The Majority Opinion: Legal Blog

  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 California Legislature is actively working on a piece of legislation, Senate Bill 973, that would require private employers in the state with 100 or more employees to submit an annual report to the Department of Fair Employment and Housing with salary and wage information for specific job categories as well as provide a breakdown of the workers’ race, ethnicity, and sex. Supporters of SB 973 argue that its passage is necessary to allow for state agencies to more efficiently identify patterns of “wage disparities and occupational segregation, and allow for targeted enforcement of California’s equal pay laws.”  On the other hand, critics of SB 973 suggest that requiring these annual reports is improper as simply relying upon W-2 earnings may identify a pay disparity when none actually exists.  The argument follows

I believe there are two stories that have unfolded the past few weeks which have the potential to become major discussion points in the coming weeks and months:  the growing dialogue about the Democratic party’s platform and an effort by a group of labor unions to require employers in Nevada to rehire workers that had been furloughed.  I refer the readers to the articles themselves, below, for further reading.  As always, below are a couple articles that caught my eye this week. DNC Platform Includes $15/Hour Federal Minimum Wage Rate & Labor Friendly Proposals Following the Democratic party’s nomination convention earlier this month, additional details have emerged as to the party’s platform and relevant policy proposals.  As a reminder, a party’s platform does not mean these proposals/ideas will become law or even stand a chance of being implemented.  Rather, the platform is created by members of the party in an effort to provide voters with guidance on where the party stands on

  Simmons v. UBS Financial Services, Incorporated - Fifth Circuit Court of Appeals Facts :  James Simmons (“Simmons”) worked for Prelle Financial Group, a third party wholesaler of life insurance products to clients of UBS Financial Services, Incorporated (“UBS”).  Simons often worked out of UBS’s offices. Simmons’s daughter, Jo Aldridge (“JA”), was a UBS employee.  She submitted an internal complaint of pregnancy discrimination and filed a charge with the Equal Employment Opportunity Commission.  JA eventually resigned and settled her claims with UBS. In the following months, Simmons’s relationship with UBS deteriorated.  Simmons alleged that in retaliation of JA’s complaints, UBS revoked Simmons’s right of access to the UBS office and then eventually prohibited him from doing business with its clients.  This resulted in the end of Simmons’s employment at Prelle Financial and he subsequently left. Simmons proceeded to bring a Title VII suit against UBS and others.  His claim agains U

Lunsford v. Sterilite of Ohio, LLC - Ohio Supreme Court Facts :  Adam Keim (“Keim”) and Laura Williamson (“Williamson”) were former at will employees at Sterilite of Ohio, LLC (“Sterilite”).  Donna Lunsford (“Lunsford”) and Peter Griffiths (“Griffiths”) are current at will employees at Sterilite.  Sterilite maintained a substance abuse policy that applied to all of its employees.  Under that policy, there were three conditions in which Sterilite would require an employee to submit to drug testing:  1) while investigating a workplace accident or incident; 2) when there was a reasonable suspicion that an employee may be impaired by drugs or alcohol; and 3) randomly at periodic intervals.  When a supervisor informed an employee of when and where to report for the testing, the employee had two and a half hours to provide a valid urine sample.  Failure to appear and provide the sample could result in termination.  As well, an employee that refused to take the test could be subject to termin

Some of the biggest news over the past week was a decision from a court of appeals in California that enables Uber & Lyft to have additional time to reclassify their drivers as employees rather than independent contractors.   Readers will likely recall a prior order in the case in which Uber & Lyft were given 10 days to comply with the requirement that the drivers be reclassified .  As noted below, this matter is far from over.  However, for the time being, Uber & Lyft have won a reprieve. As always, below are a couple articles that caught my eye this week. Hostile Work Environment or Just Workplace Bullying? Eric Bachman wrote an article earlier this month for Forbes in which he differentiated between a valid hostile work environment claim and “only” workplace bullying.  As Eric writes, Title VII is relatively straightforward in terms of what is required to establish a hostile work environment claim, namely that the key is that the abusive conduct must be related to an em

  In re:  RYZE Claim Solutions, LLC - Seventh Circuit Court of Appeals Facts :  Leslie Billings (“Billings”) worked at RYZE Claim Solutions, LLC (“RYZE”).  RYZE is an Indiana business that employs remote workers across the country.  Billings was party to an employment agreement with RYZE which contained a forum selection clause which stipulated that any claim filed against RYZE must be brought in Indiana.  Billings proceeded to file a Fair Labor Standards Act claim against RYZE along with several alleged violations of the California Labor Code and California Business and Professions Code on behalf of a putative class of RYZE workers based in California.  Billings filed his suit in California state court.  RYZE removed the case to federal court in California and held that Billings failed to show why the forum selection clause did not apply.  The case was subsequently transferred to federal court in Indiana. The federal court in Indiana granted RYZE’s motion for summary judgment as to t

  William Beaumont Hospital - NLRB Facts :  William Beaumont Hospital (“WB”) faced several allegations of committing unfair labor practices in relation to a union organizing campaign.  An Administrative Law Judge (“ALJ”) denied WB’s request to hold an in person hearing on the grounds that the coronavirus pandemic constituted “compelling circumstances” to warrant the hearing be held remotely via video technology.  WB filed an instant request with the National Labor Relations Board (“NLRB”) asking for permission to appeal the ALJ’s ruling. Analysis :  The NLRB noted that in a prior decision from earlier this year, Morrison Healthcare , it had found the coronavirus pandemic to constitute “compelling circumstances” to warrant a remote hearing in a representation case.  In reaching this conclusion, the NLRB based its ruling on Section 102.35(c) of the Board’s Rules and Regulations.  (Section 102.35(c) allows a witness to appear and testify via video in an unfair labor practice case.)  In M

  Nicholson Terminal & Dock Company - NLRB Facts :  Nicholson Terminal & Dock Company (“Nicholson”) operated as a maritime cargo company with two facilities in Detroit and Ecorse, Michigan.  Most of Nicholson’s employees are represented by International Association of Machinists Local Lodge 698.  Since September 2016, Nicholson has maintained a Personnel Handbook which provides in part: Moonlighting   Employees are expected to devote their primary efforts to the Company’s business.  Therefore, it is mandatory that they do not have another job that: Could be inconsistent with the Company’s interests. Could have a detrimental impact on Company’s image with customers or the public. Could require devoting such time and effort that the employee’s work could be adversely affected. Before obtaining any other employment, you must first get approval from the Company Treasurer.  Any change in this additional job must also be reported to the Company Treasurer. The Administrative Law Judg

With the upcoming elections in November, I suspect we will start to see a wide range of developments on the labor & employment law front, both at the national and local levels.  It only follows that with candidates and incumbents on the ballot, their positions on minimum wage, labor rights, employment discrimination, etc. will become focal points for many voters.  While Wednesday’s announcement of California Senator Kamala Harris being selected as the Vice-Presidential nominee for the Democrats does not necessarily warrant much of a discussion at this point for the purpose of this blog, Joe Biden’s position on a relevant piece of minimum wage legislation is worth kicking things off this week. As always, below are a couple articles that caught my eye this week. A Closer Look at Joe Biden’s Support of the Transformation to Competitive Employment Act   Sarah Katz at The Atlantic wrote an article recently and noted that the Democratic nominee for President, Joe Biden, has made his sup

  Bemis Company, Inc. - NLRB Facts :  Bemis Company, Inc. (“Bemis”) had a social media policy in place, as listed in its employee handbook.  The policy provided: Employees are expected to be respectful and professional when using social media tools.  With the rise of websites like Facebook, MySpace, and LinkedIn, the way in which employees can communicate internally and externally continues to evolve.  We expect our employees to exercise judgment in their communications relating to Bemis so as to effectively safeguard the reputation and interests of Bemis. Employees should: Communicate in a respectful and professional manner; Avoid disclosing proprietary information; and Each employee is responsible for respecting the rights of their co-workers and conducting themselves in a manner that does not harass, disrupt, or interfere with another person’s work performance or in a manner that does not create an intimidating, offensive, or hostile work environment.   An unfair labor practice cha

Sherrod v. United Way Worldwide - Fifth Circuit Court of Appeals  Facts :  Coneisha Sherrod (“Sherrod”) worked at United Way of Tarrant County (“UWTC”) as Vice President of Human Resources.  In her role, Sherrod alleged that UWTC failed to pay employee benefits and comply with the reporting requirements of the Employee Retirement Income Security Act (“ERISA”.)  As well, at the time Sherrod was hired, she was told by UWTC’s CEO that he would retire within four years and already had a replacement selected.  Sherrod was later told by an African American executive at UWTC that she was interested in replacing the CEO.  Sherrod claimed that she made UWTC aware that failing to post the CEO position before hiring a replacement could expose UWTC to a discrimination claim. A committee was thereafter formed to hire a new CEO.  Sherrod was not a part of that committee.  When the African American executive that Sherrod had talked with was not selected to be the new CEO and filed a racial discrimin

  Today, a California judge issued a preliminary injunction which requires Uber & Lyft to stop classifying their California drivers as independent contracts and convert them to employees with benefits. Readers might recall that this preliminary injunction arises out of a case brought by California Attorney General Xavier Becerra in a lawsuit filed along with city attorneys from San Francisco, Los Angeles, and San Diego .  The lawsuit, filed against Uber & Lyft, alleges that the companies violated AB 5.  (Readers will recall that Assembly Bill 5 (aka “AB 5”) came about following efforts by legislatures in the state to classify gig workers as employees.)   AB 5 is under fire from gig companies in the state who are seeking a ballot initiative to overturn the legislation. This ruling, which will take effect after 10 days, is expected to be appealed by Uber & Lyft.  Stay tuned. For additional information:   https://news.bloomberglaw.com/daily-labor-report/california-wins-prelim

A development the past few weeks in regard to a potential union forming at a newspaper in Dallas is worth an in depth read.  In a right to work state like Texas (which is not overly unionized), this potential formation of a union at The Dallas Morning News is worth watching closely. As always, below are a couple articles that caught my eye this week. Union Brewing at Dallas’ Largest Newspaper   A few weeks ago, it was announced that a union was forming at Dallas’ largest newspaper, The Dallas Morning News.   This potential union, a combination of 100 employees from The Dallas Morning News and Al Día Dallas, have several grievances including a claim that their employer failed to provide them personal protective equipment quickly enough which resulted in employees being exposed to tear gas while covering stories the past few months.  According to these employees, workers at other news outlets were provided this equipment.  While The Dallas Morning Mews has previously fought back against

North Star Memorial Group, LLC - NLRB Facts :  ( Note, this brief only looks at the prounion signage portion of the unfair labor practice charge .) Joel Strube (“Strube”) worked for North Star Memorial Group, LLC’s (“North Star”) cemetery as a groundskeeper.  It was standard for groundskeepers to park their personal vehicles in “yard parking,” which was adjacent to North Star’s storage facility, break room, and lockers.  One day, Strube parked his motorcycle in the first space in yard parking, directly across from an area where a burial service was taking place.  On Strube’s motorcycle, he had a display that read “Unfair wage proposals for senior employees.”  Several of the mourners at the service complained about the prounion signage.  Grounds Superintendent, Lorenzo Molina (“Molina”), later appeared and parked his truck in front of Strube’s motorcycle so that the signage could not be seen by the mourners.  Several of the mourners expressed to Molina their concern with the signage.  

Last week, the Labor Department issued guidance on the question of whether exempt workers under the Fair Labor Standards Act (“FLSA”) lose their exempt status if they also perform non exempt tasks during the coronavirus pandemic. Taking a step back, the FLSA provides that workers can be either exempt or non exempt, depending upon their work responsibilities.  Generally speaking, if the worker is exempt, they are not entitled to overtime pay under the FLSA.  If the worker is non exempt, they could potentially qualify for overtime pay if they worked more than 40 hours in a workweek.  The issue that has arisen as of late is how employers are to proceed during the coronavirus pandemic, given that some workplaces have cut their labor force in an effort to make ends meet.  In doing so, that often entails the workers that remain to pick up the slack and assume additional responsibilities.  In some workplaces, that may involve an exempt worker (for instance, one that is primarily engaged in ad

Last November, I had made note of a matter the National Labor Relations Board (“NLRB”) was considering :  Whether profane or offensive language in the workplace is protected under the National Labor Relations Act (“NLRA”). The case before the NLRB was General Motors, LLC in which the NLRB was asked to determine whether a union official had been unlawfully terminated (in violation of the NLRA) when he threatened to “shove” an item up the backside of a supervisor and spoke in “slave like vernacular.”  At the time the case came before the NLRB, this conduct was protected under the NLRA and an employee could not therefore be disciplined or terminated for using profane or offensive language in the workplace.  However, last year, the NLRB asked for public comment on the matter.  At the end of last month, the NLRB issued its decision in the case. Before we get to that, let us start with the basics.  The NLRA protects employees that engage in concerted activities for mutual aid and protection