Management Update
Volume 3, Issue 5
May 2014
Diabetic Worker Will Get Her Day in Court

On April 11, a federal judge denied summary judgment in an ADA case brought on by the EEOC involving the termination of a Walgreens employee for eating a $1.39 bag of chips before paying for them. Walgreens has an "anti-grazing" rule that is applied uniformly to all employees, meaning that all employees are required to pay for any item before consuming. The employee has diabetes and claimed that she was beginning to have a hypoglycemic attack while stocking the shelves with chips, so she opened a bag to eat. She claims she tried to pay for them, but no one was at that counter. Walgreens had filed for summary judgment based on the EEOC's legal guidance that "an employer never has to tolerate or excuse violence, threats of violence, stealing, or destruction of property." The judge discounted that argument saying ""[W]hether Walgreens should have been required to 'accommodate' [the employee's] stealing as a 'reasonable' accommodation is for the jury to determine." This decision is another example of the ever-expanding rights of employees with medical impairments that may be perceived as "disabilities".   

Kroger Policy Bagged by the NLRB

On April 22, an administrative law judge for the NLRB found that Kroger's online communications rules exceeded the employer's legitimate interests and prohibited communication protected by the NLRA. The communications rule required that any online postings about their employment must include a statement that Kroger did not necessarily share their views.

Fifth Circuit Holds that Confidentiality Agreement Prohibiting Disclosure of Personnel Information Violates NLRA  

On March 24, the U.S. Fifth Circuit Court of Appeal affirmed the National Labor Relations Board's decision that nonunion employer FlexFrac Logistics LLC violated the NLRA by maintaining a confidentiality policy that barred workers from discussing "personnel information" with anyone outside the organization.

The Fifth Circuit held that the NLRB was not unreasonable when it found that employees could construe the policy as prohibiting them from discussing their wages in violation of Section 7 of the National Labor Relations Act.


To read the full article, by partner Jay Stovall, visit here.  

Bullying in the Workplace -- Address It Now or Pay Later

Bullying has become a hot topic in the press, mainly in schools. However, as the problem becomes more well-known, and as employees learn to put a name to the conduct, bullying is becoming more of an issue in the workplace. Workplace bullying is usually seen as repeated instances of mistreatment of co-workers by verbal abuse, work interference, threatening, humiliating or intimidating conduct. Some examples include threats of violence, blackmail, excluding an employee from activities, purposefully ignoring his or her work or contributions and spreading rumors about a co-worker. To read the full article, by partner Jay Stovall, visit here. 

EEOC Fails in Background Check Litigation

On April 9, the EEOC suffered defeat when the Sixth Circuit Court of Appeals affirmed summary judgment in the background check case of EEOC v. Kaplan teaching Corporation, et al., a highly anticipated background check decision. The Sixth Circuit questioned the EEOC for using a flawed methodology to prove that using credit checks as a pre-employment screen unfairly impacts Black candidates.

The Court of Appeals found that the methodology used by the EEOC has no scientific basis and failed every criteria the court used to evaluate expert testimony's admissibility. During the trial it was also revealed that the EEOC uses the same background checks for 84 of their 97 positions. This decision raises questions about whether the EEOC can win any lawsuit based on its new background check guidelines.
NLRB Proposes "Ambush Election" Rule

The National Labor Relations Board (NLRB) has re-proposed a rule changing the NLRB's union election campaigns procedures. Among others, the proposed rule contains the following changes:
  • Time Period Shortened. The proposed rule shortens the time period from when the union's petition is filed until the election to 10-11 days.
  • Statement of Position Changes. The proposal requires employers to disclose their entire case in the statement and keeps employers from presenting evidence on any issue not included in the statement.  
  • Mandated Disclosure of Employee Information. Under the rule, employers are required to turn over private employee information, including employee telephone numbers and e-mail addresses.
Management Update Briefings

Breazeale, Sachse & Wilson, L.L.P. presents Management Update Briefings, a labor and employment law seminar.

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