The Majority Opinion: Legal Blog

Here we are, late in the day on the 31st as I put the finishing touches on this post.  As with any final post for the year, I wanted to note a few key developments over the past twelve months before we get to a few of the articles I wanted to highlight this week. There were some noteworthy developments at the local level, including Washington D.C. banning non-compete agreements , the West Hollywood City Council approving a premium pay ordinance for large grocery store employees , and  Orange County (Florida) enacting a ban the box measure . Granted, at the statewide level, there were also a few key topics that came about over the past year, including Arizona amending the Arizona Civil Rights Act to provide workplace protections for pregnant workers in the state , Illinois adding a new section to the Illinois Human Rights Act that makes it a civil rights violation for an employer to use an individual’s criminal record in any employment decision unless one of two narrow exceptions are me

  As always, there are some EEOC cases that jump out at me when I review developments on that front.  Below are some EEOC cases and settlements that caught my eye this month.  Corning Alleged to Have Discriminated Against Female Process Assistants Recently, the EEOC filed suit against Corning, a technology company, on the grounds that the company sexually discriminated against female process assistants compared to their male counterparts.  The lawsuit alleges that Corning “grooms” male workers for advancement, provided them with training opportunities, and modifying rules for promotions, compared to similarly or more qualified women.  This alleged conduct is in violation of federal law which prohibits discrimination on the basis of sex. Davis Autogroup to Settle Age Discrimination Claim For $390,000 An age discrimination lawsuit that was filed against Davis Autogroup has been settled with the company agreeing to pay $390,000.00 to resolve the claim.  According to the lawsuit, the compa

Earlier this month, the Portland City Council approved a $19.50/hour hazard pay minimum wage rate set to take effect January 1, 2022. As many readers might recall, the Omicron variant is rapidly spreading across the country.  Naturally, that has led to a rise in positive coronavirus cases being reported which has exacerbated an already stressed electorate and hourly workforce.  While some employers have provided an increased pay rate during the pandemic, Portland is going one step further by requiring employers in the city provide this hazard pay rate at the start of the new year. Notably, this hazard pay rate will go into effect given the declared emergency order issued by the City Council.  If/when the Omicron variant subsides, it is possible the City Council will declare the emergency order is no longer in effect which could impact this $19.50/hour hazard pay rate.  However, until that happens, employees on Portland should expect to benefit from this increased pay rate. For addition

I will keep this post short as many readers are likely en route to someplace for Christmas (or are knee deep in gift wrapping.)  So while I could go on and on with a bit of a preamble here, I will just cut to the chase. As always, below are a couple articles that caught my eye this week. Illinois Hourly Minimum Wage Rate Rises to $12/Hour in January For those unaware, there is a recurring minimum wage hike in Illinois after Governor J.B. Pritzker signed legislation into law in 2019 to raise the state’s hourly minimum wage rate to $15/hour by 2025.   The current hourly wage rate of $10/hour will increase to $12/hour on January 1st.  For those employers in the state that have not made plans to account for this increase in labor costs…now is as good of a time as any to do so. San Francisco Moves One Step Closer to Approving Paid Sick Leave For Nannies & Gardeners Earlier this month, the San Francisco Board of Supervisors unanimously approved a proposal that would provide paid sick lea

Late breaking news in the latter part of the day has started to become somewhat routine as of late, no? Earlier this evening, the U.S. Supreme Court announced it will hear arguments on January 7th in regard to President Joe Biden’s test or vaccine mandate for large scale employers as well as a challenge to a vaccine mandate for healthcare workers. Readers recall that there have been ongoing challenges to these mandates in recent weeks.  Of course, while there had been stays previously issued, these mandates are currently in place much to the confusion of employers and employees alike.  After all, these mandates had been issued, then stayed, and then put back in place.  (For healthcare workers, a stay still exists though for any healthcare worker at any facility that receives Medicare or Medicaid funds.)  Needless to say this has left many confused as to what is/is not required. With that being said, it will be interesting to see how these arguments play out before the Supreme Court nex

Hobby Lobby recently announced that beginning January 1st, it would raise hourly pay rates for its employees from $17/hour up to $18.50/hour. The company is going one step further by also continuing to offer medical, dental, and prescription insurance, a 401(k), flexible scheduling, life insurance, paid time off, and an employee discount.  To call this wage hike by Hobby Lobby noteworthy is probably an understatement.  Nevertheless, readers will likely recall that with a tight labor market and big box retailers fighting amongst themselves for a small pool of available workers, this wage hike by Hobby Lobby sets the company apart from a lot of other employers.  While we have seen some employers offer to pay for tuition expenses of employees as a way to draw in (and retain) workers, Hobby Lobby’s generous compensation package along with this new wage hike certainly distinguishes the company. Of course, this inevitably makes me wonder what another big box retailer is going to offer now to

Late last week, Boeing announced that it was dropping its coronavirus vaccine mandate for its employees, citing a recent federal court opinion that stayed President Joe Biden’s vaccine mandate for federal contractors . This news from Boeing is somewhat surprising.  From reports, Boeing’s vaccine mandate was never overly popular in some circles.  In fact, nearly 9% of the company’s employees had applied for an exemption from the mandate.  However, Boeing had indicated it was carrying on with the mandate and there were no outside appearances that the mandate would be scrapped. Perhaps it took other employers, such as Amtrak , announcing it was scrapping its own vaccine mandate for employees for Boeing to follow suit.  Regardless, I think there will likely be other employers that follow Boeing’s lead and scrap their own vaccine mandates. For additional information:   https://www.seattletimes.com/business/boeing-aerospace/boeing-drops-vaccine-mandate-for-u-s-employees/

Talk about late breaking news for a Friday:  A three judge panel from the Sixth Circuit Court of Appeals lifted a temporary stay that had previously been in place that prevented a test or vaccine mandate for employers with at least 100 employees from being enforced . Readers will recall that the President Joe Biden instructed the Occupational Safety and Health Administration to issue a mandate that required every large scale private employer have each of its employees either get the coronavirus vaccine or submit to weekly testing.  However, after lawsuits were filed to contest this mandate, the Sixth Circuit eventually got the consolidated cases and issued a temporary stay in November that kept this mandate from going into effect.  However, the three judge panel’s decision today noted that the alleged injuries claimed by the claimants was “entirely speculative” and the costs of delaying implementing the mandate were high.  (Not to mention the Court gave a nod to the Omicron variant and

As we head into the end of the year, I have tried to carve out some additional time to read through articles as things have slowed down a bit in the office.  This week, I wanted to lead things off with an update at Kroger after they made a change this week to paid time off for unvaccinated workers as well as health insurance coverage costs for these unvaccinated workers.  That article, and the ones that follow, are worth a read. As always, below are a couple articles that caught my eye this week. Kroger Amends Coronavirus Paid Leave/Insurance Policies For Workers Earlier this week, Kroger announced that it was amending its paid leave policy for unvaccinated workers that contract the coronavirus.  The company had previously provided these workers with two weeks of paid leave if they got the coronavirus.  Staring January 1, that two weeks of paid leave will no longer be offered to these workers.  Kroger also announced that for any unvaccinated salaried employees, they will be assessed an

Readers might recall that several Buffalo area Starbucks locations sought to unionize recently with at least one of the locations deciding to unionize after ballots were counted .  (It is worth noting that a second store voted against unionization while the results at the third are still up in the air pending challenges.) That inevitably led many to wonder if other Starbucks locations would follow the lead and seek to unionize as well.  (Of course, workers at a Starbucks in Mesa, Arizona are currently attempting to unionize .)  It turns out we did not have to wait long.  On Monday, baristas at two Boston area Starbucks locations announced that they had filed for union elections at their locations.  As of this writing, the date of those elections is not yet certain. However, readers might recall that the successfully unionization of at least one Starbucks location in Buffalo was noteworthy as being the first corporate owned store to unionize in the company’s history.  As with many devel

Earlier this afternoon, Amtrak announced that it would temporarily halt its requirement that employees get the coronavirus vaccine as a condition of employment. Prior to today’s announcement, Amtrak had required all employees to either receive the coronavirus vaccine or have a valid accommodation request granted.  According to the company, approximately 95.7% of the company’s employees are either fully vaccinated or have an accommodation.  However, the company cited a recent district court injunction that halted the enforcement of President Joe Biden’s vaccine mandate for employees of federal contractors as grounds for Amtrak’s decision to reevaluate its policy about the vaccine. Now today’s announcement is not necessarily a complete 180 on the matter.  For the time being, while Amtrak will not require its employees be vaccinated as a condition of employment, they will still be encouraged to do so.  For those employees that do not have the coronavirus vaccine, those employees will be

Last week, a New York City Judge issued an injunction to halt the implementation of a coronavirus vaccine mandate that would have required all New York City municipal workers to be vaccinated or risk losing their jobs. For many New York City municipal workers, they objected to this mandate and sought to have it halted.  Last week’s ruling did just that.  However, that ruling is not “final” as a hearing is expected to be held today on whether to extend the injunction or end it. Note, this injunction and today’s hearing only applies to the requirement that all New York City municipal workers be vaccinated, not the recent mandate that all New York City private employees be vaccinated.  However, I would expect to see legal challenges mounted against that mandate as well. For additional information:   https://abc7ny.com/amp/nyc-vaccine-mandate-municipal-workers-temporary-restraining-order-new-york-city/11309790/

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 November 15th, the U.S. Supreme Court granted a petition for writ of certiorari in a case in which the Court will determine whether litigation of an employment dispute in court prevents the claim from proceeding to arbitration afterward. (For those unfamiliar with the Supreme Court, the Court traditionally receives over 10,000 petitions for writ of certiorari every term.  A petition for writ of certiorari is the formal request of a party seeking to appeal a ruling from a lower court, such as a court of appeals.  The Supreme Court decides to grant very few petitions, often only selecting 100 petitions or fewer each term.) In this particular case, Morgan v. Sundance , an employee sued her employer on the grounds that she and other employees were owed overtime.  Despite the employees having signed an agreement to ar

It has been a while since there has been a relevant right to work update.  This week, a development out of Tennessee is worth noting.  How things will play out remains to be seen.  However, if I were a betting man, I would wager that state’s right to work law will eventually be enshrined in the Tennessee Constitution.  Will it happen this go around?  Stay tuned.  As always, below are a couple articles that caught my eye this week. Tennessee Governor Backs Placing Right to Work Law in Tennessee Constitution Recently, Tennessee Governor Bill Lee announced he was leading the “Yes on 1” committee which is seeking to get a ballot initiative before voters next year that would enshrine the state’s right to work law into the Tennessee Constitution.  While Tennessee is already a right to work state, a change in the political makeup in the state could see that right to work law rescinded.  Placing it in the Tennessee Constitution would “protect” it a bit more by making it more permanent and toug

Hold onto your horses readers.  For the third night in a row, we have late breaking news. Just a few minutes ago, it was announced that results are in on the three union elections that have been underway at three different Buffalo area Starbucks .  The results:  Baristas voted to unionize at one location, voted not to unionize at a second, and results at the third location are not yet conclusive. So that begs the question…who is going to declare victory?  For starters, Starbucks will likely claim victory that unionization efforts were defeated at one location (and possibly a second.)  I would suspect they use that to show that most employees do not see the need for unionization as the company would claim they already treat their workers fairly and pay them competitive wages. However, that is somewhat of a hollow victory.  The unionization of at least one Buffalo area Starbucks marks the first successful unionization at a company owned location.  While both sides are asserting challenge

As readers might recall, there has been an ongoing unionization effort at several Buffalo area Starbucks recently .  This push to unionize several locations is notable in so much as Starbucks has been relatively successful beating back unionization efforts previously. However, organized labor supporters are hopeful, if not confident, that this time the tide will turn.  Ballots were previously mailed a few weeks ago to qualified workers to vote in the election.  Those ballots are expected to be counted by the National Labor Relations Board (“NLRB”) today.  Of course, it is not clear when an announcement will be made on the outcome of the election but it is possible results could be announced this afternoon.  Regardless of the outcome of the election, I would expect to see challenges asserted (namely by whoever “loses” the election”) to the results with efforts made to secure a new election. As we have seen with the Amazon vote in Alabama, (forcefully) defeating unionization efforts does

Here we are, yet again, with another late breaking development in the evening.  At this rate, breaking news is becoming a pattern, at least two days in a row. Earlier this evening, the U.S. Senate voted 52 - 48 to repeal President Joe Biden’s coronavirus vaccine mandate for large scale employers (those with at least 100 employees.)  As readers might recall, Democrats have a slim majority control of the Senate.  While the Senate is split 50 - 50, Vice President Kamala Harris serves as the tie breaking vote. Therefore, as readers might have guessed by this point, two Democratic Senators joined with Republicans and voted to repeal the mandate.  Those two Senators?  Joe Manchin from West Virginia and Jon Tester from Montana.  Now for those who live and breath these coronavirus vaccine mandates, I caution you that tonight’s vote likely does not mean much in the long run.  Even though the Senate voted to repeal this mandate, the House would still need to approve the legislation (which likely

Earlier this year, a union election was held at an Amazon warehouse in Bessemer, Alabama .  That election was heavily contested by Amazon as the company sought to keep the plant workers from unionizing.   As readers might recall, the election did not work out well for those hoping to unionize the Amazon warehouse .   After the election results were announced, a challenge was launched by the Retail, Wholesale and Department Store Union (which sought to unionize the warehouse) claiming the election results were tainted as Amazon improperly pressured workers to vote against unionizing by “gaslighting” workers through “egregious and blatantly illegal action.”  One major point of contention was Amazon’s decision to install a mail receptacle on the job premises to allow the workers to submit their ballots.  (After all, this was a mail in election rather than in person.)  In August, a hearing officer for the National Labor Relations Board (“NLRB”) found that Amazon violated federal labor law

Here it is nearly 10 PM on a Tuesday evening and we have breaking news after a federal judge in Georgia issued an injunction that halts the implementation of the vaccine mandate for federal contractors issued a few months ago by President Joe Biden. Readers will recall that following President Biden issuing an executive order requiring all employees of federal contractors to be vaccinated, there was some pushback among business groups.  Even after a few injunctions were recently issued that halted those mandates from taking effect in certain states, there was nothing in place nationwide.   However, today’s ruling changes that.  In the order, the Judge notes that President Biden might have exceeded his executive authority when he issued the mandate.  As a result of this injunction, the mandate will not take effect on January 4th as previously anticipated. To call this a setback for the Biden administration is an understatement.  Perhaps even a massive understatement.  However, I cation

Yesterday, New York City Mayor Bill De Blasio announced a coronavirus vaccine mandate for all private employers in the city that will go into effect December 27th. Readers might recall that New York City already has a coronavirus vaccine mandate in place for city workers but for the most part, private employers had not been required to have vaccine requirements for their workers.  With this mandate, the first in the nation, there are still a few questions surrounding it (such as how it will be enforced).  However, one notable part of the mandate is the fact that there will not be a testing option in lieu of a vaccine.   At this time, more details about the mandate are expected to be released on the 15th.  For employers and employees alike in New York City, this is a developing story that I would strongly suggest you follow in the weeks ahead. For additional information:   https://www.nytimes.com/2021/12/06/nyregion/nyc-vaccine-mandate-deblasio.html

Last Monday, U.S. Supreme Court Justice Stephen Breyer denied a request from a group of Massachusetts health care workers that sought to challenge a coronavirus vaccine requirement on the grounds that the vaccine requirement violated their religious freedom or would present a risk to their health. The dispute centered around a hospital requiring its workers be vaccinated and those that refused were placed on unpaid leave or terminated.  While these workers could seek a religious or medical exemption from their employer, the workers that brought suit had their exemption requests denied.  They subsequently claimed the denial of their exemption requests violated federal law prohibiting discrimination.  As a result, an emergency stay was filed by these workers. Now bear in mind that the denial by Justice Breyer of the requested stay is not necessarily a ruling on the merits.  Instead, this is Justice Breyer (who is the Justice charged with considering appeals to the Supreme Court from this

What a week, am I right?   In between a lockout in Major League Baseball yesterday, a new coronavirus variant, and West Virginia Democratic Senator Joe Manchin announcing he is cosponsoring a bill to end vaccine mandates for private employers, there was a lot to review.  With that being said, I refer readers to the below articles which are worth a read. As always, below are a couple articles that caught my eye this week. $15/Hour Minimum Wage Rate in Florida? Yes, But Maybe Not For All Workers Readers might recall that last year, voters in Florida approved a ballot measure that will raise the hourly minimum wage rate in the state to $15/hour by 2026 .  However, at least one Florida Legislator is seeking to curtail the reach of that wage hike.  Legislator Jeff Brandes wants to amend the wage hike to prevent workers under the age of 21 and low skilled workers to earn less.  Now just because the Florida Legislature might approve the proposal from Brandes does not make it law.  Rather, it

On Tuesday, a Federal Judge in Kentucky issued a preliminary injunction blocking the enforcement of the federal contractor vaccine mandate that had previously been issued by the President Joe Biden administration. In Tuesday’s opinion, the Judge noted that the case was not about whether vaccines are effective or whether a government, in certain instances, can require citizens to get vaccines.  Rather, the Judge stated that he did not believe the Biden administration had the authority to impose a vaccine mandate on the employees of federal contractors.  Consequently, the injunction was issued to halt enforcement of this mandate for federal contractors in Kentucky, Ohio, and Tennessee. This is of course another rebuke of the recent vaccine mandates issued by the Biden administration (or ordered by the Biden administration via the Labor Department) by courts.   Following the Fifth Circuit’s injunction (and the cases being consolidated into the Sixth Circuit ) to block enforcement of vacc

Last month, the Tempe City Council unanimously approved adding the CROWN Act to its anti-discrimination ordinance currently in place.  (That ordinance, in place since 2014, prohibits discrimination against workers on the basis of race, religion, or sexual orientation.) For those unfamiliar, the CROWN Act (or Create a Respectful and Open World for Natural Hair Act) is a somewhat common piece of legislation that has been adopted across the country by some cities, counties, and states.  In fact, there has been an ongoing push to get Congress to pass a nationwide version of the CROWN Act, although those efforts are still ongoing.  In relevant part, the CROWN Act prohibits workplace discrimination based on the natural hair or hairstyles of a worker. With the approval of the CROWN Act in Tempe, the city now joins Tucson as the second city in Arizona to have approved this legislation.  I would suspect that other cities in the state will follow suit, perhaps with Flagstaff being next. For addi