The Majority Opinion: Legal Blog

I am not sure which topic will be more relevant (or time sensitive) to readers this week:  Tips on how to deal with a potential coronavirus issue in the U.S. (in regard to managing/preparing for things in the workplace) or how to plan for the upcoming March 16th implementation of the Labor Department's joint employer test.  In talking earlier in the week with a loyal reader of the blog, I get the sense that both articles will likely prove useful in the coming weeks. As always, below are a couple articles that caught my eye this week. Planning For How the Coronavirus Will Impact Workplaces On Monday, Mark J. Neuberger over at Foley Lardner LLP published an article in which he cautioned employers to not panic, but rather plan for how the coronavirus might impact workplaces in the coming weeks or months.  With the U.S. Centers for Disease Control and Prevention ("CDC") announcing earlier this week that it is inevitable that U.S. citizens will contract the coron

At the end of January, the Pennsylvania Independent Regulatory Review Commission adopted an amendment to increase the minimum salary threshold required to avoid overtime compensation for Executive, Administrative, and/or Professional workers ("EAP workers") in the state. As some readers are likely aware, the Fair Labor Standards Act requires employees to be paid overtime for working more than 40 hours in a week.  However, there are several groups of employees that are exempt from this requirement, such as some white collar workers.  However, in order for this exemption to apply, for instance to EAP workers, employers must establish that the employees perform certain executive, administrative, or professional duties and that the employees receive a minimum weekly salary.  (Effective January 1st of this year, the minimum salary threshold went to $684/week or $35,658/annually.) Under amendment approved earlier this year, the new minimum salary threshold is $684/week

Earlier this morning, the United States Supreme Court handed down a unanimous ruling in Intel Corp. Investment Policy Committee v. Sulyma , holding that an employee does not necessarily have "actual knowledge", under Section 1113(2), of the information contained in disclosures that are received but in which the employee does not read or recall reading.  Consequently, the Court held that to meet the "actual knowledge" requirement, the employee must have in fact become aware of that information. Taking a step back here, I had previously written about the case, prior to oral arguments.  The case itself involved a claim by Christopher Sulyma ("Sulyma"), a former engineer at Intel, that the retirement plans offered by the company had imprudently over allocated funds to alternative investments (in violation of the plan administrators' fiduciary duties.)  Intel argued that the claim was barred by the statute of limitations, as the information about th

Earlier this month, the National Labor Relations Board ("NLRB") filed suit against the state of Oregon, seeking to invalidate a statute in the state that protects employees from adverse employment actions that refuse to attend lawful, compulsory meetings held by employers during organizing campaigns.  Since ORS 659.785(1) was enacted in 2010, an employer in the state is prohibited from discharging, disciplining or otherwise penalizing an employee, or threatening to do the same because the employee "declines to attend or participate in an employer-sponsored meeting or communication with the employer...if the primary purpose of the meeting or communication is to communicate the opinion of the employer about...political matters."  Note, "political matters" is defined as including "the decision to join, not join, support or not any lawful political or constituent group" with "constituent group" including labor organizations. For

Prior to this past Saturday’s Nevada caucus in which Democrats in the state made their pick to be the 2020 nominee against President Donald Trump, I noted that the Culinary Workers Union has decided to sit out this primary cycle . It turns out that despite this 60,000 member strong union’s decision to not make an endorsement in this primary cycle, Senator Bernie Sanders nevertheless handily won the state.  Readers might have heard that after the Culinary Workers Union announced it would not be endorsing a candidate at this stage in the primary cycle, union leaders reported that they had received death threats.  (While the Culinary Workers Union did not endorse a candidate, it was critical of a Medicare for all plan put forth by Senator Sanders.) Although Senator Sanders was not put in too grave of a position by missing out on the support of the endorsement, it is worth bearing in mind that should Senator Sanders wind up being the Democratic nominee for President, he will ne

Earlier this week, the Democratic Presidential candidates held another debate, the first in which former New York City Mayor Mike Bloomberg participated.  Readers might remember that he had been under fire in recent weeks for the use of confidentiality agreements at his company , with many accusing him of hiding behind sexual harassment issues by using the confidentiality agreements to block discussion of the topic.  At this week's debate, Senator Elizabeth Warren came after him on that very topic, charging that Bloomberg was hiding behind the confidentiality agreements and not being transparent in what actually happened at his company under his watch.  While that topic might have merited a discussion, below, there are a few more pressing matters that I think deserve the spotlight this week. As always, below are a couple articles that caught my eye this week. Democratic Senators Call on Amazon to Answer For Workplace Injuries Last Monday, several Senators including Sherr

In an announcement that caught some off guard, Nevada’s Culinary Workers Union announced late last week that it would not endorse any Democratic candidate for President, ahead of this Saturday’s statewide caucus. As many readers are aware, the support of organized labor is often the backbone (and lifeblood) of Democratic campaigns for public office.  The endorsement by a union, especially a big player like the Culinary Workers Union, can help propel a campaign to victory or give a campaign a much needed boost.  In this case, former Vice President Joe Biden was thought to be in need of the union’s endorsement, following his underwhelming performance in both Iowa and New Hampshire.  Had the union endorsed his candidacy, Biden would have likely used the union’s organizational strength to help bring out voters to the caucus.  (Not to mention an endorsement could have helped calm nerves around his seemingly struggling campaign.)  On the other hand, had the union endorsed Senator Ber

Late last week, a New Jersey Senate Committee advanced a piece of legislation that would provide gig workers in the state greater benefits, such as workers’ compensation insurance, paid time off, and health benefits. Under the proposal, gig workers would be able to carry these benefits from job to job, making these “portable” benefits.  Under this “portable” benefit portion of the legislation, large scale companies that used gig workers would be required to pay fees to a nonprofit provider to supply the workers with benefits that could then be taken from job to job. It is worth noting that this proposal had been introduced in 2017 and 2018, but fell short after drawing criticism from those who stated this legislation would result in companies no longer utilizing independent contractors (the gig workers) because of the costs/increased oversight.  Nevertheless, perhaps a third bite at the apple will finally get this legislation approved?  Stay tuned. For additional informa

It seems to have been the case many weeks so far this year, but this one in particular was somewhat more hectic with work travel than the past few.  With very little spare time, I did not have much of a chance to read through articles, but the two below are worth highlighting. As always, below are a couple articles that caught my eye this week. Some Workers See Wage Growth (Thanks to Wage Hikes); Others See Decline Perhaps we should call this conversation, water is wet.  After all, I do not think it should come as much of a surprise that hourly workers in states that have raised hourly wage rates have seen a 4% wage growth.  On the other hand, for workers in states that have not seen wage hikes, it also should not come as a shock that these workers have seen a - .5% wage growth.  With that being said, this study from the National Employment Law Project is Worth a read for a more nuanced discussion on the topic. Democratic Presidential Candidate Tom Steyer Proposes $22/H

Last Thursday, the U.S. House of Representatives voted to approve the Protecting the Right to Organize Act (the “PRO Act”), an ambitious piece of pro-union legislation that Democrats are seeking to move through Congress. One of the key parts of the PRO Act is it would scrap right to work laws in the approximately 27 states that have these laws in place.  (For those needing a refresher, right to work laws stipulate that workers cannot be forced to join a union as a condition of employment; however unions are still required to represent all employees during the collective bargaining process...including representation those employees that are not union members and do not pay union dues.)  Unions strongly oppose right to work laws and with Democrats now having majority control of the House, the expected vote on this legislation is not necessarily a surprise. However, for those hoping the PRO Act makes it across the finish line, two things to consider:  1) the legislation will l

It was a busy few days in trial last week, out of the office at the start of the this week, and then in depositions and trials to end the week.  While I was on the road and away from home/my office most of the past week, I could not let a Friday go by without positing this “What I’ve Been Reading Tbis Week”.  After all, I strive to be on time with these posts, unlike the reporting of the Democratic caucus results out of Iowa.  (I could not help myself.  That might have been low hanging fruit, but I could not pass up the opportunity.) As always, below are a couple articles that caught my eye this week. Flagstaff to Pay State of Arizona $840,000.00 As A Result of Higher Hourly Wage Rate Well with every piece of good news, it is inevitable that there might be some bad news not far behind.  Take this news out of Arizona:  the hourly minimum rate in Flagstaff is $13/hour (while the state’s hourly wage rate is $12/hour.)   It goes without saying that is good news for hourly worker

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 week, Senate Bill 921 was introduced in the New Jersey legislature, which would seek to implement a predictive scheduling law, similar to what has been approved elsewhere, including Philadelphia, New York City, San Francisco, and Oregon. Employers in the state with at least 250 employees (the 250 employee requirement does not require that all the employees actually work in New Jersey) would fall within the scope of this predictive scheduling law.  As to the specifics:  employers would be required to post work schedules two weeks in advance, pay employees that are on call, give employees a 12 hour break between shifts (and pay any employee time and a half that works within this 12 hour window), and provide employees with a set number of hours to work each week so their schedules do not fluctuate.

Last Friday, Vermont Governor Phil Scott vetoed a piece of legislation that would have provided up to 12 weeks of paid family leave to many workers in the state. Readers might recall that last January, Governor Scott joined with New Hampshire Governor Chris Sununu to introduce the Twin State Voluntary Leave Plan .  That Twin State Voluntary Leave Plan would be voluntary (yes, it is obvious from the name but I wanted to clarify) and would have provided workers up to 6 weeks of paid family and medical leave, funded by an insurance carrier.  Democrats were quick to criticize both of the Republican Governors, calling the Twin State Voluntary Leave Plan a "PR stunt" and "useless". As a result, we got this piece of legislation introduced in the Vermont Legislature which would have made the paid family leave mandatory (rather than the Twin State's voluntary proposal) and provided up to double the amount of paid leave.  However, Governor Scott vetoed this le

Recently,  I had noted that a labor complaint filed against Barstool Sports (following tweets by founder Dave Portnoy that threatened to fire any employee that sought to unionize the company) had been settled , which effectively put that matter to bed. Not so fast, my friend.  A new labor complaint was filed last week against the company, following anti-union comments on one of the company’s podcasts.  In the podcast, host Kirk Minihane joked about urinating on the notice of employees’ labor rights that the company agreed to post in the workplace (as part of the settlement of the original labor complaint.)  Minihane then echoed what Portnoy has said, indicating that any employee of the company that sought to unionize should be fired on the spot.  (It is worth point out that the hosts on the podcast said they were not serious.) Nevertheless, this second labor complaint was filed and Barstool Sports sees itself caught up in yet another scrum over anti-union comments.  The que