The Majority Opinion: Legal Blog

Yet another week of (work from home) work has come and gone.  With that comes the opportunity to look at a few articles which have taken a deep dive into the dynamics of work from home...both from the perspective of those impacted by the large number of workers that are currently working remotely as well as from the viewpoint of the workers themselves. As always, below are a couple articles that caught my eye this week. Google Extends Work From Home For Most Employees Through Summer 2021 On Monday, Google announced that it was extending the option for most of its employees to work from home through June of 2021.  As The San Francisco Chronicle reports, with many of the company’s employees already working remotely, there has been a noticeable dip in the housing market in the Bay Area, a plunge in leases in the area, and a direct hit to San Francisco’s bars and restaurants.  (With much of the company’s employees being located in the Bay Area, this would undoubtedly be an area severely

As always, there are some EEOC cases that jump out when I review developments on that front.  Below are a couple EEOC cases and settlements that caught my eye this month. Pediatrics 2000 to Pay $68,000.00 to Settle Religious Discrimination Claim Pediatrics 2000 (“Pediatrics”) has agreed to settle a religious discrimination claim by paying $68,000.00 after an employee claims the company discriminated against her because of her religion.  The employee was a Jehovah’s Witness, which Pediatrics was aware of when she was hired.  As a Jehovah’s Witness, the employee requested to not work on Wednesday due to her religious practices that day.  While Pediatrics initially was fine with this request, it later demonstrated animus toward her religion by calling it a cult and placed the employee on probation for not reporting to work on Wednesdays.  This conduct is in violation of Title VII of the Civil Rights Act of 1964 which bars employers from discriminating against employees because of their re

Robinson v. MGM Grand Detroit, LLC - Sixth Circuit Court of Appeals Facts :  Beginning in 2002, Prince Robinson (“Robinson”) was employed by MGM Grand Detroit, LLC (“MGM”) to work as a valet at its hotel and casino in Detroit.  As a result of running on concrete as part of his job, Robinson developed plantar fasciitis.  In March of 2016, Robinson applied to take intermittent leave under the Family Medical Leave Act (“FMLA”) but MGM denied the request because Robinson’s physician failed to adequately complete a medical certification form.  Robinson thereafter applied for intermittent FMLA leave, based upon his foot pain, in September of 2016.  While the application for leave was pending, Robinson used a combination of sick and vacation leave to miss thirteen days of work over the next thirty days.  MGM approved the request on September 29, 2016 and made it retroactive to September 14, 2016.  As a result, Robinson was granted 480 of unpaid leave to manage the pain in his foot. On Septem

As I wrap up things ahead of an expected very busy week upcoming week, there are a few articles worth highlighting for readers.  With November’s elections inching closer and closer, I think we are likely to see more developments emerge in regard to the positions, proposals, and policies of candidates across the country.  This week, in particular, I wanted to highlight an article that focuses on the presumptive Democratic nominee Joe Biden and the steps he is taking in regard to rallying organized labor around his candidacy. As always, below are a couple articles that caught my eye this week. No Mask, No Service Rules? At a Minimum OSHA Liability Low For Employers Bloomberg Law published an article recently in which it surmised that in cities or states that have adopted mandatory mask requirements (for shoppers), employers might not be at risk of Occupational Safety and Health Administration (“OSHA”) violations.  (Generally speaking, OSHA is charged with enforcing laws that require em

Kenney v. Aspen Technologies, Inc. - Sixth Circuit Court of Appeals Facts :  Karen Kenney (“Kenney”) worked for Aspen Technologies, Inc. (“Aspen”) on a few occasions.  Initially, Kenney worked at the company as a plant manager for four years but she was perceived as being too harsh in her interactions with hourly workers and allegedly created friction among the management team.  Kenney left to take a job elsewhere but was later recruited to come back to Aspen after a seven year absence from the company.  Aspen sought to have Kenney “tighten the ship” as to Aspen’s employees.  However, in the first three months of Kenney’s rehire, turnover sharply increased at Aspen.  (It is worth noting that employee retention at Aspen had apparently been an issue before, however, it was reported to have spiked during Kenney’s return.  In fact, some employees stated they quit because of Kenney.)  This turnover was a problem for Aspen as they were in need of a consistent workforce to keep up with produ

Amini v. Rite Aid Corporation - Sixth Circuit Court of Appeals Facts :  Michael Kheibari (“Kheibari”) began working at Rite Aid as an assistant manager in 2007.  From 2007 - 2011, Kheibari interacted with his supervisors, store managers, and co-workers without incident, but received mixed performance reviews.  In late 2011, Kheibari began reporting to a new district manager, Daniel Snyder (“Snyder”).  Snyder allegedly made disparaging comments toward Kheibari including calling Kheibari “too old” and criticizing Kheibari’s abilities because of his age.  Snyder also allegedly made derogatory comments about Kheibari’s Middle Eastern heritage and suggested he should “go home.”  Kheibari’s immediate supervisor Beth Spirko (“Spirko”) thereafter became less friendly with him and downgraded his performance. In one instance, when Kheibari met with Snyder for what Kheibari thought was a promotion interview, Snyder allegedly remarked that Kheibari was too old, his accent was a problem, and he sh

Union elections during the coronavirus pandemic have been somewhat of a hot button issue for some.  While I wanted to highlight a couple good articles this week, an article from Politico on mounting pressure to move union elections to an online only format is one particular article well worth a deep dive.  As always, below are a couple articles that caught my eye this week. Coming Soon? Democrats & Labor Unions Ramp Up Calls For Online Elections Eleanor Mueller at Politico wrote a good article yesterday evening in which she noted that both Democrats and labor unions have started to increase their calls for union elections to be conducted online rather than in person.  It should come to no surprise to readers that the National Labor Relations Board has been dealing with how to effectively conduct union elections during the coronavirus pandemic.  While union elections are currently allowed and taking place, Democrats and labor unions have objected on the grounds that in person ele

Hill v. Employee Resource Group, LLC - Fourth Circuit Court of Appeals Facts :  Employee Resource Group, LLC, Neighborhood Hospitality Inc. and WV Neighborhood Hospitality LLC (collectively referred to as “ERG”) owned and operated a group of Applebee’s restaurants in a few states.  April Hill (“Hill”) worked for ERG.  Hill proceeded to file a putative class action against ERG on the grounds that ERG failed to pay employees minimum wage in violation of the Fair Labor Standards Act (“FLSA”) and that ERG failed to timely pay wages within the timeframe required following voluntary separation (in violation of the West Virginia Payment Collection Act.)  ERG subsequently field a motion to enforce arbitration.  However, ERG did not attach any signed arbitration agreements to its motion.  Rather, ERG included a copy of its Dispute Resolution Program booklet that contained an arbitration provision, a copy of a class action opt-in list filed by Hill with annotated “check marks” identifying FLSA

In what will perhaps be the tipping point of what is yet to come, on July 6th, the Eighth Circuit Court of Appeals issued a ruling and held that an LGBTQ discrimination lawsuit may move forward, following the U.S. Supreme Court’s ruling in Bostock v. Clayton County, Georgia . Readers will likely recall that a few weeks ago, the U.S. Supreme Court’s ruling in Bostock held that LGBTQ workers are protected from discrimination under Title VII of the Civil Rights Act of 1964 .  In the Eighth Circuit case,  Horton v. Midwest Geriatric Management, LLC , an applicant filed suit against a company after the company allegedly withdrew a job offer after learning the applicant was gay.  The Eighth Circuit issued a decision and held that based upon the ruling from  Bostock , the applicant’s discrimination claim could proceed ahead.  (The Eighth Circuit had stayed the case until Bostock was decided.) I would expect to see similar rulings in the coming months as courts across the country allow simil

Last Monday, the National Labor Relations Board (“NLRB”) issued a memo which provides guidance on conducting in person voting for union elections during the coronavirus pandemic. The memo comes from NLRB General Counsel Peter Robb and provides a great deal of information.  In particular, Robb gives agency employees a few protocols to implement when conducting union elections:  1) provide a spacious polling area to ensure six feet of distancing; 2) separate entrances and exits for voters; 3) separate tables, spread six feet apart, so Board Agents, observers, ballot booths, and ballot boxes are sufficiently distanced; 4) ensure that the employer provides disposable pencils for each voter; 5) have the employer provide glue sticks or tape to seal challenged ballots; 6) take steps to have the employer provide plexiglass barriers to separate Board Agents and observers; and 7) strive to comply with CDC guidelines by having all voters, observers, party representatives, and other participants w

While I thought I had a busy week, it was nothing compared to the pace of the U.S. Supreme Court.  As readers might have seen, the nation’s highest court issued two decisive rulings in relation to employment law matters earlier this week.  I will refer readers to the two posts from earlier this week, but make no mistake, those cases will likely be considered paramount when looking back at relevant cases from the Supreme Court’s term. As always, below are a couple articles that caught my eye this week. Democratic Party Platform Expected to Focus On Increasing the Minimum Wage Rate & Bolstering Unions This week, it was announced that a task force created by the presumptive 2020 Democratic nominee for President, Joe Biden, and Vermont Senator Bernie Sanders was working on the framework for the party’s platform headed into party’s convention next month.  That platform is expected to include a call to increase to the federal hourly minimum wage rate to $15/hour, guarantee workers the

Hold onto your horses, britches, hat, or whatever else you want to throw in here.  The U.S. Supreme Court has been busy today, issuing a pair of relevant employment law decisions.   Following up on the U.S. Supreme Court’s ruling in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania from earlier today , the Supreme Court also issued a decision in Our Lady of Guadalupe School v. Morrissey-Berry and held that Catholic elementary teachers are barred from suing their employers for employment discrimination under the “ministerial exception” of the First Amendment. This case arose out of two lawsuits filed by elementary teachers working at Catholic schools.  Agnes Morrissey-Berry taught at Our Lady of Guadalupe School for nearly two decades before she was told her contract would not be renewed.  She subsequently sued her employer on the grounds that she was a victim of age discrimination.  The lawsuit was thrown out on the grounds that the “ministerial exception” applied

Earlier today, the U.S. Supreme Court issued its ruling in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania , a 7 - 2 decision holding that a 2017 Trump administration rule that allowed private employers with sincere moral or religious objections to opt out of providing birth control to employees to be lawful. For those needing a refresher, the Affordable Care Act (“ACA” or “Obamacare” as many call it), instructs health plans to provide coverage for “additional preventative care and screenings” for women.  The Health Resources and Services Administration (a division of the Department of Health and Human Services) subsequently issued guidelines that required health plans to provide access to birth control at no cost to the women covered under the plans.  However, churches and other houses of worship were excluded from this requirement.  Religious nonprofits that objected to the provision were also given an opportunity to opt out. In 2014, the Supreme Court held in B

Rainey v. United Parcel Service, Inc. - Eleventh Circuit Court of Appeals Facts :  Joel Rainey (“Rainey”) worked at United Parcel Service, Inc. (“UPS”) from 1977 until 2013.  On a Friday in September of 2013, Rainey delivered three packages to Dialysis Clinic, Inc. of Southpoint (“DCI”).  Rainey delivered the first package in the afternoon and had it signed for by the receptionist.  At the time of the first delivery, Rainey could not find the two other packages.  After the receptionist signed for the package, Rainey “prerecorded” the delivery of the two remaining packages and left the electronic delivery record open so that he could deliver the other packages later. That afternoon, after DCI had closed, Rainey returned to deliver they other packages.  The door to DCI was locked, so Rainey left the packages at the door.  He then closed out the electronic delivery record that he had created after his first delivery.  As a result, the delivery record showed that all three packages were d

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. Prior to the July 4th holiday, the California State Senate passed SB 1383 which would expand the availability of unpaid family leave to many workers in the state.  SB 1383, authored by Democratic Senator Hannah-Beth Jackson, would extend unpaid family leave to employers with five or more employees and add to situations in which employees would be able to use family leave (as well as the right to return to the same or comparable job.) Under the proposed legislation, eligible employees would be able to use up to twelve weeks of unpaid leave for the birth, adoption, or serious illness of a child; to care for a seriously ill parent, spouse, or grandparent, or other listed relative; to deal with their own serious health condition; or to deal with the absence of a spouse, domestic partner, child, or parent that is called to

Fraser v. Patrick O’Connor & Associates - Fifth Circuit Court of Appeals Facts :  Patrick O’Connor & Associates (“O’Connor”) is a Houston based real estate law firm that specializes in property tax consulting, appraisal, and market research.  O’Connor routinely hires property tax consultants to assist with its workload during busy months (typically May - September.)  Each property tax consultant is assigned approximately 65 files per day and expected to attend both formal and informal review hearings as to property value disputes.  Prior to the hearings, the property tax consultants are expected to comb through files generated by O’Connor and locate information that will assist with the review hearings.  At the hearings themselves, the property tax consultants rely upon information in the file and present property tax valuations and attempt to obtain lower property tax valuations for O’Connor’s clients.  Each workweek often entails working between 60 - 90 hours.  However, O’Co

Throughout the past few weeks, I have come across numerous articles dealing with how employers and employees are dealing with the coronavirus pandemic.  This week, I wanted to highlight an article that surmises how work from home might be on the cusp of being more acceptable for the foreseeable future (including once the pandemic ends.)  While all the below articles are worth a read, that one in particular worth checking out. As always, below are a couple articles that caught my eye this week. NLRB Reverts to Allowing Employers to Discipline Newly Unionized Employees Without Bargaining At the end of last month, the National Labor Relations Board (“NLRB”) issued a decision in 800 River Road Operating Co., LLC d/b/a Care One at New Milford , a decision that upends a 2016 NLRB ruling in Total Security Management Illinois 1, LLC .  In Total Security , the NLRB (which had a labor friendly tilt at the time) found that an employer is required to provide notice and an opportunity to bargain to

Effective today, July 1st, the hourly minimum wage rate in Nevada is set to increase as follows:  rising to $8/hour if the employer offers qualifying health benefits and rising to $9/hour if the employer does not offer qualifying health benefits. Readers might be wondering, “Ok, and what exactly is a “qualifying health benefit” in Nevada?”  In order to answer that question, we need to look at a Nevada Supreme Court case from 2018, MDC Restaurants, LLC v. Eighth Judicial Dist. Court .  In that case, the Nevada Supreme Court held that under the Minimum Wage Amendment Act (which provides for the two tier minimum wage setup in the state), an employer who pays one dollar per hour less in wages must provide a benefit in the form of health insurance that is at least equivalent to the one dollar per hour in wages that the employee would otherwise receive. The Nevada Legislature stepped in afterward and passed Senate Bill 192 in 2019 to clarify that an employer may pay the lower minimum wage ra