September 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

With September comes a renewed focus from just about everyone and everything: the EEOC, NLRB, the DOL and even the ACA. Read on to learn the latest!

EEOC Issues Its First Guidance on Retaliation in Almost Two Decades: Next Steps for Employers

Beth Liner, 225.381.7036,

Late last month, the Equal Employment Opportunity Commission (EEOC) published its Final Enforcement Guidance on Retaliation and Related Issue, making it the first guidance from the EEOC on these issues since 1998. Retaliation has become the most common charge filed with the EEOC, exceeding even race-based claims of discrimination. As recently as 2015, the EEOC reported that 44.5 percent of all charges filed with the agency involved claims of retaliation. The Final Guidance, though it doesn't technically change the basic burden of proving retaliation, provides an expansive explanation of each element that the plaintiff must establish to prove unlawful retaliation.  More...

Health Care Employers Heads Up: What You Need to Know About Section 1557 of the Affordable Care Act

Adam Gates, 601.969.4661,

As the current presidential administration winds up its time in office, the administrative branch is hard at work completing its regulatory agenda. Part of this effort is implementing Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination in health care and health care insurance coverage based on race, color, national origin, disability and gender. Many health care companies are covered, and most probably don't have at least a few of 1557's requirements in place. Continue reading for the who, what, when, where and how on Section 1557.  More...

NLRB Permits Graduate Students to Unionize at Private Institutions

Edward R. Young, 901.577.2341,
Emma Redden, 901.577.8158,

On August 23, 2016, in a 3 to 1 decision, the National Labor Relations Board (NLRB) issued a ruling that renders graduate student assistants "employees" for the purposes of unionization, overturning a standard that previously prohibited unionization efforts at private universities and colleges across the country. Read on to discover the effects of this ruling.  More...

How Government Contractors Can Prepare for "Fair Pay and Safe Workplaces"

Joshua A. Mullen, 615.726.7318,

On August 25, 2016, the Federal Acquisition Regulatory Council and the U.S. Department of Labor published the Final Rule and its associated Guidance implementing President Barack Obama's "Fair Pay and Safe Workplaces" Executive Order (E.O. 13673). The Final Rule imposes significant new labor requirements and restrictions on government contractors that will increase compliance burdens. Read on to discover ways in which you can safeguard your business.  More...

Employers Beware of the Cat's Paw

Nakimuli Davis-Primer, 601.973.3612,

The cat scratches again! Five years ago, the United States Supreme Court handed down Staub v. Proctor Hospital, wherein it held that an employer may be liable for a supervisor's discriminatory animus when the independent decision-maker merely rubber-stamps the supervisor's recommended adverse employment action. 131 S. Ct. 1186 (2011). This is the cat's paw theory of liability. Last week, the Second Circuit extended this theory to find an employer liable for a co-worker's retaliatory animus even though the co-worker was neither a decision-maker nor a supervisor.  More...

Immigration Update

Melanie C. Walker, 423.209.4201,

Tracking newsworthy developments in the ever-changing world of business immigration and its impact on employers and employees. This month: A Proposed Rule that may help entrepreneurs get started in the United States. More...