The Majority Opinion: Legal Blog

While I did not intend to only read through NLRB and union related matters this week, those topics seemed to catch my attention for one reason or another.  With the upcoming Iowa caucus on Monday, there is increased attention over what unions are doing (in terms of formally backing candidates, specifically Democrats.)  Given that the caucus is only a few days away, I think it is appropriate to lead things off with an article addressing that matter. As always, below are a couple articles that caught my eye this week. Ahead of Primary Season, Mayor Pete Buttigieg Struggles to Draw Union Endorsements Matt Pearce at The Los Angeles Times wrote an article late last week in which he noted a stark contrast among several Democratic candidates for the nomination for President.  While South Bend Mayor Pete Buttigieg has introduced a policy platform that is decidedly labor friendly, so far he has not been able to obtain a union endorsement.  (This is in contrast to other candidates,

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. Rainbow USA, Inc. to Pay $11,000.00 to Settle Pregnancy Discrimination Claim Earlier this month, it was announced that Rainbow USA, Inc. ("Rainbow") had agreed to pay $11,000.00 to settle a pregnancy discrimination claim, filed by a former employee.  According to the EEOC lawsuit, Rainbow indefinitely suspended a pregnant junior assistant manager and subsequently terminated her two days after learning of her pregnancy related restrictions.  This alleged conduct is in violation of Title VII of the Civil Rights Act of 1964 as well as the Pregnancy Discrimination Act of 1978.  As always, I would suggest employers use this announced settlement (and the following settlements) as a reminder of what types of conduct is in violation of federal law. Hawaii Medical Service Association to Pay $180,000

Earlier this week, a Board Member of the Equal Employment Opportunity Commission (“EEOC”), Victoria Lipnic, announced she would not seek another term when hers expires July 1. Lipnic, one of the Republican Board Members, is currently in her second term with the EEOC.  As a result of her announcement, it is possible the EEOC will lose its quorum if a new nominee is not put forward soon.  (Recall that the EEOC has five Board Member positions.  The political party that has majority control, in this case Republicans, holds three seats; Democrats hold two seats.)  If there are less than three Board Members, the EEOC loses it quorum and in essence is extremely limited as to what it can do.  Currently, there are three EEOC Board Members:  two Republican appointed aboard Members and one Democratic appointed Board Member (with a quagmire of sorts to fill the other vacant Republican seat and vacant Democratic seat.) Readers might be wondering what happens when Lipnic’s term expires t

I think I probably spent more time in airports on layovers this week than I did in my actual office.  Unfortunately, that is sometimes what happens when trials and mediations are set rather far apart, a few days in a row.  While that left me little time to comb through articles this week, I think the two articles I highlighted below are well worth a read. As always, below are a couple articles that caught my eye this week. A Primer On Statewide & Local Paid Sick Leave Laws in California For those employers and employees in California (or those simply looking for a bit of information on the laws in the state), I refer you to this primer which provides a concise overview of the statewide and local paid sick leave laws.  This PDF chart includes information on which employees are covered, how much paid leave is provided for, how the leave can be accrued, whether the leave rolls over, etc., etc.  Even for those that have a good handle on these paid sick leave laws, it woul

A few months ago, Barstool Sports and its founder, Dave Portnoy, came under fire after Portnoy tweeted several anti-union comments in regard to a possible unionization of the company .  (Barstool Sports is a sports and entertainment company with blogs, podcasts, and a short lived television show, among other ventures.)  In one of the tweets, Portnoy said he would fire any employee on the spot that talked to someone about unionizing the company. Portnoy’s tweets drew the attention of Democratic Representative Alexandria Ocasio-Cortez, who suggested that Portnoy had violated federal labor law by posting his anti-union tweets.  An unfair labor practices charge was subsequently filed with the National Labor Relations Board (“NLRB”) and things had been relatively quiet since that point.  However, it was recently reported that a settlement had been reached between the parties.  While the settlement did not include an acknowledgment that the company violated federal labor law, the

Waterman v. Paul G. White Interior Solutions - United States District Court, District of Maine Facts :  Jake Waterman (“Waterman”) worked for Paul G. White Interior Solutions (“White Interior Solutions”) as a floor finisher and installer beginning in August of 2015. Waterman’s father had several medical issues and in April of 2018, was instructed to return to the doctor for tests and treatment.  Waterman shared information about his father’s health condition with his supervisor and two coworkers.  Waterman missed work from April 9 to April 16 to help care for his father.  On April 9, Waterman left a voicemail for his supervisor, pursuant to company policy.  The next day, Waterman left a voicemail with a co-owner of White Interior Solutions, explaining his father’s condition.  Neither voicemail was responded to. On April 16, the co-owner sent Waterman a Facebook message to ask he were he was.  The next day, Waterman responded, indicating his father was still in poor condi

I think one of the key developments in recent days has been the temporary halt of Assembly Bill 5 from applying to motor carriers.  While that development has dominated much of the (labor and employment law) news as of late, there are a few other noteworthy articles I came across this week that are worth highlighting. As always, below are a couple articles that caught my eye this week. Do Wages Mirror the Rising Stock Market? For those readers that invest in the stock market (be it through direct ownership of shares, mutual funds, ETFs, etc.) or have simply been following along with the prolonged bull market over the past few years, attention inevitably turns to whether wages are also keeping track with the rising stock market.  As Christopher Ingraham at The Washington Post writes, while the S&P 500 has risen approximately 42% since President Donald Trump came into office in January 2017, wages have only seen about a 9% increase over that same timeframe.  Taking a wider

The Labor Department has released a final version of the joint employer rule, which makes it more difficult for businesses to be held liable when their franchisees or contractors violate the Fair Labor Standards Act. Under this finalized joint employer rule, set to take effect on March 16, a four part test is used to determine whether a business is jointly liable for minimum wage and overtime violations.  This four part test weighs whether the business, with regard to its franchisee or contractor, maintains the power to hire and fire; to supervise schedules and 'conditions of employment'; to set pay; and to keep employment records.  Notably, businesses will not be considered joint employers by virtue of their business model alone.  As a result, franchisors will not be considered joint employers just because they are franchisors. Now bear in mind, the National Labor Relations Board ("NLRB") is expected to finalize a similar rule that clarifies when a busines

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. Last Thursday, the New Hampshire House voted 212 - 155 to increase the hourly minimum wage rate in the state from $7.25/hour up to $15/hour by January 1, 2025.  In a somewhat surprising turn of events, Democratic members of the House overruled House leadership by supporting $2 more per hour in a pay hike than had been recommended by a House policy committee.  The legislation now moves over to the New Hampshire Senate for further deliberation and vote.  Should the Senate approve the bill, it would then head to Republican Governor Chris Sununu's desk for signature. Readers might recall that the New Hampshire General Court (New Hampshire's Congress) had approved a bill last year that would have raised the state's hourly minimum wage rate to $10/hour in 2020 and $12/hour in 2022.  However, Governo

For those employees who have not check or forgot about the change in mileage reimbursement rates, the IRS announced the optional standard mileage reimbursement rates have changed for 2020.  Beginning January 1, 2020, the reimbursement rates have decreased, and are as follows: 57.5 cents per mile for business miles driven (down from the 2019 rate of 58 cents); 17 cents per mile for medical or moving purposes (down from the 2019 rate of 20 cents); 14 cents per mile driven in service of charitable organizations (the same as the 2019 rate). For those employers that use the standard IRS rates for mileage reimbursements, make sure to change your expense reimbursement policies.

Last week, Democratic Presidential candidate Mike Bloomberg stated that he would not back away from enforcing confidentiality agreements with his company that several women had previously signed. There were apparently several cases in the 1990's in which Bloomberg was alleged to have made crude remarks and fostered an uncomfortable environment for women to work at his company, Bloomberg L.P.  As a result, several lawsuits arose and were resolved, in part, with confidentiality agreements.  (Although there are still three lawsuits currently pending against the company.)  Bloomberg has denied any allegations that have been raised and has championed his company as having an enviable record of gender equity. Now that Bloomberg is running for the Democratic nomination for President, attention has turned to those prior allegations.  This past weekend, Senator Elizabeth Warren, who is also seeking the Democratic nomination, again called on Bloomberg to release these women from t

About an hour ago, the Labor Department released the jobs report which showed that fewer jobs have been added in the past month than had been predicted.  (There had been predictions of job growth of 160,000 rather than the 145,000 that was reported earlier this morning.)  What does this mean?  Well we could go twenty different directions but for the sake of argument, there appears to be somewhat of a slowing of the economy (in part because of trade concerns with China) yet there are still enough jobs to keep up with population growth. One of the other key takeaways from the job report was the reference to the unemployment rate remaining at 3.5%, a 50 year low.  It should come as no surprise that this is a favorable time for workers in the country given the rather plentiful number of jobs (especially for some hourly workers), which has resulted in many employers taking steps to recruit (and retain) workers.  An article I highlighted below about efforts by Taco Bell to bring in th

On December 19th, New Jersey Governor Phil Murphy signed into law the Create a Respectful and Open Workplace for Natural Hair Act (the CROWN Act) which bars discrimination based upon hair texture or hair style associated with race. The CROWN Act, which went into effect upon signature by Governor Murphy, amends the New Jersey Law Against Discrimination by adding "traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles" to the definition of race for the purposes of prohibited discrimination. Readers might recall that both California and New York had approved similar legislation in 2019, as had several cities including Cincinnati.  As well, Democratic Senator Cory Booker had introduced a piece of legislation in Congress that would apply the CROWN Act to the federal level.  With Senator Booker currently running for the Democratic nomination for President, it will be interesting to see whether he uses

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. Yes, you read the date of this legislation correctly...although this bill was introduced in the D.C. Council last year, it is still under debate into the start of 2020.  The legislation would ban the use of non-compete agreements for certain workers in the District of Columbia based upon their wages.  As currently worded, B23-0494 - the Ban on Non-Compete Agreements Amendment Act of 2019, would bar the use of non-compete agreements for employees that earn equal to or less than 3x the minimum wage rate.  Currently, the hourly minimum wage rate in the District of Columbia is $14/hour.  As a result, if approved, this bill would apply to all employees that earn just under $88,000.00/year.  (Of course, that figure would rise to over $93,000.00/year once the minimum wage rate increases to $15/hour this year.)  As

To start off the new year, I wanted to look ahead to some newsworthy labor and employment law related topics that we will likely see in the coming months.  However, before looking ahead to new developments in 2020, I thought it imperative to highlight the ongoing push back against AB 5, the California law passed last year which codified the "ABC" test.  While the California Legislature was able to secure AB 5's passage at the eleventh hour (before the Legislature adjourned), there has been growing frustration among many as to the new law. As always, below are a couple articles that caught my eye this week. Senator Bernie Sanders Faces Tougher Fight in New Hampshire, As Unions Stay on Sideline Trent Spiner at Politico wrote an article yesterday in which he noted that Vermont Senator Bernie Sanders is facing a tougher challenge in his race for President, compared to when he previously ran in 2016.  One of the reasons?  Major labor unions are sitting on the sid

The U.S. Supreme Court accepted two cases out of the Ninth Circuit, in which the Court will consider whether the "ministerial exception" applies to two Catholic school teachers that filed discrimination claims against their employers. As a bit of a refresher for readers, the Supreme Court issued a unanimous ruling in 2012, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission , and held that the "ministerial exception" under the Establishment and Free Exercise Clauses of the First Amendment prohibited discrimination claims from being brought against churches or religious organizations.  As a result, under this exception, religious organizations were given leeway to hire and fire their ministerial leaders without government interference.  However, while the Supreme Court delineated four factors for a court to consider when addressing the matter, the Supreme Court declined to establish a clear cut test for determin