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BT Currents - Hot Topics in Employment Law
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07 Nov 2017 (Informal) Survey Says: Most Employers Not Waiting for Courts to Decide Whether Title VII Covers Sexual Orientation

  As we have discussed here and here at Currents, one of the hotly contested employment litigation issues of our decade is whether Title VII’s prohibition on discrimination “because of sex” prohibits discrimination on the basis of sexual orientation. Sex discrimination was an afterthought when Title VII was passed in 1964, added late in the Congressional process (reportedly added by opponents who thought it would cause Title VII to fail), and it is unquestioned that Congress was not thinking about sexual orientation at the time. Since that…

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30 Sep 2017 Ohio ‘Reverse’ Racial Discrimination Ruling Reinforces Employers’ Advantage in Constructive Discharge Cases

  Our clients are typically employers, but this decision from the U.S. Court of Appeals for the Sixth Circuit (the appellate court for Ohio, Michigan, Kentucky and Tennessee) on Sept. 28 illustrates one piece of advice we would give an aggrieved employee if asked: Don’t quit! (We’re not changing sides, by the way.)   Steve Fletcher, a white registered nurse, sued his employer alleging racial discrimination, and his story has many hallmarks of discrimination cases we see every day:   A new supervisor who, it…

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29 Sep 2017 The Gradual But Decided Shift to a Much More Complex World of Employment Law

  On Oct. 4, my colleagues (and fellow Currents bloggers) Jeanine Gozdecki and Doug Oldham will be presenting a program focused on increasing complexity in the employment law arena. Employment law accelerated in the 1960s when Title VII of the Civil Rights Act was passed, as well as many similar state discrimination laws. At that time, things seemed pretty cut and dried – treat people equally to avoid liability. Many factors have made the world of employment law far more complicated since then:   The number of protected…

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28 Sep 2017 Survey Says: Employers Generally Settled, Favoring Traditional Vacation Over PTO

  From time to time, we report on surveys conducted by our friends at Employers Resource Association. This month’s survey focuses on how employers provide paid time off (PTO) to employees. The results here are straightforward:   A strong preference to offer traditional vacation (61 percent of respondents) over PTO (39 percent) Only 13 percent of respondents indicated they are considering a change, so it seems that this preference is stable A fairly even distribution among different answers for the smallest amount of leave an employee…

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31 Jul 2017 Survey Says: Almost All Employers Use Background Checks (and Other Notes on Pre-Employment Testing)

    As we sometimes do, we turn our attention to one of the monthly surveys from the Ohio-based Employers Resource Association (ERA). This survey focuses on a number of interesting questions about hiring trends as practices, such as who interviews applicants (24 percent of respondents have peers interview applicants) and what resources are used to find candidates (not surprisingly, online job boards leads at 89 percent).   More on the employment law side, I thought the question showing what percent of employers use various kinds…

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01 Jun 2017 Six Statements That May Mean Your Business Will Keep an Employment Lawyer Busy

  I recently posted elsewhere six things I hear employers say that, while understandable in some cases, may actually cost the employer money in legal fees (and, with some of them, judgments or settlements). Here are the statements and more info on why they are problematic:   “Noncompetes aren’t really enforceable. I’ll just hire him.” “I’ll just get a document off the internet.” “I’ll write it myself, then my lawyer can review it.” “Other employees are tired of having to cover for him being sick.”…

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03 Apr 2017 Noncompetes Q&A: A Look at Ohio

    We write a lot on the Currents blog about noncompete agreements. The topic presents a wealth of material because of the critical differences between state laws and the importance of employers to be aware of developments even in states where they don’t do business, and the fact that typically several times a year there is a development in some state’s law, with Nevada and Pennsylvania being two examples in recent years where a state supreme court decision has attracted attention.   Yet I find that…

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21 Feb 2017 A Charge-d Atmosphere: A Few Pointers When a Current Employee Files a Charge

  Most employers have had to respond to a discrimination charge filed with the U.S. Equal Employment Opportunity Commission (EEOC) and/or a corresponding state agency. A large percentage of such charges are brought by terminated employees, claiming that a termination was discriminatory. When that happens, employers gather documentation, provide requested information and prepare a position statement. A significant amount of the time, the charge is dismissed and the employer prevails.   But some charges are brought by current employees, alleging discrimination in the form of:…

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31 Jan 2017 The Three Seats of Noncompetes: Mistakes We See When Employees Move

  We often write on Currents about developments in the area of noncompete law, primarily case law and statutory developments across the country in this highly state-specific area. This year will likely be no different – among other things, the seemingly annual ritual of Massachusetts noncompete legislation has begun anew. While the rules shift and evolve, when employers and employees find themselves in disputes over noncompetes, there are recurring themes or factors that might have been avoided.   This article I wrote reviews these factors, broken down…

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31 Jan 2017 EEOC’s Latest Guidance On Mental Health Accommodations Adds Little

  Employee mental health conditions often present some of the more challenging disability accommodation situations.  While no less real and potentially debilitating, we can’t see them, and some of them may be less predictable.  (Include fibromyalgia as another disability in this category.)  Mental health issues may also be stigmatized in ways that other health issues are not, presenting challenges in managing the conduct of employees other than the employee seeking accommodation.  Thus, even the most well-meaning and enlightened supervisors and colleagues may confront challenging scheduling…

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