The Majority Opinion: Legal Blog

To call this a bit of a smorgasbord of topics to close out 2022 is an understatement.  This week, we have articles ranging from a possible unionization at Trader Joe’s, to a closer look at the rise in employee whistleblowing, Krispy Kreme automation, and even the gender gap in paid parental leave.  So whether you are driving through the Rust Belt, picking something up at a gas station, or even staring at a dog in the back seat, there is something for everyone to help pass the time on an eighteen hour (more or less) road trip. As always, below are a couple articles that caught my eye this week. Workers At Louisville Trader Joe’s Move to Unionize Last Thursday, it was confirmed that workers at a Trader Joe’s in Louisville had taken one step closer to forming the third unionize store in the country.  Readers might recall that there have been two successful unionizations at Trader Joe’s, with one store in Minneapolis and another in Hadley, Massachusetts, voting to unionize earlier this yea

Earlier this month, South Dakota Governor Kristi Noem proposed in a budget address that South Dakota would cover 100% of paid leave for state employees. Governor Noem went one step further and proposed $20 million in incentives, spread out over 4 years, to incentivize private employers to participate in the 100% of paid leave program.   For those wondering, according to the Governor, the cost to cover 100% of paid leave for state employees would cost $3 million/year.  With South Dakota apparently having a budget surplus, $3 million likely will not rock the boat too much here. It will be interesting to see how many lawmakers in the state rally around this portion of the Governor’s proposal.  Prior attempts to implement paid family leave in the South Dakota Legislature have come up short. For additional information:   https://www.keloland.com/keloland-com-original/gov-noem-includes-paid-family-leave-in-2023-budget/

Earlier this month, McDonald’s unveiled an automated location near Fort Worth, Texas that utilizes (or perhaps maximizes) automation for the first time to such a large extent. According to McDonald’s, customers can order their food ahead of time, go to the drive thru line, and have their food delivered out of a window by a machine.  (The below article has a Tik Tok video showing how this occurs).  Customers also have the option to go inside, order from a kiosk, and have their food prepared.  Reportedly, this location does have a few physical workers in place to help with certain orders. McDonald’s has identified this automated location as a test concept and intended to serve its customers on the go.  (Notably, the location does not have seats or tables.)  Critics have been quick to point out this is likely the first step by McDonald’s to cut back its labor force and phase out a large scale of its workers.  With rising labor costs around the country, this is probably part of the reason

Some readers might recall a prior attempt by Northwestern football players to unionize several years ago.  While that effort was struck down by the National Labor Relations Board, the matter has been simmering since that time.  As the below article from Sports Illustrated notes, things have taken a sudden change in recent weeks following an announcement that an advocacy group on behalf of college athletes had failed an unfair labor practice charge that the National Labor Relations Board is moving forward with, to the dismay of many. As always, below are a couple articles that caught my eye this week. OSHA Notes Several Violations at Amazon Warehouses Recently, the Occupational Safety and Health Administration (“OSHA”) had found several violations at six Amazon warehouses, noting a failure to properly record workplace injuries.  These violations came about following inspections earlier this year at several of the warehouses.  Now for those hoping/expecting severe penalties coming Amazo

Oh boy, take a seat for this one.  This past Monday, the Fifth Circuit Court of Appeals issued a ruling in which it held that the Biden Administration cannot lawfully require federal contractors to be vaccinated as a condition of getting a federal contract. Readers might recall that the Biden Administration had previously implemented such a policy in September of 2021 in its effort to curtail Covid.  The argument followed that by requiring federal contractors to be vaccinated, it would further reduce the number of people vulnerable to Covid.  When the policy went into place, there was considerable push back from many who opposed the vaccine mandate, namely on the grounds that it exceeded any authority a President has to issue such mandates.  Nevertheless, the policy went into place with lawsuits challenging its validity being filed not long thereafter. Earlier this year, the Eleventh Circuit Court of Appeals issued a similar ruling.  Monday’s 2 - 1 ruling by the Fifth Circuit serves to

Earlier this week, Congress announced (some) details of the proposed budget it intended to pass.   Readers might have heard some rumblings about the size of the omnibus bill (which provides for the breakdown of the proposed budget), clocking in at 4,155 pages and some concerns about how quickly it is being rushed to a vote.  While I refer readers elsewhere for a discussion on defense spending, money for the IRS, and other related budget issues, I do want to make note of how much is carved out for the National Labor Relations Board (“NLRB”)…or perhaps not carved out…for fiscal year 2023. While the Biden Administration had previously requested $319 million and House and Senate budget panels had proposed $319.4 million in recent months, the omnibus bill falls a bit short.  As currently written, the NLRB would be provided with a budget of $299 million.  The money budgeted toward the NLRB would help the agency investigate unfair labor practices, enforce labor laws, and generally pay to staf

Shorter week working to wrap up things before the end of the year left me with little time to read through articles this week.  With that being said, there were a few articles worth highlighting. As always, below are a couple articles that caught my eye this week.  One Year Later: Where the Unionization Effort at Starbucks Stands Ah yes, the unionization of various Starbucks locations around the country…which has been an evergreen story of sorts (given the relatively widespread success over the past twelve months.)  I refer readers to this article from Amelia Lucas which provides a great breakdown of the unionization effort along with an easy to reference map of successful and unsuccessful unionization at the stores. Additional Congressional Staff Votes to Unionize Recently, the Congressional staff of Congressman Ted Lieu unanimously voted to unionize, marking yet another group of Hill staffers that have unionized in the past few months.  Readers might recall that Congressional staffe

Workers at two Peet’s Coffee locations in Davis, California have taken steps to unionize, following in the lead of the ongoing unionization efforts at various Starbucks locations around the country. One worker at a Peet’s in Davis apparently reached out to Starbucks Workers United earlier this year in an effort to solicit ideas on how to proceed with unionization efforts at Pete’s.  (For those unaware, Starbucks Workers United is the union that has been pushing for unionization efforts at Starbucks over the past few months.  For the most part, those unionization efforts have been wildly successful.)  The goal of the workers at Peet’s has been to see what has/has not worked for unionization efforts at Starbucks and duplicate those efforts at Peet’s. As of this writing, it appears the workers at Peet’s are on the right track as the two locations in Davis filed petitions with the National Labor Relations Board late last month seeking to unionize.  Of course, this does not mean that these

Recently, the National Labor Relations Board (“NLRB”) invited comments on its proposed change to the joint employer rule. Before we get to the comments that have been submitted, let us take a step back and look at where things stand.  Under the NLRB’s proposed new joint employer rule, two or more employers could be considered “joint employers” if they “share or codetermine” conditions of employment such as pay, scheduling, or workplace safety, among other matters.  (The current joint employer standard currently in place requires a showing that two or more employers have “substantial, direct, and immediate” control over a workers’ employment conditions.  However, the current joint employer rule went into place during a prior iteration of the NLRB, during the President Trump administration, which was more employer friendly.) As with any proposed new rule from the NLRB, there is a public comment period in which comments are accepted.  In doing, so, the public was invited to weigh in on th

I think one of the major developments over the past few weeks has been the looming strike by the railroad workers & the recent update that it was narrowly avoided.  I refer readers to the first article for more on this topic.  With that being said, there were a few other labor law developments I came across this week which warranted dedicating this post solely to labor law. As always, below are a couple articles that caught my eye this week. With Rail Strike Averted, Biden Administration Shifts Focus The Washington Post recently noted that following a rail strike being (narrowly) averted following Congress stepping in last week, the Biden Administration has started to take steps to shore up support among labor unions.  As the article notes, some union workers are upset with being forced to accept a new deal that did not provide additional paid leave (something that was a point of contention in the new bargaining agreement.)  Consequently, these workers have cast a suspicious eye o

Next year, Michigan Democrats will gain majority control the State Legislature and many suspect that the state’s right to work law will be one of the first things that the new Legislature seeks to address. The state’s right to work law, which was approved by a Republican controlled Legislature in 2012, allows workers to opt out of paying union dues as a condition of employment.  However, Democrats and labor groups alike have criticized these laws as result in lower wages for workers and depressing the labor market.  Consequently, right to work laws are a frequent target of the left. With Democrats taking majority control of the Michigan Legislature next year, the state’s right to work law could be on the chopping block.  Notably, as the below article points out, there appears to be a wide range of support for the state’s right to work law among Republicans, Democrats, and Independents. I would keep an eye on this one next year while we wait to see what (if anything) the new Legislature

Readers might recall that earlier this year, California had passed the FAST Recovery Act which would create a fast food council that would be able to set wage rates and working conditions in the fast food industry.   That legislation, AB 257, was met with considerable pushback before being signed into law by Governor Gavin Newsom on September 5th.  Employers and related business groups opposed the legislation on the grounds that the council, comprised of unelected officials, would be able to set the wage rate for fast food workers to $22/hour by 2023 and impose further wage hikes at their discretion. Although AB 257 was signed into law, opposition continued to mount with Save Local Restaurants being formed to find ways to stop AB 257 from taking effect.  In doing so, that required this group to submit 623,212 signatures to the California Secretary of State to get a ballot measure on the 2024 ballot.  The goal of this group is to get voters to repeal the FAST Recovery Act.   According t

For those thinking we were out the woods, in regard to election related matters, stand by…we have one more developing story that will come to a conclusion next Tuesday.  Of course, for those looking for a political discussion, I would refer you elsewhere.  The article leading things off this week deals with the role unions are playing in next week’s Senate runoff. As always, below are a couple articles that caught my eye this week. Labor Unions Wade Into Georgia Senate Runoff For readers that have not noticed, there remains one Senate seat up for grabs in Georgia.  Next Tuesday, voters in the state will go to the polls and vote on whether to reelect Raphael Warnock or instead vote in Herschel Walker.  As this article from Bloomberg notes, labor unions are ramping up their efforts to energize their members to get to the polls on Tuesday and vote for Warnock (the Democratic candidate.)  Will these efforts pay off next week?  Time will tell, but from some polls, it appears Warnock has a

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)

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