Management Update
Volume 1, Issue 5July 2012
Save the Date!
Breazeale, Sachse & Wilson, L.L.P. presents Management Update Briefing, a half-day labor and employment law seminar. REGISTRATION OPEN NOW!

Thursday, September 20, 2012
8:30-11:30 a.m.


Breazeale, Sachse & Wilson, L.L.P.

LL&E Tower, Suite 1500

909 Poydras Street

New Orleans, Louisiana 70112-4004



$15.00 per attendee





E. Fredrick Preis, Jr.

Eve B. Masinter

Joseph Hugg 

Affordable Care Act Found to be Constitutional by Supreme Court

On Thursday, June 28, 2012, the Supreme Court ruled the Patient Protection and Affordable Care Act (PPACA), popularly known as "Obamacare," to be constitutionally valid. The decision was a 5-to-4 majority, including the chief justice, John G. Roberts Jr., and affirmed all central tenets of the controversial bill, most notably the individual mandate and the expansion of the Medicaid program.


The ruling upheld the so-called individual mandate, requiring that nearly all Americans obtain health insurance or pay a penalty, deciding it was allowed under Congress's power to tax citizens. Beginning in 2014, those who do not comply with the mandate by purchasing insurance must make a "shared responsibility payment" to the Federal Government.


The Court also upheld a major expansion of the Medicaid program intended to add millions of low-income citizens to its rolls. States may agree to expand Medicaid coverage in exchange for those new funds, and if a state accepts the expansion funds, it must abide by new rules and expand coverage. However, the Court limited the power of the Federal Government to enforce this provision by penalizing states that decline to participate. States may refuse to participate in the expansion without losing all of their Medicaid funding. Instead, the state will have the option of continuing its current Medicaid plan with no demonstrable change.


Full article written by BSW Healthcare attorney Stephen Angelette can be found here.

Survey Says...

According to a joint survey released by the Society for Human Resource Management (SHRM) and the Cornell University ILR School Employment and Disability Institute (EDI), organizations are actively recruiting people with disabilities. Organizations and HR professionals are also creating policies that "require subcontractors and suppliers to adhere to disabilities nondiscrimination requirements."

Over half of HR managers surveyed mentioned their organization finds it imperative to have relationships with community organizations "that promote the employment of people with disabilities." Some active existing groups to locate people with disabilities are Business Leadership Networks, local Industry Liaison Groups and Society for Human Resources Management.


You can view full survey results here.

Employee Comparator Not Needed for Pregnancy Discrimination Charge Determined by Eleventh Circuit
The Eleventh Circuit issued a ruling where a pregnant woman who was denied a light-duty position and later terminated by her supervisor was not required to show evidence of bias from a similar situation of a non-pregnant co-worker.


The pregnant woman notified her supervisor of her condition and said she was able to complete her work duties; a doctor's note she provided said otherwise. The supervisor then told her there were no light-duty positions available at the time, without actually checking to see if any positions were available. She then asked the supervisor if he would dismiss the doctor's note and allow her to continue to work. The supervisor refused and terminated her.


The employee filed an EEOC charge claiming pregnancy discrimination against her employer. After the supervisor was notified of the charge, the company offered a light-duty position in exchange for dismissing the charge.


The Eleventh Circuit reversed a grant of summary judgment "for an employer on the employee's pregnancy discrimination claim." The employer argued that the pregnant woman had failed to show a non-pregnant woman who was treated differently than she, but the appellate court stated that her absence to produce a comparator was not dispositive. 

ADEA'S 'Reasonable Factors Other Than Age' Defense
The Equal Employment Opportunity Commission has issued a rule amending the regulation for the "reasonable factors other than age" defense under the Age Discrimination in Employment Act. In order to establish a disparate impact claim, an employee or applicant must prove that there are employment practices which have an adverse impact on those 40 and older. This new ruling, which went into effect on April 29, 2012, affectively means that now employers bear both the burdens of production and persuasion for the RFOA defense. To establish a defense, the employer must meet the following criteria:


(i) the extent to which the factor is related to the employer's stated business purpose;


(ii) the extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;


(iii) the extent to which the employer limited supervisors' discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;


(iv) the extent to which the employer assessed the adverse impact of its employment practice on older workers; and


(v) the degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.


This new ruling requires that employers take a hard look at any employment policies or practices that may adversely affect older workers. Managers and Supervisors should be properly trained to implement policies which affect all staff members fairly and re-examine any policies which are disadvantageous to their older employees.

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