December 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

Late November brought wave after wave of news for employers. First, there was a Texas federal court's ruling that the Persuader Rule was unlawful. Then, the nearly back-to-back announcements from USCIS about work card authorization and the new I-9 form, but from where we're sitting, the biggest change of all was the pre-Thanksgiving ruling from the federal court in the Eastern District of Texas blocking the FLSA overtime rule. If you've missed either of our webinars updating employers on what to do in the wake of this latest move, you can view them here or here. Additionally, be on the lookout for a webinar January 10 about the new I-9 form. Here's hoping that December brings you some much-needed rest, even if it's only for a day or two. We wish all of you a wonderful holiday season and a happy New Year.

Current Title VII May Soon Protect Sexual Orientation

Chad Wallace, 423.928.0181,

The familiar language of Title VII of the Civil Rights Act of 1964 prohibits employment discrimination because of a person's "race, color, religion, sex, or national origin." As many courts and commentators have pointed out, the plain text of this federal statute does not include the term "sexual orientation." Thus far, no federal court of appeals, the step before the United States Supreme Court, has found that Title VII's protections extend to sexual orientation. That may soon change with the Seventh Circuit's anticipated en banc decision in Hively v. Ivy Tech Community CollegeREAD MORE

NLRB: Warning Coworker that Job is at Risk Inherently Protected Activity

Kathryn Hinton, 404.223.2216,

Earlier this month, the National Labor Relations Board (NLRB) ruled that an employee who was fired after warning a co-worker his job was at risk had engaged in inherently protected activity and must be reinstated. The case, Component Bar Products, Inc., No. 14-CA-145064, involved an employee of a precision machine product manufacturer named James Stout. Stout noticed that one of his coworkers had not been present for the past two days. The coworker had been out sick, but failed to call in and report his absence. After a supervisor told Stout that the coworker no longer worked there, Stout called the coworker and warned him that his job was at risk and he needed to call in. The coworker called the employer, angry that another employee had told him he was at risk of being fired.  READ MORE

NLRB Continues to "Like" Enforcement over Social Media Policies and Related Issues

Levy Leatherman, 615.726.5646,

In recent years, the National Labor Relations Board (NLRB) has focused attention on company policies that attempt to limit employee engagement in social media. Specifically, the NLRB has consistently taken the position that social media policies that deter employees from speaking out about workplace conditions or other issues in the workplace do not comply with Sections 7 and 8 of the National Labor Relations Act (Act), which generally guarantee the right to engage in protected concerted activity for the mutual aid or protection of employees without reprisal.  READ MORE

American Apparel to Send 3,500 Workers Home: What You Need to Remember About the WARN Act

Sharonda Fancher, 205.244.3837,

In the fallout of American Apparel's planned Chapter 11 bankruptcy, the clothing manufacturer warned almost 3,500 employees in its California locations that they may be laid off come the first of the year. Documents published by California's Employment Development Department show that in early November, the company sent the 3,500 workers the 60-day notice required by the Worker Adjustment and Retraining Notification (WARN) Act. READ MORE

Immigration Update

Miriam Thompson, 404.443.6723,
Melanie C. Walker, 423.209.4201,

A reminder of two very important changes: USCIS has established some rules that affect all employers, even those not sponsoring workers, and employers have a new I-9 form that they must use as of January 22, 2017.