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Volume 5, Issue 11
November 2016
Domestic Violence in the Louisiana Workplace, Part 6: Hiring Aggressors 
It is not a matter of if, but when an employer will be confronted with a challenging domestic violence-related issue in the workplace. Domestic violence not only causes lost productivity and increased costs for employers, but also raises a host of potential legal obligations and liabilities that employers cannot afford to overlook. In this monthly series, Labor and Employment attorney Rachael Coe will discuss the various ways that domestic violence impacts the Louisiana workplace and what employers need to know in order to protect their employees, their customers, and themselves.

So far, this series has focused on employers' obligations to employees who are victims of domestic violence, as well as potential legal risks related to domestic violence in the workplace. But what if you have an applicant or employee who is a convicted domestic violence aggressor? Many employers are familiar with the tension between workplace safety and complying with anti-discrimination laws, as well as the desire to help former criminals by giving them a "second chance." This month's article sensitizes Louisiana employers to several state and federal laws that could impact employment decisions involving convicted domestic violence aggressors. These laws are very complex in practice, and employers should consult with an experienced employment attorney or human resources professional before making any employment decisions. To read the full article by Rachael Coe, click here. 
OSHA Delays Enforcement of Anti-Retaliation Provisions - Again

The Occupational Safety and Health Administration (OSHA) announced today that it will delay enforcement of the anti-retaliation provisions of the revised recordkeeping regulation until December 1, 2016. To read the full article by Jerry L. Stovall, Jr., click here.
NLRB Ordered by D.C. Circuit Court to Pay Attorneys' Fees in Collective Bargaining Case
 The NLRB was ordered by the D.C. Circuit Court to pay attorneys' fees totaling $17,649. The Court ruled that the Board litigated in bad faith and against Circuit precedent in a case against Heartland Health Care Center - Plymouth Court. The Board argued that the employer refused to bargain on a matter that was allegedly in the scope of a collective bargaining agreement without a "clear and unmistakable" waiver. The Court's precedent consistently rejected that view and regarded the contents of a CBA to be a question of "contract coverage." The Board did not confess the error of its underlying order against the employer under D.C. Circuit law and did not even attempt to seek a transfer to the Sixth Circuit, which embraces the "clear and unmistakable" waiver policy and covers Michigan where Heartland's operations exist and where the underlying dispute occurred. The Board's obstinacy and non-acquiescence amounted to bad faith and led the D.C. Circuit Court to rule that the legal dispute in the case demonstrated persistent non-acquiescence without either candor or the pursuit of judicial finality. 
"Onionhead" Is a Religion According to the EEOC
In 2007, Cost Containment Group Inc. (CCG), a small wholesale company that sells discount medical plans hired the CEO's aunt, who had created a program called Onionhead that was described as a multi-purpose conflict resolution tool. The program, initially created for children, was expanded to apply to adults and became known as "Harnessing Happiness." In  2011 and 2012, three former employees filed discrimination charges alleging that Onionhead and Harnessing Happiness required them to do things like use candles instead of lights to prevent demons from entering the workplace, conduct chants and prayers in the workplace and respond to emails relating to God, spirituality, demons, Satan and divine destinies. The employees claimed they were terminated either because they rejected Onionhead's beliefs or because of their own non-Onionhead religious beliefs. They claimed other employees who followed Onionhead were given less harsh discipline. In March 2014, the EEOC issued a letter of determination, and after unsuccessful conciliation efforts, filed suit on October 9, 2014 on behalf of the three employees who filed charges of discrimination and an additional seven employees it discovered during its investigation. The EEOC moved for summary judgment as to whether Onionhead was a religion for purposes of Title VII. The Court used the framework from (Patrick v. Lefevre, 745 F.2d 153, 157 (2d. Circ. 1984)) that evaluates "(1) whether the beliefs are sincerely held and (2) whether they are, in [the believer's] own scheme of things, religion." The Court noted that because the CEO hired his aunt to conduct workshops, speak to employees about their personal lives and disseminate Onionhead/Harness Happiness, he and his upper management sincerely believed in the Onionhead program. The Court applied the second prong of the framework to conclude that the nature of the beliefs qualified as religious within the context of Title VII. 
Management Update Briefings

Second Annual Update on
Labor & Employment Law
for the Construction Industry

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



Leo C. Hamilton