The Majority Opinion: Legal Blog

On October 13th, Medieval Times filed a lawsuit against the union that represents employees at one of its New Jersey locations on the grounds that the company’s trademark was infringed upon when the union chose the name “Medieval Times Performers United.” According to the company, the logo and script of the union closely resemble those of the company.  As a result, the company has alleged that the union is unlawfully “threatening the established goodwill of Medieval Times” by including the company’s name in the union’s name along with the medieval themed imagery.  The argument follows, according to Medieval Times, that the name name “Medieval Times Performers United” implies the union is affiliated with or endorsed by the company. The union has alleged that this is a frivolous lawsuit and an attempt by Medieval Times to bully the workers who just voted to unionize back in the summer.  Something tells me this is not the last we are going to hear on the matter. For additional information

Regular readers of the blog likely haven taken note of the (major) increase in labor law developments to close out 2022.  With all of those developments, it would be wrong of me to gloss over those highlights and not give them the attention they deserve.  With that being said, I also wanted to look at the other side of the coin this week.  While I read through a few compelling articles on labor law related matters (and noted an article about the unionization effort at Starbucks), I am highlighting a few employment law and HR related topics for readers to page through in the coming days. As always, below are a couple articles that caught my eye this week. Survey: App Based Workers Prefer to Be Classified As Independent Contractors Back in September, a survey was conducted among 1,251 app based workers to get their input on whether they prefer to be classified as independent contractors or instead classified as employees.  By a somewhat surprising 77%, those app based workers surveyed i

As with many labor & employment law cases (and bills) being litigated around the country, there are always a few that stand out.  This is one to keep an eye on. This November, November 8th to be exact, voters in Tennessee will have the opportunity to enshrine the state’s right to work law into the Tennessee Constitution. Tennessee already has a right to work law in place that allows employees to opt out of joining a union and prohibits union membership as a condition of employment.  Readers might be wondering if there is already a right to work law in place, why bother with an amendment to the Tennessee Constitution?  Well, quite simply, enshrining the right to work law in the state’s Constitution better “insulates” it from being repealed by the State Legislature at a later point (say if Democrats were to muster enough votes to repeal the state’s right to work law.) By amending the Tennessee Constitution to include the state’s right to work law, proponents of the measure are taking

Earlier this month, San Diego City Councilmember Raul Campillo submitted a proposal to San Diego Mayor Todd Gloria in which it has been proposed that city employees would get twelve weeks of paid parental leave (or fourteen weeks if there was a complication during delivery.) This proposal, which would dramatically increase the amount of paid parental leave currently offered to city employees (four weeks as of this writing), seeks to put San Diego city employees in a class of their own.  Notably, California has a state law in place which offers new parents six weeks of partially paid leave and another six weeks of unpaid leave. Of course, many readers are likely wondering what this twelve weeks of paid parental leave would end up costing.  That is where things might get tricky.  Currently, San Diego’s paid leave program costs the city $1.5 million/year.  Campillo’s proposal would hike that cost to $5 - $6 million/year.  However, Campillo has suggested that offering twelve weeks of paid

On Labor Day, California Governor Gavin Newsom signed AB 257 (also known as the FAST Recovery Act) into law which dramatically impacts the fast food industry in the state. Under the new law, a ten member council made up of fast food workers, franchisees, franchisers, advocates for fast food workers, and representatives from the Governor’s office will be formed.  This council will be charged with establishing minimum standards on wages, working hours, and other conditions related to the health and safety of fast food workers. Many observers suspect (or should I say, expect) that this council will move to raise hourly wage rates for fast food workers to $22/hour next year.  Whether that happens remains to be seen.  However, I can envision a situation where this wage rate goes into effect in the not too distant future. Note, this new law applies to fast food employers with more than 100 workers. For additional information:   https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bi

As the saying goes:  Not so fast, my friend.  Late this afternoon, the Amazon Labor Union withdrew its petition with the National Labor Relations Board (“NLRB”) to hold an election at a Moreno Valley, California warehouse location. Only a few weeks ago, (on October 12th) the union had filed a petition with the NLRB to hold an election.  The NLRB held there was sufficient support among workers at the warehouse to hold an election.  Nevertheless, the union has withdrawn its petition and an election will no longer take place.  While no reason was given for the withdrawal of the petition (nor does a reason need to be given), it leaves one to speculate if the recent election loss at a New York Amazon warehouse gave the union cold feet? For additional information:   https://www.theverge.com/2022/10/24/23421694/amazon-labor-union-withdrawn-petition-california-ont8-fulfillment-center

In recent weeks, that National Labor Relations Board (“NLRB”) issued a 3 - 2 decision in which it held that Tesla cannot prohibit its factory workers from wearing clothing with union insignia while in the workplace. Tesla had sought to bar its factory workers from doing so, in reliance upon a 2019 NLRB decision.  However, the NLRB reversed its 2019 ruling in Wal-Mart Stores, Inc. and held that is presumptively unlawful for an employer to restrict union clothing without a special circumstance that would justify the ban, even if the employer’s policy is neutral on its face.  In this instance, the NLRB found that Tesla had failed to show any special circumstance to support its ban.  Consequently, the NLRB’s decision stipulated that workers have a protected right to display union insignia under Section 7 of the National Labor Relations Act (“NLRA”). What does this mean for employers going forward?  In short, when an employer interferes in any way with its employees’ choice to wear union i

In subsequent weeks, I will take some time to highlight dueling right to work ballot measures in Tennessee and Illinois this coming November.  For the time being, I want to whet the appetite of readers with a note about the ongoing effort to pass a right to work law in New Hampshire.  Spoiler alert:  many, many attempts have failed…but right to work proponents in the state appear to slowly be inching toward getting a legislative victory.  Maybe… As always, below are a couple articles that caught my eye this week. Starbucks Denies Terminating Houston Area Employee Over Unionization Efforts In recent weeks, a Starbucks location in Houston voted to unionize.  Subsequently, Starbucks terminated a worker that had been paramount in leading that unionization effort.  Following that termination, workers at the Houston area Starbucks location went on strike, arguing the employee was unlawfully terminated as a result of his efforts to unionize the store.  As The Houston Chronicle reported, Star

On January 1, 2023, the statewide hourly minimum wage rate will increase to $10.10/hour, up from its current rate of $9.30/hour. The statewide hourly minimum wage rate in Ohio increases annually every year, based upon inflation.  While a wage hike in 2023 was known, the exact rate of increase was unclear until just recently.  (For those wondering, wage hikes are based upon changes to the Consumer Price Index.  Over the past twelve months, the Consumer Price Index has increased approximately 8%.) Notably, this wage hike will apply to employers in the state with at least $370,000 in annual gross receipts (up from the $342,000 annual gross receipts from 2022.) For additional information:   https://www.cleveland.com/open/2022/10/ohio-minimum-wage-to-rise-to-1010-an-hour-for-non-tipped-workers-in-january.html

Late last month, New York Supreme Court Judge Lyle Frank struck down a requirement that New York City police officers get the Covid vaccine as a condition of employment.  The Judge further ordered that that police officers that had been terminated be reinstated. Now before anyone gets worked up one way or the other as to this ruling, I want to caution readers that this order is not final.  Why, might you ask?  For starters, New York City immediately appealed the ruling which means the Judge’s order is temporarily frozen while the matter is appealed.  That means that the officers that were terminated do not automatically get their jobs back. Will Judge Frank’s ruling survive on appeal?  If I could predict the future, I would be a wealthy man.  With that being said, I would expect this to be a hotly contested appeal that will be closely watched by many as a template for how likely it is other vaccine mandates in the employment context might be challenged going forward. For additional inf

Earlier today, it was announced that a union election at an Amazon warehouse in upstate New York fell short with 406 of eligible workers voting against unionization with only 206 in favor. Labor advocates had been taking steps in recent weeks to make this election a major turning point of unionization efforts at Amazon.  The thought among these advocates was that following the first successful unionization of an Amazon warehouse in New York earlier this year, a second successful election in upstate New York could help the union further establish a foothold at the company. While the union was seeking to unionize the warehouse in an effort to raise wages and benefits among workers, Amazon was forceful in its pushback of the unionization effort.  While this is certainly not the last unionization effort of an Amazon warehouse, this does serve as a striking blow for those hoping to replicate the wave of successful unionizations at Starbucks. For additional information:   https://www.washing

Last Tuesday, the Labor Department released its proposal on how workers should be classified in regard to being independent contractors or employees. The proposal, which marks a stark contract from prior proposals from the Labor Department during President Donald Trump’s term, would dramatically shift things as currently set.  Under the proposal, a multi factor “economic realities” test would be utilized to determine whether a worker was an independent contractor or employee.  This new test, which would examine the totality of the circumstances, would involve equal consideration of a wide range of factors including investment by the worker and the employer, the degree of permanence of the working relationship, the extent to which the work performed is an integral part of the employer’s business, the degree of skill and initiate exhibited by the worker, the worker’s degree of control over their work, and the “opportunity for profit or loss” based on personal investment or initiative.  N

Marking a potential first in unionization of workplaces, strippers at a North Hollywood club have been given approval by the National Labor Relations Board (“NLRB”) to conduct an election. The ballots, mailed on October 14th and due by November 4th, put these dancers (and disc jockeys) at Star Garden Topless Dive Bar in a position to become the first group of strippers in the country to successfully form a union.  If approved, the workers could be affiliated by a union that represents nearly 51,000 professional actors and stage managers in live theatre. At this point, a majority of the 30 eligible workers at the club need to vote in favor of unionization for a successful election to take place.  If that happens, the union and the club would then begin negotiations over a collective bargaining agreement.   It is expected the ballots will be counted on November 7th.  Even if there are a few challenged ballots (which is certainly possible, if not likely), results should be announced soon

It is not everyday that we have a chance to look at labor developments across the pond.  While there is often some noteworthy events taking place outside of the U.S., I often do not highlight those matters as there is enough to cover in these 50 states.  With that being said, a looming strike by Royal Mail workers is noteworthy and worth leading things off this week. As always, below are a couple articles that caught my eye this week. Royal Mail Workers Plan 19 Strikes Over Next 2 Months As reported in The Guardian recently, Royal Mail workers are to hold 19 strikes over this month and November following disputes over their pay and working conditions.  These strikes come on the heels of claims that the Royal Mail Group’s senior management has taken steps to move forward with cuts to workers’ terms and conditions of employment and sideline the union.  Notably, these strikes are set to take place around Black Friday and Cyber Monday as Royal Mail workers seek to dramatically slow down R

No later than May 10, 2023, employers in California with 100 or more employees are required to submit to the California Civil Rights Department detailed information about their workforces. That information is to include several things, including the number of employees by race, ethnicity, and sex broken down into one of ten job categories including high level executives, middle management, administrative support workers, and service workers.  The subcategories must include the median and mean hourly pay rate as well. Notably, SB 1162 will also require all employers within the state the pay scale for each position, upon request.  For those employers with at least 15 employees, employers will be required to post the pay scale in any job posting.  However, this portion of SB 1162 goes into effect January 1, 2023. For additional information:   https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB1162

Beginning today and running until the 17th, Amazon warehouse workers at a location near Albany will have the opportunity to vote on whether to form a union. The election, which will take place in a tent outside the warehouse serves as the next (and certainly not the last) attempt to unionize Amazon.  Readers will recall that a Staten Island Amazon warehouse successfully unionized earlier this year, although those results are being challenged. Will workers at this warehouse vote to unionize?  That remains to be seen, but I would expect that regardless of the results, one (or both sides) will challenge some of the ballots and the outcome.  Stay tuned. For additional information:   https://www.cnbc.com/2022/09/14/amazon-union-election-in-albany-to-begin-in-october.html

On September 23rd, Trader Joe’s workers at a Brooklyn area location filed a petition with the National Labor Relations Board to hold a union election at the store. The workers, citing a claimed pattern of supervisors targeting workers of color for discipline and related alleged hostile working conditions, has led to the workers seeking to unionize.  Workers allege that one particular employee was summarily terminated, due in part to her unionization efforts at the store. While two Trader Joe’s locations (out of over 500 across the country) have voted to unionize, I think it is still too early to say whether this unionization effort at the Brooklyn area location will be successful.  With that being said, this is certainly one development to keep an eye on in the weeks and months ahead. For additional information:   https://www.silive.com/business/2022/09/nyc-trader-joes-workers-petition-to-unionize-report-says.html

Earlier this afternoon, the Brotherhood of Maintenance of Way Employees Division (“BMWED”) announced that 56% of its workers had rejected a temporary agreement recently brokered by the Biden Administration. What does this mean?  Let’s first take a step back.  In recent weeks, the Biden Administration sat major freight rail operators and unions down to hash out an agreement over a new labor contract.  While a tentative agreement was reached, there was hesitation over whether all parties (namely the workers) would validate and approve the deal.  Workers had long grumbled that they experienced poor working conditions and inadequate pay.  From their viewpoint, the tentative agreement did not allay those concerns. Lo and behold, this afternoon’s news confirms as much.  With 56% of BMWED workers voting against the agreement, it appears any “victory lap” by the Biden Administration over a deal being reached is short lived.  At this point, there is a growing belief that a strike among rail wor

To call the recent movement by minor league baseball players to form a union one of the paramount labor developments in recent memory would be an understatement. As many readers might be aware, Major League Baseball players have long enjoyed the benefits of having a union.  While that has led to labor issues (including lockouts and strikes over the years), it has also led to higher salaries, better benefits, and other related measures that might not have been so easily achieved without a union in place.  On the other hand, minor league baseball players have long been in the untenable position of being without a union and subjected to low pay, few benefits, and often unsavory work conditions.  While many minor leaguers have accepted this as the way it has always been, there had started to be rumblings over these players forming a union in recent years. Those efforts ramped up in recent months with minor leaguers starting to get more vocal and aggressive in regard to their efforts to uni

Anddddd, we are back.  I would hope that readers spent some time the past few weeks keeping up on recent labor and employment law updates.  For those that missed out, stay tuned as we highlight some noteworthy developments that have (and continue to) play out in the weeks ahead. As always, below are a couple articles that caught my eye this week. Starbucks Moves to Begin Negotiations With Unionized Workers Recently, Starbucks sent letters to the more than 200 locations that have voted to unionize and requested contract negotiations begin this month.  Currently, Starbucks is negotiating with only three stores:  one in Buffalo, one in New York, and one in Arizona.  Will the union that is representing these Starbucks workers accept the invitation and begin negotiating this month?  Time will tell… Striketober…Fact or Fiction? One of the more nuanced topics of late is the concept of Striketober in which workers across the country are expected to go on strike.  (Striketober is apparently thi

On September 25th, unionized workers at the Philadelphia Museum of Art voted to unionize after talks stalled on an increase in pay and benefits. The unionized workers were offered wage increases of 8.5% over the next 10 months and 11% by July 2024, a minimum salary for exempt employees, four weeks of paid parental leave, accelerated vacation accrual for hourly workers, and a more flexible remote work schedule, among other benefits.  However, the Philadelphia Museum of Art Union indicated these proposals were not enough.  What exactly the Union is looking for is not certain at this time, however. Perhaps one of the biggest eyesores for the Museum is the fact that the strike began on the first day of work for the new Museum Director, Sasha Suda.  Suda’s assumption to Museum Director comes on the heels of a tumultuous past few months at the Museum following allegations of inappropriate conduct by supervisors at the Museum. For additional information:   https://www.artnews.com/art-news/new

On September 26th, it was announced that the Congressional staff of Michigan Representative Andy Levin had voted to unionize, marking the first successful unionization among Capitol Hill staffers. The Congressional Workers Union, which seeks to represent Capitol Hill staffers, has long fought for better pay, improved working conditions, and related benefits.  Earlier this year, attention started to focus on the long hours, low pay, and hostile working conditions some Capitol Hill staffers had been subjected to over the years.  Congress had approved legislation to allow Capitol Hill staffers for the House of Representatives to unionize.  Curiously, Capitol Hill staffers for the Senate were not given this authorization however. Ironically, Representative Levin lost his bid for re-election, so even though his staff is the first to unionize, it will be short lived.  Will Representative Levin’s staffers pave the way for other Capitol Hill staffers to unionize?  I think that is an absolute g

Ah yes, a favorite situation.  You are flying into/out of an airport and maybe missed a meal.  What better time to grab a bite than when you are waiting for your flight?  Unfortunately, for those flying in or out of San Francisco International Airport, your options might be a bit limited. Last week, over 1,000 food workers at SFO began a strike over their fight for higher wages and healthcare.  While attempts to reach some sort of resolution played out over 8 months, a compromise could not be reached.  While most restaurants in the airport are closed, newsstands (which normally sell chips, sodas, etc.) remain open and unaffected. That might lead some to wonder whether there is light at the end of the tunnel.  For the time being, both the union and SFO remain at a standstill while negotiations continue.  That has led non-unionized food workers and managers left to fill the gap and try to keep some restaurants running on a more limited basis.  While I would expect a resolution to be reac

Recently, REI announced that on Election Day (November 8th), it would open its stores two hours late to allow its workers time to vote. This is a somewhat unusual development for a company with nearly 200 stores nationwide.  With that being said, with the company currently facing unionization efforts (with workers at a Berkeley, California location voting to unionize last month), this is one way the company is helping promote itself as an employee friendly workplace. Will other large scale employers follow suit?  I would suspect we will start to see others follow suit but would be surprised if major big box retailers join.  With that being said, I expect pressure to ramp up on employers headed into Election Day as workers (and pro employee groups) push for more employers to open late (or close early) so that employees may have time to vote. For additional information:   https://www.prnewswire.com/news-releases/rei-to-give-every-employee-paid-time-off-to-vote-301633748.html