The Majority Opinion: Legal Blog

Last week, House Representatives Andy Levin, Brian Fitzpatrick, and more than 160 other House members wrote a letter to Speaker Nancy Pelosi and Minority Leader Kevin McCarthy, urging that funding be provided to enable the National Labor Relations Board (“NLRB”) to hold union elections electronically. Readers will likely recall that union elections had been postponed a few weeks ago , when the coronavirus pandemic initially broke out. The NLRB indicated it was suspending elections for a few weeks as it did not believe it could safely oversee elections, given concerns over the health and safety of NLRB employees that would be required to be involved with any elections that occurred.  However, the NLRB had recently issued a press release stating that elections could begin again . In the letter, the members of the House write that the NLRB has previously allowed electronic voting (allowing telephonic voting since 2002 and allowing internet voting since 2007.)  However, the memb

Alle Processing Corp. - NLRB Facts :  The employer, Alle Processing Corp. (“Alle”), entered into a bargaining relationship with a local union.  The collective bargaining agreement (“CBA”) contained a union security clause which required that all bargaining unit employees become members of the union as well as a clause that the union could request the employer to terminate employees that failed to pay dues and initiation fees.  The CBA included a checkoff clause which enabled the employer to deduct union dues from the paychecks of employees and remit the dues directly to the union.  (The dues deductions were voluntary and each employee was required to voluntarily sign a checkoff authorization form.) Although union representatives were able to get most employees to sign deduction authorization forms, some employees held out.  The manager at one of Alle’s plants met individually with the employees that held out and eventually only one employee refused to sign the form.  During

Last week, the Supreme Court of Appeals of West Virginia issued its decision in Patrick Morrisey, Attorney General v. WV AFL-CIO, et al , and held that the state’s right to work law was constitutional. Readers might recall that right to work laws prohibit union membership (and dues) as a condition of employment.  West Virginia’s right to work law, passed in 2016, had long been under fire from labor groups who sought to challenge its constitutionality .  After passage, the law was enjoined for a prolonged period of time. In its arguments before the Supreme Court of Appeals, the plaintiffs (including the WV AFL-CIO) argued the law impermissibly restricted the association rights of unions, required an unconstitutional “taking” of unions’ property, and infringed upon the liberty interstate of unions under West Virginia’s constitution.  The Court was unswayed, however.  Of note, the Court pointed out that the state’s right to work law “operates to protect the right of workers to

Today, the National Labor Relations Board’s (“NLRB”) final rule for joint employer status goes into effect after what many would call a prolonged process. Readers might recall that for many years, the NLRB had determined whether an employer was a joint employer depending upon whether that company had direct control over the workers’ employment terms.  That joint employer standard got turned on its head with the 2015 Browning-Ferris decision which expanded the joint employer test to include both direct and   indirect control over workers (even if that control was not exercised.) When the NLRB took on a more conservative/employer friendly tilt after President Donald Trump came into office, the NLRB issued its 2017 Hy-Brand decision which attempted to undo the standard set in Browning-Ferris and revert back to direct control being the only qualifying factor to determine joint employer status .  However, as some might remember, the Hy-Brand decision was vacated not long afte

Even in a work from home setup, it feels like the last few weeks have been busier than normal.  Between Zoom calls, an increasing number of emails, and a few projects that pop up, I have not had as much time to read through articles as I anticipated.  It does not help that with not traveling right now, I do not have the benefit of reading through things while on a layover between cities. As always, below are a couple articles that caught my eye this week. As Target’s Sales Rise, Sickout Planned For Next Friday Over the past few weeks, there has been a noticeable uptick in the number of workers and groups around the country calling for greater protections, increased pay, and related protection measures for those working in a position that interacts with the general public.  Lauren Zumbatch at The Chicago Tribune makes note of that fact as a sickout is planned for next Friday by some workers at the company.  The group spearheading this planned sickout, Target Workers Unite,

Earlier this month, the United States Supreme Court denied a writ of certiorari in VF Jeanswear LP v. Equal Employment Opportunity Commission , a case that would have enabled the Court to break a circuit split over whether Title VII of the Civil Rights Act of 1964 enables the Equal Employment Opportunity Commission (“EEOC”) to continue to investigate alleged wrongdoing after issuing a right to sue letter. In VF Jeanswear , the EEOC issued a subpoena that sought a “wide range of employment information” from the respondent, relating to the manufacturers supervisors, managers, and executive employees.  This subpoena came after a former employee filed a discrimination charge.  The district court found that the subpoenaed information was not relevant to the employee’s discharge but the Ninth Circuit Court of Appeals reversed, holding that EEOC subpoenas (in relation to an investigation of discrimination) are enforceable so long as they seek information relevant to any of the allegati

Melvin v. Barr Roofing Co. - Fifth Circuit Court of Appeals Facts :  Johnnie Melvin (“Melvin”), who is African American, worked at Barr Roofing Company (“Barr Roofing”) as a sheet metal worker on and off from 2001 until 2017.  Melvin alleged that beginning in 2012 or 2013, he became the target of racial slurs at work, with his white coworkers (including his direct supervisor and his supervisor’s relatives) calling him racial slurs “on a daily or near daily basis.”  In March 2013, Melvin complained to Bryan Galloway (“Galloway”), Vice President at Barr Roofing, about the racial slurs.  Melvin was terminated and then subsequently rehired. In 2016, Melvin was offered marijuana while on the job from a fellow employee.  After another employee reported that Melvin and other employees were smoking marijuana on the job, Melvin was asked to take a drug test which he failed.  Melvin claimed the co-worker that offered him the marijuana only passed the drug test by swapping out urine

I feel like this week’s What I’ve Been Reading This Week post “plays the hits”, as some might say.  We have an article that touched on the continued labor strife at Amazon, an update on a prolonged battle by Uber & Lyft drivers in Seattle to unionize, and a thorough overview of the U.S. Women’s National soccer team’s upcoming gender discrimination and equal pay lawsuit set for trial next month.  Among the articles, I think readers can find several worthwhile reads to help break up any potential work from home monotony. As always, below are a couple articles that caught my eye this week. “Online Walkout” Planned By Amazon Employees Annie Palmer at CNBC wrote an article earlier this week about a planned “online walkout” by some Amazon employees, seeking to bring attention to their criticisms of the company’s labor practices.  The “online walkout” calls on Amazon employees to, in unison, take next Friday off work.  The reason?  Following Amazon terminating two employees

At the start of the month, Michigan Governor Gretchen Whitmer issued Executive Order 2020-36 to provide protections for employees in the state and prohibit employers from retaliating against or discharging employees exposed to the coronavirus. Prior to the issuance of Executive Order 2020-36, Michigan had a “stay home” order in effect.  As with many states, cities, counties, and parishes across the country, employers in Michigan were allowed to continue operating if they were in essential industries (and certain other specified situations.)  That “stay home” order, Executive Order 2020-21, did not address whether employees permitted to work could refuse to do so and what actions an employer could take.  However, Executive Order 2020-36 clarifies a few things. Under Executive Order 2020-36, employers in the state are prohibited from discharging, disciplining, or retaliating against an employee that is otherwise able (and permitted) to work, but stays home because the employee

Comcast Corp. v. National Association of African American-Owned Media - United States Supreme Court Facts :  Entertainment Studios Network (“ESN”) is an African American owned television network operator.  ESN wanted to have its channels carried by Comcast Corporation (“Comcast”), however Comcast refused to do so.  Comcast based its reasoning on a claim that there was a lack of programming demand, bandwidth constraints, and a preference among its customers for programming that was not offered by ESN. ESN and the National Association of African American-Owned Media sued Comcast on the grounds that Comcast had violated 42 U.S.C. Section 1981 of the Civil Rights Act.  (This portion of the Civil Rights Act guarantees “[a]ll persons...the same right...to make and enforce contracts...as is enjoyed by white citizens.”  Comcast moved to dismiss the case on the grounds that the claimants had failed to plausibly show that but for racial animus, Comcast would have contracted with ESN.

There were several great articles I came across the last few days.  One in particular dealt with a study that came out recently that found that many workers do not trust HR.  As the below study notes, there are several troubling statistics that emerged from the study, which those in the HR field would be wise to give a close look at and review.  However, so long as your name is not Toby Flenderson, there is a bit of good news from the study:  45% of workers polled reported that they felt very confident in their HR departments. As always, below are a couple articles that caught my eye this week. Labor Department Dismisses Whistleblower Complaint Based on Employer’s Reasonable Steps to Ensure Employee Safety No, this whistleblower post does not deal with Michael Atkinson.  For those looking for an in-depth discussion of that whistleblower matter, I would refer you to your preferred news source instead.  This particular whistleblower topic, however, comes in the form of a Labor

Dorrity v. Wakefern Food Corporation, et al - Superior Court of New Jersey, Appellate Division Facts :  Gina Dorrity ("Dorrity") worked at a pair of ShopRite grocery stores that were owned by Sunrise Supermarkets, Inc. ("Sunrise"), a member of Wakefern Food Corporation ("Wakefern"), a grocery cooperative.  When she applied for a position, the form she completed had the following heading:  "APPLICATION FOR EMPLOYMENT WAKEFERN FOOD CORPORATOIN SHOP-RITE SUPERMARKETS".  After Dorrity submitted her application, she was interviewed by a Sunrise store manager who offered her a job.  Dorrity did not interview with a Wakefern employee, nor was there any evidence that Wakefern participated in the hiring decision. After working for some time as a cashier, Dorrity was transferred to another store and received a promotion (which included handling some HR matters.)  Wakefern had no involvement in the decision to transfer Dorrity or promote her.  Do

Scalia v. Employer Solutions Staffing Group, LLC, et al - Ninth Circuit Court of Appeals Facts :  Employer Staffing Group and three related companies (hereinafter referred to, jointly, as “ESSG”) contracted with other companies to recruit employees and place them at job sites for which ESSG handled administrative tasks, such as payroll processing.  In 2012, ESSG contracted with Sync Staffing (“Sync”), which placed recruited employees at a job site where the employees unloaded deliveries for a grocery store.  A spreadsheet of employees’ hours was kept, sent to Sync, and then forwarded to ESSG.  Only one of ESSG’s employees was responsible for processing the payroll, Michaela Haluptzok (“Haluptzok”). The first time Haluptzok received one of the spreadsheets, she prepared and sent a report to Sync that showed employees that worked overtime would receive overtime pay for those hours.  However, a Sync employee called Haluptzok and told her to pay all hours as “regular hours” with

As always, below are a couple articles that caught my eye this week. NLRB: Union Elections to Resume Beginning Monday On Wednesday, the NLRB issued a press release to announce that it would not extend the two week suspension of union elections that went into place a few weeks ago, in response to the coronavirus.   Readers might recall that in March the NLRB suspended union elections for two weeks (with the potential for a further suspension) because of concerns over the safety of workers that would vote in a union election and how the coronavirus virus complicated matters.  The two week suspension will now end today, marking the end of the two weeks.  It is interesting to note that the press release indicated the elections could resume in a “safe and effective manner” but did not provide specifics. Two Proposed Class Actions Filed By Former Mike Bloomberg Campaign Workers This could turn into an interesting story.  Juana Summers over at NPR wrote an article about t

Chaney v. Haworth, Inc. - Sixth Circuit Court of Appeals Facts :  Anthony Chaney ("Chaney"), who is African American, worked as a production supervisor at furniture manufacturer, Haworth, Inc. ("Haworth") beginning in July of 2016.  Chaney managed approximately 30 employees.  After receiving training and several informal coaching meetings with his direct supervisor, Tina Pietrangelo ("Pietrangelo"), Pietrangelo began to notice problems with Chaney's work.  In August and September of 2016, Pietrangelo met with Chaney twice to discuss performance and communication issues.  In mid October of 2016, Chaney was issued a "Documented Warning [for] Unsatisfactory Performance."  Chaney was required to create a written plan to fix the problem. Prior to receiving the  "Documented Warning [for] Unsatisfactory Performance", Chaney told Human Resources Business Partner Tina Porcelli ("Porcelli") about an e-mail Chaney had rece