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BT Currents - Hot Topics in Employment Law
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08 Feb 2016 Groundhog Day: Declaring the Impending Death of Massachusetts Noncompetes

  For the last three years, we have reported on legislative efforts to ban noncompetes in Massachusetts. You can see each of those reports here. Thus far none of those efforts have been successful. Here again in 2016, legislative efforts to ban noncompetes promise to continue in Massachusetts, with one commentator declaring, “This is the year.”   Our job as business lawyers is to advise clients on how widely varying state laws affect their ability to use noncompetes, then they can make their business decisions…

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04 Jan 2016 Friend or Foe?: Terminated HR Director Can Bring Retaliation Case, Court Says

  Most readers are aware that an employee who complains – internally or externally – about wage/hour law violations, or virtually any violation of an employment law, has the statutory right not to have an adverse job action taken against him/her because he/she made that complaint. We have discussed such claims before in the Currents blog, including here. It is the protected class of “People Who Have Asserted Their Legal Rights,” and asserting retaliation claims has long been a growth area.   But what about an…

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19 Nov 2015 Pennsylvania Supreme Court “Considers” Noncompetes: Mere Continued Employment Not Enough

In what has been a remarkable run of state supreme court cases out of the heartland addressing the question of what consideration will be sufficient to support a noncompete, yesterday the Pennsylvania Supreme Court came down on the anti-enforcement side of this question, holding that any restriction on employment requires some additional benefit beyond continued employment. In other words, an employer cannot hand a noncompete to a long-term employee and have it be enforceable unless the employer provides some additional value to the employee. Pennsylvania…

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12 Oct 2015 Think Before You Shoot on Noncompete: Why The Threatening Letter May Not Be Your First Move

I recently wrote an article about the importance of thinking a few steps ahead before businesses have their lawyers send the proverbial nasty lawyer letter.  Those letters certainly have their place in many contexts, but the article explains why you should think through the possible responses to the letter and be sure before the letter goes in the mail that you are ready to deal with the consequences.   So it is when an employee departs and is believed to be working for a competitor…

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02 Sep 2015 Man Bites Dog: Court Vacates Arbitration Award Against Sexual Harasser

It is the rare occasion when a court throws out an arbitration award. Typically the court’s ability to do so is quite limited by statute and/or the collective bargaining agreement under which the arbitration award. But a New York appellate court recently vacated an arbitrator’s award that put a bus driver (and union official) back to work even though he did not even show up to a hearing to contest sexual harassment charges against him. Recognizing its limited ability to vacate an arbitration award, the court…

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01 Sep 2015 Employer Changes Mind, Denies Accommodation to Deaf Applicant, Heads to Jury

A federal appellate court ruled that an employer that rescinded an offer of employment to a deaf applicant for a position monitoring plasma donors does not get summary judgment on the applicant’s Americans with Disabilities Act (ADA) failure to accommodate claim, and the case should proceed to a jury.  The court found the applicant presented two potential accommodations that would overcome her inability to hear audible alarms from donors the reasonableness of which must be determined by a jury – (1) installing visual or vibrating…

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27 Aug 2015 The Witness Files: 10 People We Keep Seeing in Workplace Investigations (cont.)

I have written here and here on BT Currents about the fact that it seems there are a handful of types of characters – among the complainants, the accuseds and the innocent bystanders alike – who seem to present themselves over and over again in workplace investigations, and a series I have written on i-sight.com about these characters and key strategies for dealing with each of them. The 10 characters I have identified are the following:   Complainants – Poor performer – Questionable complainant –…

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27 Jul 2015 Employee Can’t Count to 15 Under ADA Using Volunteers or Other Companies’ Employees

  One of the most significant ongoing type of employment issues is the treatment as employees of individuals the employer thought were not — interns are found to be entitled to back wages, nominal independent contractor status is repeatedly challenged in court and temporary agency workers are at risk of being treated as the customer’s employees as well.  Workers found to be employees are entitled to the protections of the various employment laws.   A secondary but sometimes equally important implication of employee status is…

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15 Jul 2015 ADA Decision Shows Need to Work with Employee Who Doesn’t Fit the … Mold

A recent federal district court decision shows the importance for employers to work through asserted employee health issues and document that they have done so.  The case involves Resa O’Reilly, who was hired for a government job.  Almost immediately after she began work, she began experiencing a number of physical symptoms – headaches, sinus pressure, eye pain and numbness.  She experienced the symptoms only when she was at work.  She was away from work for training for a few weeks without problem.  As soon as…

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06 Jul 2015 Performance You Can Measure Is Best Defense, FMLA Case Demonstrates

I often find myself counseling clients that the more measurable a performance issue is, the easier it is for the employer to prove that issue is the true, nondiscriminatory reason for a termination or other job action in the face of a discrimination or other employment claim. Sales employees almost always have measurable data about their performance, which seemingly provides an objective basis for employment decisions taken against individuals whose sales number are lowest. Such decisions are not bullet proof; for example, the employee may…

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