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BT Currents - Hot Topics in Employment Law
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26 Nov 2012 When Is Facebook Activity “Solicitation?”

Employers who have restrictive covenants with employees likely are familiar with non-solicitation agreements, where employees agree not to “solicit” the employer’s customers or other business associates after the employment relationship terminates. After an employee leaves and questions are raised about whether the employee is violating his or her contractual obligations to the now-former employer, often there is a question as to when communication and contact with customers becomes prohibited solicitation. A Massachusetts court’s decision in the recent case, Invidia LLC v. DiFonzo 2012 WL 5576406…

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11 Oct 2012 Ohio Supreme Court Reverses Self on Noncompete in Merger Situation

Earlier this year, the Ohio Supreme Court surprised observers in the Acordia of Ohio LLC v. Fishel case by holding that an acquiring company in a statutory merger could not enforce noncompetes entered into with the acquired company by employees who continued to be employed absent clear contractual agreement to that.  Today, the Court in effect reversed itself, coming back into line with the great majority of the states. A summary from the court can be found here.  Historically, in a corporate merger where the acquirer buys…

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29 Aug 2012 Is Employer-Ordered Counseling a Medical Exam Covered By The ADA?

The recent decision of the Sixth Circuit U.S. Court of Appeals (covering Ohio, Michigan, Kentucky, and Tennessee) reminds employers of the caution that must be exercised when dealing with employee behavioral problems. Specifically in the case of Kroll v. White Lake Ambulance Authority, employer-ordered counseling may constitute a medical exam that, under the Americans with Disabilities Act (ADA), is permissible only if it is job-related and consistent with business necessity. Kroll was an EMT for WLAA, the employer in the case.  A manager requested that she receive psychological counseling…

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16 Jul 2012 Sixth Circuit Expands on “Cat’s Paw” Discrimination

Readers may remember the Staub v Proctor Hospital decision issued by the U.S. Supreme Court in March 2011, essentially holding under the “cat’s paw” theory that employers may be liable for discrimination if the decision maker relies on input from subordinates with discriminatory intent, even if the decision maker did not have discriminatory motives. In addition to the question, “why is it called ‘cat’s paw’ anyway” (more on that below), employers as with most Supreme Court decisions are waiting to see how the rule evolves as…

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18 Jun 2012 Supreme Court Issues Long-Awaited Decision in Christopher v. SmithKline Beecham Corp.

Today the U.S. Supreme Court issued a long-awaited decision in Christopher v. SmithKline Beecham Corp., holding in a 5-4 decision that pharmaceutical sales employees are exempt outside salespeople. The decision may be read here. The case is significant for several reasons.  The most obvious reason is that it represents our highest court interpreting the outside sales exemption, so any business relying on (or thinking of relying on) this exemption should review the decision with counsel to ensure ongoing compliance. The central issue in Christopher was whether the…

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