The Majority Opinion: Legal Blog

  As always, there are some EEOC cases that jump out at me when I review developments on that front.  Below are a couple EEOC cases and settlements that caught my eye this month. Lawsuit Filed Against Chipotle for Sexual Harassment & Retaliation Earlier this month, a sexual harassment and retaliation lawsuit was filed against Chipotle.  The lawsuit claims that a Tampa location service manager was sexually harassed by a coworker and was unlawfully terminated when a complaint was made.  After the coworker made several suggestive comments to the manager, the conduct escalated to two sexual assaults in one day.  While the prior harassment had already been reported to store management, the manager stated she planned to report the sexual assaults to corporate.  Within three days, the manager was terminated.  This alleged conduct, if true, is in violation of Title VII of the Civil Rights Act of 1964 which prohibits discrimination based upon sex and retaliation against workers that complai

  For those Connecticut employers that were under the gun facing an October 1, 2020 deadline, the Connecticut Commission on Human Rights and Opportunities (“CHRO”) has given employers in the state until January 1, 2021 to provide sexual harassment training to their employees. In light of the coronavirus pandemic, employers in the state will not have a few additional months to complete the training.  Interesting to note, employers do not need to request an actual extension, the CHRO’s extension applies automatically to all employers.  (Previously, 90 day extensions were being given so long as employers specifically requested them.) The CHRO’s website has additional information on the matter, as the sexual harassment training requirements for employers depends on the number of employees it employees.  With that being said, January 1st will be here shortly.  Connecticut employers would be smart to use this temporary “reprieve” as a good opportunity to complete the training so as to not bu

  Earlier this month, National Labor Relations Board (“NLRB”) General Counsel Peter Robb (“Robb”) released a six page memo in which he confirmed (not that there was widespread doubt) that even with the coronavirus pandemic disrupting workplaces for the past six months, that did not excuse labor law violations. So what can employers do?  For starters, reviewing this memo would be a good idea.  Keep in mind the several situations that Robb highlighted as being potentially susceptible to labor law violations that have been a key focus of the NLRB as of late.  Second, it would be a good idea to review your workplace policies and procedures to make sure you are not running afoul of the National Labor Relations Act.  Third, as always, it is a good idea to consult a labor law attorney to provide guidance if you have particular questions or need additional advice.  (This blog is not intended, and never has been, here to provide legal advice.)  With the NLRB identifying protected concerted acti

  Every so often, I come across a rather unique resource on labor or employment law related matters whether it be a podcast, an opinion piece, or a flow chart that tackles a given topic.  This week, I came across a flow chart that takes readers through how to handle employee leave issues.  For those looking for a 30,000 foot view on the topic, this resource is well worth reviewing and keeping close by as related employee leave issues arise in the workplace. As always, below are a couple articles that caught my eye this week. Labor Department Expected to Issue Rule Related to Independent Contractor v. Employee Classification Reuters has recently reported that the Labor Department is expected to publish a proposed rule shortly that would make it easier to classify workers as independent contractors rather than employees.  While the specifics of the proposed rule are not certain, it is expected the Labor Department would seek to scale back the multi factor test that is currently used in

  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. New York Democratic Representative Jerry Nadler has introduced a piece of legislation, HR 2694 (also known as the Pregnant Workers Fairness Act) which would require employers to provide reasonable accommodations to help pregnant workers continue working as well as prohibit employers from denying employment opportunities to these workers because they are pregnant. With Democrats having majority control of the House of Representatives (and this legislation being sponsored by a Democratic Representative), I think it is quite likely it will advance to a floor debate and garner approval to move to the Senate.  With that being said, with Republicans holding a slim majority control of the Senate (and likely not looking to advance much of the Democratic legislative agenda ahead of November’s elections), HR 2694 might not ge

  Beginning September 30th, the New York State Sick Leave Law (“NYSSL”) will go into effect (although employees will not be able to use this leave until January 1st, 2021.) Under the NYSSL, the amount of eligible leave will depend upon the size of the employer: Employers with at least 100 employees must provide 56 hours of paid sick leave; Employers with fewer than 100 employees must provide 40 hours of paid sick leave; Employers with fewer than 5 employees and a net income in excess of $1 million in the previous tax year must provide 40 hours of paid sick leave; Employers with fewer than 5 employees and a net income of less than $1 million in the previous tax year must provide 40 hours of unpaid sick leave. Of note, employees will be able to earn one hour of leave for every 30 hours worked unless an employer chooses to frontload all sick leave at the beginning of the year.  As well, any unused leave must be carried over to the following year. For additional information as to the NYSS

  On September 4th, National Labor Relations Board (“NLRB”) General Counsel Peter Robb issued a guidance memo and urged the NLRB to create one standard when considering whether an employer’s assistance in union organizing violates the National Labor Relations Act (“NLRA”). An employer violates Section 8(a) of the NLRA when it provides impermissible support to a union that is attempting to organize unrepresented employees.  Conversely, an employer violates Section 8(b) of the NLRA when it provides impermissible support to employees that are seeking to decertify or withdraw from a union. NLRB precedent applies two different standards when considering what constitutes “impermissible support” under Section 8(a) and 8(b) of the NLRA.  When an employer is accused of impermissibly supporting a union’s organizing efforts, a “totality of the circumstances” standard is applied to consider if a violation of the NLRA occurred.  However, when an employer is accused of impermissibly supporting a dec

  One of the more thought provoking articles I read this week dealt with recent criticism over the alleged lack of action by the Occupational Safety and Health Administration, in regard to dealing with the coronavirus pandemic.  I will let readers scroll through the below article and reach their own conclusion but the opinion piece is worth reading regardless of your position on the matter. As always, below are a couple articles that caught my eye this week. Critics Take Aim At OSHA For Handling of Coronavirus in the Workplace This week, Dave Jamieson at The Huffington Post wrote an article on which he posited that the Occupational Safety and Health Administration (“OSHA”) has failed to take adequate steps to protect workers around the country while the coronavirus pandemic plays out.  As readers might be aware, OSHA is charged with assuring safe workplaces and enforcing rules and regulations to achieve that purpose.  However, as Jamieson writes, OSHA has failed to do so for a number

  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. Last Thursday, the DC Court of Appeals held oral arguments in Davidson Hotel Company, LLC v. NLRB in which the Court is considering what an administrative agency needs to include in an adjudicative decision. In Davidson Hotel Company, LLC , the National Labor Relations Board (“NLRB”) issued a decision in which it authorized a pair of bargaining units.  Counsel for Davidson had argued that the hotel’s food and beverage workers and housekeeping employees worked together to provide “highly integrated” guest services such that the NLRB should not have allowed them to be grouped in separate bargaining units.  The NLRB’s decision to approve the pair of bargaining units was in conflict with its prior rulings which allowed only a single unit of hotel employees because their work was similarly integrated.  However, the NLRB

On September 3rd, the Equal Employment Opportunity Commission (“EEOC”) issued an opinion letter in which it stipulated that an alleged “pattern or practice” of resistance is not an independent reason for bringing suit against an employer, absent an underlying allegation of discrimination or retaliation. This opinion letter should be a welcome bit of news for employers as the EEOC has taken a bit more of a restrained approach to the matter.  Granted, the EEOC is not giving employers the green lights to discriminate or retaliate against their employees.  Should that be established, you can bet the EEOC would issue a right to sue letter.  However, if an employee can only establish a “pattern or practice” of resistance, that lone will not be enough to proceed with a lawsuit.   For a copy of the EEOC opinion letter:   https://www.eeoc.gov/commission-opinion-letter-section-707?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

  Aguillard v. Louisiana College - Fifth Circuit Court of Appeals Facts :  Joe Aguillard (“Aguillard”) became President of Louisiana College in January of 2005.  He continued in that role until he stepped down in July of 2014 due to health reasons.  However, he remained at Louisiana College as a tenured faculty member and president emeritus until he was terminated on March 31, 2016.  The day after his termination, Aguillard filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and claimed his successor engaged in a patter of harassment and created a hostile work environment.  Aguillard claimed the harassment and termination constituted religious discrimination, disability discrimination, and retaliation for opposing illegal practices in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”).  Aguillar proceeded to file a second EEOC complaint on July 8, 2016 and made similar allegations against Louisia

This week, there is something for everyone:  An update on several new pieces of labor & employment legislation in Kentucky, an amendment to California’s Assembly Bill 5, and a potential change to the way World Wrestling Entertainment wrestlers are classified (re being independent contractors rather than employees.) As always, below are a couple articles that caught my eye this week. Kentucky House Democrats Release Ambitious Range of Litigation   Earlier this week, Kentucky House Democrats released a list of legislation that they have introduced, with an emphasis on Kentucky workers.  Of note, the legislation includes raising the hourly minimum wage rate in the state to $15/hour, repealing the state’s right to work law, reinstituting a prevailing wage, requiring paid sick leave and parental leave be provided to workers, and allowing for collective bargaining for all public employees.  While the legislation is ambitious, with a Senate and House in Republican majority control, most o

  Last week, California Governor Gavin Newsom signed AB 2257 into law which adds a host of occupations that are exempt from the ABC Test for independent contractor classification as codified in Assembly Bill 5. Readers are aware that following the passage of Assembly Bill 5 last year , critics of the legislation were quick to point out that the codification of the ABC Test (to determine whether a worker was an independent contractor or an employee) made it more difficult to earn a living as employers chose to not retain workers since many were now classified as employees under the ABC Test.  (The ABC Test stipulates that a worker is an employee unless A) the worker is free from the company’s control and direction; B) the worker performs work that is outside the usual course of the hiring entity’s business; and C) the worker is customarily engaged in an independently established trade, occupation, or business of the same natures as that involved in the work performed.) This new list of

  Bell v. O’Reilly Auto Enterprises, Inc. - First Circuit Court of Appeals Facts :  Brian Bell (“Bell”) worked at O’Reilly Auto Enterprises, Inc. (“O’Reilly”) as a store manager at a location in Maine.  Bell, who suffered from Tourette’s syndrome, attention deficit/hyperactivity disorder, and major depression, took medication but still experienced motor tics.  Bell would typically work fifty hour weeks with ten and a half hour work days.  However, after losing two shift leaders and unable to use other employees to fill in, Bell ended up working one hundred hour work weeks.  This schedule included working from 6:30 AM until 9:30 PM almost every day, including weekends.  Bell soon broke down after telling his mental health provider that he was feeling overwhelmed. After O’Reilly informed Bell that he could not return to work until he submitted a form confirming his fitness for duty, the mental health provider worked with Bell.  The mental health provider confirmed Bell could return to w

  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. This coming November, voters in Florida will have the chance to vote on Amendment 2, which would raise the hourly minimum wage rate in the state to $15/hour by 2026. If approved, Florida, which currently boasts an hourly wage rate of $8.56, would see the hourly wage rate rise to $10 on September 30, 2021 and increase by $1 every subsequent year until the state’s hourly wage rate reached $15.  As readers might have guessed, there are arguments on both sides of the ball with proponents saying a wage rate of $15/hour is necessary to pay for basic living expenses while opponents of Amendment 2 stipulate that the increase in labor costs would be detrimental to employers across the state. While Amendment 2 needs at least 60% of voter approval to become law, with this being a Presidential election year, there will be a hig

Over the past week or so, the Labor Department has updated guidance as to several notable coronavirus related matters that impact employers and employees alike.  While there were several other non Labor Department related developments I came across this past week, given the timeliness of these updates, I think it is appropriate to focus on these two updates this week.  As always, below are a couple articles that caught my eye this week. Labor Department Issues Guidance on Tracking The Remote Working Hours of Employees At the end of August, the Labor Department issued guidance for employers and employees alike in regard to the tracking of the remote working hours of employees during the coronavirus pandemic.  Of note, while employers are required to pay their non exempt employees overtime for any work hours over 40 during the course of a work week (per the Fair Labor Standards Act), there is a bit of breathing room with this guidance.  For instance, the Labor Department confirmed that i

  For hourly workers in the state of Connecticut, today is your day as the hourly minimum wage rate moves to $12/hour (up $1/hour from the prior hourly wage rate.) Some might not see this wage hike as a big deal.  After all, other cities and states have seen wage hikes up to $15/hour.  Nevertheless, this wage hike is likely to see ripples across the state...and not just for those hourly workers that will now take home a bit more money.  For starters, there had been grumblings by many employers about increasing the minimum wage in the state while the coronavirus pandemic plays out.  With some employers already feeling the burden of trying to make ends meet with the coronavirus pandemic forcing shut downs of businesses, limiting hours of operations, and keeping many customers away, increasing the minimum wage could not have come at a worse time for some employers in the state.  Couple that with the fact that many employers are now going to pass this increased labor cost along to their cu