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. EEOC Settles Sex Discrimination Lawsuit with Oatridge Security Group for $375,000 Oatridge Security Group, a Tacoma based employer, has agreed to settle a sex discrimination suit filed by the EEOC for $375,000.00.  The lawsuit alleged that after an employee disclosed her pregnancy and need for leave to her manager, she was unlawfully terminated in violation of Title VII of the Civil Rights Act of 1964.  Despite making repeated attempts to regain her job, the employer refused.  This statute prohibits sex or pregnancy based discrimination by an employer.   Aspire Health Partners Settles Disability Discrimination Suit for $115,000 The EEOC announced that it had settled a disability discrimination suit against Aspire Health Partners with the company agreeing to pay $115,000.00 to resolve the dispute.  According to t

  During any normal Thanksgiving week, many readers would find themselves traveling home or to see family for Thanksgiving.  In doing so, some readers would likely listen to a podcast to pass time while traveling.  Even though some readers might be altering their plans this Thanksgiving and not traveling, I still wanted to highlight a few podcasts that are worth listening to this week.  Kick up your feet, shop online, play with your dog/s, and listen to a few of the below podcasts to unwind during the Thanksgiving break. As always, below are a couple podcasts that caught my ear this week. Holiday Parties & Minimizing Risk For Employers Ah yes.  After Thanksgiving, many employers often begin holding holiday parties.  While that tradition might change this year, some employers will likely still hold holiday parties for their employees.  As Work and Play:  A Constangy Employment Law Podcast notes, potential liability can arise for employers when they hold a holiday party.  Whether ta

Laborers’ International Union of North America, Local Union No. 91 v. National Labor Relations Board - Second Circuit Court of Appeals Facts :  Laborers’ International Union of North America, Local Union No. 91 (“Local 91”) operated a hiring hall that referred union members to job openings when they became available.  For nearly fifteen years, one union member, Ronald Mantell (“Mantell”), regularly received referrals to job openings through Local 91’s “out of work” list.  However, after Mantell’s brother filed unfair labor practice charges against Local 91 and alleged he had been taken off the “out of work” because of critical comments he made about Local 91 and its leadership on social media, Mantell no longer received referrals for job openings. Mantell subsequently filed three unfair labor practice charges against Local 91 and claimed Local 91 had unlawfully threatened to file internal union charges against him, refused to show him the “out of work” list, and retaliated against him

  Readers will recall that California’s Prop 22, passed earlier this month, saw California voters approving a ballot measure to exclude gig companies from the reach of AB 5 .  That means in California, gig workers for companies like Uber, Lyft, Instacart, Door Dash, etc. do not fall within the scope of AB 5 and therefore are classified as independent contractors rather than employees. As a result, with these gig workers not being classified as employees, they are not eligible for a minimum wage rate, overtime pay, unemployment, etc. As I had noted following the vote, this was a major victory for gig companies.  However, that victory might be short lived.  Even with the passage of Prop 22, gig companies are not out of the woods yet.  For starters, pro worker groups are looking for ways to challenge the outcome of Prop 22 in court.  Whether those challenges prove successful is too early to know but it could tie up Prop 22 for months or years to come.  And of course, let us not forget a h

Another week comes and goes and for many, the work from home arrangement remains a constant.  On that note, I came across a few articles this week which relate to that topic.  One deals with employers taking steps to sidestep potential wage and hour issues with employees working remotely.  Another addressed ideas on how to conduct remote job screening.  Turning to other topics, I highlight news from Home Depot and UPS, as it relates it to the workplace.  And of course, let us not forget an article which surmises what unions (and employers) might expect from a President Joe Biden administration. As always, below are a couple articles that caught my eye this week Employers: With Remote Work, Beware of Potential Wage & Hour Issues The Wage & Hour Litigation Blog recently published an article in which it recognized that with many employees working remotely right now, potential wage & hour issues may arise.  For instance, some states mandate rest or meal breaks during a workday

  For the first time since 2008, the Equal Employment Opportunity Commission (“EEOC”) is going to provide updated guidance in regard to religious discrimination in the workplace. The EEOC’s guidance, which is non-binding, provides employers and employees alike with a framework to follow in regard to determining if/when religious discrimination occurs in the employment context.  For years, many have called on the EEOC to update its guidance to take into account two U.S. Supreme Court decisions:  2014’s Burwell v. Hobby Lobby Stores Inc. and 2015’s EEOC v. Abercrombie & Fitch .  The Court in Burwell held that owners of “closely held” corporations, such as Hobby Lobby, can raise the Religious Freedom Restoration Act as a defense to government actions that substantially burden the free exercise of their religious beliefs.  The Court held in Abercrombie & Fitch that a job applicant need not notify a potential employer of a religious conflict that requires the accommodation in ord

  In early October, New York Governor Andrew Cuomo signed SB 2328 into law which will enable employees that have chosen direct deposit to receive electronic confirmation of the direct deposit rather than receiving paper pay stubs. It is worth noting that SB 2328 cleared the Legislature with unanimous support.  It goes without saying that this legislation is not “controversial”, yet for employers and employees in New York, with the law set to take effect on January 1, 2021, now is the time to brush up on the specifics of SB 2328. For additional information:   https://www.nysenate.gov/legislation/bills/2019/s2328/amendment/a#:~:text=S2328A%20(ACTIVE)%20%2D%20Summary,each%20employee's%20paper%20pay%20stub.

  On November 9th, the National Labor Relations Board (“NLRB”) issued a decision in Aspirus Keweenaw and addressed when, in light of the coronavirus pandemic, a union election would be appropriately conducted by mail rather than in person. Earlier this year, approximately seven mail ballot elections had been postponed in order for the NLRB to consider employer objections.  With that being said, the NLRB had rejected many of these employer objections.  However, the November 9th decision from the NLRB provides six factors for when union elections by mail would be appropriate: When the NLRB office that is conducting the election is on mandatory telework; When either the 14 day trend in new coronavirus cases in the county where the facility is located is increasing or when the 14 day testing positivity rate in that location is 5% or higher; When the in person election site cannot be set up without violating mandatory state or local health orders that limit the size of gatherings; When the

Let us call this a week to take a step back and get a broad overview of topics that do not always dominate the labor & employment law landscape.  While I did want to recognize the brewing “battle” to become the next Labor Secretary, a nod to COBRA and flexible work schedules are a bit of a different topic from the norm.  Nevertheless, the below articles are worth a quick read, even for those that do not deal with the matters on a routine basis. As always, below are a couple articles that caught my eye this week. A Closer Look at Possible at Labor Secretary Nominees On the heels of Vermont Senator Bernie Sanders making his interest known about wanting to become the next Labor Secretary, Politico has published an article identifying several potential nominees for the position in a President Joe Biden administration.  While it is certainly possible that another candidate will emerge, this is an interesting list to take note of and sheds some light on potential candidates for the posi

Louisiana has passed SB 68 which will clarify the definition of “employee” to specifically exclude independent contractors from being eligible for unemployment benefits.  The law is set to take effect January 1, 2021. I would refer readers to the statutory text of SB 68 for further information.  Although with January 1st fast approaching, now is the time to focus on this legislation.   For a copy of SB 68:   http://www.legis.la.gov/legis/ViewDocument.aspx?d=1191045

  Last week, the Labor Department issued an opinion letter in which it stated that employees must be paid for time spent watching training webinars during work hours, even if the webinar is not directly related to the job. In the opinion letter, the Labor Department considered whether an employer was required to pay its employees for time spent watching training webinars.  When it came to voluntary education training, the employer required its employees to substitute paid time off or vacation time when the employee attended these training sessions during work hours.  No compensation was paid if the employees attended training sessions after work hours. The Labor Department recognized that the Fair Labor Standards Act (“FLSA”) requires employers to compensate employees for their work.  In this instance, the Labor Department found that even when training is voluntary and could be conducted/viewed outside of regular work hours, that was “immaterial.”  The FLSA dictated that “work not requ

  At the end of October, the National Labor Relations Board (“NLRB”) has asked for briefing on the issue of Scabby the Rat and two banners near the entrance of a neutral employer’s worksite. In essence, for years, unions have used Scabby the Rat (or similar inflatables) on public property near businesses that do business with an employer that is engaged in a labor dispute with a union.  The goal of these inflatables is to pressure the “secondary” employers to stop doing business with the “primary” employer in order to get the “primary” employer to change a particular labor practice. Section 8(b)(4)(i) of National Labor Relations Act (“NLRA”) prohibits unions (or their agents) from encouraging “secondary” employers from participating in protected activities.  Section 8(b)(4)(ii) protects these “secondary” employers from threats or coercion.  The argument follows, for some, that unions that use inflatables such as Scabby the Rat are in violation of the NLRA.  However, an Administrative L

  Some readers might have heard about the election on Tuesday.  Even as of this writing, there are still several races left undecided (namely the race for President, although some networks have just called the race for Joe Biden.)  While I do give nod to a potential Cabinet pick should Biden officially reach the 270 threshold for delegates, I did want to focus on two relevant ballot initiatives that voters decided upon this week. As always, below are a couple articles that caught my eye this week. Secretary of Labor Bernie Sanders? Perhaps... Prior to this week’s election, Politico published an article that reported Vermont Senator Bernie Sanders (who many might recall is a former candidate for President) had expressed interest in becoming Labor Secretary under a President Biden administration.  What might a Department of Labor look like under Bernie Sanders?  For starters, I think we would see an aggressive slant toward employees.  That would likely include a push for a higher feder

  At long last, today is finally Election Day across the country.  While the Presidential election and Senate races will likely dominate news coverage throughout the day and into tomorrow (or beyond, depending how close vote tabulations are), there are several down ballot measures worth watching.  One ballot initiative in particular to watch is Proposition 22 pending in California.  This ballot measure would create a permanent independent contractor status for gig workers in the state, exempting them from Assembly Bill 5.  (As a reminder, Assembly Bill 5 required gig workers to be classified as employees.  Gig companies such as Uber, Lyft, DoorDash, and others have been quick to mount on offense to Assembly Bill 5...thus we have Proposition 22 on the ballot this year.) For some specifics, while Proposition 22 would exempt gig workers from Assembly Bill 5 and would classify them as independent contractors, these workers would be guaranteed a minimum wage for the time they are “active” o

  Tomorrow, voters in Florida will consider a ballot initiative, Amendment 2, that would raise the hourly minimum wage rate in the state from $8.56/hour to $15/hour by 2026. In what is expected to be one of the most contested swing states in this year’s Presidential election (where voter turnout will be critical), this is one of the more intriguing employment law related ballot measures pending this November.  If approved, the statewide hourly pay rate would rise to $10/hour next September and then increase by $1/year until 2026.  Beginning in 2027, consumer prices would determine annual wage rate increases. Now bear in mind that Amendment 2 requires at least 60% approval to pass.  In the past few months, polls have shown support slipping for Amendment 2’s passage.  Back in September, there was a reported 67% approval for the measure whereas the end of October found approximately 63% support.  Of course, these pre election polls are not definitive but they do indicate that the final ta