The Majority Opinion: Legal Blog

As always, there are some EEOC cases that jump out at me when I review developments on that front.  In fact, by my count, it has been about a year since I last highlighted some recent EEOC cases.  I suppose twelve months later is as good of a time as any to do another EEOC Roundup.  Below are a couple EEOC cases and settlements that caught my eye this week.  Former Owner of VHS West Suburban Medical Center Agrees to Settle Disability Discrimination Suit The former owner of VHS West Suburban Medical Center has agreed to settle a disability discrimination suit for $150,000 following a recent lawsuit that was filed following claims of a violation of the Americans with Disabilities Act (“ADA”).  The lawsuit claimed that a worker requested a reasonable accommodation of a temporary, part time schedule in January 2016.  Her employer instead put her on unpaid leave.  Even after notifying her employer that the reasonable accommodation was no longer needed, she was not allowed to return to work

Earlier this month, the Florida Legislature approved legislation that prohibits employers in the state from requiring employees be vaccinated against the coronavirus as a condition of employment. Readers will recall that federal contractor vaccine mandates and large scale employer vaccine mandates have been a hot button topic in recent weeks.  In fact, following a Fifth Circuit stay of the large scale employer vaccine mandate, the Sixth Circuit was selected as the Circuit that will hear the consolidated cases on the topic. With Florida approving this legislation last week, Florida Governor Ron DeSantis was not shy about hailing the legislation as a win for employers and employees alike.  In particular, Governor DeSantis called the legislation vital to protect an individual’s freedom without allowing for government overreach via these vaccine mandates. For additional information:   https://www.yahoo.com/news/florida-gov-poised-sign-bills-023338720.html

Workplace safety has been a somewhat common topic over the past year, due in no small part to concerns over workplace safety in light of the coronavirus pandemic.  While there are several articles I want to highlight for readers this week, I call particular attention to the first article in regard to an employee that was allegedly fired after raising concerns about workplace safety in regard to possible transmission of the coronavirus at work. As always, below are a couple articles that caught my eye this week. Labor Department Files Suit Against Peterbilt After Worker Fired For Voicing Concerns About Workplace Safety Earlier this month, the Labor Department announced it had filed suit against PACCAR, Inc. d/b/a Peterbilt Motor Co. after the company allegedly terminated an employee who voiced concerns about being exposed to coronavirus in the workplace.  According to the lawsuit, the employee had expressed concerns about contracting the coronavirus in the workplace last year, despite t

Late last week, the U.S. House of Representatives approved legislation that would provide four weeks of paid family and medical leave for all employees and independent contractors. That legislation, called the Build Back Better Act, is a cornerstone of President Joe Biden’s legislative agenda that has been stuck in somewhat of a quagmire in Congress…despite Democrats having majority control of both the House and Senate.   Readers might recall that paid leave has been on, then off, then back on the table while the House worked to find enough votes to approve the legislation . With the legislation clearing the House, it now heads to the Senate where its passage is no sure thing.  Despite Democrats having a narrow majority in the Senate, some Democratic Senators including Joe Manchin have indicated their opposition to paid leave being included in the Build Back Better Act due to the cost of the paid leave.  Will a compromise be reached that would result in paid leave remaining in the legi

Last week, unionized workers at Kroger in Houston voted to authorize a strike that could take place at any time…perhaps even as readers are paging through this post. The workers had previously voted to authorize a strike last November after negotiations fells apart with the company in regard to a new contract.  However, a strike did not occur while the company and the workers’ union continued to negotiate.  With that being said, with apparently no serious advancement in regard to a new contract, the workers voted again to authorize a strike.  While no date was set to strike, the vote gives the green light for these unionized workers to walk off the job at any time. Will there be a resolution before Thanksgiving?  Perhaps.  With that being said, this is a rather tenuous situation with a strike appearing to be imminent but the exact timeframe of when it will occur not yet clear.  Stay tuned. For additional information:   https://www.fastcompany.com/90698441/strikesgiving-kroger-employees

Perhaps this should have been a “Labor Law Edition” to close out the week, given that the two articles that I want to highlight for readers are labor centric.  Even for those readers that do not encounter labor unions or unionization efforts often, I encourage you to give both of the below articles a read. As always, below are a couple articles that caught my eye this week. Starbucks & the Union Elections: The Start of a Wave Of Unionization Efforts In the Food Industry? As readers might recall, workers at several Buffalo area Starbucks locations have sought to unionize.  While Starbucks has sought to have one election for all the stores, each store will have its own election.  As Katishi Maake at Retail Brew writes, labor advocates are hoping to use a successful election at one (or more) of the Buffalo area stores as a catalyst to encourage other workers in the food industry to follow suit.  I refer readers to the article for Maake’s thoughts on the matter.  While the results of

Several years ago, back in 2013 to be exact, a case was working its way through the Ninth Circuit in which a group of Apple store employees sued the company on the grounds that they should be paid for the time spent waiting in security bag screening lines at work. That case, Frlekin v. Apple , saw several twists and turns after the class action was filed, including being tossed out but eventually reinstated last year.  The workers claimed that this time was compensable but Apple pushed back, noting that these workers could simply not bring a bag to work and could avoid the screening. Perhaps all is well that ends well?  Last Friday, the parties have asked a federal judge to approve a nearly $30 million settlement in which Apple would pay these workers to resolve the lawsuit.  While the proposed settlement must be approved by the Court, this could finally resolve a rather drawn out and protracted lawsuit. For additional information:   https://www.bloomberg.com/news/articles/2021-11-13/a

Earlier today, the Sixth Circuit Court of Appeals was selected as the Circuit that will hear the challenges to the Biden Administration’s large scale employer vaccine mandate. As previously noted, there have been a host of lawsuits filed in various parts of the country in an effort to stop the implementation of the large scale employer vaccine mandate that was set to go into effect on January 4th.   Late last week , the Fifth Circuit Court of Appeals issued a permanent stay on the vaccine mandate.  However, the Court wrote that it could be lifted by another Circuit. That brings us to today’s development.  As there are several cases pending around the country dealing with this vaccine mandate, the Justice Department was charged with conducting a random section of one Circuit in which the cases would be consolidated and heard.  That random selection was done as any “gambler” might like...via a lotto ball drawing.  Note, this is not abnormal.  This is the way it is decided which Circuit w

The ongoing John Deere strike has been notable in two regards:  1) over 10,000 unionized workers have been on strike for what it going on over a month; and 2) despite repeated failures to secure a new agreement between the company and its workers, a third attempt at reaching an agreement might finally end the strike. The size and scale of the strike has been notable in so much that it has slowed production at the company and forced John Deere to bring in non unionized workers in an effort to bridge the gap.  While prior attempts had been made to reach a resolution on a new agreement, the local unions have failed to ratify the prior tentative agreements.  (The ratification of a new agreement is required by the local unions rather than just by the United Auto Workers, which is negotiating with the company.)  Despite coming close on the most recent ratification vote (55% against, 45% for ratification), there is hope that this third tentative agreement will finally put an end to the strik

Let us call this a hot of the presses breaking news matter for a late Friday evening.  A few hours ago, the Fifth Circuit Court of Appeals upheld a stay it previously issued that will prevent the Biden Administration’s vaccine mandate for employers with 100 or more employees from taking effect. Readers might recall that a stay was recently issued by the Fifth Circuit with time allowed for the Biden Administration to file a response .  The Biden Administration did just that and framed the vaccine mandate as a life or death matter that was needed to prevent widespread infections and deaths. In the opinion issued this evening by the Fifth Circuit, the Court rejected the arguments made by the Biden Administration, pointing out that the vaccine mandate did not account for differences in workplaces (where some workers might be working side by side while others might work solo).  The Court went on to question the Biden Administration’s life or death argument since the vaccine mandate did not

Coronavirus testing, minimum wage hikes, and union elections…talk about quite the range of topics this week.  I encourage readers to take a look at all three topics but will call attention to the Zoom discussion happening in a few hours in regard to coronavirus testing for large scale employers.  That one is well worth joining if you have some spare time today. As always, below are a couple articles that caught my eye this week. The Nitty Gritty Details of OSHA’s Vaccine or Test Mandate Today at noon EST, there is a Zoom discussion being held buy several employment law attorneys in which they are talking about the Occupational Safety & Health Administration (“OSHA”) and their recent requirement that large scale employers either require their employees be vaccinated or tested weekly.   Readers will recall that this has been an evolving story but I encourage those looking for more information on the matter to join the Zoom discussion in a few hours. Push Begins to Put $15/Hour Wage

On October 5th, New Jersey Governor Phil Murphy signed Assembly Bill 681 into law which amends the New Jersey Law Against Discrimination to now prohibit employers from discriminating against workers on the basis of their age, if a particular worker is age 70+. While the New Jersey Law Against Discrimination previously prohibited discrimination against any worker in regard to the opportunity to obtain employment, there was some ambiguity that allowed employers to make employment decisions on the basis of an employee’s age if the employee was over the age of 70.  In effect, while the law was well intentioned, it did not specifically outlaw employment discrimination against this group of workers. However, with Governor Murphy signing the legislation into law, this sort of discrimination that had been outside the scope of the New Jersey Law Against Discrimination will now fall within its scope and prohibit employers from taking those sort of now unlawful employment actions. For additional

On Saturday, the Fifth Circuit Court of Appeals issued a stay that for the time being halts the implementation and enforcement of President Joe Biden’s aggressive plan to require vaccinations among employees at large scale employers. Readers will recall that vaccine mandate announcement was made earlier this year with the Biden Administration announcing further details (and a new January 4th compliance date) last week .  Nearly as soon as the announcement was made last week, there became a growing chorus of opposition speaking out against the vaccine mandate.  While there are several legal challenges to the mandate in courts around the country, Saturday’s ruling from the Fifth Circuit Court of Appeals comes after a joint petition was filed by advocacy groups, businesses, and a host of states including Texas, South Carolina, and Utah. Per the Court’s order, the Biden Administration has until 5 PM today to respond or the halt issued over the weekend will become a permanent injunction.  N

Recently, there have been several developments on some topics I have written about that I wanted to bring to the attention of readers.  As with many topics I write about, situations change and are constantly evolving.  As we head into the homestretch of 2021, I wanted to highlight a few recent developments that readers might find worth a read. As always, below are a couple articles that caught my eye this week. Coronavirus Testing, Vaccinations, & Paid Leave Yesterday , it was announced that there is a new deadline for large employer to comply with the coronavirus vaccine requirements as directed by the Biden administration.  Following the Occupational Safety and Health Administration issuing its Emergency Temporary Standard (“ETS”) on the matter, questions have started to arise over what, if any, paid leave employers will be required to provide to employees to get tested and/or get a coronavirus vaccine.  Earlier this morning, Jeff Nowak over at FMLA Insights posted a good overv

Readers will likely recall that in recent months , the President Biden administration issued an executive order requiring all federal contractors to be vaccinated as well as instructing the Labor Department to work with the Occupation Safety and Health Administration on a requirement that employers with 100 or more employees require vaccinations. Let us take this in two parts, starting first with an amendment to the federal contractor vaccination requirement.  Previously, the executive order required all federal contractors be vaccinated by December 8th.  However, there have been a growing number of grips and complaints about this deadline as many critics said it would further exacerbate supply chain issues heading into the holiday season.  However, earlier today, that vaccination deadline for federal contractors was moved to January 4th. In regard to the vaccination requirement for employers with 100 or more employees, that requirement is now set to go into effect on January 4th as we

  On September 27th, California Governor Gavin Newsom signed AB 1033 into law which amends the California Family Rights Act (“CFRA”) to provide for job protected time off to allow workers to care for sick in laws. The CFRA, as currently written before AB 1033 was signed into law, stipulates that most employers in the state are required to provide eligible employees with up to twelve weeks of job protected time off to allow the employee to tend to their own medical issues, to care for a sick family member, as well as bond with a new child.  However, Governor Newsom’s approval of AB 1033 will now allow in laws to be included in that category, should an employee need to care for an in law with a serious medical condition. This law is set to go into effect on January 1, 2022.  Employers in the state would be wise to ensure compliance ahead of time. For additional information as to AB 1033:   https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB1033

  I mean, really, the title says it all.  The New York Department of Labor recently released guidance and a FAQ section on recreational marijuana usage and how it applies in the workplace. In reviewing the guidance, I wanted to point out a few key takeaways.  First, as some readers might be aware, recreational marijuana usage and possession was legalized in New York for adults 21+ effective this past March.  In doing so, New York employers are prohibited from hiring, employing, discharging, or otherwise discriminating against a worker for lawfully using marijuana away from the workplace while off duty and off premises.  Now that we have that out of the way, it is important to note that employers in New York are prohibited from drug testing employees for marijuana except in limited circumstances (such as where it is required by law).  As well, an employer that smells marijuana cannot use that alone as evidence of “articulable symptoms of impairment.”  In addition, drug testing results