The Majority Opinion: Legal Blog

  Several months into his presidency and Joe Biden has been quite active in regard to labor & employment law matters.  Following his abrupt termination of Peter Robb at the National Labor Relations Board and unsuccessful efforts to get Congress to approve a $15/hour minimum wage rate, President Biden has been full steam ahead in recent weeks to push more employee and labor friendly initiatives.  In doing so, I think it is appropriate to focus this post on several recent developments that have come out of the White House. As always, below are a couple articles that caught my eye this week. Executive Order Issued to Increase Federal Contract Worker Pay Rate This past Tuesday, President Biden signed an executive order to increase the pay rate for federal contract workers to $15/hour, up from its current base rate of $10.95/hour.  A few things to note here.  First, it is estimated that nearly 400,000 federal contractors will receive a higher wage.  As well, all federal agencies will be

  When President Joe Biden took office back in January, he swiftly moved to oust the General Counsel of the National Labor Relations Board (“NLRB”), Peter Robb (“Robb”).  Readers will recall that after President Biden called for Robb’s resignation, and Robb refused, he was unceremoniously terminated.  There was a bit of uproar following that termination, as Robb’s term as General Counsel did not end until this November and incoming administrations had tended to leave prior appointments in place through the end of their term. Following the termination of Robb, President Biden moved to nominate Jennifer Abruzzo (“Abruzzo”) as the next General Counsel.  Abruzzo’s nomination was well received by labor advocates, due in part to her prior tenure at the NLRB (as Deputy General Counsel and Acting General Counsel before Robb was confirmed) as well as her current role as Special Counsel for Strategic Initiatives for the Communications Workers of America. With that being said, simply nominating A

  Last week, President Joe Biden nominated Rajesh Nayak (“Nayak”) to serve as the Labor Department’s top policy official.  In the role, Nayak would oversee supporting Labor Department subagencies in the drafting of regulations and coordinating with the White House to reach them. Nayak previously served as a Labor Department aide for much of President Barack Obama’s tenure in office and had recently taken on a role in President Biden’s transition’s agency review team at the Labor Department.  Should he be confirmed, which is quite likely with Democrats having majority control of the Senate, Nayak would be yet another influential nominee to be appointed to the Labor Department.  With Labor Secretary Marty Walsh already having been confirmed, I would expect to see the Labor Department start working with the Biden administration to issue new employee friendly wage and hour rules.  Stay tuned.  For additional information:   https://news.bloomberglaw.com/daily-labor-report/biden-to-pick-obam

One of the more closely watched labor law topics since President Joe Biden came into office has been the Protect the Right to Organize Act (also known as the PRO Act).  For those unaware, the PRO Act amounts to a compilation of wish list items that labor advocates have long sought, including expanding joint employer classifications, overriding state right to work laws, overturning prohibitions on secondary boycotts, and prohibiting employers from replacing economic strikers or locking out employees, among other far reaching ideas.  A majority, if not all, portions of the PRO Act are strongly opposed by Republicans and employers.  However, with Democrats having majority control of the House and Senate, and President Biden indicating his support for the legislation, should the PRO Act actually become law, it would drastically rewrite labor laws across the country in an extremely unfavorable way for employers.  Given the potential ramifications of that legislation, I have two articles I w

  Earlier today, President Joe Biden announced the launch of a tax credit for small employers to provide paid leave to workers so they can get the coronavirus vaccine and take time off to recover from any side effects. Many readers are likely now wondering how this would be funded.  The proposal would be paid via the $1.9 trillion relief package recently passed through Congress by providing a tax credit of up to $511/day for each employee.  Under President Biden’s plan, employers with fewer than 500 workers would qualify for this tax credit.  For larger employers, President Biden is calling on them to provide the same benefits to their workers...without the tax credit incentive.  (The logic follows that these larger employers would be more able to shoulder the burden compared to smaller employers.) With approximately 43% of working adults in the U.S. having received at least one vaccine shot so far, this appears to be an effort to goose those numbers and increase the number of fully va

  Late last week, it was announced that a group of drivers in Northern California for Imperfect Foods had voted to unionize with the United Food & Commercial Workers International Union set to represent the approximate 80 employees. On the heels of unionization efforts at Amazon falling short earlier this month, the unionization of these employees at Imperfect Foods is likely a welcomed relief for labor organizers.  With that being said, the vote was rather close with 28 employees voting in favor of unionization and 23 against.  However, leading up to the vote, Imperfect Foods had announced it would respect the outcome.  At this point, it appears there will not be a challenge to the outcome, irrespective of the fact that a challenge to the close results could impact the outcome. Leading up to the vote, Imperfect Foods mounted its opposition to the possible unionization by holding meetings with employees and telling them that if they were to unionize, they could be replaced with out

  Workplace safety is often a much discussed topic, in light of workplace safety issues that have arisen in the age of the coronavirus pandemic.  A recent development on a new nomination from President Joe Biden has the potential to greatly impact how workplace safety is treated at the federal level.  In doing so, that topic is worth leading things off this week. As always, below are a couple articles that caught my eye this week. California’s Workplace Safety Chief to Be Tapped to Lead OSHA As reported by Politico last week, President Biden is set to nominate the head of California’s Division of Occupational Safety and Health, Doug Parker, to lead the Occupational Safety and Health Administration (“OSHA”).  It has been reported that based upon Parker’s handling of the coronavirus pandemic in California, he is being nominated to oversee workplace safety at the federal level.  Without any hearings having been held on Parker’s nomination yet, it is too early to say that he will be confi

David Saxe Productions, LLC - NLRB  Facts:  ( Note, for the purposes of this brief, I am only looking at the National Labor Relations Board’s (“NLRB”) decision here as to the employer’s policy that prohibited employees from altering their email signature block .) The employer maintained a policy that allowed for minimal personal use of their work email so long as it did not become excessive.  Included with that policy was a prohibition on employees altering their email signature block to include quotes, personal agendas, solicitations, etc.  A complaint was filed that this policy ran afoul of Section 7 of the National Labor Relations Act.  The Administrative Law Judge (“ALJ”) found this policy to be lawful, relying upon the NLRB’s ruling in Purple Communications, Inc.  (Note, that decision has since been overruled.)  In relying upon Purple Communications, the ALJ held the policy was lawful as the employer had not allowed employees to use their work email for personal use. Analysis :  

  At 1 PM EST today, the House Rules Committee is set to hold a hearing to prep The Paycheck Fairness Act (HR 7) for floor consideration later this week. For those unfamiliar with HR 7, this legislation would add procedural protections to the Equal Pay Act and Fair Labor Standards Act in an effort to address the gender pay gap.  The legislation has several noteworthy parts:  1) it would punish employers that retaliate against workers that share wage information; 2) put the burden on employers to establish a non discriminatory reason for why a worker is paid less; 3) allow workers to sue employers for punitive damages for wage discrimination; and 4) start a program to train women on how to better negotiate their wage rates. This legislation has been introduced in Congress many times over the years.  While a recent iteration in 2019 managed to pass the House, it did not advance through the Senate.  (Most other attempts to pass this legislation have previously stalled out in Committee.)  

  No sooner do I post the What I’ve Been Reading This Week note a little while ago do I see a breaking news headline come across my phone that the Amazon employees at the Bessemer, Alabama location have voted against unionization. The 1,798 - 738 vote against unionization is a striking blow to labor leaders who had started to believe that they could use the first unionization of a U.S. Amazon location as a springboard to unionizing other Amazon locations across the country .  Those plans are likely on hold given the resounding defeat in Alabama. It is worth noting that while approximately 6,000 workers at the Amazon location were eligible to vote, only approximately half actually did so.  Readers will remember that there had been about 500 ballots that were challenged.  As the result of the election is not determinative on those 500 ballots, any challenge to those will not be heard at this time. What is next?  For starters, the Retail, Wholesale and Department Store Union (who sought

  Yesterday, I noted a recent National Labor Relations Board (“NLRB”) decision in regard to union elections conducted by mail in voting and the potential impact it could have on the mail in voting occurring at the Amazon Alabama location .  A recent development on that union election in Alabama is worth leading things off this week. As always, below are a couple articles that caught my eye this week. As Union Vote Appears to Be Slipping, Contested Mail In Ballots Take Center Stage The New York Post reported yesterday that with approximately half the mail in ballots at the Amazon Alabama location having been counted, there appears to be a commanding majority vote against unionization so far.  (From the reports, about 70% of the ballots counted so far have been against unionization.)  With that being said, there are about 500 ballots that have been challenged by Amazon and the union.  Note, there were 3,215 votes cast in the union election with these 500 ballots making up about 15% of

  XPO Logistics Freight, Inc. - NLRB Facts :  A union election took place via mail in ballot in August of 2020.  The Regional Office sent approximately 132 ballots to eligible employees.  Each of the ballots were included in kits which had instructions for how to return the ballots.  The election had a deadline for ballots to be returned by August 17th.  Ultimately, four unsigned ballots were received, one ballot with an employee’s name printed but not signed, and one damaged ballot that had been torn in half. The Regional Office voided all six of these ballots which resulted in a 54 to 60 vote against unionization.  After the union raised a series of objections, the Regional Director held that the Regional Office had potentially disenfranchised some of the employees by not sending them duplicative voter kits so they could fix any issues with their initial ballots.  The Regional Director also held that the ballot that was torn in half (but had a “yes” vote) should have been counted.  T

  As with many labor & employment 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. HB 6377 has the potential to greatly reshape how marijuana, cannabis, weed, pot (or whatever you want to call it) is viewed in the employment context in Connecticut.  This proposed legislation, introduced earlier this year, stipulates that no employer in the state would be allowed to prohibit an employee’s possession, use, or other consumption of cannabis in the course of employment unless such a policy is in writing, equally applicable to each employee, made available to each employee prior to the enactment of such policy, and directly related to a clear business necessity. Going one step further, the legislation would prohibit an employer from requiring, as a condition of employment, that an employee or prospective employee refrain from using cannabis outside the course of his/her employment.  An employer would

  On March 23rd, Illinois Governor J.B. Pritzker signed SB 1480 into law which adds a new section to the Illinois Human Rights Act that makes it a civil rights violation for an employer to use an individual’s criminal record in any employment decision unless one of two exceptions applies:   1 ) there is a “substantial relationship” between the offense and the individual’s employment; or 2 ) hiring or continuing to hire the individual would pose an “unreasonable risk” to property or the safety of others. Before making an adverse employment decision, the employer must consider six mitigating factors:  1) the length of time since the conviction; 2) the number of convictions on the individual’s record; 3) the nature and severity of the conviction and the relationship to safety and security of others; 4) the facts or circumstances surrounding the conviction; 5) the age of the individual at the time of conviction; and 6) evidence of rehabilitation efforts. Note, before making an adverse deci

  An effort to end right to work is underway at the federal level, based upon early reports about the substance of President Joe Biden’s infrastructure plan.  We will save a discussion about that proposal for another day but for the time being, we will lead things off this Friday with a look at continued efforts in New Hampshire to become the next right to work state. As always, below are a couple articles that caught my eye this week. On Party Line Vote, New Hampshire Right to Work Bill Advances On Tuesday, the New Hampshire House Labor, Industrial, and Rehabilitative Services Committee voted to approve SB 61, the recent right to work legislation working through the New Hampshire Legislature.  Despite a 11 - 9 vote along party lines in favor of the legislation, there is still no guarantee that New Hampshire will become the 29th right to work state.  After all, prior attempts to pass right to work legislation have stalled out before.  However, with Republicans intent to approve the leg