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Volume 6, Issue 8
August 2017
Microchipping - The Future of Labor and Employment?

Three Square Market, a Wisconsin-based vending machine company, is planning to implement a voluntary microchipping program for its employees. So far, over 50 employees have signed up for the $300 microchips that will be paid for by the company. The microchips will be implanted between the thumb and forefinger and work as a form of payment for break room vending machines, entry into buildings, and logging on to company computers. Even though the program is not mandatory, microchipping raises questions about the future of tracking employees and the problems that could arise as a result.
FMLA Does Not Protect From Disciplinary Action Unrelated To The Leave

The Court of Appeals of North Carolina held that an employer did not interfere with an employee's FMLA rights or retaliate against her by scheduling a disciplinary hearing while she was on leave. Elizabeth City State University hired Crystal Jennings in January 2010 to work in the University's Department of Information Technology. Jennings, who was fighting cancer, applied for and was granted FMLA leave in January 2014. During that leave, the University contacted her to schedule a disciplinary conference related to prior allegations that she had "accessed, copied, and stored emails and confidential information...without proper authority or or a legitimate business need." When Jennings failed to attend the conference, she was fired for abusing privileges as a network server and Microsoft Exchange administrator. As a result of her firing, Jennings filed claims against the University with wrongful termination allegations of FMLA violations and North Carolina's whistleblower protections violations. She claimed that the University interfered with her FMLA by holding the conference and subsequently terminating her. However, to make an interference claim under FMLA, an employee must be able to demonstrate three things: (1) that she is entitled to an FMLA benefit; (2) her employer interfered with the provision of that benefit; and (3) that the interference caused harm. This does not mean that an employer cannot discipline or terminate an employee for poor performance while that employee is out on FMLA leave. The Court disagreed with Jennings' claim that the interference was the scheduling of the disciplinary conference during her FMLA leave, rather than interference of her use of FMLA leave. Employers should note that while the Court agreed that disciplinary action for poor performance prior to FMLA leave was acceptable, employers should keep well documented examples of that poor performance to avoid an FMLA retaliation or interference claim. 
New NLRB Complaint Against Nissan Days Before Union Vote
The United Auto Workers announced an unfair labor practices complaint was filed against Nissan on Friday, July 28, only days before workers were set to vote on union representation. According to the complaint filed by the NLRB, Nissan threatened loss of wages and benefits if plant employees voted in support of the union. They also allegedly threatened to shut down the plant located in Canton, Mississippi. According to a spokesman for Nissan has called the allegations "baseless," and indicated they anticipate the United Auto Workers would try to block the election. However, the vote is still scheduled for August 3 and 4. 
NBCUniversal Accused of Sex Bias

NBCUniversal LLC is facing a sex discrimination lawsuit after allegedly asking a recruiter for "good looking employees." Stephanie Belanger claimed she was asked by Insight Global, a staffing company, to provide Facebook and Instagram profiles to NBCUniversal before she was interviewed for a contractor position as an A.V. coordinator. Belanger's allegations were accompanied by sexual harassment claims against a male supervisor at NBC. According to the complaint, Belanger said the supervisor, John Carleo, bragged about having the "hottest coordinator in the office," spread rumors about a sexual relationship between himself and Belanger, repeatedly called her a "whore" and tried to pursue a romantic relationship that Belanger was not interested in. Additionally, Belanger claimed NBCUniversal rescinded a permanent employment offer and reduced her job duties and pay in retaliation for her sexual harassment complaints and because she was taking a new medication to help control her epilepsy that caused her to have anxiety and emotional outbursts. In all, the lawsuit claims sexual harassment, disability discrimination and retaliation under the New York State Human Rights Law and the New York City Human Rights Law. 
NPR Employees Ratify Contract

On Monday, July 31, National Public Radio and NPR employee union SAG-AFTRA signed a three-year contract following contentious negotiations and a threatened strike. The contract will raise parental leave up to six weeks, improve options for telecommuters and ensure employees aren't required to negotiate their own salaries. There will also be a cost-of-living raise every year on January 1 for the duration of the contract which is effective immediately and will expire on June 30, 2020. The benefits will remain largely the same despite NPR's attempt to strip health benefits from temporary employees which would have been a big blow to the 25 percent of employees who are currently classified as temporary employees. In a joint statement by NPR and the union, the bargaining teams were applauded for their work to find common ground. 
$22.8M Black Workers' Class Bias Settlement Rejected 
A federal judge in the District of Columbia ruled that a $22.8 million settlement between Lockheed Martin Corp. and a group of 5,500 black workers to resolve a proposed class race discrimination claim did not pass muster and therefore must be rejected. In a July 28 ruling, Judge Ketanji Brown said the proposed settlement raises "fairness-related red flags" for the workers because it would force them to drop "the entire universe" of race bias claims against the aerospace and defense company, not just those related to the alleged discriminatory employee evaluation process, which is the subject of the main lawsuit. However, the court also denied the workers' preliminary motion for class certification because they were unable to suggest "how" the performance review system in question affected all salaried black employees below the level of vice president in terms of pay, promotions and retentions. 

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

John Andrishok


Rachel Coe

Leo Hamilton


Jake Roussel


Melissa Shirley


Jay Stovall

Sunny West


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