August 2016 L&E Update from Baker Donelson

Submitted by Firm:
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Firm Contacts:
Jennifer L. Anderson, Kathlyn Perez, Phyllis G. Cancienne, Robert C. Divine
Article Type:
Legal Update

August is here, which means it's back to school time for many kids and their parents. Something that's sure to present an issue for teachers is Pokémon Go – but did you ever think that a seemingly juvenile app would consume so many working adults? In this month's issue, see what companies are doing to prevent employees from playing on company time. Plus, updates to gun laws in Tennessee, a closer look at discrimination against the LGBT community in private employment and more.

The NLRB Eases the Way for Temporary Employees to Unionize

Michael Ewing, 615.726.5552,

On July 11, 2016, the National Labor Relations Board released a decision reversing 12 years of established precedent. In Miller & Anderson, Inc., the Board held that a bargaining unit can be comprised of both regular employees and temporary employees on assignment from staffing agencies, provided that the employees in question share a "community of interest." Previously, the rule was that such bargaining units could only exist if both employers consented. Now that consent is no longer necessary, there may be significant consequences for employers who utilize the services of temporary workers.  More...

Pokémon in the Workplace: Does Your Company Need a Policy?

Meg Sutton, 615.726.5614,

It seems crazy to have to tailor office policy because of the advent of a new phone app, doesn't it? But this is exactly what is transpiring due to the overwhelming popularity of Pokémon Go, an app for your phone that allows you to "catch" monsters in your own environment, with the use of your phone's camera. Read on to discover reasons why employers are increasingly creating policies based on Pokémon Go.  More...

Immigration Update

Miriam Thompson, 423.209.4235,

Tracking newsworthy developments in the ever-changing world of business immigration and its impact on employers and employees.

This month: August 2016 Visa Bulletin; Increased Fines for I-9 and Other Immigration Violations; USCIS Returns Unselected Fiscal Year 2017 H-1B Cap-Subject Petitions; Long Wait Times at U.S. Consulates in India; Is Your Work Site Ready for a Site Visit?; Continued High RFE Rates; Employment Authorization Document Adjudication Delays.  More...

Tennessee Employers Can Continue to Prohibit Guns Without New Liability

Levy Leatherman, 615.726.5646,

On July 1, 2016, Senate Bill 1736 went into effect in Tennessee. The law, introduced on January 15, 2016, was the subject of significant controversy. As the first of its kind across the country, SB 1736 as introduced sought to create a duty of care for property owners or entities who decided to prohibit the possession of firearms on the property as provided in Tenn. Code Ann. § 39-17-1359. Read on for more of this Bill's repercussions.  More...

Fifth Circuit Court of Appeals Decision Worsens Headaches for Employers Negotiating Pattern or Practice EEOC Claims

Nick Margello, 901.577.2368,

In Equal Employment Opportunity Commission v. Bass Pro Outdoor World, LLC., a three-judge panel of the Fifth Circuit Court of Appeals held that the EEOC can seek punitive and compensatory damages for a pattern or practice claim under Section 706 of the Civil Rights Act and the EEOC can apply the Teamsters framework, as opposed to the frequently used McDonnell Douglas framework, to meet its burden of proof in a Section 706 pattern-or-practice claim. This outcome means that the only two Circuits that have addressed this issue have reached unfavorable rulings for employers. Keep reading to find out why this case is worth monitoring.  More...

Is Sexual Orientation a Protected Category under Title VII?

Jennifer Hall, 601.351.2483,

That question has been asked for many years, especially after the U.S. Supreme Court struck down the Defense of Marriage Act in 2013 (U.S. v. Windsor) and subsequently held state bans of same-sex marriages are unconstitutional last summer (Obergefell, et al. v. Hodges, et al.). Additionally, in 2014, President Obama signed Executive Order 13672 prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity, and several courts have held that Title VII does protect against discrimination based upon gender stereotype ("gender non-conformity claims"). But what is the status of sexual orientation discrimination in private employment?  More...