The Majority Opinion: Legal Blog

Earlier this month, several DC firefighters and paramedics filed a motion asking that their employer be held in contempt for enacting (and enforcing) a policy that prohibits workers from having facial hair and beards. The four workers that filed the motion have argued they have beards as a result of their religion.  According to the complaint, they were removed from field duty in March of 2020 after a policy was implemented preventing workers from having facial hair.  (The policy went into place around the start of the Covid pandemic.)  In their motion, the workers point to a 2009 decision in Potter v. District of Columbia  in which a federal court held that workers have a right to facial hair for religious reasons.  Consequently, the workers argue that their employer cannot prohibit them from having a beard under  Potter.   At the time the policy was issued in 2020, the employer stated its prohibition on facial hair was intended to allow its workers to better utilize personal protecti

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 October 6th, the United States Supreme Court granted a petition to hear an appeal of the In re Grand Jury case from the Ninth Circuit.  This particular case asks the Court to consider the standard that governs the attorney-client privilege in “dual purpose” communications.  For the context of this case, “dual purpose” communications include when communications are made for both legal and non legal advice. The Ninth Circuit has joined with the Fifth Circuit to hold that the “primary purpose” test governs the analysis.  Under this test, it is up for a court to determine if the primary purpose of the communication is to provide legal advice.  If this is found to be the case, the communication is protected by the attorney client privilege and protected from disclosure.  If this is not found to be the case, the priv

Pucilowski v. Spotify USA, Inc - Second Circuit Court of Appeals Facts :  Valerie Pucilowski (“Pucilowski”) worked at Spotify as a user researcher.  During her employment with Spotify, she was diagnose with major depression, generalized anxiety disorder, and attention deficit hyperactivity disorder.  As a result, she sometimes worked from home.  After suffering a head injury and concussion, she took two weeks leave from her job and was apparently terminated three days after she returned to work. In doing so, she signed a separation agreement which provided her with two months’ salary in exchange for her waiving, among other things, any Family Medical Leave Act (“FMLA”) claims against Spotify.  Pucilowski thereafter proceeded to file suit against Spotify on the grounds that the separation agreement was not enforceable because she claimed Spotify fraudulently induced her to sign the separation agreement and took advantage of her mental condition when she was presented with the agreement

This week, more than half of freight rail workers in the country are set to vote on whether or not to approve a proposed labor deal that was brokered by the Biden administration by in September. Readers might recall that the Biden administration stepped in to help negotiate a new labor deal in an effort to avoid a strike by these rail workers that could immobilize the economy headed into the Christmas season.  However, in order for that proposed labor deal to take effect, several unions have to vote on whether or not to approve it.  In doing so, that has set up a few high stakes votes in recent weeks among members from these various unions. At current count, seven unions have voted in favor of the deal while three have voted against it.  Those in support of the deal point out that it provides rail workers with better pay and benefits and is the best deal they could have hoped to get.  However, opponents of the deal have argued that it does not go far enough and leaves workers vulnerabl

While I was going to brief a case about a recent hostile work environment lawsuit, I think it is better suited for some light reading to end the week.  I caution readers that while no two hostile work environment claims are the same and each one requires a fact intensive analysis, it is important to remember that sometimes isolated (or limited) instances can still create a hostile work environment. As always, below are a couple articles that caught my eye this week. The Joys (& Headaches) of Remote Work Let’s call this a first world problem situation.  Many readers likely have some version of a work from home setup since Covid first started or perhaps a hybrid setup in recent months.  With the surge in remote work, many workers have taken to trips, vacations, cruises, etc. to enjoy a bit of downtime while also working.  As this article from USA Today notes, there can be hiccups that happen with some remote work setups, including when making a transatlantic trip on a cruise ship.  

Recently, the California Legislature approved Assembly Bill 1041 which will enable eligible employees to  use state family and medical leave and paid sick leave to care for a “designated person.” Prior to this law getting approved, the California Family Right Act (“CFRA”) enables eligible employees to take job protected leave to care for numerous family members including an employee’s child, parent, parent in law, grandparent, grandchild, sibling, spouse or state registered domestic partner.  However, Assembly Bill 1041 has included “designated person” within the scope of CFRA to include “any individual related by blood or whose association with the employee is the equivalent of a family relationship.  Notably, however, the “equivalent of a family relationship” is not defined.  Perhaps that matter will be clarified in subsequent legislation? This new law will go into effect on January 1, 2023. For additional information:   https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bi

In both the First Circuit Court of Appeals and the Second Circuit Court of Appeals, the Courts are considering two cases that ask whether delivery drivers are exempt from arbitration under the Federal Arbitration Act (“FAA”).  For those unaware, if an employee is held to fall under an exemption of the FAA, the employee cannot be compelled to arbitrate a matter with their employer.  In these two cases, the delivery drivers of an employer are attempting to argue that they are transportation workers under the FAA, given their delivery work, and therefore are exempt from arbitration under the FAA. As for the case in the First Circuit, Canales v. LePage Bakeries Park Street , the employer is asking the Court to reverse a district court finding that the employer’s delivery drivers are transportation workers and therefore exempt from arbitration under the FAA. In regard to the case in the Second Circuit, Bissonnette v. LePage Bakeries Park St., LLC , the delivery drivers have asked the full C

Late last week, it was announced that workers at Medieval Times in Buena Park, California had voted to unionize with a 27 - 18 vote in favor of forming the union. Now before things really get rolling here, the National Labor Relations Board will need to certify the results.  That certification could also be complicated by any challenges asserted by Medieval Times.  As of this writing, however, there has been no challenge on file.   Readers might recall that workers at another Medieval Times in the northeast had recently voted to unionize, despite pushback from the company (and a subsequent lawsuit against the name of the union.)  I suspect that it is likely, if not inevitable, that workers at other Medieval Times will move to unionize in due time.  With two successful unionizations having already taken place, the wind is at the back of these workers. For additional information:   https://www.huffpost.com/entry/workers-unionize-medieval-times-castle-california_n_636d2423e4b06d3e4258b086

For those readers that are looking to take a break from work (or perhaps an international vacation), I am highlighting a few articles worth reading this week.  Although I have heard of some readers not dabbling in labor law, the developments highlighted below are still worth a read.   As always, below are a couple articles that caught my eye this week. Starting to Feel Like Home: Home Depot Worker Reject Union Recently workers at a Home Depot in Philadelphia voted to reject a unionization effort by a resounding 165 - 51 vote.  Home Depot Workers United had sought to unionize the store in an effort to raise wages and benefits for employees there.  While an unfair labor practice charge was filed against Home Depot (on the grounds the employer unlawfully engaged in surveillance and interrogation of employees, the result stands (for now.) Efforts to Unionize Brooklyn Trader Joe’s Falls Short Recently, efforts were made to unionize a Trader Joe’s in Brooklyn, NY.  However, those efforts fe

  Yesterday, voters in Washington, DC and Portland, Maine voted on ballot initiatives that would have scrapped the tipped minimum wage rates in the District and city.  In Portland, voters resoundingly voted against scrapping the tipped minimum wage by a vote of 61.1% - 38.9%.  To call this a drubbing is somewhat of an understatement. As for voters in Washington, DC, they went the other way, with approximately 74% in favor of eliminating the tipped minimum wage (as of this writing…although some votes are still trickling in.)  What does this mean?  By 2027, all hourly workers in the District will be paid the same wage regardless of it they receive tips or not. For additional information as to the vote in Washington, DC:   https://www.huffpost.com/entry/dc-voters-approve-ballot-measure-tipped-minimum-wage_n_63618769e4b0ff210e6848a2 For additional information as to the vote in Portland:   https://www.huffpost.com/entry/portland-maine-voters-reject-18-minimum-wage_n_6361732ce4b045895a9734af

Election Day is today and that means congressional race, statewide offices, and a host of ballot initiatives will be before voters across the country. For the purposes of this post, I want to call attention to two ballot initiatives in front of voters in Washington, DC and Portland, Maine that could potentially eliminate the tipped minimum wage in these cities. In Washington, DC, Initiative 82 would incrementally increase the tipped minimum wage rate from its current $5.05/hour to match the non tipped minimum wage by 2027.  Beginning in January, the tipped minimum wage would increase to $6/hour and then an additional $2/hour in July and then every July thereafter until 2027. As for Portland, Question D, asks voters whether they want to hike the current tipped minimum wage rate from its current $6.38 to $18/hour by 2025.  While voters had previously approved a wage hike for all workers in 2016, the Maine Legislature approved a reinstatement of a sub minimum wage for tipped workers in 20

Some time on the road for work this week left me with only a little time to read through articles   Nevertheless, I did come across a coupe worth highlighting   Heading into Election Day next week (with several employment and labor law related measures on the ballot) will be something to keep an eye on in the coming days.  As always, below are a couple articles that caught my eye this week. The Minimum Number of Hours Needed Per Week to Afford Rent Molly Schiff recently published an article in which she examined how many hours per week an hourly worker would need to work to afford rent on a one bedroom apartment.  Of course, it would be exhaustive (let alone nearly impossible) to crunch the numbers for a worker in every city in America, Schiff pulls a few key findings from NYC (111 hours/week), Chicago (112 hours/week), Phoenix (65 hours/week), and Dallas (120 hours/week), amongst others.  I encourage readers to page through Schiff’s findings to get a sense of where it is (and is not)

On January 1, 2023, the statewide hourly minimum wage rate in South Dakota will increase to $10.80/hour, up from its current rate of $9.95/hour. Like with other states, South Dakota’s hourly minimum wage rate increases annually and is tied to the Consumer Price Index.  However, South Dakota does carve out some exceptions to these annual wage hikes for those that work in seasonal amusement or recreation establishments, babysitters, training wages, or workers with developmental disabilities. For additional information:   https://www.argusleader.com/story/news/business-journal/2022/09/28/south-dakota-increases-state-minimum-wage-sd-department-of-labor-employee-pay/69524879007/

Last month, it was announced that workers at a New Orleans area Lowes location had garnered enough support (at least 30% of signatures in support of unionization from the 172 employees at the location) to petition the National Labor Relations Board (“NLRB”) to hold an election. While the NLRB must still approve the petition before an election is held, I think it is certainly likely that one will take place in the coming months.  The curious part of this is there has been no indication what the employees are looking for out of a potential unionization.  In the coming weeks and months, I would expect those “demands” to emerge, but from initial reports, it appears many workers at the Lowes location have issues with pay and benefits (or lack thereof.) Will a successful unionization bring about the desired change that these workers seek?  Will Lowes mount an offensive headed into the election (if/when it takes place)?  Will other Lowes locations follow suit and move to unionize as well?  St

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. Next Tuesday, voters in Illinois will have a chance to vote on Amendment 1 (a/k/a the Illinois Right to Collective Bargaining Measure) which seeks to amend the Illinois Constitution to stipulate that employees have a right to organize and bargain collectively through representatives of their own choosing.  The Amendment would also prohibit a right to work law in the state. This proposed Amendment mirrors legislation that is already in place in other states such as Hawaii, Missouri, and New York as those states have approved a right to collectively bargain.  However, this measure in Illinois goes one step further to the extent that Amendment 1 seeks to preempt right to work laws, which Hawaii, Missouri, and New York have not put in place. Readers might recall that former Illinois Governor Bruce Rauner (a Republican)