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Volume 6, Issue 4
April 2017
Good News for Federal Contractors - President Trump Blocks Implementation of Obama "Blacklisting"

In 2014, President Obama signed the ironically entitled Fair Pay and Safe Workplaces Executive Rule. This Rule would have required large federal contractors, and their subs, to disclose violations of fourteen state and federal labor laws when bidding on federal contracts. The Rule also forbade the use of mandatory employment arbitration agreements by federal contractors with certain contracts. Last, the Rule required contractors to provide employees with wage statements containing certain information. All aspects of the Order, other than the wage statement provision went into effect January 1 of this year. Continue reading this article by Jay Stovall here.
Overtime Dispute Decided by Oxford Comma
The First Circuit Court of Appeals ruled in favor a group of delivery drivers for Oakhurst Dairy in Maine. The truck drivers filed suit in 2014 claiming they were not being paid overtime wages for certain tasks they were performing outside of regular working hours. The First Circuit Court of Appeals sided with the drivers, stating that Maine's "wage and hour law" was ambiguously written due to a missing Oxford comma. An Oxford comma, or serial comma, is the "final comma in a list of things." In this case, the comma was left out of a list of tasks that do not require employers to have to pay overtime: "[t]he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods." The court decided that the lack of a comma between "packing for shipment" and "distribution of," left room for confusion about whether distribution was an exempted task, and therefore the drivers' claims that they were entitled to overtime wages were substantiated.
Intermittent FMLA Absences Are Not Subject to "Proof of Need"
The Eleventh Circuit Court of Appeals issued a decision on January 27, 2017 that an employer's request for "proof of need" in relation to an employee's intermittent FMLA absence was interference with the employee's FMLA rights. The lawsuit filed by Jill Diamond against Hospice of Florida Keys, Inc. After applying for and taking approved FMLA leave from June 2013 to February 2014 to care for her elderly parents, Diamond's mother fell seriously ill. Diamond submitted a request for FMLA leave to the Hospice and missed scheduled days in March and April to care for her mother. Upon her return to work, the Hospice requested an updated certification and other documentation "to support the need for intermittent use of FMLA leave when a 30 day advance notice is not provided." When Diamond asked why the Hospice needed the documentation, the Hospice claimed they needed "proof of need" that included documents from the hospital on the dates she was out and receipts for expenses incurred in the town where her parents lived. After providing the requested documentation and certification, the Hospice approved the FMLA leave, but in the following month, several concerns were raised about Diamond's job performance. She was ultimately terminated based on the performance concerns, but Diamond believed she had been fired in retaliation for her FMLA leave. The Eleventh Circuit overturned the District Court's original ruling in favor of the Hospice, citing interference on the Hospice's part that had potentially discouraged Diamond from taking FMLA. The court ruled that the requested "proof of need" documents were unnecessary to determine whether Diamond needed to leave to care for her parents and that the Hospice was trying to make it harder for Diamond to use FMLA leave.
EEOC Says Emotional Support Animals Are Reasonable Accommodation
The Equal Employment Opportunity Committee (EEOC) has taken the position that emotional support animals may fall as a reasonable accommodation under Title I of the Americans with Disabilities Act. While Title I prohibits disability discrimination, it does not specify service dogs or other animals as examples of reasonable accommodations. Despite this, the EEOC has filed a complaint in federal court in the first lawsuit of its kind in Florida against a trucking company that allegedly failed to accommodate a truck driver's request to have his dog with him while he drives his truck routes. According to the lawsuit, the driver's psychiatrist "prescribed" an emotional support animal to help him cope with his disabilities. The trucking company reportedly refused to hire the truck driver without attempting to determine if driving with his dog was a reasonable accommodation. The EEOC is seeking a change in the company's policies and the hiring of the truck driver along with back pay, punitive damages, and emotional pain and suffering compensation.
17,000 AT&T Workers Go On Strike

On Wednesday, March 22, about 17, 000 AT&T employees walked off the job. The strike is due to ongoing negotiations between AT&T and the Communications Workers of America union who is representing landline workers in California and Nevada. According to a Facebook post by the union, the employees are angry about a "unilateral change in job requirements [for landline technicians]" without the union's agreement. AT&T said that the strike does not include employees in their wireless departments. They are currently engaged in conversations with CWA in order to end the strike as quickly as possible. Employees in California and Nevada have been working under an expired contract for nearly a year and the union has claimed that AT&T has refused to "bargain fairly." CWA is also upset that AT&T has recently cut thousands of landline technician and call center jobs. Despite the strike, AT&T has said it will still be able to continue serving its customers. Earlier in March, AT&T and a group of unionized workers in the southwest came to a separate agreement that included the promise of returning 3,000 jobs to the U.S. that have been outsourced to overseas employees.
NLRB Orders Teamsters Union Representing Walt Disney Parks and UPS Employees To Honor Members' Resignations

On Wednesday, March 23, 2017 a NLRB judged ordered the International Brotherhood of Teamsters Local 385 to let eight union members stop paying dues, even though some of the workers' requests to leave the union were filed late. The NLRB ruled that the organization made it unfairly difficult for the workers to get their requests to resign from the union filed in time. The case, which was tried in Florida alleged that Local 385 had violated the National Labor Relations Act by intentionally ignoring or delaying responses to requests by eight of its members. The members, employees of Walt Disney Parks and UPS, sought resignation by signing the dues check-off authorizations that were subject to automatic renewal unless the employee provided written notice during the allotted period before their renewal date. For the Disney employees, the period was 10 to 20 days before the anniversary of when they signed their membership card. The UPS employees' window was 60 to 75 days prior to their membership anniversary. Local 385 argued that the members did not put their requests in within the allotted time periods, but the judge held that it didn't matter that the requests were put in late because the union still engaged in unfair labor practices that restrained or coerced employees in their NLRA rights by failing to respond promptly to members' requests. The judge said the union also failed to promptly respond to requests for copies of members' dues check-off authorization cards and requests for information regarding the revocation of members' union dues check-off authorizations.
Management Update Briefings


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