The Majority Opinion: Legal Blog

  Recently, the Washington Legislature passed and Governor Jay Inslee signed into law SHB 1206 which is designed to protect temporary workers from workplace hazards and injury. The legislation stipulates new obligations for staffing agencies and worksite employers.   For staffing agencies, they must enquire about worksite employer’s safety and health practices and hazards at the job site where the employee will be working.  This is required so that the staffing agency may assess the safety conditions, workers tasks, and the worksite employer’s safety program.  (Obligations to visit the job site after this initial assessment are also included in the legislation.)  Notably, the staffing agency must meet these requirements prior to the start of the placement contract. For employers, they must document and inform the staffing agency about about anticipated job hazards, review the training provided by the staffing agency to establish if it addresses the anticipated hazards, provide specif

  On June 17th, forty House Democrats sent a letter to President Joe Biden, calling on him to sign an executive order that would ban the use of mandatory arbitration clauses for federal contractors. Under the Procurement Act, a President has the ability to sign executive orders to implement certain policies without the need for Congressional approval.  The 40 House Democrats voiced their opposition to mandatory arbitration clauses for federal contractors, arguing that these clauses leave millions of private sector, non-union workers without access to justice.  (The logic follows that by being forced to arbitrate, these workers are deprived of due process and a chance to be heard.  Arguably, that is a bit of a stretch...as even in arbitration, each party has the opportunity to present their case to an arbitrator or a panel of arbitrators.  Granted, there is no jury in an arbitration setting nor is there much room to appeal an arbitration decision.) Will this letter push President Biden

  It had been a few weeks since we heard of an effort to unionize at a major company.  This week, a unionization effort at MSNBC is worth noting and leading this off for this post. As always, below are a couple articles that caught my eye this week. 200+ MSNBC Workers Move to Unionize Last week, over 200 MSNBC workers moved to unionize and become a local chapter of the Writers Guild of America, East.  As The Hill reported, MSNBC President Rashida Jones said that while she respected the decision to unionize, the union would not be recognized unless a majority of eligible employees vote for unionization by way of an election.  The timetable for that election is not certain at this time.  However, critics have been quick to point out that while MSNBC has championed pro-worker and labor friendly coverage and reporting over the years, they have chosen to not voluntarily recognize a union in their very own “backyard.” Aloha? For Some Remote Workers in Hawaii...Not So Much The Wall Street Jo

  Bannister v. Marinidence OPCO, LLC - California Court of Appeal, First Appellate District, Division Five Facts :  Maureen Bannister (“Bannister”) worked for Marin Post Acute for many years when Marinidence took over operations of the workplace.  At the time it took over the facility, Marinidence claimed that Bannister had electronically signed an arbitration agreement when completing paperwork for new Marinidence employees.  A year after Marinidence took over operations, Bannister was filed.  Bannister subsequently filed suit and alleged discrimination, retaliation, defamation, and a few other claims. Marinidence moved to compel arbitration based upon the arbitration agreement.  At the trial court level, Bannister presented evidence that she never saw the arbitration agreement and did not electronically sign it.  The trial court denied the motion to compel arbitration.  Marinidence appealed the trial court’s ruling. Holding :  The Court of Appeal began its analysis of the case with

  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. This week, the U.S. House of Representatives is considering passage of a proposed bill, The Protecting Older Workers Against Discrimination Act (a/k/a HR 2062), which would make it easier for workers to sue their employees for age discrimination. The proposed bill would amend the evidentiary standard necessary to prove age discrimination by allowing a claimant to establish an unlawful employment practice when the claimant demonstrates that age or participation in an investigation, proceeding, o litigation related to an age discrimination claim was a motivating factor for an adverse practice even though other factors also motived the adverse practice. Notably, HR 2062 would allow a claimant to rely on any type or form of admissible evidence, which would only have to be sufficient for a reasonable trier of fact to f

  It is funny how a last minute jury trial setting can tie you up over the course of the week or two before the trial setting.  With courts in Texas starting to hold in person jury trials after a nearly 15 month respite, that has led to more cases being called to trial.  As a result, much/most of my time the past few weeks has been spent prepping for trial, preparing for voir dire & direct/cross examination, drafting my motion in limine, and all the other work that goes into jury trials.  While I would like to have had more time to read through articles, this week was noticeably light given trial prep. As always, below are a couple articles that caught my eye this week. Lawsuit By Methodist Hospital Workers Against Mandatory Vaccinations Tossed I suppose this should not necessarily be a surprise, but lawsuits have started to pop up over requirements by employers that workers be vaccinated...or risk termination.  (The EEOC had previously stated that employers can mandate emloyees be

  On June 7th, Connecticut Governor Ned Lamont signed HB 6380 into law which will require employers in the state with at least one employee to disclose the salary range for open positions to both applicants and employees. Under the new law, employers in the state will be prohibited from failing or refusing to provide an applicant with the wage range for a position upon the earliest of the applicant’s request or prior to or at the time the applicant is made an offer of compensation.  As well, employers will be prohibited from refusing to provide an employee the wage range for the employee’s position upon either the hiring of the employee, a change in the employee’s position with the employer, or the employee’s first request for a wage range. Violations of this new law will be subject to compensatory damages, attorney’s fees, and costs. Note, this new law will go into effect on October 1st.  For Connecticut employers, now is the time to enact policies and procedures to ensure compliance

  Today, the Senate Committee on Health, Education, Labor & Pensions (“HELP”) is set to vote on President Joe Biden’s nomination of Doug Parker to serve as the head of the Occupational Safety and Health Administration (“OSHA”). The HELP Committee, which currently has majority control by Democrats, is expected to clear Parker’s nomination (likely along party lines) and send it to the Senate for further debate and a vote.  The new head of OSHA will be stepping into what many think is the tail end of a rather turbulent time in regard to workplace safety.  After nearly a year and a half into the coronavirus pandemic, workplace safety has been a hot topic at OSHA as several requirements and recommendations have been released in regard to protecting workers against the pandemic.  These OSHA requirements and recommendations, in regard to workplace safety, have involved requiring face coverings in the workplace, stipulating how many workers are allowed in a confined work space, how employe

Perhaps this should have been the What I’ve Been Reading This:  Governor Edition.  While I came across several articles worth highlighting this week, the two below in regard to developments in California and Michigan are noteworthy.  If readers find the time, I would suggest diving deeper into the below circumstances surrounding the situations in California and Michigan as there are several nuanced details worth reading. As always, below are a couple articles that caught my eye this week. California Governor Relies Upon Support of Organized Labor In Recall Fight As Politico reports, California Governor Gavin Newsom is relying upon the support (and money) of organized labor to coalesce around him heading into the recall election that is expected to take place in the coming months.  The Governor, a staunch supporter of organized labor, enjoyed the support of unions in 2018 when he was elected.  (During that election, organized labor spent about $12 million to support Newsom’s candidacy.

  Earlier this week, Senate Republicans blocked debate on the Paycheck Fairness Act (the “Act”), a piece of legislation that sought to combat pay discrimination among women and LGBTQ workers.  Readers might recall that I had made note of the Act back in April when it was working its way through the House of Representatives .   In principal part, the Act would have required employers to prove that pay disparities between men and women in the workplace were job related (rather than related to sex).   While its passage was no sure thing in the Senate, where 60 votes were needed to advance the Act to President Joe Biden for signature, many were upset with Tuesday’s 49 - 50 vote in the Senate. Republicans in the Senate characterized the Act as a gift to trial lawyers which they claim would flood the courts with litigation if the Act were passed.  Democrats, naturally, were on the other side of the coin, and claimed the Act was needed to remedy decades of pay discrimination in the workplace.

  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. On May 21st, Washington D.C. Council Member Elissa Silverman proposed the Non-Compete Conflict of Interest Clarification Amendment Act of 2021 (the “2021 Act”) that would amend the Ban on Non-Compete Agreements Amendment Act of 2020 (the “2020 Act”).  That 2020 Act bans all post employment and non compete agreements for D.C. employees as well as barring any policy or agreement that prohibits D.C. employees from simultaneously working for other employers. While the 2020 Act has yet to go into effect, there has been confusion among many D.C. employers about the scope of this new law.  Never fear, Council Member Silverman’s proposal might do just that.  First, the 2021 Act would clarify that the 2020 Act does not extend to “bona fide conflict of interest” policies or provisions.  “Bona fide conflict of interest provi

One of the bigger news items over the past week or so was the nomination of a new Member to the National Labor Relations Board (“NLRB”).  As outlined below, this nomination is likely the first of two this year.  Toward the end of summer, it will be interesting to see who is nominated for the second seat. As always, below are a couple articles that caught my eye this week. President Biden Announces Nomination For Vacant NLRB Position Recently, President Joe Biden announced the nomination of Gwynn Wilcox (“Wilcox”) to fill a vacant seat at the NLRB.  Wilcox, a partner at a New York based union side law firm, also serves as associate general counsel to the largest local of the Service Employees International Union.  Should Wilcox be confirmed, she would become the second Democratic appointed Member of the NLRB.  Currently, the NLRB has three Republican appointed Members.  However, that is likely to soon change as one Member, Bill Emmanuel, will see his term end in August...which means Pre

  A year after vetoing similar legislation, on May 5, 2021, Nebraska Governor Pete Ricketts signed LB 451 into law, the state’s CROWN Act (“Act”) legislation. The Act, as written, will make it unlawful for employers in the state to discriminate against a worker on the basis of their natural hairstyle which includes braids, locks, and twists.  In passing the legislation, Nebraska joins California, Colorado, Connecticut, Delaware, Maryland, New Jersey, New York, Washington, and Virginia with similar CROWN Act laws in place. In 2020, Governor Ricketts vetoed the legislation on the grounds that he wanted the Act to include language that did not exclude other races, which he said also wear protective hairstyles.  LB 451 incorporated that requested revision which ultimately led to the Governor signing it into law.  The Act is set to take effect 60 days after the Nebraska Legislature ends its term which is set to end around June 10th. For additional information:   https://nebraskalegislature.

  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 Arizona Legislature is currently weighing passage of Senate Bill 1648 which would prohibit discrimination in the workplace against workers who have not received (or refused to receive) a Covid vaccine.  The legislation, as currently written, would bar employers from requiring a person to receive or disclose whether they hav received a Covid vaccine as a condition of being hired or remaining employed. This legislation is somewhat novel but likely not the last time we will see efforts being made to prohibit discrimination against workers if a worker chooses not to get a vaccine (or disclose whether they have received one.)  While it is still too early to tell whether this legislation will advance in the Arizona Legislature, it is worth keeping an eye on in the weeks and months ahead. For additional information: