The Majority Opinion: Legal Blog

  Only a few days way from the Presidential election on November 3rd, some readers might be poring over recent poll numbers, early vote totals, and other election related materials.  Although we could delve into the Presidential race, down ballot elections, and ballot initiatives, I will refer readers instead to their preferred news source.  Save for a brief reference to President Donald Trump’s Labor Department below, let this post serve as a respite from election coverage. As always, below are a couple articles that caught my eye this week. Many San Diego Workers to Receive $14/Hour Wage Rate Effective January 1st Readers might recall that the state of California has implemented an hourly wage hike starting in 2021:  For employers with 25 or fewer employees, the hourly wage rate will rise to $13/hour.  For employers with 26 or more employees, the hourly wage rate will rise to $14/hour.  However, San Diego has implemented its own minimum wage hike, requiring all employers (regardless

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo

  Beginning January 1, 2021, a new Ban the Box ordinance will take effect for many employers in St. Louis. Earlier this year, St. Louis approved Ordinance 71074 which will apply to employers in the city with 10 or more employees.  Under this ordinance, these employers cannot base a decision to hire or promote an employee based upon an applicant’s criminal history, “unless the employer can demonstrate that the employment related decision is based on all information available including the frequency, recentness and severity of the criminal history and the history is reasonably related to or bears upon the duties and responsibilities of the job position.”  As well, these employers are also prohibited from asking about a job applicant’s criminal history until after the employer has determined the applicant is otherwise qualified for the position and interviewed the applicant.  However, employers may inquire about “all job applicants who are in the final selection pool from which the positi

As I had highlighted earlier this week a paid leave “battle” in New Hampshire between the Republican Governor and the Democratic Legislature , I thought it would be appropriate to highlight some other developments across the country in regard to paid leave.  With paid leave on the ballot this November, there is no time like the present to do a bit of a deep dive into the topic. As always, below are a couple articles that caught my eye this week. How Realistic Is a National Paid Leave Law? Ah yes, paid leave.  One of the more bandied about labor and employment law related topics.  While there appears to be support among both Republicans and Democrats for a national paid leave law, neither side can come to an agreement with the other on how it would be funded, whether it would be mandatory, which workers would qualify, etc.  This particular study from AEI examines the issue a bit closer and takes into account how a national paid leave law would impact low wage workers.  For those intere

  Rounding the bend on the end of 2020, the California Legislature has been busy finalizing several relevant labor and employment law related pieces of legislation which California Governor Gavin Newsom has signed into law. On September 30th, Governor Newsom signed Assembly Bill 3075 into law which will extend successor liability for California Labor Code violations.  The legislation sought to prevent an employer from committing a Labor Code violation, doing away with the business (by changing names, dropping a d/b/a, etc.), creating essentially the same business under a new name, and escaping liability Under the legislation, Section 200.3 is added to the Labor Code which stipulates that “a successor to any judgment debtor shall be liable for any wages, damages, and penalties owed to any judgment debtor’s former workforce pursuant to a final judgment.”  “Successor” includes any business that “[u]ses substantially the same facilities or substantially the same workforce to offer substant

With New Hampshire Governor Chris Sununu up for re-election against challenger Dan Feltes, the current Majority Leader of the New Hampshire Senate, paid leave has been a hot button issue during this election cycle.  Readers in the Granite State are likely well aware of the current state of paid leave in the state.  However, for those less familiar with the matter, I think it is appropriate to highlight a few details leading up to the November 3rd election. New Hampshire Legislature’s Proposals Last year, the New Hampshire House and Senate (both in majority control by Democrats) approved a bill that would require all private sector employers to provide paid leave with paid leave benefits set at 60% of the employee’s wage.  However, the legislation left it up to employers to decide whether to pay the benefit on behalf of employees or instead require employees to pay for it through a payroll reduction.  When it reached his desk, Governor Sununu vetoed it on the grounds that the legislatio

  Martinez v. BaronHR, Inc. - California Court of Appeal, Second Appellate District, Division Four Facts :  Joseph Martinez (“Martinez”) was recruited by BaronHR, an employment staffing company, for an employment position with a company.  As part of the recruitment, Martinez was required to sign an employment agreement which included an arbitration provision, entitled “Mutual Agreement to Arbitrate Claims.”  This arbitration provision was several pages long and included a waiver of the right to a jury trial.  This section required that the employee initial this acknowledgement of the waiver of the right to a jury.  Martinez did not provide his initials following this section.  At the end of the employment agreement, there was an additional statement that the employee acknowledged and also stated:  “AFTER SIGNING THIS AGREEMENT, EMPLOYEE HAS NO RIGHT TO PURSUE CLAIMS AGAINST THE COMPANY IN COURT AND BEFORE A JURY, BUT ONLY THROUGH THE ARBITRATION PROCESS.”  Martinez signed the end of t

  Some readers might have watched the confirmation hearings this week for President Donald Trump’s Supreme Court Justice nominee, Seventh Circuit Court of Appeals Judge Amy Coney Barrett.  As Judge Barrett spent a good portion of the week answering questions from Senators as to why she should be confirmed to replace Justice Ruth Bader Ginsburg, there were not any “major” smoking guns or shocking revelations.  However, with many predicting that Judge Barrett will be confirmed to fill the vacant Supreme Court seat, I think it is a good time to look at how she might rule on labor and employment law related cases (based upon her prior rulings in relevant Seventh Circuit Cases.) As always, below are a couple articles that caught my eye this week. How Might a Justice Amy Coney Barrett Rule, If Confirmed? HRDive published an article recently in which it weighed how a Justice Amy Coney Barrett might rule on labor and employment law related matters, if confirmed to the U.S. Supreme Court.  Whil

  This has certainly been a busy end of 2020 for a lot of new legislation, hasn’t it?  On September 30th, California Governor Gavin Newsom signed Assembly Bill 979 into law which requires diversity quotas on the boards of publicly traded companies. Assembly Bill 979, which applies to public domestic or foreign companies that have principal executive offices in the state, requires that these companies have at least one director from an “underrepresented community” on their board by the end of 2021.  Readers might be wondering who would qualify as coming from an “underrepresented community.”  Assembly Bill 979 identifies these board directors as anyone who self identifies as “Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self identifies as gay, lesbian, bisexual, or transgender.” For those wondering, companies that fail to comply with this legislation risk being fined anywhere from $100,000 to $300,000.  Emp

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. At the end of August, a rather novel (for the time being) lawsuit was filed by an employee that alleged his former employer unlawfully interfered and retaliated against him in violation of the Families First Coronavirus Response Act (“FFCRA”). According to the lawsuit, Nicolas Prada (“Prada”) worked as a waiter and assistant manager at Trifecta Productions, LLC d/b/a Tomukun Noodle Bar (“Noodle Bar”).  In late June, he began experiencing coronavirus related symptoms and stayed home from work.  After testing positive three days later and quarantining for fourteen days, he texted his employer that he was medically cleared to return to work.  However, during a call with the owner of Noodle Bar, Prada claims he was interrogated about his actions prior to testing positive for the coronavirus.  The owner of Noodle Bar alleg

  Another week down and another debate in the books.  Following last week’s debate between President Donald Trump and Democratic candidate Joe Biden, Vice President Mike Pence and Senator Kamala Harris sat down on Wednesday to talk about several topics ahead of the November 3rd election.  While I will refer readers to other resources which dissect that debate in minute detail (including the cameo appearance by a particular fly), a recent podcast on social media posts and the 2020 election is relevant to this week’s political developments and Wednesday’s debate. As always, below are a couple articles that caught my eye this week. President Trump Issues Executive Order Banning Racial Sensitivity Training At the end of September, President Donald Trump issued an executive order in which he banned training that involved race and sex based discrimination.  The executive order is quite far reaching as it applies to executive departments and agencies, the U.S. military, federal contractors, a

  Recently, with the U.S House of Representatives voting 329 - 73 in favor of the Pregnant Workers Fairness Act, the legislation moves to the Senate for further debate and (unlikely) vote. Readers will recall that last month I had highlighted this legislation as one to keep an eye on .  The legislation, sponsored by Democrats (who have majority control of the House), 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. As I had noted in my prior post, even with this legislation clearing the House (by a sizable margin), I think it is unlikely it will get very far in the Senate for a few reasons.  For starters, the Senate is in effect operating on a limited capacity for a few weeks because of several Senators testing positive for the coronavirus.  As well, once the Senate gets back to business as usual, I suspect the nomination

  On September 15th, Hawaii Governor David Ige signed Senate Bill 2193 into law which impacts the state’s ban the box legislation, which has been in effect since 1998. Prior to the passage of Senate Bill 2193, the state’s ban the box legislation had a ten year “look back” period in which employers could consider felony and misdemeanor convictions of applicants.  Any felony or misdemeanor convictions past ten years could not be considered when choosing whether to hire the applicant.  The ban the box legislation also required employers to apply a “rational relationship” test before they could deny an employment position after conducting a background check.  Under this “rational relationship” test, an employer could only consider those convictions that occurred within the ten year window if there was a “rational relationship” between the conviction and the prospective job. Senate Bill 2193 rewrites the state’s ban the box legislation in a few ways:  1) Felonies older than seven years and

  Earlier today, the U.S. Supreme Court denied a request by Major League Baseball (“MLB”) to take up an unlawful wage class action lawsuit brought by minor league baseball players, which means the case will likely proceed ahead to a trial setting. As a bit of background, a group of minor league baseball players had filed suit against MLB several years ago on the grounds that they were earning less than $7,500.00 per year, in violation of federal law .  ( For years, minor league baseball players have earned less than the minimum wage rate, which has been a source of contention .)  The lawsuit, Senne v. Royals , is comprised of both current and former players who seek back pay for hours worked.  The lawsuit bounced around a bit in the lower courts with the Ninth Circuit Court of Appeals issuing a ruling last year that allowed the suit to proceed as a class action.   Readers might recall that in 2018, the Save America’s Pastime Act was introduced which sought to strip minor league basebal

  Some readers might have watched the Presidential debate earlier this week and decided that they will head to the polls to vote for President Donald Trump or Democratic candidate Joe Biden (or perhaps a write in vote for Mickey Mouse, Scooby Doo, or Joey Baggadonuts.)  In doing so, I would refer you to the below article from The National Law Review that addresses some states which provide paid leave to go vote.  Of course there are several other articles worth reviewing, but that paid leave article is well worth a read. As always, below are a couple articles that caught my eye this week. A Closer Look At the Increase to Labor Costs if Florida’s Amendment 2 Passes in November The Florida Restaurant & Lodging Association has provided a calculator which shows how much the labor costs will increase for employers in the state, as to tipped workers, should voters approve Amendment 2 next month.   For those needing a refresher, Amendment 2 would increase the hourly pay rate for hourly a

  On September 17th, California Governor Gavin Newsom signed Assembly Bill 685 into law which requires employers in the state to provide notice to their employees, within one business day, that they might have been exposed to the coronavirus. There are several key pieces of the legislation that I do want to highlight.  Employers must provide the potential exposure notice to their employees in a manner typically used to communicate employment related information.  The notice itself must protect employee privacy, identity, and personal health information.  The notice is also required to include information about coronavirus paid sick leave and benefits as well as the employer’s implemented (or planned) disinfection and safety plan. Notably, Assembly Bill 685 goes one step further and also requires employers to report this potential exposure to the California Division of Occupational Safety and Health (“COSHA”.)  COSHA is charged with issuing citations, shutting down the workplace, and re