Management Update
Volume 4, Issue 5
May 2015
EEOC Finally Issues Notice of Proposed Rulemaking Regarding Application of ADA to Employer Wellness Plans

On April 16, 2015 the EEOC finally issued its long-promised Notice of Proposed Rulemaking ("NPRM"). The NPRM may be viewed here. Members of the public have 60 days to submit comments. After this time, the rule may become final. To read the full article by partner Jerry L. Stovall Jr., click here.
The Wage War
The NLRB has recently found that employers such as Chipotle Mexican Grill restaurant in St. Louis have unlawfully restricted employees' rights to discuss wages. With the movement among minimum wage employees to raise the rate to $15 an hour, employers are finding it hard to avoid the discussion. Under Section 7 of the NLRA, employees (unionized or not) have the right to discuss concerted activity for their mutual aid or protection. As the wage debates heat up, the NLRB will probably be making more of these rulings. The NLRB has jurisdiction over non-union employees in these issues. 
Texas Federal Judge Halts Expansion of FMLA to Include Legally Married Same-Sex Couples

Wichita Falls Federal District Judge Reed O'Connor granted an injunction to temporarily stop the application of the Federal government's new rule extending Family and Medical Leave Act (FMLA) rights to same-sex spouses in all states if the marriage occurred in a state that recognizes same-sex marriage. O'Connor said the new rule would require Texas to recognize out-of-state same-sex unions, which would violate Texas' Family Code that forbids state agencies from giving legal protection to same-sex couples. The request for a temporary injunction stopping enforcement of the rule came from Texas Attorney General Ken Paxton joined by the attorneys general of Arkansas, Louisiana and Nebraska. The existing rule looked to the law of the of the residence of the couple, not the law of state of celebration. The proposed rule also changed the definition of marriage from between a man and a woman to between two persons. Another reason for the stay was because the issue of whether states can ban same-sex marriage was pending before the United States Supreme Court in several consolidated cases. Oral argument in that case was held April 28, 2015.
New NLRB Quickie Elections

The changes to the NLRB election rules, effective April 14, 2015, will affect both employers and potential union employees. The changes in the Final Rule will make it easier for unions to organize campaigns while shortening the time for employers to respond to such campaigns. Other changes include the allowing of electronically filed documents, simultaneous filing of petitions to employers and the NLRB, requiring employers to post and electronically notify a Notice of Petition for Election to employees (previously a voluntary action), and a post-election objection timeline of 21 days following the counting of ballots. The Final Rule shortens the amount of time previously spent between the filing of a petition and an election, and provides less time for employers to prepare information on employees that must be provided to unions. These quick time constraints could lead to unfair labor practice charges. To see the fact sheet by the NLRB click here.
EEOC Rules Army Discriminated Against Transgender Employee 

On April 1, 2015, the EEOC ruled that the Department of the Army violated the Federal sex discrimination law Title VII in its actions regarding transgender employee Tamara Lusardi. The Software Quality Assurance Specialist transitioned from male to female in 2010, and was then barred from using the women's restrooms. She was forced to use a single stall restroom and was then reprimanded for using the female restroom when the single-stall was out of order. Lusardi's supervisors referred to her with male pronouns despite her gender transition. The EEOC determined that the Army had created a hostile work environment and ordered that the Army provide compensation for lost wages and damages and attorney's fees. The facility where Lusardi works is now required to conduct equal opportunity training. The decision in Lusardi's case is considered a landmark in regards to protection for sexual discrimination against transgender employees under Title VII. 
April Fool's Gone Too Far? 

How far is too far for workplace pranks? A Material Controller for Lockheed Engineering Sciences, a maintenance contractor for NASA's Johnson Space Center was terminated after calling his immediate supervisor with news that he had hit two pedestrians in his company vehicle. He intimated that one of the victims appeared to have suffered fatal injuries. After twice assuring his supervisor,that he was not joking, the employee ended the conversation saying the police had been called. The supervisor reported the incident to the HR Manager, Department Manager, and several other entities including Lockheed's Headquarters in Houston, TX and NASA Johnson Space Center. When the employee called back to report that his earlier call was a joke, it was too late. Upon his 10:00 am arrival at the office, he was immediately terminated. The Arbitrator in the case ruled that Lockheed had "proper cause" to terminate the employee. According to Bloomberg BNA's Arbitration Award Navigator, in 41 cases of arbitration awards involving pranks at private employers' workplaces, employers prevailed in 46.3% of the cases, unions prevailed in 17.1%, and 36.6% involved mixed prevailing parties.
Management Update Briefings

Breazeale, Sachse & Wilson, L.L.P. presents Management Update Briefings, a labor and employment law seminar at convenient locations across the state of Louisiana.


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


  Rachael M. Coe

 Leo C. Hamilton



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."