The Majority Opinion: Legal Blog

There are always a few good articles I come across throughout the month which are particularly noteworthy.  In particular, the case currently working its way through the U.S. Supreme Court that addresses whether LGBTQ workers fall within an already pre-defined protected class (and therefore ‘qualify’ as an aggrieved party that can bring a discrimination claim against their employer if they are discriminated against) has the potential to flip things on their head...depending how the Court rules on the matter.  The below article from Bloomberg is well worth a read. As always, below are a couple articles that caught my eye this week. NLRB Advice Memo: Employer Cannot Require Employees Use Their Real Names on Social Media Earlier this month, the National Labor Relations Board (“NLRB”) published an advice memo in which it found that employers are barred from implementing policies that require employees use their real names when using social media.  The issue came ...

As always, there are some EEOC cases that jump out at me when I review developments on that front.  Below are a couple EEOC cases and settlements that caught my eye this month. Pier 1 Imports Agrees to Settle Race Discrimination Charge For $20,000.00 Prior to a suit being filed, Pier 1 Imports entered into the conciliation process to resolve a race discrimination claim brought by an applicant that sought an assistant manager at one of its stores in Montclair, California.  It was alleged that Pier 1 denied the applicant the position after conducting a criminal background check.  The EEOC's investigation determined that Pier 1's use of the criminal background check limited the employment opportunity of the job applicant based upon his race, in violation of Title VII of the Civil Rights Act of 1964.  While not admitting liability, Pier 1 agreed to pay $20,000.00 to resolve the charge. Hirschbach Motor Lines to Pay $40,000.00 to Settle Disability Discriminatio...

Late last week, Democratic Presidential candidate Beto O’Rourke wrote an op-ed, styled ‘A 21st Century Labor Contract’, in which he announced his plans to enact sweeping labor friendly proposals, should he be elected President in 2020. Of note, O’Rourke wrote that he would: Allow the National Labor Relations Board (“NLRB”) to impose monetary fines against employers that wrongfully terminate a worker or that in violating the National Labor Relations Act, cause a worker to suffer economic harm.  (Currently, the NLRB can order backpay or reinstatement, but cannot impose fines); Make officers and directors of an employer liable for labor violations if the officers and directors had prior knowledge; and Provide union leaders and managers the ability to agree on minimum standards for an industry, rather than require negotiation among each individual employer in that sector. As well, O’Rourke voiced his support for the prior joint employer standard enacted during President B...

Perhaps we should have called this the Senator Warren week...given the two posts related to her involvement in California's codification of its ABC Test for independent contractor v. employee classification as well as the unfair labor practice charge filed against her campaign for President.  While she dominated much of the week, there are several other developments worth highlighting.  In particular, I call attention to ongoing discussions in Texas in regard to passing a statewide ban the box measure. As always, below are a couple articles that caught my eye this week. Texas Governor Backs Statewide Ban the Box Legislation Late last week, Republican Governor Greg Abbott voiced his support for a statewide ban the box measure.  For those unaware, Texas does not currently have any ban the box law in place, although attempts were made to pass legislation last session.  With the Texas Legislature not set to meet again until 2021, those in the state hoping for...

Last week, an unfair labor practice charge was filed against Senator Elizabeth Warren's presidential campaign on the grounds that the campaign was in violation of the National Labor Relations Act ("NLRA") by utilizing a confidentiality agreement with its staffers that allegedly unlawfully prevented them from speaking out on workplace issues within the campaign. The charge was filed by an attorney in Denver, Colorado that is coincidentally enough a Senator Bernie Sanders support.  (Senator Sanders is also running for the Democratic nomination for President against Senator Warren.) Some might be wondering why an attorney in Denver that is not an employee (let alone a part) of the Warren campaign can file an unfair labor practice charge.  In short, the National Labor Relations Board ("NLRB") accepts charges, even if the individual or organization that files it is not an employee of the organization/employer alleged to have violated the NLRA. At this...

Bob's Tire Co., Inc. - NLRB Facts :  In 2015, a group of workers at Bob's Tire Co., Inc. ("Bob's") unionized.  Afterward, Bob's contracted with a staffing agency in which many workers that were provided to Bob's fell within the stipulated bargaining unit.  From 2008 through 2014, Bob's gave its employees a cash bonus at Christmas, ranging from $20 to $50 and then eventually $100.  However, a Christmas bonus was not paid in 2015. An unfair labor practice charge was subsequently filed alleging that Bob's violated the National Labor Relations Act ("NLRA") because Bob's failed to notify the union of the discontinuance of the bonus or offer to bargain.  The Administrative Law Judge found a violation of the NLRA had occurred and stated the "bonus was paid with sufficient regularity that employees would have been justified in expecting to receive such a bonus as part of their wages."  The National Labor Relations Board (...

Last week, Democratic Senator Elizabeth Warren wrote an op-ed in which she advocated for passage of AB 5, a bill currently working its way through the California Assembly.  That proposed legislation would codify a 2018 ruling from the California Supreme Court, Dynamex v. Superior Court , which upended the test for determining whether a worker is an employee or independent contractor.  Of note, the newly created test from that ruling resulted in many gig workers in the state being found to be classified as employees rather than independent contractors (and imposed retroactive liability for employers in the state.) Readers might recall that Senator Warren is one (of many) Democratic candidates vying for the party’s 2020 Presidential nomination.  With her elevated profile and access to a wide range of media coverage, I would expect her support for the passage of AB 5 to continue to receive widespread attention and support from gig workers across the country. For t...