Management Update
Volume 4, Issue 9
September 2015
NLRB Denies Northwestern University's Football Players' Petition for Unionization
On August 17, the NLRB unanimously dismissed a petition filed by Northwestern University scholarship football players to form a labor union. The NLRB's decision had the effect of denying the players the right to form a union, but the NLRB specifically refused to decide the most controversial issue raised in the case: whether scholarship football players at major universities are "employees" of their schools for purposes of Federal Labor Laws. Avoiding this politically-charged issue, the NLRB ruled that it lacked jurisdiction over the case because the majority of Northwestern's competitors in Division I Football Bowl Subdivision are public colleges and universities, and the NLRA only applies to private-sector employers. The opinion was narrowly tailored to the circumstances of the Northwestern football team and will not stop the NLRB from addressing the issue of student-athletes' eligibility in the future. In March 2014, a regional director for the NLRB in Chicago had ruled that Northwestern University scholarship football players were employees under the NLRA and could unionize. Northwestern requested that the labor board review the decision, leading to the August 17 decision. 
DOL Wins In D.C Circuit Court Of Appeals in Home-Care Providers Wage Rule 
On August 21, 2015 the D.C. Circuit ruled that the DOL's decision to extend FLSA protections for overtime and minimum wage to most home care workers "is based on a reasonable interpretation of the law." This decision overturned a lower court's decision to block the extension. The DOL's rule gives home workers the same protections as their institutional counterparts. After a December 22, 2014 ruling ending the "third-party employment" provision of the FLSA, and a January 14, 2015 decision ending the narrow definition of "companionship services," the DOL was able to bring almost 2 million new workers under the statute's umbrella. 
Make-Up Sergeant's Exam Denied to Pregnant Officer

The recent settlement of a New York EEOC charge is leading employers to reconsider how it "accommodates" pregnant employees and applicants. After registering for a preparatory course for the NYPD sergeant's exam, Officer Akema Thompson discovered she was pregnant, and her due date was the same day as the exam. Because the city offered makeup exams, she went forward with the course, and in June 2013, she registered for the exam. She then emailed the city's Department of Citywide Administrative Services to explain her situation, and requested a makeup test. City officials responded two days later denying her request. She wrote back requesting to take the test with those who could not take it due to religious observances that conflicted with the original date. On August 1, 2013, city officials responded with a list of accepted conflicts which would allow an individual to take a makeup test. Pregnancy or childbirth did not appear on the list. Following this, Officer Thompson contacted her union, and in September 2013, union officials sent three consecutive letters warning the city against its decision to deny the makeup exam. Three days before the scheduled exam, Officer Thompson was in labor when she received a call from city officials denying her request for a makeup exam, but stated they would offer her extra time to take the exam and a cushion to sit on. On the day of the exam, Officer Thompson was recovering from a cesarean section. Two months later she met with a lawyer at Legal Momentum, a women's advocacy group, who filed a pregnancy discrimination charge against the city with the EEOC in March 2014. In July 2015, the city settled the case and agreed to pay Officer Thompson $50,000 and allow her to take a makeup exam in January. The city also agreed to change its policy to include women with pregnancy-related or childbirth-related conditions in the list of those eligible for makeup exams. 
Most Common Hiring Pitfalls

Although each new hire is different, every interview and hiring decision presents similar issues and risks. Many of the risks inherent in the hiring process can be minimized by the use of a standard interview script for each position. This will not only assure that all applicants are treated the same, thus reducing the chances of a discrimination claim, but it will also help ensure that the person conducting the interview avoids many of the "taboo" questions and topics. See here for more information on some of the most common issues to be avoided during an interview.
Court Rules Discrimination Motivating Factor in Police Officer's Termination
When Captain Ivan "Keith" Gray of the Dothan, Alabama Police Department and president of the predominately black motorcycle club Bama Boyz was fired with his association with a biker gang, Outcast, he filed a race discrimination suit against the police department. Gray said he was fired because of his race, and suspected his claims with allegations of being denied promotions and training opportunities in favor of white officers, and that white officers (including his supervisor) engaged in racially offensive behavior and affiliations with racist organizations like the Sons of Confederate Veterans. His supervisor also displayed Confederate memorabilia in his office. The police department requested that the court dismiss the case, but the request was denied. Gray said his association with the Outcast gang was just a pretext for the department to fire him because the department did not open an investigation into the Outcast gang until three weeks after he filed an EEOC complaint in 2013. The court ruled in Gray's favor and said that he could go to trial on the separate claim that he was subjected to a hostile work environment under Title VII. 
Lowe's Employee Recalled From Delivery Trip After Customer Request
Black delivery truck driver, Marcus Bradley was on his routine delivery route for Lowe's Home Improvement in Danville, Va. when his manager called and asked that he return a shipment to the store. When Bradley asked why, his manager informed him that the customer gave instructions that a black employee should not be sent to her home. After returning the shipment, the manager replaced Bradley with a white employee who delivered the shipment to the customer. Bradley had worked for Lowe's for 11 years, and was shocked that the customer's request was honored. His colleague, Alex Brooks, a white employee, refused to get back in his delivery truck when Bradley was replaced by the manager. A Lowe's spokesperson said the manager who honored the request was fired, and the company backs its drivers completely. 
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."