The Majority Opinion: Legal Blog

As always, there are some EEOC cases that jumpy out at me when I review developments on that front.  Below are a couple EEOC cases and settlements that caught my eye this month. Albertsons to Pay $210,000.00 to Settle National Origin Discrimination Suit At the start of the month, the EEOC announced that Albertsons had agreed to pay $210,000.00 to settle a national origin discrimination suit brought against the company.  According to the allegations, the company allowed a manager to harass Hispanic employees at one of its locations in California.  The lawsuit went on to allege that the manager focused on employees that had limited English speaking abilities.  This conduct is in violation of Title VII of the Civil Rights Act of 1964 which prohibits discrimination on the basis of national origin. Jet Propulsion Laboratory Agrees to Pay $10 Million to Settle Age Discrimination Suit Recently, Jet Propulsion Laboratory agreed to pay $10 million to resolve an age discrimination suit filed aga

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. In April, an Administrative Law Judge (“ALJ”) issued a ruling in FDRLST Media, LLC which addressed whether an executive of a company that sent out a threatening tweet aimed at the company’s employees violated the National Labor Relations Act (“NLRA”). In the case, Ben Domenech (“Domenech”) serves as the Executive Officer of FDRLST Media, LLC (“FDRLST”).  Domenech sent out a tweet in response to a story about workers at another company staging a walkout.  In his tweet, Domenech stated “FYI: @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.”  Unsurprisingly, an unfair labor practice charge followed, alleging this tweet violated Section 8(a)(1) of the NLRA. As readers are likely aware, Section 7 of the NLRA provides that “employees shall have the right to self-organization, to form,

A few recent updates on minimum wage increases and a move to further solidify a state’s right to work law are two of the more noteworthy topics I wanted to highlight.  Of course, it is always difficult to narrow things down (or avoid rehashing the same topic over and over), but I think readers will find the below articles worth a read. As always, below are a couple articles that caught my eye this week. Ahead of Schedule, Target Raises Minimum Wage Rates to $15/Hour Effective July 5th, Target will raise the hourly minimum wage rate of its employees from $13/hour to $15/hour.  The company will also provide its employees with a $200 bonus paid at the end of July, in recognition of their work during the coronavirus pandemic.  It is worth noting that the company had previously announced its intention to raise its minimum wage rates to $15/hour by the end of 2020.  However, even during a turbulent time for many retailers. Target is well ahead of schedule in regard to this wage hike. Tenness

Circus Circus Casinos, Inc. v. National Labor Relations Board - D.C. Circuit Court of Appeals Facts :  Circus Circus operates a casino in Las Vegas and hired Michael Schramm (“Schramm”) on a temporary basis to join its engineering department.  Schramm, tasked with changing door stops in the hotel’s guest rooms, was represented by the United Brotherhood of Carpenters and Joiners of America Southwest Regional Council of Carpenters Local #1780 (“the Union”). In November or December of 2013, Schramm and several other employees attended an engineering department mandatory safety meeting.  At the meeting, an engineer raised concerns over second hand exposure to marijuana smoke in the guest rooms could lead to the engineers testing positive for illegal drugs.  According to some reports, department head Rafe Cordell (“Cordell”) took offense to this and suggested that maybe Circus Circus did not need the engineers anymore.  (Other reports stated the meeting occurred without incident.) Circus Ci

Lipscomb v. Boyce - Eighth Circuit Court of Appeals Facts :  Blake Lipscomb (“Lipscomb”) worked as a canine officer at the Lawrence County Sheriff’s Office.  After being terminated, Lipscomb hired an attorney and began to negotiate with the county for overtime pay.  Around this time, a local newspaper incorrectly reported that Lipscomb had filed a lawsuit over the matter.  At the time, Lipscomb learned of a canine officer opening with the Drug Task Force (“DTF”).  A state prosecutor, Henry Boyce (“Boyce”), apparently had final authority to hire for the position, according to Lipscomb.  Lipscomb claimed that Boyce refused to hire him because Boyce did not want to hire anyone who had a lawsuit pending against the county.  (Again, there was apparently no lawsuit filed.)  Lipscomb claimed that Boyce told him that the lawsuit was holding Boyce back from hiring him for the DTF position. Lipscomb subsequently filed suit against Boyce on the grounds that Boyce violated the anti-retaliation pr

Anderson v. The Mercer County Sheriff Department - Third Circuit Court of Appeals Facts :  Gloria Anderson (“Anderson”) worked for the Mercer County Sheriff Department (“Mercer”).  During the course of her employment, she was transferred to the Criminal Court Security Unit, which she claimed was an adverse employment action because the criminal courthouse was apparently contaminated with asbestos and Anderson had a note from her doctor saying that exposure to the asbestos was harmful to her health. Anderson filed suit against Mercer and alleged race and gender discrimination and retaliation.  Mercer moved for summary judgment and the lower court granted Mercer’s motion as it held that Anderson had failed to show she suffered an adverse employment action.  Anderson subsequently appealed. Holding :  ( Note, this case brief only analyzes the race and gender discrimination portion of Anderson’s claim .) The Third Circuit Court of Appeals recognized that for Anderson to prevail upon her ra

Yet another week with coronavirus related updates, in regard to employment law related matters.  The below updates/guidance from the Occupational Safety and Health Administration and Equal Employment Opportunity Commission are worth reading through, if for no other reason than to stay up to date. As always, below are a couple articles that caught my eye this week. OSHA Provides Guidance on Face Coverings at Work Last week, the Occupational Safety and Health Administration (“OSHA”) released a FAQ as to wearing face coverings at work.  There is quite a bit of good information here and I would suggest readers give it a review.  The FAQ touch on everything from whether employers are required to provide face coverings and whether employees are required to wear them in the workplace, all the way to suggestions on how employees can keep face coverings clean if they intend to reuse them. EEOC Issues Updated Guidance on Coronavirus and Discrimination How about we call the past few weeks a busy

At the end of April, Washington D.C. Mayor Muriel Bowser signed a bill into law that will allow employees in Washington D.C. to take two hours of paid leave to go vote, regardless of that employee’s state of residence. The legislation is quite expansive as it covers any employer with at least one paid employee.  (Employee, in the context of the Paid Leave to Vote Amendment Act includes “any individual employed by an employer who is eligible to vote.”)  Once an employee puts an employer on notice of the employee’s intent to vote, the employer must provide two hours of paid leave for the employee to do so.  Interestingly enough, while an employer may require that the employee give reasonable notice of intent to use the leave, the reasonable notice (nor how the notice must be given) is specifically defined. One important thing to keep in mind with this legislation is that there is not a definitive starting date.  The reason?  The funds needed to pay for the leave must be added to the next

Earlier this month, the Texas Supreme Court denied the City of Austin’s appeal of an injunction that has prohibited Austin’s paid sick leave ordinance from taking effect. Readers will likely recall there has been a prolonged fight over the issue, dating all the way back to 2018 .  As a bit of a refresher, the City of Austin approved a paid sick leave ordinance.  The ordinance would apply to all private employers in the city and was quite broad in terms of coverage:  any employee that worked at least 80 hours in Austin during a calendar year was eligible for the paid sick leave.  For every 30 hours worked, one hour of paid sick leave would be accrued.  (For employees working for employers with more than 15 employees, up to 64 hours of paid sick leave could be accrued; for employees working for employers with 15 or fewer employees, up to 48 hours of paid sick leave could be accrued.) Austin, the first city in Texas to approve such a measure, quickly came under fire by critics.  Although

This morning, the U.S. Supreme Court issued what many would call a landmark 6 - 3 decision:  Under Title VII of the Civil Rights Act of 1964 (“Title VII”), gay and transgender workers cannot be terminated because of their sexual orientation or gender identity. Prior to this ruling, Title VII prohibited discrimination against a worker on the basis of their sex, race, color, national origin, and religion.  (This case sought to have gay and transgender workers fall under the scope of “sex” in regard to Title VII protections.)  With the Supreme Court’s ruling in Bostock v. Clayton County, Georgia earlier this morning, LGBTQ workers will now be a covered class under Title VII. Writing the majority opinion for the Court, Justice Neil Gorsuch wrote “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s she when deciding to fire that employee.  We do not hesitate to recognize today a necessary consequence of that legislative choice:  An emplo

I think it might have been appropriate to title this something along the lines of “What I’ve Been Reading This Week:  Corporate Edition”.  As readers can see from the below, there are a few developments over at Starbucks and Amazon over the past few days, in relation to relevant employment and labor law matters.  Both articles are worth a read, if for no other reason than to see how some employers are managing workplace issues in light of recent current events. As always, below are a couple articles that caught my eye this week. Starbucks to Allow Employees to Display BLM Support in the Workplace Earlier this morning, CNBC reported that Starbucks had reversed course and decided to allow its employees to wear Black Lives Matter (“BLM”) apparel and accessories in the workplace.  In recent days, Starbucks had placed a prohibition on its employees wearing or displaying anything affiliated with BLM while at work.  However, after receiving a wave of backlash by critics who pointed out that

Last week, Amazon was hit with a lawsuit in regard to claims that the company had not taken adequate steps to protect its employees from the coronavirus. In the lawsuit, filed by four warehouse workers, allegations are made that the company failed to follow public health guidelines and put its workers in a position to contract the coronavirus by setting “oppressive and dangerous” quotas and discipline policies.  Interesting note though, the lawsuit does not seek a monetary award but rather an injunction that Amazon adhere to public safety guidelines.  (In broad terms, an injunction is a court order compelling a party to do or not do a specific thing.  In this case, the injunction, should it be granted, would likely compel Amazon to adhere to public safety requirements going forward.)  This is different from other coronavirus related lawsuits filed against employers of late which have primarily sought a monetary award.  The fact that this lawsuit against Amazon “only” seeks an in

T-Mobile USA, Inc - NLRB Facts :  Chelsea Befort (“Befort”), an employee of T-Mobile, sought to use her company email to communicate with her 595 coworkers and encourage them to join a union.  However, T-Mobile implemented a new workplace policy that employees could not use their company email for certain purposes (including the purpose in which Befort intended.)  Issues arose thereafter over whether T-Mobile’s policy ran afoul of Section 7 of the National Labor Relations Act (“NLRA”). Analysis :  The NLRB recognized that a prior decision from 2014, Caesars Entertainment , held that “an employer does not violate the Act [NLRA] by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.”  In this case, the facts in the record showed that T-Mobile’s employees had the ability to verbally converse about the union, exchange Union related materia

One of the more thought provoking articles I read this week dealt with how some employers are managing their summer internship program this year, in light of the coronavirus.  While every workplace is different and no two internship programs are the same, I think the below article has a few good suggestions that might be worth implementing. As always, below are a couple articles that caught my eye this week. Summer Interns in the Age of Work From Home Offices The Wall Street Journal published a recent article in which it examined how many employers are incorporating summer interns into their work from home setups.  With many employers still utilizing some sort of remote work arrangement for their employees, it can be tougher to effectively integrate summer interns.  However, the article notes that may employers have taken steps to “normalize” things over the summer months for their interns, including:  1) scheduling virtual coffee meetings with interns and senior employees;

Lemon v. Norfolk Southern Railway Company - Sixth Circuit Court of Appeals Facts :  Daniel Lemon (“Lemon”) worked at Norfolk Southern Railway Company (“Norfolk”).  Lemon hurt his neck, although it is unclear whether it happened at work or at home.  Lemon told his co-workers he hurt it at home but told Norfolk that he hurt it on the job.  Lemon also told Norfolk that he had not discussed the injury with his co-workers.  After Norfolk learned that Lemon had discussed his injury with his co-workers, he was terminated for making false statements. Lemon proceeded to file a retaliation claim with the Occupation Safety and Health Administration (“OSHA”).  OSHA dismissed the complaint.  Lemon then filed an administrative appeal and while the appeal was pending, also filed suit in district court.  The district court dismissed Lemon’s claim and Lemon appealed. Holding :  On appeal, Lemon argued his neck injury was a contributing factor in Norfolk’s decision to terminate him as wit

At the end of April, the Equal Employment Opportunity Commission (“EEOC”) issued an opinion letter which confirmed its belief that the proper use of Internal Revenue Service Form 8850 (“Form 8850”) for the Federal Work Opportunity Tax Credit (“WOTC”) does not run afoul of anti-discrimination laws. For those not familiar with the WOTC, it provides employers with a tax credit by encouraging them to “hire and train people who are experiencing severe difficulties that are often linked to unemployment.”  Those employment candidates that enable an employer to qualify for the WOTC include recipients of some state and federal aid programs (such as food stamps), those that have finished or are still working through some rehabilitation services, and some individuals convicted of felonies.  Form 8850 requires that these individuals self identify and provide information to confirm the employer is entitled to the tax credit. Naturally, there has been some concern and hesitation among emp

Cabela’s LLC v. Highby, et al -  Third Circuit Court of Appeals Facts :  ( Note, in this short five page opinion, the Court of Appeals did not provide a lot in the way of facts. ) In short, Cabela’s LLC (“Cabela’s”) is a registered Delaware entity.  Cabela’s sought a temporary injunction to enjoin Matthew Highby, Molly Highby, and Highby Outdoors, LLC (“the Highbys”) from alleged violations of a non compete and non solicitation agreement.   (There was a non compete and non solicitation agreement in place which included a Delaware choice of law provision.  However, the Highbys were located in Nebraska and sought to have Nebraska law apply.  Nebraska non compete laws are stricter than Delaware’s.)  The district court denied the request from Cabela’s and Cabela’s appealed to the Third Circuit Court of Appeals. Holding :  Under Nebraska law, a non compete may restrain competition by improper and unfair methods, but may not contain ordinary competition.  Delaware law differs, h