Management Update
Volume 2, Issue 5
May 2013

Breazeale, Sachse & Wilson, L.L.P. presents Management Update Briefing, a labor and employment seminar.
HRCI Credit Pending 
Shreveport, LA 

Thursday, September 12, 2013

Registration begins at 8:00 AM   

Briefing begins at 8:30 AM   

On April 9, President Obama April sent three NLRB nominations to the Senate. He renominated Chairman Mark Gaston Pearce (D) to another term and named two new members, Harry I. Johnson (R) and Philip A. Miscimarra (R). Both Johnson and Miscimarra have worked as private labor attorneys. These two will replace the two Republicans currently on the board. In February, the President re-nominated Democrats Sharon Block and Richard Griffin to the Board after a court ruled that their recess appointments were unconstitutional.

In the nomination announcement President Obama said: "With these nominations there will be five nominees to the NLRB, both Republicans and Democrats, awaiting Senate confirmation. I urge the Senate to confirm them swiftly so that this bipartisan board can continue its important work on behalf of the American people."

Immigration Reform Would Overhaul Work Visas and Mandate E-Verify Use

The bipartisan "Gang of Eight" has proposed a comprehensive immigration reform bill in the U.S. Senate that would make significant changes to employment-based visas and foreign worker programs. Employers should pay attention to several components that, if the bill is passed, can affect business over the coming years. The proposed bill would:  

  • Mandate that all U.S. employers use E-Verify, phased in over a five-year period. The five-year roll-out would affect larger employers first.
  • Raise the cap on the number of skilled-worker visas (H-1B visa). The cap would raise from 65,000 to 110,000.
  • Create a new visa program for lower-skilled workers (W-Visa). This new visa would allow a low-skilled worker to come to the U.S. in a registered job with a registered employer.
  • Create a new visa for foreign-born entrepreneurs starting companies in the U.S.  
  • Create a merit based visa to keep especially talented people in the U.S.  

Trend of Enforcement of Arbitration Agreements Continues

Arbitration is preferred by many employers as an alternative to litigation for resolving disputes with employees. Arbitration often has the benefit of being less expensive, less time-consuming, less formal, and less public than litigation. Consequently, some employers believe it is advantageous to include mandatory arbitration clauses in employment contracts that require that disputes arising from the employment relationship be resolved through an arbitration process (heard by a neutral third-party) rather than by a court process (heard by a judge and/or jury).


For a number of years, the trend has been for courts to enforce arbitration agreements that contractually require employment disputes to be arbitrated. However, there is one very significant issue in this area of the law that has not yet been fully resolved by the courts - namely, whether "class waivers" in arbitration agreements will be enforced. These types of waivers preclude employees from pursuing class and collective actions in either court or arbitration and enable employees to pursue individual claims only through arbitration. In AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), the U.S. Supreme Court upheld a class arbitration waiver contained in a consumer contract. Since that time, trial and appellate courts across the country (but not yet the Supreme Court) have examined various challenges to arbitration class waivers contained in employment contracts, with mixed rulings. Until the Supreme Court more clearly delineates the law in this area, employers' ability to successfully preclude class and collective actions via arbitration agreements may depend on which jurisdiction they are in.


In the meantime, employers that have existing arbitration agreements in place or that are considering using such agreements should consult their labor and employment counsel to ensure that their arbitration agreements are crafted in a manner that is consistent with the business needs of the company and the law of their jurisdiction.  

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