Management Update
Volume 2, Issue 4
April 2013

Breazeale, Sachse & Wilson, L.L.P. presents Management Update Briefing, a half-day labor and employment law seminar.

Tuesday, April 23, 2013

Registration begins at 8:00 AM   

Briefing is from 8:30 AM to 12:00 PM CDT


Breazeale, Sachse & Wilson, L.L.P.  

301 Main Street, Suite 2400 Baton Rouge, LA 70801  


$15.00 per attendee


On March 18th President Obama nominated Justice Department official Thomas Perez as labor secretary. Since 2009, Perez has headed up the Justice Department's Civil Rights Division. Republicans claim this appointment is too divisive, with Perez racking up record discrimination and housing claims while at the DOJ. The President says, "In his current role as the head of the U.S. Justice Department's Civil Rights Division, Tom has fought to open pathways into the workforce for everyone willing to contribute, including people with disabilities, LGBT Americans, and immigrants. And he has helped settle some of the largest cases ever on behalf of families targeted by unfair mortgage lending." 

Department of Labor Issues New Regulations Regarding FMLA Military Leave

Last month, the Department of Labor published a final rule amending Family Medical Leave Act regulations regarding military leave. The new rule contains some noteworthy changes.


The new rule generally:

  • Adds a new category of exigency leave for parental care (i.e., care for a military member's parent when the parent is incapable of self-care);
  • Expands from five to fifteen days the amount of R&R FMLA leave an eligible employee would be able to take to spend with a covered service person; and
  • Clarifies rules for calculating intermittent and/or reduced schedule leave.

To read the full article including a side-by-side comparison between the prior FMLA regulations and the final rule taken from the US Department of Labor web site visit here.

Time to Take a Fresh Look at The "At Will" Disclaimer in Your Employee Handbook

Unlike in many parts of the world, most U.S. employees have an "at-will" relationship with their employers such that either the employee or the employer can end the employment relationship (a) for any reason, (b) at any time, and (c) without notice. There are certain exceptions to employees' at-will status in the U.S. - for example, even if an employee is at-will, a company may not discharge the employee in violation of federal or state discrimination, retaliation, and whistleblower laws. Additionally, some employment relationships are not at-will by virtue of an employment contract or a collective bargaining agreement (in the case of unionized workforces). In such instances, the applicable employment contract or collective bargaining agreement may specify a set term of employment, may state that employment may only be terminated for "cause" or under other defined circumstances, and/or may provide a notice obligation.


To aid in defending against potential claims that the provisions of an employee handbook create an employment contract, many non-unionized employers include at-will disclaimers in their handbooks and/or have employees sign stand-alone documents acknowledging the at-will status of their employment. In 2012, this very common practice was scrutinized by an administrative law judge of the National Labor Relations Board ("NLRB") in American Red Cross Arizona Blood Services Division, Case 28-CA-23443 []. In that case, the ALJ concluded that an at-will provision in an employee handbook violated the National Labor Relations Act by restricting employees' exercise of their Section 7 rights. Section 7 of the Act, which applies to both union and non-union workforces, provides that employees have "the right to self organize, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ." The ALJ found that the at-will provision - which stated that the employment relationship is at-will and that "the at-will employment relationship cannot be amended, modified, or altered in any way" - was a violation of Section 7 because it could be interpreted by employees to mean that they were prohibited from unionizing in order to change their at-will employment status.


In late 2012, however, the NLRB General Counsel offered some welcomed guidance to employers on at-will provision by issuing advice memoranda in two separate cases []. In each case, the General Counsel concluded that the contested handbook provision would not reasonably be interpreted by employees to restrict their Section 7 right to engage in concerted attempts to change their at-will status. In one case, the handbook contained language stating: "No manager, supervisor, or employee . . . has the authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing." In the other, the handbook stated: "No representative of the Company has authority to enter into any agreement contrary to the foregoing 'employment at-will' relationship."


There are very nuanced differences between the at-will language found to be acceptable and unacceptable. Employers should review their at-will language in light of the 2012 NLRB cases and keep an eye out in 2013 for additional NLRB guidance.

Employers' Requirement of Confidentiality During Investigations May be Improper, According to NLRB

Employers routinely conduct investigations of workplace misconduct and other incidents. As part of such investigations, it is common for investigators to instruct employees, including the complainant and other witnesses, not to discuss the investigation with other employees. Generally, such confidentiality instructions are aimed at protecting the integrity of investigations and facilitating the search for truth. However, an important federal appeals court decision will be issued in the coming months that is expected to clarify whether employers must cease making that routine instruction and make additional adjustments to their internal investigation policies and procedures.


In 2012, the National Labor Relations Board heard Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012) [], a case involving a challenge to the employer's investigation policies. In that case, the employer's HR consultant routinely asked employees making a complaint not to discuss the matter with their coworkers while the employer's investigation was ongoing. While the NLRB administrative law judge who heard the case upheld the employer's practice, the Board reversed the decision. The NLRB found that the employer's "generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees' Section 7 rights [to engage in concerted activity for mutual aid and protection]." According to the NLRB, the employer's "blanket approach" of maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct" violated the National Labor Relations Act's prohibition on employers interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. In order to minimize the impact on those rights, the NLRB held that an employer must first determine, in each particular investigation and for each particular witness, whether there is a legitimate business reason to ask for confidentiality that outweighs the interviewee's Section 7 rights. A legitimate reason might exist, according to the NLRB, if (1) a witness needs protection, (2) evidence is in danger of being destroyed, (3) testimony is in danger of being fabricated, or (4) there is a need to prevent a cover up.


Following the NLRB's Banner Health decision, employers have expressed a number of concerns about the decision's implications, including whether the lack of a confidentiality instruction undermines employers' ability to comply with various other laws and legitimate workplace interests. For example, an employer's policy of requiring confidentiality for discrimination and harassment complaints and investigations encourages employees to raise concerns, guards against retaliation, ensures the integrity of investigations, promotes candor of witnesses, and aids the employer in maintaining attorney-client and other privileges.


The Banner Health decision is on appeal to the U.S. Court of Appeals for the District of Columbia Circuit and an opinion is likely to be issued by early summer. In the meantime, employers should, at a minimum: (a) evaluate their applicable internal policies, procedures, and guidelines to ensure that no "blanket" confidentiality requirement exists that prohibits employees from discussing with each other ongoing investigations; and (b) in any instances in which a confidentiality instruction is given to a particular complainant/witness, ensure that at least one of the four above business reasons exist for the instructions, document the applicable reason(s), and explain the reason(s) to those receiving the confidentiality instruction. (Note: Investigators still are free to advise "supervisors" (as defined by the National Labor Relations Act) to treat the investigation and matter being investigated as confidential, as the applicable provisions of the Act do not apply to them.) Employers should consult with their labor and employment counsel to discuss specific steps that they can take to address the concerns raised by the NLRB in Banner Health and should stay tuned for the U.S. Court of Appeals' upcoming ruling.

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.


Jacob E. Roussel


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