The Majority Opinion: Legal Blog

Striketober:  A month in which the predominant labor stories have centered on worker strikes.  I will admit, the Striketober name is catchy and noteworthy in so much that there have been a noticeable number of strikes over the past 29 days.  For instance, Kellogg’s , John Deere , McDonald’s , and Southwest Airlines (depending who you ask) have all experienced (or continue to experience) worker strikes this month.  While there are a host of articles worth talking about this week, Striketober is at the forefront of my mind and what I want to loop readers in on to close out the week. As always, below are a couple articles that caught my eye this week. President Biden Remains Conspicuously Absent From ‘Striketober’ Events As noted above, with that the end of the month is Sunday, I think it is appropriate to lead things off with this article from Shannon Pettypiece over at NBC News that notes that although President Joe Biden has long been at the forefront of labor issues during his many

  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 September 7th, the Equal Employment Opportunity Commission (“EEOC”) filed its first lawsuit against an employer on the grounds that the employer discriminated against a disabled employee by failing to offer an accommodation by allowing the employee to work from home because of her increased risk of contracting coronavirus. According to the complaint, ISS Facility Services, Inc. (“ISS”) employed Ronisha Moncrief (“Moncrief”) as a Health Safety & Environmental Quality Manager at one of its manufacturing facilities.  In March of 2020, Moncrief became sick at work and was subsequently diagnosed with obstructive lung disease.  Her doctor provided ISS with an accommodation request that Moncrief be allowed to work from home and take frequent breaks. Following the spread of the coronavirus last year, ISS implemente

Late this afternoon, it was announced that Democrats were dropping plans to include a planned twelve weeks of paid leave from a proposed tax and spending plan working its way through Congress. As some readers might have heard, Congressional Democrats have been in negotiations over the size and scope of a proposed tax and spending plan for several weeks now.  While there has been broad consensus among Democrats about the need to approve a tax and spending plan while they have majority control of the House, Senate, and White House (and can approve such a measure without Republican support), the point of contention among Democrats has been about the size (and cost) of the tax and spending plan. It has been reported that Democratic Senators Joe Manchin and Kyrsten Sinema have been the two Democratic hold ups in negotiations.  Both Senators Manchin and Sinema have been reported to favor a lower tax and spending plan.  In doing so, that would require something (or multiple things) to be cut

  On October 5th, California Governor Gavin Newsom signed AB 286 into law which amends the Fair Food Delivery Act of 2020. The legislation applies to food service delivery companies and workers in the state.  In relevant part, AB 286 prohibits the food service delivery companies from keeping any amounts that are designated as tips or gratuities.  AB 286 also requires that any tip or gratuity be paid in full to the person doing the delivery. In addition, AB 286 provides that the food service delivery company must provide a breakdown of all fees and costs to the customer as well as being required to charge the same price for the food or beverage as what is listed at the food facility at the time of order. For additional information:   https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB286

Today, workers at numerous McDonald’s locations nationwide are set to strike as they seek better pay and protest what they believe to be continued sexual harassment of employees. It should come as no surprise to readers that strikes have become a more common occurrence in certain industries compared to others.  In the food service industry, strikes (including this at McDonald’s) have been increasing in frequency in recent months as workers push for better pay and benefits.   This particular strike, set for today, is expected to take place across more than ten cities including Chicago and Tampa.  As noted, the workers are complaining of poor pay and alleged sexual harassment of workers.  In striking, the workers are seeking to bring attention to these matters while also trying to rally workers around the idea of unionizing. Although this strike is only set to take place for one day, it will be worth watching what impact (if any) it has in bringing about their desired change at McDonald’

  Late last week, it was announced that a group of workers at an Amazon warehouse in Staten Island was on the verge of preparing to file for a union election with the National Labor Relations Board after the workers obtained union authorization cards from over 2,000 workers. Readers might remember that a unionization effort and vote fell short at an Amazon warehouse in Alabama several months ago .  Nevertheless, these workers at a New York Amazon warehouse are undeterred and are seeking to become the first union at Amazon.  To do that, however, they are going to need to overcome resistance from the company itself.  While Amazon has not been shy about its efforts to fight unionization efforts, it has stated that the workers themselves have chosen not to unionize previously because of fair treatment and good pay from the company.   Will this time be any different?  Hard to say at this point.  However, if I were a betting man, I would be surprised if this unionization effort actually succ

I found this week to be tougher to narrow things down in regard to articles to highlight.  While religious exemptions and Amazon’s planned hiring increase this holiday season is noteworthy, I want to point readers toward the article which talks about preparing for an active shooter in the workplace.  Every workplace is different and no two plans will look the same, but this is an article worth a quick review. As always, below are a couple articles that caught my eye this week. Employees Do NOT Have to Belong to a Religious Group to Get Religious Exemption Religious exemptions in the workplace have become a common topic over the past few months, given that some workers are asking for a religious exemption from vaccine requirements.  As this article notes, Title VII of the Civil Rights Act of 1964 stipulates that employers are required to reasonably accommodate an employee’s sincerely held religious beliefs so long as the accommodation does not result in an undue hardship for the employe

  Late last month, California Governor Gavin Newsom signed SB 639 into law which will prohibit disabled workers in the state from being paid less than the minimum wage rate. Prior to the enactment of SB 639, California has been one of several states that allows employers to pay disabled workers a pay rate less than the hourly minimum wage rate.  As a result, some disabled workers could legally be paid as little as $2/hour (which many were.) However, SB 639 outlaws that practice and prohibits new disabled workers from being paid less than the hourly minimum wage rate beginning January 1, 2022.  For current disabled employees making less than the hourly minimum wage rate, however, employers have until January 1, 2025 to ensure compliance.  Although it is disappointing it will take at least another three years for current disabled workers to be guaranteed the hourly minimum wage rate in the state, I suppose this legislation is a (slow) step in the right direction. For additional informat

  Late last week, it was announced that over 10,000 unionized John Deere workers were going on strike following a breakdown in negotiations over a new contract with the company. Talks broke down after approximately 90% of union workers rejected the most recent contact proposal from the company which would have seen an approximate 6% hike in wages.  However, workers rejected that proposal as they have continued to fight for higher pay, increased paid leave, and better retirement benefits…something they have argued was not in the most recent contract proposal.  One point of contention has centered on John Deere’s talk of moving jobs out of the country, a natural point of conflict for the workers and their union.  John Deere has hedged on that notion but has seemed to leave the door open for a possible export of at least some jobs going forward. The strike is notable given that it is the first strike at John Deere in several decades.  Whether it will lead to a better contract remains to b

Earlier last month, the Allegheny County, PA City Council unanimously voted to approve a paid sick leave ordinance that will require employers in the county with 26 or more employees to provide paid sick leave. The Ordinance requires that employees accrue one hour of paid sick leave for every 35 hours worked, unless the employer provides a faster accrual rate.  Eligible employees will be able to accrue up to 40 hours of paid sick leave in a calendar year and may use the paid leave at any time for the diagnosis, care or treatment of the employee’s own mental or physical illness; to care for a family member with a mental or physical illness; if the employee’s place of business is closed by order of a public official due to a public health emergency; if the employee needs to care for a child whose school or place of care is closed due to a public health emergency; or to care for a family member when it has been determined by the health authorities or a health care provider that the family

Another week and another challenge to employer mandated coronavirus vaccine requirements.  In this week’s edition, we see a stalemate between Southwest & American Air following an order from the Texas Governor that prohibits employers in the state from requiring vaccines as a condition of employment.  While the subsequent articles I note are worth reading, I wanted to lead things off with this particular topic. As always, below are a couple articles that caught my eye this week. Southwest & American Air Intend to Require Vaccines, Despite Texas Governor Greg Abbott’s Order On Monday, Texas Governor Greg Abbott signed an order that prohibits employers in the state from requiring their employees get the coronavirus vaccine as a condition of employment.  (Governor Abbott has also called for a special session in which he wants the Texas Legislature to pass a similar law.)  As some readers might be aware, Southwest and American Air are both headquartered in the Dallas Fort Worth are

  Earlier this week, an injunction was issued in a federal court in Texas that prohibits United Air from placing unvaccinated employees on unpaid leave. United Air had previously announced that it would require all 67,000 of its U.S. based employees to get the coronavirus vaccine.  For those employees that refused to do so and requested either a religious or medical exemption, United Air would place those employees on unpaid leave. However, with the granting of this injunction, that policy is on hold pending a further hearing on the matter.  As of this writing, that injunction is in place until the 26th of this month.  I would suggest readers keep a close eye on this one.  This certainly is not the last coronavirus vaccine related injunction we see...and perhaps not even the last one in the airline industry. For additional information:   https://www.npr.org/2021/10/13/1045536669/united-must-delay-vaccine-mandate-for-workers

  As with many labor & employment law related cases (& bills) being litigated around the country, there are always a few that stand out.  This is one to keep an eye on. On October 7th, SB 739 was delivered to the desk of Arkansas Republican Governor Asa Hutchinson for signature or veto.  This legislation would require employers in the state allow workers the option to opt out of getting the coronavirus vaccine.  The legislation would also allow a testing exemption to the federal requirement of getting vaccinated.  (The current federal requirement that workers be vaccinated does not provide for a testing exemption.) Readers might recall a federal mandate that all federal workers get the vaccine.  President Joe Biden also recently indicated he was instructing the Labor Department to prepare a policy that would require large employers to require their employees get the vaccine as well.  (Although that policy has not yet gone into place and there is already questions over the legal

Last Friday, the Southwest Airlines Pilots Association asked a federal judge to issue an injunction to prohibit Southwest’s requirement that all pilots be vaccinated from going into effect. As readers might have seen, Southwest is one of many airlines that have instituted vaccine mandates for its workers.  These mandates require airline employees be vaccinated by the start of December or risk being terminated.  Naturally, there has been some pushback across the board, including with this lawsuit by the union representing Southwest’s pilots.  The lawsuit, pending in federal court in the Northern District of Texas, argues that the vaccine mandate unlawfully imposes new terms and conditions of employment, in violation of the collective bargaining agreement currently in place.  As a result, the union is asking an injunction be issued to prohibit the mandate from going into effect until the pending lawsuit is resolved. Whether an injunction is issued remains to be seen.  While the union has

Paid time off, vaccine accommodation requests, and pronouns in the workplace.  To say we are running the gamut of employment law topics this weeks is an understatement.  Regardless of your preferred article, each of the below articles has a bit of a nuanced look at a particular development on the given matter.  I encourage readers to page through each as these are relevant updates worth a read. As always, below are a couple articles that caught my eye this week. Congressmen Call for Better Paid Time Off For Workers to Get Vaccinated Last Friday, Congressmen Jerry Nadler and Alex Padilla wrote a letter to Marty Walsh, Secretary of Labor at the Labor Department, and Jeff Zients, the White House Coronavirus Response Coordinator, calling for the adoption of more paid time off for workers to get the coronavirus vaccine.  In the letter, the Congressmen ask the Labor Department to determine if paid time off can be provided to workers for vaccination related time away from work as well as for

Today, the Senate Health, Education, Labor & Pensions Committee is set to hold hearings for several of President Joe Biden’s nominees, including an assistant secretary for the Employee Benefits Security Administration. The nominee, Lisa Gomez, boasts nearly thirty years of labor friendly experience as a partner at Cohen, Weiss & Simon.  In her practice, Gomez has represented many labor unions in benefits disputes, which makes her familiar with the aims of the Employee Benefits Security Administration.  (For those unaware, the Employee Benefits Security Administration regulates voluntary workplace health and retirement plans.) With a divided Senate, Gomez’s confirmation is far from assured.  With that being said, so long as her nomination would advance out of Committee (which is certainly possible, if not likely, given that Democrats have majority control of the Committee), as long as Democrats would vote along party lines in the full Senate, Vice President Kamala Harris could s

Yesterday, all 1,400 of the workers at Kellogg’s cereal U.S. based plants went on strike following a year of bargaining over pay, time off, healthcare related coverage, and retirement benefits. While pay, healthcare, an retirement related benefits have apparently been a sticking point during the bargaining process, the outsourcing of jobs appears to be a major point of contention.  The workers have understandably taken umbrage with alleged plans by the company to shift some jobs to Mexico.  The President of the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union has argued that if these jobs were sent to Mexico, Kellogg would be outside the reach of the Food and Drug Administration and the Occupational Safety and Health Administration. Readers might be aware of supply chain issues in certain parts of the country (or world for that matter…here’s looking at you, European gas prices.)  While it is not immediately clear if this strike will cause supply chin issues

  Earlier this year, President Joe Biden announced that federal contractors and subcontractors would be required to ensure their workforces were vaccinated . Naturally, questions arose about when this edict would go into effect, what all was required, etc.  Have no fear, the Safer Federal Workforce Task Force released guidance to give federal contractors and subcontractors more information to ensure compliance.  In short, the vaccine mandate goes into effect December 8th with the requirement that these workforces be vaccinated, with limited exceptions.  Notably, this vaccine mandate applies to work from home federal contractors and subcontractors. The guidance also stipulates that these vaccine mandates be included in government contracts going forward. For a copy of the Safer Federal Workforce Task Force’s guidance:   https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf  

  Are you sitting down for this one?  If not, take a minute before reading further. On September 29th, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo issued a memo in which she stated that college athletes at private colleges/universities should be classified as employees under the National Labor Relations Act (“NLRA”).  According to Abruzzo, these college athletes provide a financial benefit to their colleges/universities while the colleges/universities control the athletic activities of the players.  Abruzzo’s argument followed that these college athletes not being classified as employees is a violation of the NLRA. Some readers might be thinking…ok, so what?  In short, if college athletes are found to be employees, they would gain the right organize and form a union, be entitled to compensation, open universities up to unemployment insurance/compensation matters, etc. A few years ago, football players at Northwestern University had attempted to unionize bu

  Late this afternoon, U.S. Supreme Court Justice Sonia Sotomayor denied a request by New York City school employees that sought an injunction against a vaccine mandate in the workplace. Readers might recall a note I posted earlier this week about how some New York City school employees were trying to contest the requirement that they get the coronavirus vaccine or risk being terminated .  The request that the Supreme Court issue an injunction was a last gasp effort to stop the vaccine policy from taking effect.  Justice Sotomayor, who handles emergency requests from New York, did not refer the matter to the entire Supreme Court.  (This is standard as each Supreme Court Justice handles emergency requests from particular parts of the country.  In this case, Justice Sotomayor hears matters out of New York.  It is at the discretion of each Justice to either decline a particular emergency request or to refer it to the entire Court.)  Therefore, it is possible that had the entire Supreme Co

Between a few articles noting minimum wage hikes in Florida and Washington & efforts by organized labor to push through President Joe Biden’s spending plan, I point readers to an update on the National Labor Relations Board General Counsel and the steps she intends to take to advance a labor friendly agenda.  Granted, having a plan to advance a labor friendly agenda and actually putting it into place are two different stories.  With that being said, I refer readers to the article to get a sense of what we might see coming from the National Labor Relations Board in the coming months. As always, below are a couple articles that caught my eye this week. Labor Unions Lend Financial Support to Back President Biden’s Spending Package The Wall Street Journal published an article today in which it noted the aggressive efforts by organized labor to get President Joe Biden’s $3.5 trillion spending package approved by Congress.  Between millions of dollars being spent by the Service Employee