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BT Currents - Hot Topics in Employment Law
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03 Feb 2014 Split Decision: Top 5 Noncompete Stories Lean Slightly in Favor of Enforcement

One frequent question is whether there is a trend in favor of or against noncompete agreements. It has seemed to me in recent years that there is more noise suggesting the tide is turning against noncompete agreements, but these conclusions seemed to be based on anecdotal evidence at best, wishful thinking at worst. Law360 has published articles in recent years offering a list of noncompete decisions, with no reason to tilt the list one way or another, so it is interesting to look at the…

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27 Jan 2014 Noncompetes: Michigan Decision Highlights Two Critical Decisions with Cease and Desist Letters

A decision out of the Eastern District of Michigan caught the attention of commentators last week. The pattern was straightforward and familiar – employee has noncompete, employee leaves and goes to work for a competitor, old employer sends new employer a copy of a letter to the employee telling the employee to cut it out because he has a noncompete. Things can go various directions from there. In this case, Bonds v. Phillips Electronic, the new employer fired the employee (Bonds), who in turn sued the old employer…

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21 Jan 2014 Play It Safe II: Employers At Risk If They Don’t Methodically Process ADA Issues

Just a few days ago, Pete Tschanz posted here about a court decision where it seemed from the court’s decision that the employer moved to terminate an employee without really working through some employee health issues as required by the ADA. Just to echo that theme with another new decision, we offer the case of Spurling v. C&M Fine Pack, Inc., where the 7th Circuit U.S. Court of Appeals reversed a lower court’s summary decision in favor of the employer.   In short, the timeline in Spurling was…

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15 Jan 2014 Academic Studies About Screening Applicants’ Social Media: New Cottage Industry?

I may need to start a separate blog to share and comment on the wealth of opinions that seem to be coming forward on the topic of employers screening applicants’ social media.  Hot on the heels of my post applauding what I thought was a sensible and realistic article suggesting that, well, yes if you are an applicant you should expect people to read information you make publicly available, I read about a new study out of North Carolina State University regarding applicants’ attitudes about social media screening…

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08 Jan 2014 Facebook Background Checking: Shouldn’t Smart Applicants Check Their Privacy Settings?

I have written here and elsewhere that I think the trend in state legislatures to limit employers’ ability to look at social media has gotten out of hand. Very few employers are demanding Facebook and other social media passwords, so legislation limiting that “practice” may scratch an itch, but has little practical impact, at least until legislatures intentionally or inadvertently expand the scope of those statutes to restrict other less intrusive practices – such as looking at information that applicants and employees make publicly available!  It seems…

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23 Dec 2013 Coast to Coast Noncompete Part 2: Still Going in 3 Courts in 2 States

A few weeks ago I wrote this post about a dispute between two language learning companies over two relatively short term employees. The dispute illustrates some common strategic lessons of which employers must take account in planning, administering and enforcing noncompete agreements. Perhaps most significant, the dispute is a classic example of the gamesmanship over forum states (and the various laws that may favor or disfavor one of the other party) that characterizes many noncompete cases. Because this is an interesting dispute for employers who have noncompete agreements…

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16 Dec 2013 December Is Noncompete Month in the General Media

It is somewhat unusual that the various tools and alerts that I have set up to stay current on noncompete laws point me towards major newspapers, but that has happened twice this month. First, and the more significant of the two in terms of things employers need to keep an eye on, the Boston Globe published an opinion piece to virtually prohibit noncompete agreements. The column, cleverly entitled “Noncompete Claws,” says that California has created “a unique employment ecosystem that thrives on employee movement” by largely prohibiting…

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09 Dec 2013 Don’t Talk About Employee’s Disability – Even In A Sports Analogy

We often counsel employers to focus on an employee’s ability to perform the job rather than the fact of an employee’s health issues when explaining adverse employment decisions. I love a good sports analogy, but even such an analogy probably should not divert us from this best practice. In a recent decision from the U.S. District Court for the Northern District of Illinois, the judge denied a university’s motion for summary judgment on a professor’s disability discrimination claim when the professor’s Dean wrote the following in…

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02 Dec 2013 “Using Social Media to Discriminate”: Please Read the Fine Print

A recent study of how hiring managers respond to phony social media accounts has been featured in some outlets with bold headlines along the lines of “Employers May Use Social Media to Discriminate.” Here is what the study, by researchers at Carnegie Mellon, really concluded:  The study involved sending dummy resumes to employers and creating dummy social media accounts to accompany those resumes. (While the subject matter of the research is undeniably important, is anybody else furrowing their brows a little about, um, lying to employers for purposes…

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26 Nov 2013 Behind the Numbers: Employment Discrimination Cases at the Federal Level Decline, But Why?

Readers who enjoy a little data may want to download (free) Professor Theodore Eisenberg’s recent study of federal civil rights legislation data, including federal employment discrimination cases (available here). While certainly longer than a blog post, the article is quick and interesting reading. With respect to federal employment cases, Professor Eisenberg notes the following: 1. As a percent of the federal court docket, employment discrimination cases have steadily declined (though still a substantial portion). 2. There has been an increase in the settlement rate of…

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