Management Update
Volume 1, Issue 5June 2012
Quickie Election Rule Being Struck Down

On April 30, 2012, the "Quickie Election" rules established by the National Labor Relations Board took effect. These rules were designed to shorten the period between the time a representative election petition is filed and the date of the election by postponing resolution of a number of voter-eligibility issues until after the ballots were tallied. These rules were ruled invalid on May 14, 2012, by the United States District Court for the District of Columbia, which based it's decision on the absence of a lawful quorum by the NLRB - at least three members - at the time of the rules' passage. 

The OFCCP's New Push to Include Veterans in Affirmative Action Plans

The Office of Federal Contract Compliance Programs (OFCCP) has turned up the heat on hiring protected veterans. There is a pending proposal to review and revise its regulations regarding protected veterans as a "pure affirmative action plan." The changes would require contractors to establish annual hiring standards to assess the effectiveness of their affirmative actions to hire veterans. This program is set out to take positive steps that employers use to promote equal employment opportunity for veterans just as current programs promote equal opportunity based on gender, race, age and other protected characteristics.  

EEOC Opinion Says Title VII Protects Transgender Workers

Departing from the current majority of the federal courts interpreting Title  VII, the EEOC issued a ruling giving transgendered individuals federal protection against employee discrimination. According to Title VII of the Civil Rights Act, as interpreted by the EEOC, employers who discriminate against employees or job candidates on the terms of sexual identity can be in violation.


If this opinion is adopted by the courts, Title VII would now protect transgendered people from discrimination in the work place. The implications of this rule are game changing, and will set a precedent for both private and public employees across the country. This opinion by the EEOC may have an effect on the current ENDA legislation pending before Congress and may signal a trend to afford the protections contained in Title VII to sexual orientation and gender identity as protected characteristics.   


If a transgendered person is denied or fired from a job, he or she would have legal recourse and be protected by the federal law just like any other person subjected to discrimination based on race, gender, age, or any other protected characteristics. Should a transgendered individual file a complaint to the EEOC, and the EEOC finds merit, based on this new interpretation of the law, the EEOC has the legal right to sue the company for employee discrimination under Title VII. 

This opinion by the EEOC may have an effect on the current ENDA legislation pending before Congress and may signal a trend to afford the protections contained in Title VII to sexual orientation and gender identity as protected characteristics.

The EEOC Recently Issued New Guidance on Employers' Use of Criminal Background Checks
The EEOC, Equal Employment Opportunity Commission, recently voted to adopt updated guidance that provides a roadmap for avoiding liability under Title VII when using criminal background checks. The guidance focuses on the disparate-impact theory which is the idea that a neutral employment policy may violate Title VII disproportionately when it affects employees or applicants based on national origin, race or any other protected characteristics. With the new guidance, employers must ask themselves if their company treats all applicants with similar criminal histories equally, and they must also attempt to validate their criminal background check policy to assure they are not exposed to liability. The EEOC guidance makes it clear employers have the right to point to a federal law which defends its policy; however, exceeding the federal requirements may lead to liability.

OSHA Focuses on Nursing and Residential Care Facilities

A National Emphasis Program (NEP) was announced by the Occupational Safety and Health Administration to encourage compliance with health and safety standards at nursing and residential facilities through programmed inspections. The areas of focus for inspection will be ergonomics; slips, trips, and falls; exposure to tuberculosis; bloodborne pathogens; and workplace violence. These inspections will remain in place for three years. The NEP directs OSHA compliance officers to ensure employers are in compliance with OSHA standards.

Breazeale, Sachse & Wilson, L.L.P. Labor and Employment Attorneys


John T. Andrishok 


Murphy J. Foster, III 


Leo C. Hamilton 


Joseph R. Hugg 


Rachael Jeanfreau 


Steven B. Loeb 


Eve B. Masinter 


Yvonne R. Olinde 


E. Fredrick Preis, Jr. 


Melissa M. Shirley 


Jennifer D. Sims 


Jerry L. Stovall 



This electronic newsletter is provided to clients and friends of Breazeale, Sachse & Wilson, L.L.P. The information described is general in nature, and may not apply to your specific situation. Legal advice should be sought before taking action based on the information discussed. Applicable State Bar or Attorney Regulations May Require This Be Labeled as "Advertising."Anchor1