The Majority Opinion: Legal Blog

  Relatively speaking, this was somewhat of a slower week on the labor & employment law front.  Heading into the holiday weekend, I will keep this post short and to the point.  There are two articles I came across this week that I want to highlight for readers. As always, below are a couple articles that caught my eye this week. Some Current & Former NLRB Attorneys Praised Firing of NLRB’s General Counsel Reuters reported a few days ago that after President Joe Biden terminated Peter Robb, the National Labor Relations Board (“NLRB”) General Counsel , after Biden took office, some current and former NLRB attorneys praised the move.  As the article notes, these emails, which were obtained in response to a request under the Freedom of Information Act, show that a surprising number of NLRB staffers cheered the announcement.  Republicans and pro business groups have hailed Biden’s termination of Robb as an unprecedented power grab.  With the release of these emails, I would suspect

  Beckley Oncology Associates, Inc. v. Abumasmah - Fourth Circuit Court of Appeals Facts :  After several months of negotiations, Beckley Oncology Associates, Inc. (“BOA”) recruited Dr. Rami Abumasmah (“Abumasmah”) to work for the company.  Upon being hired, BOA required Abumasmah to sign an employment agreement that included an arbitration provision required the parties to arbitrate “all disputes, controversies, and disagreements” in regard to the employment relationship.  The parties further agreed that any arbitration decision would be final and not subject to appeal. After a few years working at BOA, Abumasmah notified the company that he was needing to leave the country to care for his mother who lived in Jordan.  Prior to leaving, Abumasmah informed BOA that he did not expect to be paid while he was out of the country and offered to resign.  However, BOA proceeded to terminate Abumasmah on his last day.  Afterward, Abumasmah disputed his bonus payments from BOA and sought to arb

  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. The Louisiana House of Representatives is currently considering passage of the Fair Chance in Hiring Act (“Act”) which aims to provide workers in the state with a criminal history record with a fair chance at obtaining employment.  The Act would prohibit employers from asking about an applicant’s criminal history until after an offer of employment has been made.  Notably, the Act would also limit what an employer could consider (in regard to an applicant’s criminal history).  For instance, employers could not consider an arrest that did not result in conviction or one that was sealed, dismissed, set aside, expunged, or pardoned when a final hiring decision is made. These sort of ban the box measures are nothing new.  Whether the Act manage to clear the Louisiana Legislature remains to be seen, however. For additio

  Belgada v. Hy’s Livery Service, Inc. - Hartford District Superior Court Facts :  Hy’s Livery Service, Inc. (“Hy’s”) is a limo company that employs limo drivers.  Hy’s has a written policy in place in regard to meal breaks.  The policy allows drivers a one hour unpaid lunch break but requires drivers to stay dressed in work clothes, monitor their phones, and requires drivers to not leave the limos unattended.  If a driver is called while on their lunch break, they are paid for their time.  However, the policy did not require drivers to watch the vehicles 24/7. A proposed class action was filed against Hy’s, arguing that drivers were entitled to pay for this time spent on their lunch breaks as they were “ready” for work.  Both sides filed motions for summary judgment. Holding :  The Court got straight to the point and recognized that when drivers went on their lunch break, they were completely relieved of duty.  Before the lunch break started, a driver only needed to keep his uniform

  This week was chock full of updates about hourly wage rates around the country.  Whether it be minimum wage legislation advancing past committee in Delaware, McDonald’s workers striking for higher wage rates, Rhode Island’s Governor signing a $15/hour minimum wage bill into law, or the Maine House of Representatives approving legislation to raise the wage rates for public school workers in the state, there is something here for everyone.  As always, below are a couple articles that caught my eye this week. Delaware House Committee Advances $15/Hour Minimum Wage Legislation Late last month, the Delaware House Economic Development Committee advanced SB 15 which would raise the hourly minimum wage rate in the state to $15/hour by 2025.  The  legislation would raise the state’s hourly minimum wage rate by $1/hour starting next year.  (Currently, the hourly minimum wage rate is $9.25.)  It is worth noting that the Committee, which is controlled by Democrats, advanced SB 15 with an 8 - 5 v

  On April 21st, the Chicago City Council passed the Vaccine Anti-Retaliation Ordinance (“Ordinance”) which establishes protections for Chicago workers that take time off work to get their vaccine. The Ordinance requires employers in the city to allow workers to take time off to obtain their vaccine without retaliating against them in regard to their terms and conditions of employment.  Notably, this Ordinance applies regardless of whether the worker voluntarily chooses to get a vaccine or whether the employer requires it. It is important to recognize that the Ordinance does not require employers to pay workers for the time off to get the vaccine ( unless the employer mandates it .)  However, employers are required to allow workers to use any paid time off for time spent getting the vaccine during work hours.  With that being said, it is at a worker’s sole discretion whether or not to use paid time off to get the vaccine (as workers could instead simply choose not to be paid for this

  Bennett v. McDermott Int’l, Inc . - Fifth Circuit Court of Appeals Facts :  Kendrick Bennett and other similarly situated workers were employed by McDermott Int’l, Inc. (“McDermott”) under a contract in relation to a natural gas liquefaction facility in Louisiana.  As the worksite was remote, McDermott required these workers to drive to a park and ride location and then take an employer bus to the worksite.  Sometimes it would take hours for the workers to make the commute, whether it be because they had to wait on a bus or drive to another park and ride location to catch a bus with open seats.  Workers were prohibited from driving their own vehicles to the worksite.  Notably, the workers were not compensated for this time spent commuting even though they sometimes had to take work calls while on the bus and do work. Suit was brought against McDermott by these workers who alleged the company violated the Fair Labor Standards Act (“FLSA”) and Louisiana Wage Payment Act (“LWPA”) by fai

  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. A bill pending in the Louisiana Legislature would impose penalties up to $500/employee when a Louisiana employer willfully misclassifies an employee as an independent contractor as it relates to amounts owed for unemployment compensation contributions.  The legislation, House Bill 151 (“HB 151”), would escalate the penalties on employers for subsequent offenses.  Note, the law currently in place only imposes a warning on employers for the first offense. While HB 151 does have some teeth, in regard to financial penalties, it does provide that the first offense penalty can be waived if the employer comes into compliance within 60 days. HB 151 is currently pending on the floor of the Louisiana House of Representatives after clearing the Committee on Labor and Industrial Relations. For additional information:   http:/

  On April 21st, the National Labor Relations Board (“NLRB”) issued a short Order in which it declined to weigh into whether President Joe Biden’s nomination of Peter Ohr to serve as the NLRB’s General Counsel was lawful.  (At the present time, Ohr is serving as acting General Counsel.) Readers will recall that President Biden’s abrupt termination of the prior General Counsel, Peter Robb , was met with much “fanfare” on both sides.  Labor advocates cheered the decision as President Biden sought to flex his muscle and reshape the NLRB into a more labor friendly iteration after he took office in January.  On the other hand, employer side advocates were quick to to criticize President Biden for taking the unusual step to terminate Robb when Robb still had several months left of his four year tenure. While the National Labor Relations Act (“NLRA”) sets out how a President can remove Board members, it is silent as to whether a President can remove the General Counsel.  (As readers might ima

  On the heels of the Fight for $15 movement continuing to chug along, attention has focused on the fast food industry as being an industry ripe for an increase in worker pay.  I want to lead things off this week with a note about an upcoming pay raise for some (and I emphasize some) workers at McDonald’s.  Will franchisees of McDonald’s follow suit?  Time will tell but short of major political pressure (or a shift in consumer spending), I would not hold my breath. As always, below are a couple articles that caught my eye this week. McDonald’s Raising Pay Across the Board Earlier this week, it was announced that McDonald’s would raise the pay rate at its company owned locations over the next several months to the tune of a 10% increase.  Once the increase in pay goes into place, entry level workers will see hourly pay rates in the range of $11 - $17 while managers can expect to see $15 - $20.  One interesting note is the fact that this pay increase does not apply to franchisee owned l

  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. Gregory Gates (“Gates”) worked at Eagle Foods Group, LLC (“Eagle”) for a period of time as a sanitation and assembly line employee.  During his tenure with Eagle, he was required to scan his handprint each time he began and ended his workday as well as whenever he clocked in and out for breaks.  Gates filed a purported class action against Eagle on the grounds that the company violated the Illinois Biometric Information Privacy Act (“BIPA”) by failing to publish retention schedules for biometric data and failing to destroy the biometric data, by systematically and automatically collecting biometric data without written release, and by systematically and automatically disclosing biometric data without first obtaining consent. Eagle responded to the suit and argued the BIPA does not apply to the claims asserted by G

  Last Thursday, the Louisiana Senate unanimously approved Senate Bill 61, the state’s CROWN Act (“Act”) with a 36 - 0 vote in favor of the legislation.  The legislation would make it illegal for employers in the state to discriminate against a worker on the basis of their hair texture or protective hairstyles such as braids and twists.  In doing so, Louisiana’s anti discrimination law, which currently bars employers from engaging in discriminatory employment practices on the basis of a worker’s race, religion, sex, or national origin would be amended to include discrimination on the basis of natural hairstyles. While the Act sailed through the Senate, it is expected to face hurdles in the House.  A House Committee that considered the Act voted to advance it by a 7 - 4 vote.  Opponents of the legislation argued that if passed, the Act would lead to confusion among employers and expose them to endless litigation.  While three republicans on the Committee voted to advance the Act to the

  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. Pregnancy discrimination is often a much discussed topic in employment circles given the confusion over whether, and how, employers are required to accommodate pregnant workers.  With the introduction of the Pregnant Workers Fairness Act (“PWFA”) in Congress, that confusion may soon be coming to an end. Under the proposed legislation, employment practices would be prohibited to the extent they discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions.  (A “qualified employee” is defined as an employee or applicant who, with or without reasonable accommodations, can perform the essential functions of the position, with specified exceptions. The PWFA would make it unlawful for employers to:  fail to make reasonable accommodations to

  Stop me if you have heard this before:  President Joe Biden has been aggressively ramping up pro-union measures to help strengthen labor unions since he took office in January.  (For reference, take a look here , here , or  here .)   At the end of April, President Biden took another step to bolster labor unions when he issued an Executive Order to create a task force aimed at strengthening unions and helping workers unionize.  The Executive Order took umbrage with the federal government for having not used its “full authority” to support unions in the past and mandated a “comprehensive approach” be taken to advance union organizing and collective bargaining going forward.  As a result, the Task Force on Worker Organizing and Empowerment was created to advance these objectives.  The Task Force, chaired by Vice President Kamala Harris and Labor Secretary Marty Walsh, will make recommendations within 180 days on how to use the federal government’s policies, programs, and practices to em

  With a less than stellar jobs report out this morning, I wanted to lead things off with an Axios article I read a few weeks back that addresses the struggle in some industries (in particular the restaurant industry) to locate enough workers to stay operational.  The reason?  Partly a lack of interest in returning to front line work in the age of the coronavirus yet also many workers realizing they can make more in unemployment benefits than they could actually working these jobs. As always, below are a couple articles that caught my eye this week. Now Hiring...But Who Will Actually Take These Jobs?? As noted above, Axios published a well thought out article recently in which it recognized the ongoing problem many employers in the restaurant industry are facing as they struggle to re-staff their businesses as things continue to reopen across the country.  The article notes that many employers in the industry are not only struggling to hire employees but also struggling just to get t

  Late last week, Labor Secretary Marty Walsh voiced his support for classifying gig workers (such as those that work for Uber, Lyft, Grubhub, etc.) as employees rather than independent contractors. The announcement does not necessarily come as a surprise but rather one step closer to these gig workers being reclassified.  Many might now be wondering what happens next.  Well, in short, just because the Labor Department (and Biden administration) think that gig workers should be classified as employees does not automatically make it happen.  Instead, what would need to occur is for Congress to pass a measure (similar to California’s AB 5) that would reclassify gig workers across the country.  Bear in mind, however, that is no sure thing.  In fact, I would suggest that trying to get that measure through Congress (even with Democrats having majority control of both the House and Senate) is no sure thing. Another “easier” option would be to have the Labor Department issue new rulings which

  On April 22nd, the Philadelphia City Council voted 15 - 1 to approve an ordinance that would prohibit many employers in the city from requiring pre-employment marijuana testing as a condition of employment.  On April 28th, Philadelphia Major Jim Kenney signed the ordinance into law. For those concerned about how expansive the ordinance is, I would caution that there are a lot of carve outs in which some employers can still require pre-employment marijuana testing.  For instance, jobs in law enforcement, for those needing a commercial driver’s license, health care workers, and “any position in which the employee could significantly impact the health or safety of other employees or members of the public” can still require pre-employment marijuana testing.  In addition, pre-employment marijuana testing is still allowed as set forth in any federal or state statute, regulation, or order that requires drug testing of prospective employees for safety or security reasons. The ordinance is no

  About a year ago, the California Trucking Association filed suit and sought to obtain an injunction to prevent California’s AB 5 from applying to motor carriers .  The California Trucking Association argued that AB 5, which codified the ABC Test to determine whether a worker is an employee or independent contractor, was preempted by the Federal Aviation Administration Authorization Act (“Act”) and therefore did not apply to motor carriers.   An injunction was granted and a subsequent appeal was filed that ended up in the Ninth Circuit Court of Appeals. At the end of April, a split decision from the Ninth Circuit Court of Appeals reversed the district court’s injunction on the grounds that the district court abused its discretion.  According to the majority opinion, because AB 5 is a law of general applicability that impacts an employer’s interaction with its workforce (rather than with consumers), the Act did not preempt AB 5.  To be preempted by the Act, the Ninth Circuit wrote tha