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. EEOC sues Ceviche House For Sexual Harassment, Retaliation, & Unlawfully Forcing Employee to Quit There is quite a bit to unpack with this case.  Let us start with the allegations:  Limenos Corporation d/b/a Ceviche House is alleged to have allowed a general manager to subject a female server to sexual harassment, retaliated against the server when she complained of the alleged harassment, and then proceeded to make her work conditions so unbearable that she was forced to resign.  The manager apparently fostered a sexually charged workplace by regularly discussing sex at work, displaying nude photos of women, and referring to female employees as whores.  This alleged conduct, if true, is in violation of Title VII of the Civil Rights Act of 1964 which bars employers from discriminating against em

To the surprise of very few, coronavirus related matters have dominated not only the news cycle the past few weeks but also employment and labor law related news.  While I hope to highlight a broader scope of articles next week, this week is pretty straight and to the point. As always, below are a couple articles that caught my eye this week. Labor Department Publishes Guidance on Families First Coronavirus Response Act Many readers are likely wondering how (or if) the Families First Coronavirus Response Act will impact their ability to take paid leave while this pandemic plays out, given that Congress recently passed the legislation and President Donald Trump signed it into law.  Well look no further, the Labor Department released guidance for employers, employees, and a FAQ section on Monday.  For those looking for a break from their work from home routine, this resource is well worth a quick read. Labor Unions Go to Bat to Get $58 Billion For Airline Industry Yes

Unfortunately, many employers around the country are likely dealing with the impact of the coronavirus pandemic on their businesses, workforces, and overall longterm future of their companies.  That has resulted in many employers having to make the difficult decision between cutting employee hours (or laying off employees altogether) to keep the lights on or instead shutting down indefinitely in hopes of riding things out until things return to normal.  With that comes the decision over what to do with a suddenly bloated workforce and potential glutton of employees without enough work to justify keeping everyone working "business as usual" while still managing to pay the bills.  Below are a few suggestions for how employers can manage the situation. While this reference is not the definitive guide to the topic and not intended to serve as legal advice (those experiencing a similar situation should consult their HR representative and/or employment law attorney for guid

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. The Minnesota Legislature is debating HF 3673, which if passed, would ban the use of non-compete agreements with all employees in the state. As currently written, the legislation would bar all employers in the state from enforcing (or entering into) non-compete agreements with any employee.  Perhaps sensing what some wily in house attorney might try to include to avoid this potential law, HF 3673 prohibits a non-Minnesota choice of law provision from being added.  For any non-compete currently in place, this legislation would not impact those. Notably, there is a carveout.  The legislation would allow some non-competes to be used (up to one year), if the employer compensated the employee at the employee's final rate of pay. It is still rather early in the process of HF 3673 moving through the

Last Thursday, the National Labor Relations Board ("NLRB") announced that it would suspend all representative elections, including those by mail, through April 3rd. As readers might have guessed, the NLRB's reason for doing so relates to wanting to slow the spread of the coronavirus.  In its press release, the NLRB cited the health and safety of NLRB employees and members of the general public that are involved in the election process as the reason for the suspension.  (For readers that do not recall, or simply need a reminder, a union election is a secret vote among a bloc of workers about whether they want to unionize and have a union represent them in contract negotiations with the company.  When an election occurs, there are often large groups of workers that are converging at the election site to vote and then NLRB employees are used to help count votes and certify the election.  With many states prohibiting large (or even small) gatherings of people, union el

Rusis, et al v. International Business Machines Corp. - United States District Court, Southern District of New York Facts :  The four Plaintiffs in this case (Edvin Rusis, Henry Gerrits, Phil McGonegal, and David Ho Eng) all worked for International Business Machines Corp. ("IBM") in various jobs until their separation from the company in March and June of 2018.  Plaintiffs proceeded to file suit against IBM, alleging violations of the Age Discrimination in Employment Act ("ADEA").  According to the complaint, the Plaintiffs alleged that since the early 2010's, IBM had laid off or otherwise forced its older workers out of the company in a systematic effort to replace them with new, younger workers.  IBM was alleged to have used several methods to reduce its group of older workers and replace them with younger workers, including:  terminating older employees for pretextual reasons; constructively discharging them; or imposing unreasonable conditions on thei

For those readers working from home at this time (whether by choice or by mandate), I hope this What I've Been Reading This Week provides all readers with a respite from the cabin fever that might be setting in.  While there are a few relevant coronavirus related articles, I think there is enough here to give readers a broad overview beyond repeated coronavirus related topics that have likely been coming up on your Twitter feed, FaceBook page, preferred news site, etc. over the past few days. As always, below are a couple articles that caught my eye this week. Joe Biden Receives Endorsement From Nation's Largest Labor Union Late last weekend, former Vice President Joe Biden received the endorsement of the National Education Association, in his bid to become the Democratic nominee for President.  Biden, locked in a somewhat contentious two way battle for the nomination with Senator Bernie Sanders (following Representative Tulsi Gabbard suspending her campaign yester

Kemna-ASA Auto Plaza, Inc. v. Burns; et al - Eighth Circuit Court of Appeals Facts :  Jennifer Paskert ("Paskert") was hired as a sales associate at Auto$mart, Inc. ("Auto Smart").  Auto Smart was part of a larger group of businesses operated by Kenneth Kemna ("Kemna").  During her time at Auto Smart, Paskert was supervised by Brent Burns ("Burns").  The evidence in the record established that Burns' behavior as a manager was volatile:  he frequently lost his temper; ridiculed and screamed at his employees; referred to female customers using derogatory names; threw objects in the office; remarked that he "never should have hired a woman"; wondered aloud if he could make Paskert cry; bragged about his sexual conquests; rubbed Paskert's shoulders; and indicated that if he was not married, he could "have" Paskert. Paskert and another co-worker, James Bjorkland, reported the incidents to a director and supervisi

Minutes ago, the Families First Coronavirus Response Act cleared Congress, following this afternoon's 90 - 8 vote by the Senate approving the legislation.  The bill is now headed to President Donald Trump's desk for signature, which is expected shortly. Readers will recall that the U.S. House had approved a version of the bill early Saturday morning, with a 363 - 40 vote in favor of passage (with one "present" vote from Michigan Representative Justin Amash and 26 no votes.)   Before the Senate voted, however, changes were made to the legislation.  Of note, two weeks of paid sick leave will be provided to many workers in the country working at companies with less than 500 employees.  (The pay rate is capped at $511/day.)  As well, paid family leave of up to twelve weeks will only be offered to parents caring for children that are home from school because of closures.  (A previous version of the legislation had this additional leave being offered to all workers

On March 4th, Virginia became the first southern state to ban discrimination based upon an employee’s hair type, texture, or style. The legislation amends the Virginia Human Rights Act (“VHRA”), by allowing employers in the state to enforce non-discriminatory appearance and grooming policies so long as those policies are not based upon an employee’s hair type, texture, or style.  Notably, the VHRA only applies to employers with more than 5 but less than 15 employees.  However, another piece of legislation expected to be signed into law shortly, SB 868, would extend VHRA to employers with more than 15 employees. Readers will likely recall that Virginia is not the first state to pass this type of legislation, with California and New York leading that way on the matter ( and New Jersey having followed suit earlier this year. ) HB 1514 is set to go into effect on July 1st.  For employers in Virginia, now would be a good time to ensure your policies and procedures do not r

Wild v. Carriage Funeral Holdings, Inc., et al - New Jersey Supreme Court Facts :  Justin Wild ("Wild") began work at Carriage Funeral Holdings, Inc. ("Carriage") in 2013.  In 2015, as part of medical treatment, he was prescribed marijuana as permitted by the New Jersey Compassionate Use Medical Marijuana Act ("Compassionate Use Act").  In 2016, while working, a vehicle that Wild was driving was struck by another vehicle that ran a stop sign.  At the hospital, Wild noted that he had a license to possess medical marijuana, although it was reported that Wild was not under the influence of marijuana at the time. The following week, Wild was told that "corporate" was unable to "handle" Wild's marijuana use and that his employment was "being terminated because they found drugs in [his] system."  A few days later, Wild was sent a letter that "corporate" advised Wild was being terminated not because of his dr

Readers might have heard that over the weekend, the U.S. House of Representatives passed a bill, the Families First Coronavirus Response Act, that would provide paid family and medical leave for some workers, following the coronavirus being declared a national emergency by President Donald Trump last Friday.  The legislation would provide paid leave for workers if they had been diagnosed with the coronavirus, if they were caring for a family member who had been diagnosed with it, or if they were caring for a child or another depending because of a school or care facility that had closed.  According to the language approved by the House, those workers that qualify would receive 2/3 of their average monthly earnings, with a cap of $4,000.00 for up to 12 weeks.  Notably, the benefits would be paid retroactively and would be available for those that had to leave work starting January 19, 2020.  (However, this paid leave would only apply to companies with fewer than 500 employees.)  As

Stop me if you have heard this before:  the coronavirus is likely going to interrupt many workplaces, whether that involves workplaces shutting down, cutting back on hours, allowing work from home, etc.  For those looking for a more in-depth deep dive on the topic, I would suggest turning on any news station, looking at any newspaper, or checking anywhere online.  While this blog is not meant to be the definitive resource on the matter, I did want to highlight one particular article which surmises that the impact of the coronavirus might result in work from home becoming a more commonplace (and prolonged option) for many workers. As always, below are a couple articles that caught my eye this week. Illinois Considering Banning Non Competes For All Employees The National Law Review recently made note of HB 4699, a piece of legislation working its way through the Illinois House of Representatives which seeks to ban the use of non competes for all workers in the state.  Curre

As with many labor and employment 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. In recent weeks, Illinois Republican State Senator Chuck Weaver introduced a bill, Senate Bill 3396, which would divide the state into six zones and allow the minimum wage rate to fluctuate below the statewide $15/hour minimum wage rate, set to take effect by 2025.  (Does this remind anyone of former Governor Bruce Rauner’s right to work zones?  Granted Senate Bill 3396 concerns minimum wage rate zones while Governor Rauner’s proposal involved right to work zones...somewhat similar.) Senate Bill 3396 would allow municipalities or counties, by a vote of the local governing body, to opt out of the statewide minimum wage rate and opt in to a regionally adjusted minimum wage rate that would be statutorily authorized and statutorily regulated.  Notably, there would be a sliding scale in place so that regions

It has been a busy past few weeks for labor and employment law updates around the country, with New Mexico joining that growing list by passing HB 21 which bars employers in the state from using nondisclosure agreements with workers. The legislation, set to go into effect in May, bars employers from requiring an employee from signing a nondisclosure agreement as part of a settlement in relation to a claim of sexual harassment, discrimination p, or retaliation.  One notable carve out in the legislation is a provision that a confidentiality provision is lawful so long as it relates to the monetary amount if a settlement.  As well, the employer (and only the employer) may request a confidentiality provision “to the disclosure of facts that could lead to the identification of the employee” and “factual information relating to the underlying claim.” For additional information:   https://nmpoliticalreport.com/2020/02/20/a-bill-to-prohibit-ndas-for-sexual-harassment-settlements-h

Beginning March 15th, employers in Pittsburgh will be required to provide their employees with paid sick leave, at a rate of one hour of paid sick leave for every thirty five hours worked (within the geographic scope of the city.) I suppose this is as good of a time as any to look at the specifics: The employer can "front load" the available paid sick leave at the beginning of the work year or else allow the employee to carry it over up to the applicable accrual cap per employee. Notably, unused paid sick leave does not need to be paid out to the employee if they leave their employment, unless the employee is reinstated within six months. The accrued paid sick leave may be used for a mental or physical illness or injury of the employee or family member and the closure of the employer's place of business (or the employee's child's school) due to a public health emergency.   Employees are to be paid their regular rate for the sick time.   While new empl

Some of us might be spending the day working while others might be enjoying the end of the week at a beach in Santa Monica (or somewhere in between.)  Regardless of where you find yourself, the below articles are worth a read to get caught up on some recent developments over the past few days.  We could likely devote a great deal of time to the coronavirus and how employers and employees alike are adapting to potential shutdowns in the workplace, but at a certain point, we would just be talking in circles about the matter.  While that article leads things off this week, there are a few other articles worth discussing, as highlighted below. As always, below are a couple articles that caught my eye this week. Trader Joe's Implements New Paid Sick Leave Plan to Help Employees Deal With Coronavirus Kate Taylor and Hayley Peterson wrote an article earlier this week in which they noted that Trader Joe's has implemented a new paid sick leave plan that will allow workers to

On January 21st, New Jersey Governor Phil Murphy signed S3170 into law, which expands the Millville Dallas Airmotive Plant Job Loss Notification Act ("NJWARN"). S3170 expands the NJWARN Act by requiring 90 days' advance notice of mass layoffs and plant closings for employers with 100 or more employees.  (The current advance notice requirement is 60 days.)  Of note, the legislation now counts part time workers as part of the 100 or more employees threshold, a change from the current language of the NJWARN Act.  As currently written, to trigger the NJWARN Act, a layoff must result in the discharge of at least 50 employees at the establishment and the discharged employees must make up 33% of the total workforce of the establishment.  S3170 retains the 50 employee threshold but does away with the 33% requirement. The legislation also requires severance pay to be paid to employees affected by mass layoffs "equal to one week of pay for each full year of employme

At the end of February, the U.S. Soccer Federation moved for summary judgment in response to the equal pay case filed by about 50 players from the women's national soccer team.  (For those unaware of the legal proceedings, a motion for summary judgment is a pretrial matter that seeks to have judgment awarded to the claimant/s or have the case dismissed, which is what this motion seeks to do.) Readers will likely recall that the lawsuit came about after the players claimed they were paid less than their male counterparts, on the unlawful basis of their gender .  After attempts to reach a settlement fell apart, litigation began to ramp up.  The filing of this motion for summary judgment is the next phase of this case inching closer to trial. As for the U.S. Soccer Federation's motion itself, it is claimed that any alleged pay disparity between the male and female soccer players on the U.S. National Team is a result of the players' union.  The motion argues that dur

Greater Philadelphia Chamber of Commerce v. City of Philadelphia; Philadelphia Commission on Human Relations - Third Circuit Court of Appeals Facts :  In 2017, the City of Philadelphia ("the City") passed an ordinance that prohibited employers in the city from asking an applicant about their salary history (the "inquiry provision") and prohibited relying on salary history at any point in the application/interview process to set or negotiate the applicant's proposed salary (the "reliance provision.")  The Greater Philadelphia Chamber of Commerce ("Chamber") subsequently filed suit on the grounds that the ordinance infringed upon the freedom of speech of the Chamber and its members. The District Court held that the inquiry provision violated the First Amendment freedom of speech rights of the Chamber and its members and therefore issued a preliminary injunction to prevent it from taking effect.  As to the reliance provision, however,