about the vaccine being released across the country (and world for that matter.)  In the weeks and months ahead, as more of the vaccine is distributed, I suspect the recently released guidance will be a good resource to consult. As always, below are a couple articles that caught my eye this week. Virtual Onboarding in 2021 As we come to the end of 2020, many employers and HR professionals are likely looking ahead to 2021 and what the workplace (and hiring process) will look like.  Even as we round out December, it is a good idea to start coordinating and planning ahead for the coming months.  As this article from HRDive points out, virtual onboarding is likely to continue to be commonplace in the months ahead.  With virtual onboarding comes a change to how employers and HR professionals work

  In a few short weeks, voters in Georgia will head back to the polls to cast their vote in two Senate run off elections between Republican Senator David Perdue and challenger Democrat Jon Ossoff and Republican Senator Kelly Loeffler and Democrat Raphael Warnock. With the outcome of that race determining whether Republicans or Democrats will have majority control of the U.S. Senate, there has been a lot of attention paid to these run off elections.  Of note, Democratic challenger Jon Ossoff made news this past weekend at a campaign event.  In response to a question from an attendee at the event, Ossoff stated that he believed illegal immigrants should be paid the federal minimum wage rate.  In his remarks, Ossoff stated that federal immigration authorities should be in charge of ensuring this federal minimum wage rate is paid to these workers. Ossoff has argued that a large swath of workers in the state’s agriculture sector are comprised of Latino immigrants, some of whom are illegal a

  Effective today, Starbucks is raising its hourly pay rate for 30% of its workforce. According to the company, this is the start of a plan to raise hourly pay rates for its entire workforce to $15/hour without three years.  This move comes on the heels of other large employers, such as Target and Walmart, raising hourly pay rates for its workforce earlier this year.  Will other large employers follow suit?  While nothing is a sure thing, I would expect to see similar stories in the coming months. For additional information:   https://thehill.com/policy/finance/529693-starbucks-to-boost-minimum-wage-above-15-per-hour-at-30-percent-of-its?amp

The end of the year normally means less time on the road and in court and more time to read through articles.  This year, unfortunately is much different with many, many courts holding hearings and trials to close out 2020.  Even with not having any travel, the amount of court appearances has left me with little time to read through articles.  With that being said, I did come across a couple articles worth mentioning. As always, below are a couple articles that caught my eye this week. New York Senate Republicans Push For Delay to Minimum Wage Hike Earlier this week, Senate Republicans in New York began to voice their support for delaying a minimum wage hike in the state, set to take effect at the end of the year.  While it is not expected that Governor Andrew Cuomo would agree to any delay (nor Senate Democrats for that matter), might this effort to delay the minimum wage hike prove effective? OSHA Under Fire For Limited Enforcement At Meat Packing Plants In recent months, the Occupat

  Earlier this week, ten Democratic Senators sent Equal Employment Opportunity Commission (“EEOC”) Chair Janet Dhillon a letter asking about the EEOC’s authority to investigate bias in artificial intelligence (“AI”) driven hiring technology. This question over whether AI technology that is used in the hiring process is biased against certain applicants has been an ongoing discussion point for years.  The EEOC is charged with investigating bias in the workplace, per Title VII of the Civil Rights Act of 1964.  In the letter the Senators have sought information to establish what authority the EEOC possesses to investigate the use of AI in the hiring process.  While this letter really just serves as a “fact finding” mission of sorts, it does keep the discussion going in regard to the use of AI in the hiring process and the potential bias (intentional or unintentional) that can arise. This is one to keep an eye on going forward.

  As we close in on the end of 2020, attention has started to turn toward 2021 and where the nationwide fight for a $15/hour minimum wage rate might lead. Readers will likely recall that a $15/hour minimum wage rate is common in some parts of the country such as New York, New Jersey, and Massachusetts.  While these traditionally liberal leaning states approving a statewide $15/hour minimum wage rate is not necessarily much of a surprise, it is noteworthy that voters in Florida approved a $15/hour statewide minimum wage rate last month.  That has lead many to suggest that if a more “middle of the road” state can approve a $15/hour minimum wage rate, a $15/hour minimum wage rate might be possible in any corner of the country. There are of course a few things that could prevent that from immediately happening and it starts with the coronavirus pandemic.  With many employers struggling to keep the lights on and make ends meet right now, having to juggle rising labor costs is no small chore

  I wanted to give a nod to a recent coronavirus related bonus that Walmart is providing its workers before moving on to a more nuanced look at a key factor that claimants must take into account when filing an age discrimination claim.  Being tied up in trial most of the week did not give me much time to read through articles but these should give readers something interesting to page through over the next few days. As always, below are a couple articles that caught my eye this week. Walmart Announces Coronavirus Related Holiday Bonuses For Hourly Workers Earlier this week, Walmart announced that it would provide its hourly workers with a holiday bonus, due in part to the ongoing coronavirus pandemic.  As Melissa Repko at CNBC noted, full time hourly workers will receive a bonus of $300 while part time hourly workers will receive a bonus of $150.  It is worth noting that Walmart has been providing its employees with several bonuses throughout the year in an effort to provide its worke

  Earlier this week, Google was hit with a complaint filed with the National Labor Relations Board (the “NLRB”) that alleged the company unlawfully spied on employees that were organizing employee protests and then unlawfully terminated two of those employees as a result of their organization efforts. The complaint alleged that one employee, Laurence Berland, was working to organize against Google’s work with IRI Consultants, a business that had previously engaged in anti-union efforts.  Berland was apparently terminated from Google when he was found to have been reviewing other employees’ calendars.  (The NLRB has held that Google’s policy prohibiting employees looking at a coworker’s calendar is unlawful.)  Another employee, Kathryn Spiers, was terminated after she created a pop up for Google employees that visited IRI’s website.  The pop up said “Googlers have the right to participate in protected concerted activities.” At this point, Google has until mid month to file an answer to

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. EEOC Settles Sex Discrimination Lawsuit with Oatridge Security Group for $375,000 Oatridge Security Group, a Tacoma based employer, has agreed to settle a sex discrimination suit filed by the EEOC for $375,000.00.  The lawsuit alleged that after an employee disclosed her pregnancy and need for leave to her manager, she was unlawfully terminated in violation of Title VII of the Civil Rights Act of 1964.  Despite making repeated attempts to regain her job, the employer refused.  This statute prohibits sex or pregnancy based discrimination by an employer.   Aspire Health Partners Settles Disability Discrimination Suit for $115,000 The EEOC announced that it had settled a disability discrimination suit against Aspire Health Partners with the company agreeing to pay $115,000.00 to resolve the dispute.  According to t

  During any normal Thanksgiving week, many readers would find themselves traveling home or to see family for Thanksgiving.  In doing so, some readers would likely listen to a podcast to pass time while traveling.  Even though some readers might be altering their plans this Thanksgiving and not traveling, I still wanted to highlight a few podcasts that are worth listening to this week.  Kick up your feet, shop online, play with your dog/s, and listen to a few of the below podcasts to unwind during the Thanksgiving break. As always, below are a couple podcasts that caught my ear this week. Holiday Parties & Minimizing Risk For Employers Ah yes.  After Thanksgiving, many employers often begin holding holiday parties.  While that tradition might change this year, some employers will likely still hold holiday parties for their employees.  As Work and Play:  A Constangy Employment Law Podcast notes, potential liability can arise for employers when they hold a holiday party.  Whether ta

Laborers’ International Union of North America, Local Union No. 91 v. National Labor Relations Board - Second Circuit Court of Appeals Facts :  Laborers’ International Union of North America, Local Union No. 91 (“Local 91”) operated a hiring hall that referred union members to job openings when they became available.  For nearly fifteen years, one union member, Ronald Mantell (“Mantell”), regularly received referrals to job openings through Local 91’s “out of work” list.  However, after Mantell’s brother filed unfair labor practice charges against Local 91 and alleged he had been taken off the “out of work” because of critical comments he made about Local 91 and its leadership on social media, Mantell no longer received referrals for job openings. Mantell subsequently filed three unfair labor practice charges against Local 91 and claimed Local 91 had unlawfully threatened to file internal union charges against him, refused to show him the “out of work” list, and retaliated against him

  Readers will recall that California’s Prop 22, passed earlier this month, saw California voters approving a ballot measure to exclude gig companies from the reach of AB 5 .  That means in California, gig workers for companies like Uber, Lyft, Instacart, Door Dash, etc. do not fall within the scope of AB 5 and therefore are classified as independent contractors rather than employees. As a result, with these gig workers not being classified as employees, they are not eligible for a minimum wage rate, overtime pay, unemployment, etc. As I had noted following the vote, this was a major victory for gig companies.  However, that victory might be short lived.  Even with the passage of Prop 22, gig companies are not out of the woods yet.  For starters, pro worker groups are looking for ways to challenge the outcome of Prop 22 in court.  Whether those challenges prove successful is too early to know but it could tie up Prop 22 for months or years to come.  And of course, let us not forget a h

Another week comes and goes and for many, the work from home arrangement remains a constant.  On that note, I came across a few articles this week which relate to that topic.  One deals with employers taking steps to sidestep potential wage and hour issues with employees working remotely.  Another addressed ideas on how to conduct remote job screening.  Turning to other topics, I highlight news from Home Depot and UPS, as it relates it to the workplace.  And of course, let us not forget an article which surmises what unions (and employers) might expect from a President Joe Biden administration. As always, below are a couple articles that caught my eye this week Employers: With Remote Work, Beware of Potential Wage & Hour Issues The Wage & Hour Litigation Blog recently published an article in which it recognized that with many employees working remotely right now, potential wage & hour issues may arise.  For instance, some states mandate rest or meal breaks during a workday

  For the first time since 2008, the Equal Employment Opportunity Commission (“EEOC”) is going to provide updated guidance in regard to religious discrimination in the workplace. The EEOC’s guidance, which is non-binding, provides employers and employees alike with a framework to follow in regard to determining if/when religious discrimination occurs in the employment context.  For years, many have called on the EEOC to update its guidance to take into account two U.S. Supreme Court decisions:  2014’s Burwell v. Hobby Lobby Stores Inc. and 2015’s EEOC v. Abercrombie & Fitch .  The Court in Burwell held that owners of “closely held” corporations, such as Hobby Lobby, can raise the Religious Freedom Restoration Act as a defense to government actions that substantially burden the free exercise of their religious beliefs.  The Court held in Abercrombie & Fitch that a job applicant need not notify a potential employer of a religious conflict that requires the accommodation in ord

  In early October, New York Governor Andrew Cuomo signed SB 2328 into law which will enable employees that have chosen direct deposit to receive electronic confirmation of the direct deposit rather than receiving paper pay stubs. It is worth noting that SB 2328 cleared the Legislature with unanimous support.  It goes without saying that this legislation is not “controversial”, yet for employers and employees in New York, with the law set to take effect on January 1, 2021, now is the time to brush up on the specifics of SB 2328. For additional information:   https://www.nysenate.gov/legislation/bills/2019/s2328/amendment/a#:~:text=S2328A%20(ACTIVE)%20%2D%20Summary,each%20employee's%20paper%20pay%20stub.

  On November 9th, the National Labor Relations Board (“NLRB”) issued a decision in Aspirus Keweenaw and addressed when, in light of the coronavirus pandemic, a union election would be appropriately conducted by mail rather than in person. Earlier this year, approximately seven mail ballot elections had been postponed in order for the NLRB to consider employer objections.  With that being said, the NLRB had rejected many of these employer objections.  However, the November 9th decision from the NLRB provides six factors for when union elections by mail would be appropriate: When the NLRB office that is conducting the election is on mandatory telework; When either the 14 day trend in new coronavirus cases in the county where the facility is located is increasing or when the 14 day testing positivity rate in that location is 5% or higher; When the in person election site cannot be set up without violating mandatory state or local health orders that limit the size of gatherings; When the

Let us call this a week to take a step back and get a broad overview of topics that do not always dominate the labor & employment law landscape.  While I did want to recognize the brewing “battle” to become the next Labor Secretary, a nod to COBRA and flexible work schedules are a bit of a different topic from the norm.  Nevertheless, the below articles are worth a quick read, even for those that do not deal with the matters on a routine basis. As always, below are a couple articles that caught my eye this week. A Closer Look at Possible at Labor Secretary Nominees On the heels of Vermont Senator Bernie Sanders making his interest known about wanting to become the next Labor Secretary, Politico has published an article identifying several potential nominees for the position in a President Joe Biden administration.  While it is certainly possible that another candidate will emerge, this is an interesting list to take note of and sheds some light on potential candidates for the posi

Louisiana has passed SB 68 which will clarify the definition of “employee” to specifically exclude independent contractors from being eligible for unemployment benefits.  The law is set to take effect January 1, 2021. I would refer readers to the statutory text of SB 68 for further information.  Although with January 1st fast approaching, now is the time to focus on this legislation.   For a copy of SB 68:   http://www.legis.la.gov/legis/ViewDocument.aspx?d=1191045

  Last week, the Labor Department issued an opinion letter in which it stated that employees must be paid for time spent watching training webinars during work hours, even if the webinar is not directly related to the job. In the opinion letter, the Labor Department considered whether an employer was required to pay its employees for time spent watching training webinars.  When it came to voluntary education training, the employer required its employees to substitute paid time off or vacation time when the employee attended these training sessions during work hours.  No compensation was paid if the employees attended training sessions after work hours. The Labor Department recognized that the Fair Labor Standards Act (“FLSA”) requires employers to compensate employees for their work.  In this instance, the Labor Department found that even when training is voluntary and could be conducted/viewed outside of regular work hours, that was “immaterial.”  The FLSA dictated that “work not requ

  At the end of October, the National Labor Relations Board (“NLRB”) has asked for briefing on the issue of Scabby the Rat and two banners near the entrance of a neutral employer’s worksite. In essence, for years, unions have used Scabby the Rat (or similar inflatables) on public property near businesses that do business with an employer that is engaged in a labor dispute with a union.  The goal of these inflatables is to pressure the “secondary” employers to stop doing business with the “primary” employer in order to get the “primary” employer to change a particular labor practice. Section 8(b)(4)(i) of National Labor Relations Act (“NLRA”) prohibits unions (or their agents) from encouraging “secondary” employers from participating in protected activities.  Section 8(b)(4)(ii) protects these “secondary” employers from threats or coercion.  The argument follows, for some, that unions that use inflatables such as Scabby the Rat are in violation of the NLRA.  However, an Administrative L

  Some readers might have heard about the election on Tuesday.  Even as of this writing, there are still several races left undecided (namely the race for President, although some networks have just called the race for Joe Biden.)  While I do give nod to a potential Cabinet pick should Biden officially reach the 270 threshold for delegates, I did want to focus on two relevant ballot initiatives that voters decided upon this week. As always, below are a couple articles that caught my eye this week. Secretary of Labor Bernie Sanders? Perhaps... Prior to this week’s election, Politico published an article that reported Vermont Senator Bernie Sanders (who many might recall is a former candidate for President) had expressed interest in becoming Labor Secretary under a President Biden administration.  What might a Department of Labor look like under Bernie Sanders?  For starters, I think we would see an aggressive slant toward employees.  That would likely include a push for a higher feder

  At long last, today is finally Election Day across the country.  While the Presidential election and Senate races will likely dominate news coverage throughout the day and into tomorrow (or beyond, depending how close vote tabulations are), there are several down ballot measures worth watching.  One ballot initiative in particular to watch is Proposition 22 pending in California.  This ballot measure would create a permanent independent contractor status for gig workers in the state, exempting them from Assembly Bill 5.  (As a reminder, Assembly Bill 5 required gig workers to be classified as employees.  Gig companies such as Uber, Lyft, DoorDash, and others have been quick to mount on offense to Assembly Bill 5...thus we have Proposition 22 on the ballot this year.) For some specifics, while Proposition 22 would exempt gig workers from Assembly Bill 5 and would classify them as independent contractors, these workers would be guaranteed a minimum wage for the time they are “active” o

  Tomorrow, voters in Florida will consider a ballot initiative, Amendment 2, that would raise the hourly minimum wage rate in the state from $8.56/hour to $15/hour by 2026. In what is expected to be one of the most contested swing states in this year’s Presidential election (where voter turnout will be critical), this is one of the more intriguing employment law related ballot measures pending this November.  If approved, the statewide hourly pay rate would rise to $10/hour next September and then increase by $1/year until 2026.  Beginning in 2027, consumer prices would determine annual wage rate increases. Now bear in mind that Amendment 2 requires at least 60% approval to pass.  In the past few months, polls have shown support slipping for Amendment 2’s passage.  Back in September, there was a reported 67% approval for the measure whereas the end of October found approximately 63% support.  Of course, these pre election polls are not definitive but they do indicate that the final ta

  Only a few days way from the Presidential election on November 3rd, some readers might be poring over recent poll numbers, early vote totals, and other election related materials.  Although we could delve into the Presidential race, down ballot elections, and ballot initiatives, I will refer readers instead to their preferred news source.  Save for a brief reference to President Donald Trump’s Labor Department below, let this post serve as a respite from election coverage. As always, below are a couple articles that caught my eye this week. Many San Diego Workers to Receive $14/Hour Wage Rate Effective January 1st Readers might recall that the state of California has implemented an hourly wage hike starting in 2021:  For employers with 25 or fewer employees, the hourly wage rate will rise to $13/hour.  For employers with 26 or more employees, the hourly wage rate will rise to $14/hour.  However, San Diego has implemented its own minimum wage hike, requiring all employers (regardless

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo

  Beginning January 1, 2021, a new Ban the Box ordinance will take effect for many employers in St. Louis. Earlier this year, St. Louis approved Ordinance 71074 which will apply to employers in the city with 10 or more employees.  Under this ordinance, these employers cannot base a decision to hire or promote an employee based upon an applicant’s criminal history, “unless the employer can demonstrate that the employment related decision is based on all information available including the frequency, recentness and severity of the criminal history and the history is reasonably related to or bears upon the duties and responsibilities of the job position.”  As well, these employers are also prohibited from asking about a job applicant’s criminal history until after the employer has determined the applicant is otherwise qualified for the position and interviewed the applicant.  However, employers may inquire about “all job applicants who are in the final selection pool from which the positi

As I had highlighted earlier this week a paid leave “battle” in New Hampshire between the Republican Governor and the Democratic Legislature , I thought it would be appropriate to highlight some other developments across the country in regard to paid leave.  With paid leave on the ballot this November, there is no time like the present to do a bit of a deep dive into the topic. As always, below are a couple articles that caught my eye this week. How Realistic Is a National Paid Leave Law? Ah yes, paid leave.  One of the more bandied about labor and employment law related topics.  While there appears to be support among both Republicans and Democrats for a national paid leave law, neither side can come to an agreement with the other on how it would be funded, whether it would be mandatory, which workers would qualify, etc.  This particular study from AEI examines the issue a bit closer and takes into account how a national paid leave law would impact low wage workers.  For those intere

  Rounding the bend on the end of 2020, the California Legislature has been busy finalizing several relevant labor and employment law related pieces of legislation which California Governor Gavin Newsom has signed into law. On September 30th, Governor Newsom signed Assembly Bill 3075 into law which will extend successor liability for California Labor Code violations.  The legislation sought to prevent an employer from committing a Labor Code violation, doing away with the business (by changing names, dropping a d/b/a, etc.), creating essentially the same business under a new name, and escaping liability Under the legislation, Section 200.3 is added to the Labor Code which stipulates that “a successor to any judgment debtor shall be liable for any wages, damages, and penalties owed to any judgment debtor’s former workforce pursuant to a final judgment.”  “Successor” includes any business that “[u]ses substantially the same facilities or substantially the same workforce to offer substant

With New Hampshire Governor Chris Sununu up for re-election against challenger Dan Feltes, the current Majority Leader of the New Hampshire Senate, paid leave has been a hot button issue during this election cycle.  Readers in the Granite State are likely well aware of the current state of paid leave in the state.  However, for those less familiar with the matter, I think it is appropriate to highlight a few details leading up to the November 3rd election. New Hampshire Legislature’s Proposals Last year, the New Hampshire House and Senate (both in majority control by Democrats) approved a bill that would require all private sector employers to provide paid leave with paid leave benefits set at 60% of the employee’s wage.  However, the legislation left it up to employers to decide whether to pay the benefit on behalf of employees or instead require employees to pay for it through a payroll reduction.  When it reached his desk, Governor Sununu vetoed it on the grounds that the legislatio

  Martinez v. BaronHR, Inc. - California Court of Appeal, Second Appellate District, Division Four Facts :  Joseph Martinez (“Martinez”) was recruited by BaronHR, an employment staffing company, for an employment position with a company.  As part of the recruitment, Martinez was required to sign an employment agreement which included an arbitration provision, entitled “Mutual Agreement to Arbitrate Claims.”  This arbitration provision was several pages long and included a waiver of the right to a jury trial.  This section required that the employee initial this acknowledgement of the waiver of the right to a jury.  Martinez did not provide his initials following this section.  At the end of the employment agreement, there was an additional statement that the employee acknowledged and also stated:  “AFTER SIGNING THIS AGREEMENT, EMPLOYEE HAS NO RIGHT TO PURSUE CLAIMS AGAINST THE COMPANY IN COURT AND BEFORE A JURY, BUT ONLY THROUGH THE ARBITRATION PROCESS.”  Martinez signed the end of t

  Some readers might have watched the confirmation hearings this week for President Donald Trump’s Supreme Court Justice nominee, Seventh Circuit Court of Appeals Judge Amy Coney Barrett.  As Judge Barrett spent a good portion of the week answering questions from Senators as to why she should be confirmed to replace Justice Ruth Bader Ginsburg, there were not any “major” smoking guns or shocking revelations.  However, with many predicting that Judge Barrett will be confirmed to fill the vacant Supreme Court seat, I think it is a good time to look at how she might rule on labor and employment law related cases (based upon her prior rulings in relevant Seventh Circuit Cases.) As always, below are a couple articles that caught my eye this week. How Might a Justice Amy Coney Barrett Rule, If Confirmed? HRDive published an article recently in which it weighed how a Justice Amy Coney Barrett might rule on labor and employment law related matters, if confirmed to the U.S. Supreme Court.  Whil

  This has certainly been a busy end of 2020 for a lot of new legislation, hasn’t it?  On September 30th, California Governor Gavin Newsom signed Assembly Bill 979 into law which requires diversity quotas on the boards of publicly traded companies. Assembly Bill 979, which applies to public domestic or foreign companies that have principal executive offices in the state, requires that these companies have at least one director from an “underrepresented community” on their board by the end of 2021.  Readers might be wondering who would qualify as coming from an “underrepresented community.”  Assembly Bill 979 identifies these board directors as anyone who self identifies as “Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self identifies as gay, lesbian, bisexual, or transgender.” For those wondering, companies that fail to comply with this legislation risk being fined anywhere from $100,000 to $300,000.  Emp

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. At the end of August, a rather novel (for the time being) lawsuit was filed by an employee that alleged his former employer unlawfully interfered and retaliated against him in violation of the Families First Coronavirus Response Act (“FFCRA”). According to the lawsuit, Nicolas Prada (“Prada”) worked as a waiter and assistant manager at Trifecta Productions, LLC d/b/a Tomukun Noodle Bar (“Noodle Bar”).  In late June, he began experiencing coronavirus related symptoms and stayed home from work.  After testing positive three days later and quarantining for fourteen days, he texted his employer that he was medically cleared to return to work.  However, during a call with the owner of Noodle Bar, Prada claims he was interrogated about his actions prior to testing positive for the coronavirus.  The owner of Noodle Bar alleg