The Majority Opinion: Legal Blog

Things were a bit uneventful this week, but a major union endorsement of Joe Biden has the potential to be a growing story as we get further into the election cycle.  As I note below, the endorsement itself does not come as much of a surprise and was somewhat inevitable.  However, as the coronavirus pandemic tapers off a bit (in some parts of the country) and attention begins to turn toward November’s election, I think we will likely see more attention paid to the labor and employment law related positions of Biden and President Donald Trump. As always, below are a couple articles that caught my eye this week. Joe Biden Receives Endorsement of AFL-CIO and Backs AB 5 How about we call this article from The Sacramento Bee a twofer?  Earlier this week, presumptive presidential Democratic nominee Joe Biden tweeted his support for Assembly Bill 5 (“AB 5”) on the same day that he received the backing of the AFL-CIO headed into the fall campaign for President.  I do not need to te

Bazemore v. Best Buy - Fourth Circuit Court of Appeals Facts :  Erika Bazemore (“Bazemore”), who is African American, worked at a Best Buy location.  One day while at work, a co-worker, Anne Creel (“Creel”), was in a break room with Bazemore and several other Best Buy employees.  Creel, who is white, made a racially charged joke in Bazemore’s presence.  Bazemore, upset by the joke, reported the incident to Best Buy’s corporate HR department.  A few days later, Bazemore was contacted by Colleen Hayes (“Hayes”) with the HR department and told that the incident was being investigated.  Approximately two weeks later, Hayes left Bazemore a voicemail and said the matter had been resolved and the case had been closed. However, Bazemore stated that the atmosphere in the workplace remained tense.  Creel remained employed at the location.  Bazemore’s attempts to reach Hayes to find out what had occurred did not result in getting a call back.  Bazemore subsequently filed a complaint wi

Providence Health & Services - Oregon d/b/a Providence Portland Medical Center - NLRB Facts :  Service Employees International Union Local 49 (“Union”) sought to organize and represent a group of employees at Providence Health & Services (“Providence”).  Following an election, three ballots were declared void.  One void ballot in particular included an “X” in the “Yes” square and a diagonal line in the “No” square.  Objections were timely filed thereafter and an administrative law judge held that the previously mentioned ballot with multiple markings should be counted as a vote for representation.  The final results of the election resulted in 384 votes for representation by the Union and 38 votes against representation.  Providence filed exceptions and the National Labor Relations Board (“NLRB”) reviewed the administrative law judge’s ruling. Analysis :  The NLRB recognized prior decisions which had addressed how to interpret dual marked ballots.  As noted in the de

Whoever thought working remotely would mean there would be more hours in the day to get things done was a bit off.  Granted, saving time commuting has been nice, but with conference calls, Zoom hearings/trials, and emails only a finger click away, I found little spare time to read through articles.  However, I did find a few that are well worth a read. As always, below are a couple articles that caught my eye this week. Unfair Labor Practice Trials to Resume June 1st Recently, the National Labor Relations Board (“NLRB”) announced that it would resume unfair labor practice trials on June 1st, after putting them on hold back in March when the coronavirus pandemic first began.  Interesting enough, it was announced that some trials would occur in person while others would be conducted remotely.  Regardless, this announcement should be viewed as good news as the NLRB further moves to open back up and run as normal. Even While Working Remotely, Remember to Conduct Workplace I

On Tuesday, five Chicago McDonald’s workers filed suit and sought class action status over a claim they were not provided adequate personal protective equipment (“PPE”), were not allowed to social distance at work, and were not provided notice when coworkers tested positive for the coronavirus. Readers will likely recall that sick outs and related strikes have been commonplace the past few months as workers across the country have sought better protections (or even just some protections) against contracting the coronavirus in the workplace.  In this particular suit, the workers at company owned and franchisee location McDonald’s claim that they were given masks to wear at work but routinely had to reuse the same ones.  Other workers apparently were not even given any PPE.  As well, while some managers were allowed to take time off, the workers claim they were not afforded the same leave nor were they allowed to take time off when coworkers tested positive for the coronavirus. 

As with many employment and labor as 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. Under California law as currently written, employers in the state have no duty to accommodate the medical use of marijuana at work, even if the marijuana is legally prescribed for a disability.  Employers in the state may also lawfully choose to not hire an applicant that tests positive for marijuana.  That could soon change. Earlier this year, Assembly Bill 2355 (“AB 2355”) was introduced in the California Legislature, which seeks to prevent employers in the state from refusing to hire or employ any person (or discriminate against a person) because that person is a medical marijuana user.  As well, employees that use medical marijuana while employed would have the same rights to reasonable accommodations and the associated interactive process as those employees that are prescribed other legal drugs. T

I found a few good articles to focus on this week, including a tip from a loyal reader of the blog about EEOC guidance as to the applicability of the ADA while we deal with the coronavirus pandemic.  As I note below, this guidance is routinely updated by the EEOC, but it is worth reviewing to see what is/is not acceptable conduct in the workplace (without running afoul of the ADA), while dealing with the coronavirus. As always, below are a couple articles that caught my eye this week. With Work From Home the Norm For Many, Privacy Concerns Among Workers Rise Many workers have likely transitioned to some semblance of a work from home setup over the past few weeks or months.  For some, that work from home arrangement includes having zoom meetings, calls, virtual meeting rooms, instant messaging, etc. with their co-workers, employers, and customers/clients.  However, while the work from home setup has become the norm for many workers, some are expressing hesitation over the pot

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. Recently, Democrats in the House of Representatives unveiled H.R 6800 (116), also known as the HEROES Act. This legislation has many notable proposals including allocating nearly $1 trillion for state and local governments dealing with the coronavirus, additional direct payments to many Americans, and additional funding for worker training. While all of those proposals in the HEROES Act likely merit their own discussion, there is one section in particular that I want to highlight.  Under this proposed legislation, the Occupational Safety and Health Administration (“OSHA”) would be charged with issuing a mandatory workplace health standard to protect workers from the coronavirus.  Readers might recall that over the past few months, there have been several protests, sick outs, and related measures by worker

Viet v. Le; Copier Victor, Inc. - Sixth Circuit Court of Appeals Facts :  Quoc Viet (“Viet”) worked for Victor Le (“Le”), owner of Copier Victor, Inc. (“CV”).  CV exported copiers to Vietnam for sale in that country.  Viet’s job included locating copiers in the United States for CV, in which he was paid a set rate.  Viet was classified as an independent contractor and Le did not track Viet’s hours worked. After the working relationship between the parties soured, Viet filed a Fair Labor Standards Act (“FLSA”) lawsuit against Le and CV on the grounds that he had been denied overtime pay, in violation of the FLSA.  In district court, Le and CV moved for summary judgment on Viet’s claim.  The district court assumed Viet provided services/work as an employee, for purposes of the FLSA, but held that Viet’s evidence that he worked more than 40 hours in a week was insufficient to survive summary judgment.  Viet estimated his work hours and only had a conclusory statement that he wo

As some readers might be aware, the Worker Adjustment and Retraining Notification Act (“WARN Act”) sets out specific steps that certain employers must take when they are going to lay off a set number of workers or close a plant.  Generally speaking, an employer with 100 or more employees is required to give 60 days notice when closing a plant or engaging in a mass layoff that will last more than 6 months.  For employers with 50 employees, advance notice can be required if entire departments are laid off. Salaried workers are entitled to notice under the WARN Act and count toward the employee threshold.  Part time workers with less than 6 months of employment are not counted toward the threshold but are entitled to notice.  Temporary workers are not entitled to notice but are counted toward the threshold. In a FAQ published by the Labor Department, it was clarified that the WARN Act still applies during the coronavirus pandemic.  Of note, there are two exceptions that still a

For those that may have heard, late last week there was a ruling in the U.S. Women’s National Soccer Team lawsuit against the U.S. Soccer Federation.  That case, set for trial shortly, took a major turn for the worse (for some, that is) as the Judge granted summary judgment against the U.S. Women’s National Soccer Team on a majority of their claims.  I will not spoil things further, but the below article is worth a read. As always, below are a couple articles that caught my eye this week. Congress Considering Providing Liability Protections For Employers As Workers Return To Workplaces The Washington Post has an article which notes a brewing fight in Congress over whether to provide liability protections for employers should their workers contract coronavirus when they return to work.  This issue appears to be a party line fight with Senate Majority Leader Mitch McConnell and Republicans favoring providing these protections to employers while Senate Minority Leader Chuck S

Yesterday, California Attorney General Xavier Becerra, joined by city attorneys from San Diego, Los Angeles, and San Francisco, filed suit against Uber & Lyft on the grounds that the companies misclassified its workers as independent contractors thereby denying them minimum wage, overtime pay, and other benefits. Readers might recall that this whole brouhaha came about when the Dynamex decision was issued by the California Supreme Court a few years ago.  That case established the ABC Test to determine whether a worker was an independent contractor or an employee.  Unfortunately for employers in the state, the ABC Test made it easier to determine that a worker was an employee.  Sensing this ABC Test could be challenged (and eventually overturned in court), the California Legislature introduced Assembly Bill 5 (aka AB 5) to codify the ABC Test.  When the California Legislature passed AB 5 and Governor Gavin Newsom signed it into law, there was immediate opposition . Let

Vega v. Chicago Park District - Seventh Circuit Court of Appeals Facts :  Lydia Vega (“Vega”), who is Hispanic, worked for the Chicago Park District (“Park District”) beginning in 1987 and was promoted to park supervisor in 2004.  In September 2011, the Park District received an anonymous call which accused Vega of “theft of time.”  A Park District supervisor began surveillance Vega’s car thereafter.  A few days later, another anonymous call was received again accusing Vega of theft of time.  Another investigator began a separate and simultaneous investigation of Vega.  Over 56 days, Vega was surveillance 252 times.  During that timeframe, Vega was apparently interrupted at work in front of her coworkers with the investigators asking her questions in regard to the investigation. In March of 2012, the investigators met with Vega and her union representative.  By that time, Vega was experiencing significant anxiety and took medical leave in late March on advice of her physicia

For those keeping tabs at home, you might have noticed the abundance of labor law related posts the past four days.  Today marks the fifth and final day of the defacto labor law week.  Rounding out the week, we have a few articles which touch on some relevant labor law related updates.  As always, below are a couple articles that caught my eye this week. NLRB Issues Election Protection Rule, Changing 3 Aspects of Representation Election Process & Procedures The National Law Review has a concise summary of three changes the NLRB has made to its representation election process and procedures, set to take effect June 1st.  The three changes include a change to the process in which a union can prevent employees from voting whether they want to have new union representation (representation election) or if they instead want to be represented by the incumbent union (decertification election); a change to how employers can voluntarily recognize a union rather than having employ