The Majority Opinion: Legal Blog

  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 recent case out of the Seventh Circuit caught my eye as it turns on whether WalMart provided a reasonable accommodation to a disabled employee.  In the case, Paul Reina (“Reina”), worked at WalMart as a cart attendant but was limited due to his severe cognitive delay and legal blindness.  While Reina could physically push carts, he could not steer them.  As well, he was unable to attend to motorized carts and could not response to basic customer service questions.  WalMart chose to hire a job coach for Reina who helped Reina steer the carts, operate the motorized carts, and answer customer questions. Following a new manager being hired, it was determined that the job coach assisting Reina should no longer continue.  The Equal Employment Opportunity Commission (“EEOC”) subsequently sued WalMart and alleged violat

  Late Friday, a federal judge issued a temporary injunction to block the requirement that all New York City school employees have at least one dose of the coronavirus vaccine by today, September 27th, or risk being terminated. Unions representing the New York City school employees have stated that while they support vaccines, it should not be a condition of employment.  While apparently 85% of New York City school employees have already received one vaccine, it was estimated that if the “get vaccinated or get terminated” policy went into place today, that could leave schools in the city short approximately 10,000 teachers and workers. Of course, I caution readers that an injunction is not a final ruling on the matter.  Rather, an injunction serves to keep things status quo.  Consequently, while New York City school employees are not required to have at least one dose of the vaccine or risk termination, that is not to say the requirement will not be reinstated once this court case work

It is not every day that I wake up to an email from a regular reader of the blog with a tip about a recent employment law development.  With that being said, Tuesday morning I had an article sent my way that is well worth highlighting this week.   With Sam’s Club boosting hourly pay rates recently , it certainly seems like WalMart might be following suit shortly as big box retailers fight to attract (and retain) workers. As always, below are a couple articles that caught my eye this week. Amazon v WalMart: The Fight To Staff a Workforce At this point, we are only a few short weeks away from the holding holiday season.  As a result, many large scale employers such as Amazon and WalMart are ramping up efforts to staff open positions with Amazon seeking to add an additional 55,000 workers and WalMart an additional 20,000.  With a tight labor market and workers in high demand, that means employers are fighting to attract and retain workers.  In doing so, Amazon has recently announced it w

  Earlier this month, it was reported that Amazon was urging its contractors (that supply delivery drivers) to no longer screen its drivers for marijuana. Readers are likely aware that there is a labor shortage in certain industries.  It is also no secret that the legalization of marijuana is a hot button issue with many states having already legalized it (for medical and/or recreational use.)  With the upcoming holiday season, that labor shortage is likely to ratchet up as employers fight to staff open positions.  As this article notes, Amazon is taking steps to ensure proper staffing for its delivery vehicles by urging its contractors to no longer screen applicants or workers for marijuana.  With many large scale employers fighting for an increasingly smaller pool of workers, this step by Amazon is one additional effort to not weed out potential workers. Now whether or not these contractors will follow Amazon’s “instructions” remains to be seen.  Stay tuned. For additional informatio

  Recently, Orange County, FL announced that it would institute a ban the box measure for applicants applying for a government job. Currently, Orange County government jobs have a box on the application that asks applicants to acknowledge whether they have ever been convicted or plead no contest to a first degree misdemeanor or felony.  Bear in mind, this law will not apply to private employers in the county.  Rather, only applicants that apply for a government job cannot be asked about their criminal history.  It is expected this new law will go into effect next month. For additional information:   https://www.wmfe.org/orange-county-moves-to-ban-the-box/189972

A few days ago, I was talking with a regular reader of The Majority Opinion about the ongoing Great Resignation.  (For those unfamiliar with the term, this is in reference to the wave of employees leaving their current positions, due in part to the ongoing trudge of the coronavirus pandemic and the headaches that has added to the job.)  I came across an article from Forbes  that I wanted to lead things of this week, as the article has a few ideas on what employers can do to navigate the Great Resignation and come through it all rather unscathed and with a full (or relatively full) workforce. As always, below are a couple articles that caught my eye this week. Lessons Employers Can Learn From the Great Resignation Tell me if you have heard this recently:  It is an employee friendly job market…a very, very employee friendly job market.  This article from Forbes takes note of the ongoing Great Resignation and what employers can do to ride out the storm.  For starters, there is no “fix”

  Democrats in Kentucky are again preparing legislation to raise the hourly minimum wage rate in the state from its current rate of $7.25/hour up to $15/hour by 2026. The legislation, being prepared by Democratic Senators Reggie Thomas and Morgan McGarvey, would gradually raise the hourly wage rate in the state to $15/hour by 2026.  However, this would be the fourth attempt by Democrats in Kentucky to raise the hourly wage rate after prior attempts faltered in the Republican controlled Legislature.  Will this attempt be any different?  The short answer is likely no, unless Democrats can get enough Republicans to support the effort.  As of this writing, that looks unlikely…however things could certainly change once the legislation is introduced and starts working its way through the Kentucky Legislature. This is one to keep an eye on going forward. For additional information:   https://www.wdrb.com/news/kentucky-bill-would-raise-minimum-wage/article_affe2a12-0c2f-11ec-beee-8be570cf6174.

  Last week, Alaska Airlines announced that it would offer its employees a $200 bonus to get the coronavirus vaccine.  Note, while the company is not (yet) requiring its employees to get the vaccine, this policy only applies to current employees.  All future employees of Alaska Airlines will be required to get the vaccine (or if they already have, they will be eligible for a $200 bonus.) In turn, the company also announced that for any unvaccinated employee that has to quarantine because of possible exposure to the coronavirus (or any unvaccinated employee that contracts the coronavirus), they will no longer be eligible for the company’s “Covid pay.”  (Prior to this announcement, if an employee had to quarantine because of possible exposure to the coronavirus or if an employee actually contracted the coronavirus and had to miss work, the company would provide them with paid leave.)  Going forward, if an unvaccinated employee has to quarantine because of possible exposure to the coronav

  In recent weeks, workers at a few Buffalo area Starbucks announced their intention to unionize and called for an election . While Starbucks indicated it respected the rights of its workers, it argued that unionization was not necessary on the grounds that workers were already given workplace rights and freedoms that forming a union would not amplify.  Nevertheless, many are paying close attention to this unionization effort, given that if it is successful, this would be the first unionization of a corporate owned Starbucks. Last week, more workers at a few additional Buffalo area Starbucks announced their intent to form a union as well.  As with the prior announcement a few weeks ago, no vote has yet been set for an election.  However, I would expect things to accelerate in the coming weeks as the workers look to set an actual date for an election (and as Starbucks ramps up efforts to combat a potential unionization of these Buffalo area locations.) For additional information:   http

  Another week and another situation in which vaccine mandates among employers is again in the news.  ( And that is not even taking into account President Joe Biden’s recent executive order for federal workers & many private employers .)  This week, I wanted to highlight employees that are bucking the trend and refusing to get the vaccine based upon their religious beliefs.  As the below article points out, religious beliefs being used as the basis for refusing to get vaccinated could turn into an ongoing legal battle in the courts.  While this situation is still somewhat of a novel dispute, it has the potential to become a hot button issue (on both sides) in the coming months. As always, below are a couple articles that caught my eye this week. Religious Exemptions Against Vaccine Mandates in the Workplace: The Next Battle? As many readers might have seen over the past few weeks (and months), some private employers are mandating their employees get the coronavirus vaccine (or ris

  This evening, President Joe Biden announced the signing of an Executive Order which will require all federal workers to get the coronavirus vaccine rather than having the option to opt out and instead be routinely tested.  As well, he announced that he would instruct the Labor Department to draft an emergency rule that would require employers with 100 or more employees to require their employees be vaccinated or submit to weekly testing.  (Notably, employers would be required to provide paid time off for vaccinations.) The President, as readers might recall, had previously required federal workers get the vaccine or face routine testing and masking requirements .  However, that policy has abruptly ended as the White House takes further steps to increase vaccination numbers across the country.  The Executive Order also requires that all workers of federal contractors be vaccinated as well. At this point, it is expected that there will be exemptions for religious or medical reasons. Wh

  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 California Legislature recently advanced the Silenced No More Act (aka SB 331) to Governor Gavin Newsom’s desk for signature.  The legislation would prohibit non disclosure provisions in a settlement agreement that relate to sexual harassment. Under current California law, non disclosure provisions in a settlement agreement are prohibited to the extent they prevent the disclosure of factual information in regard to specified acts related to a civil claim or complaint filed in an administrative proceeding.  Currently, the “specified acts” include sexual assault; sexual harassment; workplace harassment or discrimination based upon sex, failure to prevent such an act, or retaliation against a person for reporting such acts; and harassment or discrimination based on sex by the owner of house accommodation, or reta

  Effective October 18, 2021, a ban the box piece of legislation will go into effect in Maine. Under the legislation, HP 845, employers in the state are prohibited from asking about an applicant’s criminal history on the initial application.  (Under the legislation, criminal history includes arrests, detentions, indictments, and involuntary commitments.)  However, once an applicant is determined to be qualified for the position (or during the interview process), employers are permitted to do a background check or ask about the applicant’s criminal history. Of course, there are exceptions carved out, including for positions in which federal or state law create a “mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses” or for positions in which employers are “required by federal or state law or regulation or rule to conduct a criminal history record check for the position.” While there are still a few weeks left for employers in Maine t

  Over the weekend, concession workers at Oracle Park (where the San Francisco Giants play) voted overwhelming to strike on the grounds that they have not been fairly compensated or protected during the coronavirus pandemic. The workers, represented by Unite Here Local 2, had approximately 86% of concession workers turn out to vote with 96.7% approving a strike.  The workers have argued that their requests for a pay raise have gone unanswered over the past three years.  Further, the workers claim that they have not been afforded better protections during the coronavirus pandemic, given their customer facing jobs and potential exposure to the virus.  For instance, some workers claim they routinely interact with customers that do not wear masks or appropriate barriers (such as plexiglass) are not installed at registers.  In addition, the workers claim that they are only eligible for health insurance if they work ten events a month.  However, many workers have apparently fallen an event o

  Minimum wage hikes and a potential labor development out on the East coast are two noteworthy topics I want to highlight this week.  I would pay particular attention to the Virginia Governor election in the coming weeks as that has the potential to have major ramifications as to the state’s right to work law. As always, below are a couple articles that caught my eye this week. Walgreens Set to Raise Hourly Pay Rate to $15/Hour Starting In October Earlier this week, Walgreens announced that starting in October, it would phase in a $15/hour pay rate for its employees.  The pay increase, which will be phased in through next November, is estimated to result in an increase in labor costs of nearly $450 million.  Granted, while a large scale employer like Walgreens can absorb and defray these costs likely with minimal struggle, attention now turns to how smaller employers can afford to keep up in an already tight labor market. Outcome of Virginia Governor’s Race Could Result In Repeal of S

  At the end of August, a group of workers at a few Buffalo Starbucks locations announced that they were forming a union called Starbucks Workers United. The workers, who filed petitions with the National Labor Relations Board (“NLRB”), have asked the NLRB to hold elections in the coming weeks.  According to the petition, the workers are intending to hold elections store by store in the Buffalo area.  In order to do so, at least 30% of eligible workers at each location (estimated to be 20 - 30 eligible workers at each location) are required to sign union cards in order for a workplace to qualify for a vote. According to several workers, they claim that the coronavirus pandemic spurred them to unionize, due in part to increased demand, longer hours, and more hostile customers, among other alleged issues in the workplace.  In doing so, they claim that unionizing is needed to protect their rights and better represent them in regard to workplace issues. Following the announcement of the at

  On September 30th, the hourly minimum wage rate in Florida is set to go up to $10/hour, from the current rate of $8.65/hour.   To call this a major increase is an understatement as it takes effect at the end of the month.  For Florida employers, now is as good of a time as any to start making plans for these rising labor costs.  Of course, this is not the only minimum wage hike that workers in the state will see.   Under the ballot initiate approved by voters last November, the hourly pay rate in the state will go up to $15/hour by 2026 . Bear in mind that September 30th is just a few short weeks away.  For those that will be impacted by the wage hike (namely employers that will bear the cost of the increased labor), plan accordingly… For additional information:   https://floridaphoenix.com/2021/09/01/fl-is-set-to-boost-the-minimum-wage-to-10-an-hour-a-dramatic-difference-for-low-wage-workers/