The Majority Opinion: Legal Blog

With the start of the year, there were quite a few minimum wage hikes around the country.  Following those wage hikes, I wanted to focus this post on some minimums wage developments around the country.  From a potential wage hike in Hawaii, to recently introduced legislation in West Virginia, to a minimum wage increase surviving a freeze attempt in Virginia, and a potential hike to the hourly pay rate for state employees in Missouri, there is quite a bit to page through this week. As always, below are a couple articles that caught my eye this week. Hawaii Legislature to Consider Minimum Wage Hike As the legislative session kicks off in Hawaii, Scott Saiki (the House Speaker), indicated his intent to move forward with legislation to raise the hourly minimum wage rate to $18/hour.  (Under the proposal, the minimum wage rate would increase to $12/hour this October, $15/hour in 2024, and ultimately $18/hour in 2026.)  While the Senate President, Ron Kouchi, was non committal on supporting

Earlier this week, Starbucks filed an appeal with the National Labor Relations Board (“NLRB”) and requested that the union election currently underway in Mesa, Arizona be halted while the company seeks to have union elections occur regionally rather than with each individual store. Readers will recall that the first successful unionization of a company owned location was met with surprise by some earlier this year.   Those two successful elections resulted in two Buffalo area Starbucks locations overturning the apple cart and successfully unionizing.   That has led to other Starbucks workers around the country making moves to unionize as a result . However, these union elections are only occurring because of a prior ruling that allowed individual union elections at each Starbucks locations, rather than having regional elections which would likely dilute the vote and make unionization less likely.  Nevertheless, these individual elections have commenced with a Mesa, Arizona location c

Yesterday, the Occupational Safety and Health Administration (“OSHA”) announced that it would stop requiring large employers (those with 100 or more employees) from having their employees get the coronavirus vaccines as a condition of employment and today, would formally withdraw the emergency standard previously issued. Readers will recall that the U.S. Supreme Court had previously issued a ruling on the matter, striking down OSHA’s mandate .  Nevertheless, there was some thought that OSHA might try and find a way to re-work its emergency standard to get around the Supreme Court’s ruling.  While there was never any guarantee that would happen (or that it would even survived judicial scrutiny), this announcement from OSHA that it was walking away from the emergency standard provides some clarity on the matter. Of course, this begs the question…what next?  At a minimum, OSHA is expected to focus its efforts on the state level rather than a nationwide mandate (in regard to vaccine mandat

As the saying goes, once the ball gets rolling downhill, it can be hard to stop.  I would say that is one way to look at how the successful unionization efforts at two Buffalo area Starbucks has led to a growing number of workers at other Starbucks locations around the country taking steps to unionize as well. Of course readers are likely aware of a few Boston area Starbucks locations taking steps to unionize, an election currently underway at a Mesa, Arizona location, as well as unionization efforts underway in Chicago, Cleveland, Seattle, Tallahassee, and Santa Cruz, among other locations.  In fact, recently, a union election was approved at three additional New York locations with ballots set to be mailed to eligible workers on January 31st. Readers might be saying, ok…so what?  For starters, if readers will recall, the successful unionization efforts at the two Buffalo area Starbucks was the first successful unionization of any company owned location.  While the unionization vote a

Late last week, a federal judge in Texas issued an injunction that stops the coronavirus vaccine mandate for federal workers from taking effect. Readers might recall that President Joe Biden had previously ordered that all federal workers get the coronavirus vaccine as a condition of employment or risk termination .  Notably, no test out option was allowed.  That was met with cheers (and criticism) from many.  While legal challenges were asserted, things had been rather slow moving up until last Friday’s ruling from this Court in Texas.   In the Court’s ruling, the Judge noted that President Biden lacked the authority to issue an order requiring all federal workers to undergo a medical treatment as a condition of employment, given in part that Congress had not delegated this authority to the Executive Branch.  Consequently, the Court reasoned that President Biden exceeded his authority when he issued such an order in relation to coronavirus vaccines as a condition of employment. To cla

One of the more intriguing developments this week deals with Starbucks and their decision to reverse course on their vaccine mandate for employees.  While the second article on union membership (or lack there of) is worth noting, I think the article on Starbucks and their vaccine policy is worth leading things off for now. As always, below are a couple articles that caught my eye this week. Starbucks Rescinds Vaccine Mandate For It’s Employees Earlier this year, Starbucks had announced plans to require its workforce to get the coronavirus vaccine or risk termination .  After the U.S. Supreme Court struck down this mandate for large scale employers (such as Starbucks), Starbucks announced it would not move forward with requiring its workforce get vaccinated.  I would call this a noteworthy update as to my knowledge, Starbucks is the first company to rescind the vaccine mandate following the Supreme Court’s ruling.  The question then arises, will other company’s follow? Union Membership

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 December 8th, a lawsuit was filed in the U.S. District Court for the Middle District of Georgia, in which the claimant alleged that Hostess Brands violated the Americans with Disabilities Act (“ADA”) and Family Medical Leave Act (“FMLA”) following her positive coronavirus test and request for time off to quarantine. The lawsuit alleges that on January 19th, the claimant began experiencing coronavirus symptoms.  She was subsequently sent home from work and instructed to stay away from the workplace for 10 days.  A few days later, the claimant notified Hostess of her positive coronavirus test.  On January 28th, while the claimant was still quarantining, she was terminated. This alleged conduct could be found to be in violation of both the ADA and FMLA.  The claimant claims she was terminated because of her disabi

On the heels of workers at two Starbucks locations in the Buffalo area voting to unionize late last year , workers at several other Starbucks across the country also sought to unionize and hold an election. In fact, one of those Starbucks locations in Mesa, Arizona has been given the ok by the National Labor Relations Board (“NLRB”) to hold an election.  That election, which will be conducted by mail, started January 14th and will run until January 28th.  Eligible workers at this Mesa location will have the opportunity to vote on whether or not to unionize.  Similar to the elections in Buffalo last year, once all ballots that have been mailed back, they will be tabulated to determine if workers at this Mesa store will become the next Starbucks location to unionize. Of course, as with other union elections, it is possible (if not likely) that challenges will be asserted to the outcome.  In the meantime, let us see how things play out after the 28th. For additional information:   https:

Earlier this month, the Los Angeles County Department of Public Health announced that effective today, January 17th, it would require all employers in the county to provide any employee a N95 or KN95 mask if that employee works indoors and in close contact with others. Readers might be aware that there is already an indoor mask mandate in Los Angeles County.  However, this requirement that employers actually provide these medical grade masks is somewhat unique (and an additional cost that employers will need to account for.) Notably, the Los Angeles County Department of Public Health has urged employers to provide these masks before today’s deadline.  Although employers in Los Angeles County could have voluntarily done so, the requirement does not kick in until today. At this time, it is not clear how long this requirement will remain in place.  If I were a betting man, I would expect it to closely track the statewide indoor mask mandate.  That statewide indoor mask mandate remains in

Earlier this week, a regular reader of the blog brought to my attention an update following a recent lawsuit filed against Whole Foods in regard to what employees can/cannot wear while at work.  As noted below, the situation is still evolving but well worth leading things off this week. As always, below are a couple articles that caught my eye this week. Whole Foods Responds to BLM Complaint Filed With NLRB Last month , I made note of a complaint that had been filed with the National Labor Relations Board (“NLRB”) which alleged Whole Foods violated federal labor law by not allowing its workers to wear Black Lives Matter (“BLM”) face masks or apparel at work.  The complaint alleged that Whole Foods retaliated against workers that chose to do so.  However, Whole Foods recently responded and alleged that being forced to allow its workers to display BLM on their face masks or apparel would amount to a First Amendment violation.  The company went a step further and accused NLRB General Coun

That did not take long, did it?   Only a few short days after the U.S. Supreme Court heard arguments on two coronavirus vaccine mandate cases , we have the Court’s rulings. Let us start first with the case that dealt with the Occupational Safety and Health Administration’s (OSHA) requirement that employers with 100 or more employees would be required to have their employees either get the coronavirus vaccine or submit to weekly testing.  For those employees that were not vaccinated, they were required to wear masks while in the workplace.  In a 6 - 3 ruling, the Supreme Court held that while Congress had given OSHA to regulate dangers in the workplace, OSHA did not have Congressional authority to regulate public health measures more broadly.  Consequently, a majority of the Court struck down this mandate. However, one thing to keep in mind is that an employer, on their own volition, can still require their employees get the vaccine (unless there is a contract or collective bargaining a

On Monday, the National Labor Relations Board (“NLRB”) certified the results of a second election at a Buffalo area Starbucks. Readers will recall that late last year, workers at three Buffalo area Starbucks sought to unionize .   After mail in elections were conducted, workers at one store rejected unionization, workers at a second store voted to unionize, and results were up in the air at the third following challenges to the results . At the third store, the union challenged several ballots on the grounds that several of the ballots came from some workers that did not actually work at that store.  The NLRB ended up agreeing with the union and found that among the eligible ballots that could be counted, workers at the store voted to unionize by a 15 - 9 vote. This should be considered as another defeat for Starbucks which had long been able to successfully beat back unionization efforts at its over 9,000 company owned stores.  However, despite efforts to defeat these unionization eff

In recent weeks, Starbucks announced that it would require all its 228,000 U.S. employees to inform the company by today, January 10th, of their vaccine status.  The company also stipulated that by February 9th, all its U.S. employees must either be vaccinated or submit to weekly testing. Notably, the company’s vaccine requirement means that a Starbucks employee must have either both shots of the Pfizer or Moderna vaccine or a single shot of the Johnson & Johnson vaccine by February 9th.  For workers that do not have the vaccine, they will be required to pay for their own weekly testing.  While Starbucks has recognized that a medical or religious exemption might exist for certain workers to not get the coronavirus vaccine, these workers that qualify for an exemption will still be required to submit to weekly testing…again, at the cost of the workers rather than Starbucks.    Starbucks has cited the recent vaccine or test mandate for employers with 100 or more employees as a reason

Here we are, a week into the new year and there are a few updates/developments on some labor & employment law topics that dominated the news during 2020.  I call attention to these updates in particular, given that these are ongoing topics that I expect we will hear more about as 2022 unfolds.  Of course in the coming weeks we will give a nod to the two cases that were heard by the U.S. Supreme Court earlier this morning.  However, for the time being, we will focus this post on a few other topics. As always, below are a couple articles that caught my eye this week. Citigroup to Terminate Unvaccinated Workers Let us call this a bit of breaking news as earlier this morning, Citigroup announced that by January 31st, it will terminate all unvaccinated workers.  While the company had previously indicated it would require the coronavirus vaccine as a condition of employment, it was a bit unclear as to what the company would ultimately do with those workers that did not get the vaccine.  

Today, the U.S. Supreme Court is set to hear arguments in two vaccine mandate cases currently pending before the Court. The first case deals with a mandate issued by the Occupational Safety and Health Administration that requires employers with 100 or more employees either require coronavirus vaccines as a condition of employment or require unvaccinated employees submit to weekly testing and mandatory mask wearing in the workplace.  As readers might recall, this mandate was previously stayed by the Sixth Circuit but later that stay was lifted.  The U.S. Supreme Court subsequently took up the appeal afterward. The second case deals with a mandate issued by the Centers for Medicare and Medicaid Services that requires healthcare workers at hospitals, ambulatory surgery centers, nursing homes, and other healthcare facilities that receive Medicare or Medicaid funds to receive the coronavirus vaccine or risk being terminated.  This mandate has been halted in about half the states while it re

For those employees who have not checked or forgot about the change in mileage reimbursement rates, the IRS announced the optional standard mileage reimbursement rates have changed for 2022.  Beginning January 1, 2022, the reimbursement rats have increased, and are as follows: 58.5 cents per mile for business miles driven (up 2.5 cents from the current rate); 18 cents per mile for medical or moving purposes (up 2 cents from the current rate); 14 cents per mile driven in service of charitable organizations (same as the current rate in effect). For those employers that use the standard IRS rate for mileage reimbursements, make sure to change your expense reimbursement policies. 

Late last year, New York Governor Kathy Hochul signed S2628 into law which amends the New York Civil Rights Law.  S2628 will require New York employers to provide prior notice in regard to the monitoring of an employee’s telephone, email, or internet usage at work. Per the language in this legislation, employers will be required to notify employees that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access usage by an employee by any electronic device or system” may be subject to monitoring.  Notably, employers will be required to obtain an employee’s acknowledgement of being notified, either in writing or electronically. While this new law does not go into effect until May 7th, New York employers would be wise to take steps to provide notice to current employees before that date so as to not run afoul of this law.  As well, New York employers will be required to provide notice to new employees “upon hiring.” While May 7th may seem

Stop me if you heard this before:  While there was at least one successful unionization at a Buffalo area Starbucks last month, many observers have speculated this would lead to unionization efforts at other Starbucks across the country. Of course, we know this to be true.   After the successful unionization at at least one Buffalo area Starbucks , unionization efforts at Starbucks have started to pick up steam with workers at two more Starbucks locations (in Broomfield, CO & Chicago, IL) recently filing petitions with the National Labor Relations Board (“NLRB”) seeking to have union elections.  Workers at these locations specifically cited the unionization efforts at other Starbucks locations as an impetus for filing their petitions with the NLRB. Now as readers might be aware, simply filing a petition with the NLRB does not mean that the election will result in a vote in favor of unionization.  However, with there being some momentum following the recent election in Buffalo, it