The Majority Opinion: Legal Blog

  Apologies for those wanting to talk about GameStop or AMC stocks this week.  Having a discussion on shorting stocks, floats, and squeeze plays is better served for Reddit, Discord, or whatever other form of stock discussion your prefer.  This week I read through some thought provoking articles.  One in particular that caught my eye dealt with employers giving their employees a set amount of “free time” (or autonomy time”) each week to work on projects of their own choosing.  As the below article points out, this might have a lasting positive impact for both employers and employees alike. As always, below are a couple articles that caught my eye this week. Autonomy Programs Have Worked At Big Tech...Why Not Try Elsewhere? Autonomy programs have been in place at several big tech companies for years, including 3M, Google, FaceBook, LinkedIn, and Apple, among others.  While these autonomy programs differ a bit from each employer, they generally allow employees a set amount of time each w

  Back in November, Florida voters (narrowly) approved Amendment 2 , a ballot proposal that will raise the hourly minimum wage rate in the state to $10/hour by September 30th and then subsequent annual increases to eventually raise wage rates to $15/hour by 2026.  Only a few short months after Amendment 2 was approved, legislation is being worked on to reign in who all would qualify for that wage hike. Earlier this week, Florida Senate Judiciary Chairman Jeff Brandes filed a proposal that would modify Amendment 2 to provide a reduced wage hike for workers under 21 years old, those who have been convicted of felonies, for state prisoners, and for “other hard to hire employees.”  Interestingly, the proposal from Brandes does not currently define who exactly is a “hard to hire” person. The legislation will be taken up when the Florida Legislature starts on March 2nd.  Should the legislation pass, however, it would not immediately take effect.  Rather, like Amendment 2, Florida voters woul

  Earlier this month, Washington, D.C. Mayor Muriel Bowser signed the Ban on Non-Compete Agreements Amendment Act of 2020 (“Act”) into law which will put into place one of the most expansive bans on non compete agreements anywhere in the country. In principal part, the Act prohibits non compete agreements in D.C. subject only to a few narrow exceptions and does not apply to prior non compete agreements entered into before the Act takes effect.  Notwithstanding those exceptions, the Act is far reaching.   The Act is somewhat unique in that it not only ban employers from prohibiting employees from working for competitors after employment ends...but also simultaneous employment.  In essence, employers are no longer allowed to prohibit their employees from taking another job with a competitor or moonlighting. Mayor Bowser’s signing of the legislation comes on the heels of the D.C. Council approving the measure back in December.  I do want to point out that while Mayor Bowser did sign the A

  On January 7th, the Equal Employment Opportunity Commission (“EEOC”) released its proposed rules for employer wellness program incentives which could provide employers and employees a framework to consider going forward. For the purposes of the EEOC’s proposed rules, this applies to employer wellness programs where employers encourage their employees to take part in a workout routine, join a gym, lose weight, run a race, etc.  The proposed rules from the EEOC clarifies the scope of incentives that an employer can offer its employees without running afoul of the Americans with Disabilities Act (“ADA”) or the Genetic Information Nondiscrimination Act (“GINA”). Under the proposed rules, an employer would be allowed to offer its employees only a de minimis incentive for participating in a wellness program.  De minimis incentives that would be permissible include incentives such as a water bottle or gift card of modest value.  However, paying an employee’s guy membership would not be de m

  Apologies to those expecting a post talking about more nuanced labor & employment law topics without a touch of politics.  With this week being the inauguration and the incoming administration already taking action with the termination of the National Labor Relations Board’s General Counsel Wednesday evening, there are a couple related topics that are highly relevant to close out the week.  While the last article is not necessarily “President Biden” specific, I wanted to highlight the article to provide readers a bit of food for thought. As always, below are a couple articles that caught my eye this week. Biden Administration’s Potential $15/Hour Minimum Wage Hike & the Ramifications On the heels of Joe Biden getting sworn in on Wednesday, there are already talks over a potential federal minimum wage hike to $15/hour.  With Democrats controlling both the House and Senate, it is likely (if not probable) that we will see a minimum wage bill headed to President Biden’s desk soon

  On his first day on the job, President Joe Biden unexpectedly demanded the resignation of National Labor Relations Board (“NLRB”) General Counsel, Peter Robb, by 5 PM yesterday evening or face termination.  After Robb refused to resign, he was summarily terminated. This request, coming from an incoming President, that Robb resign or be terminated is rather unprecedented.  Traditionally, the NLRB’s General Counsel completes their four year term before being replaced by a new administration.  (In fact, both President Trump and President Obama allowed the incumbent NLRB General Counsel to remain in the role until their terms ended.)  Robb, who still had another ten months left of his four year term did not enjoy that privilege. This termination is worth noting as President Biden has fired the first shot across the bow by indicating he intends to play hardball and reshape an employer friendly NLRB.  Leading up to yesterday’s inauguration, labor unions had been calling for Robb to be oust

  Medic Ambulance Services, Inc. - NLRB Facts :  Medic Ambulance Services, Inc. (“Medic”) had a handbook in place for its employees which included restrictions on its employees using social media, non-solicitation and non-distribution provisions, as well as a prohibition on conducting personal business on company time.  An unfair labor practice charge was filed against Medic on the grounds that the handbook violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by restricting protected, concerted activity. An Administrative Law Judge (“ALJ”) found these three portions of Medic’s handbook to be unlawful.  The National Labor Relations Board (“NLRB”) was thereafter asked to weigh in on the matter. Analysis :  The NLRB made quick work of the ALJ’s decision.  In relevant part, the NLRB considered the three parts of Medic’s handbook in order: Social Media Policy Medic’s social media policy prohibited inappropriate communications, disclosure of confidential information, use of

  One of the key stories this week relates to Dollar General announcing it would offer its employees four hours of pay to get the coronavirus vaccine.  As many employers (and employees) weigh whether to get the coronavirus vaccine, this development is one to keep an eye on...especially if/when other employers implement a similar policy. As always, below are a couple articles that caught my eye this week. While Industry Peers Struggle, Chipotle Thrives This was an interesting article from HRDive that is worth starting things off this week, due in part to it being a bit of good news.  According to the article, Chipotle has continued its expansion and growth during the coronavirus pandemic while many others in the restaurant industry have downsized.  The reason?  In part, the company has placed apparently placed an emphasis on employees including offering a paid parental leave plan and mental health programs for its workers.  As well, Chipotle has been reported to be offering its workers

  Recently, the Justice Department’s Antitrust Division obtained its first criminal indictment based upon an alleged “no poach” agreement between two employers in which the employers apparently agreed not to solicit each other’s employees. This development is notable for a few reasons.  For starters, although the Justice Department has long indicated they would seek a criminal indictment against employers for this behavior, this is the first criminal indictment obtained.  (To be fair, the Justice Department has pursued civil claims previously.)  In addition, depending upon how the Justice Department prosecutes this claim (and whether it obtains a verdict) this case could provide a blue print for subsequent criminal indictments for “no poach” agreement disputes. Regardless of the outcome of this case, now is as good of a time as any for employers to look at their own policies and procedures to determine whether they are engaging in similar “no poach” agreements or related wage suppressi

  Last week, the Labor Department issued an opinion letter in which it found that based upon facts presented, the ministerial exception applied to the wage and hour requirements of the Fair Labor Standards Act (“FLSA”). In the facts considered by the Labor Department, a church controlled daycare and preschool asked whether its teachers were exempt from the FLSA’s wage and hour requirements.  According to the church, its teachers were “ministers” and fell within the scope of the FLSA’s exception.  For those needing a refresher, the FLSA requires employers to pay covered employees a minimum wage for all hours worked. In addition, overtime must be paid when an employee works more than 40 hours in a week.  Note, there are certain exemptions for certain executive, administrative, and professional employees.  A “ministerial exception” exists that prohibits courts from interfering in employment disputes between churches and related religious institutions. The Labor Department wrote that while

  The special elections are done in Georgia, the Presidential election has been certified, and we are only a few weeks away from the inauguration of Joe Biden as the 46th President.  Once we clear that final “hurdle” (the inauguration), I would suspect we will start to see Congress introduce labor & employment bills that will work their way through committees and eventually to a debate on the House and Senate floors.  With Congress on the mind, I think it is appropriate to give a nod to the lapsed paid leave and subsequent calls for Congress to step in and take action. As always, below are a couple articles that caught my eye this week. Congress Allows Paid Leave Under FFCRA to Expire...What’s Next? When Congress passed the Families First Coronavirus Response Act (“FFCRA”) back in March, the legislation provided two weeks of paid leave for employees that contracted the coronavirus or were required to quarantine because of possible exposure.  However, the FFCRA only provided this pa

  A few minutes ago, Politico reported that Boston Mayor Marty Walsh has been tapped as the nominee to become the next Labor Secretary. I had previously noted that Walsh was a front runner for the role in the incoming administration’s cabinet. While there had been a few other names floating around, including Vermont Senator Bernie Sanders, Walsh was widely recognized as a likely pick due in part to his labor background. What will happen next?  Once President elect Joe Biden presents the nomination to Congress, hearings will be held on the nomination and a vote will occur.  Short of an unexpected news story about Walsh emerging or Biden having a sudden change of heart, I would expect that with Democrats enjoying majority control in Congress after the special elections in Georgia this week, Walsh will be confirmed as the next Labor Secretary.  Once that is done, I would expect to see a much more labor friendly iteration of the Labor Department, including a renewed push for increased pro

  For those employees who have not checked or forgot about the change in mileage reimbursement rates, the IRS announced the optional standard mileage reimbursement rates have changed for 2021.  Beginning January 1, 2021, the reimbursement rats have decreased, and are as follows: 56 cents per mile for business miles driven (down 1.5 cents from the current rate); 16 cents per mile for medical or moving purposes (down 1 cent from the current rate); 14 cents per mile driven in service of charitable organizations (same as the current rate in effect). For those employers that use the standard IRS rate for mileage reimbursements, make sure to change your expense reimbursement policies.  (Even though for the next few weeks/months, there likely will continue to be limited work travel.)

  At the end of last week, the Labor Department issued guidance on how employers can comply with posting federally mandated notices in a virtual workplace. Readers might recall previously reading that several statutes (such as the Fair Labor Standards Act and Family Medical Leave Act, among others) require employers post a notice of rights in a conspicuous location in the workplace.  As you might imagine, when employees are not physically present in the workplace (as many employees are not right now because of the coronavirus), these employees are not able to view the posted notices. Never fear, the Labor Department has issued guidance to allow employers to still get these notices to employees while employees work in a virtual workplace.  For one time notice requirements, employers may provide the notice via email to employees so long as employees customarily receive emails from the employer.  For continuous notice requirements, the Labor Department makes a distinction between employer