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BT Currents - Hot Topics in Employment Law
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26 May 2015 A Reminder from the NLRB to Scrutinize Your &!^@$) Policies

We have written often at BT Currents, including here and here, about the National Labor Relations Board’s (NLRB) intense focus on employer policies that assertedly might be viewed by an employee as restricting employees’ – in union and non-union workplaces alike – to communicate with each other about the terms and conditions of their employment, i.e. engaged in “concerted activity.”  This past week I was part of a panel on various labor law topics including a union-side lawyer and representatives from Regions 8 and 9…

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18 May 2015 Pro-Enforcement Noncompete Decision from Wisconsin Supreme Court

I have written here before on the unique issues raised by state-by-state variations in noncompete law, and here in depth on one of the key variations – what a state’s courts will recognize as sufficient consideration for a noncompete. Is “mere” continuing employment sufficient as it is in Ohio, for example, or is does it require something as is the case in Kentucky since a 2014 decision from that state’s Supreme Court? In the closely watched case of Runzheimer Int’l Ltd. v. Friedlen, Wisconsin has…

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29 Apr 2015 Supervisors Are Employees Too … to the Tune of $6.6 Million

What termination of a single employee can justify a $6.6 jury award?  (The punitives award was reduced by the lower court from $15.9 million. The employee also received $2.2 million in non-punitive damages). According to the Ninth Circuit Court of Appeals, the federal appeals court for western states including California, the following elements justify a lower court jury’s award in this amount:   Discharge found to be in retaliation for suing for overtime pay, reporting violations to OSHA and Department of Transition, and inciting other…

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16 Mar 2015 Class Action Against Uber Another Reminder to Employers on Employee Data Protection

With this post I am going to start a series focusing on higher stakes employment issues, the cases and crises that put the most on the line for employers. For smaller and medium sized companies, the very existence of the company may even be at stake. We will look at recent developments and identify proactive steps that readers can and should take to minimize the likelihood of becoming one of those headlines.   One obvious example of such a case is a class or collective…

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09 Mar 2015 More EEOC v. Abercrombie & Fitch: Why No Disability Accommodation Angle?

As Jeanine Gozdecki posted here, the U.S. Supreme Court recently heard oral argument in the case involving the scope of an employer’s obligation, if any, to initiate religious accommodation discussions with an applicant who was wearing clothing that would violate the company’s apparel policy but that would seem to be being worn for religious purposes. The federal court of appeals that heard the case seemed to say the company had no affirmative obligation, it had not discriminated if the applicant did not raise the issue….

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16 Feb 2015 Some HR Numbers That Should Be Zero In Your Organization LETTER OF THE LAW: CURRENT EMPLOYMENT LAW ISSUES A-Z

This week’s letter is Z, and Z is for zero. As I have written here before, there is a lot of gray in employment law, so some black and white answers are refreshing every now and then.  Here are some employment law related questions to which your organizations answer should be:  zero.   How many supervisors are handling information from medical providers relating to employee health information? (This should go through HR. Supervisors are on a need to know basis, such as knowing an employee’s…

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02 Feb 2015 7 Questions Employers Should Ask Themselves Every Year LETTER OF THE LAW: CURRENT EMPLOYMENT LAW ISSUES A-Z

This week Y is for year – a good guideline for the longest employers should go without asking themselves these questions to make sure they are taking advantage of opportunities to minimize employee-related liability:   Do you have accurate job descriptions, regularly signed off on by the employees, that will help you manage and defend ADA, wage and hour, and other employment issues and claims?   Have you reviewed each employee classified as exempt to ensure proper classification under the Fair Labor Standards Act, including…

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26 Jan 2015 X-Rays Shipped Out of State Help Employee Keep Issue of FLSA Coverage Alive LETTER OF THE LAW: CURRENT EMPLOYMENT LAW ISSUES A-Z

We have been working through the alphabet with employment law topics and the dreaded X week has arrived, but fortunately there is a 2014 FLSA case involving X-rays that demonstrates the difficulty for an employer of defeating FLSA coverage. In Gashlin v. International Clinic Research, the U.S. District Court for the Middle District of Florida denied the employer’s motion for summary judgment asserting that Wendy Gashlin was not covered by the Fair Labor Standards Act. Ms. Gashlin, a clinical research employee, claimed she worked more…

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20 Jan 2015 Words That Signal Opportunities to Avoid Liability LETTER OF THE LAW: CURRENT EMPLOYMENT LAW ISSUES A-Z

One of the themes in my posts and on Currents generally is not missing out on easy liability avoidance opportunities. I want to make a stronger statement than the employment lawyer’s usual, “Hey if you do X and Y, you can minimize employee liability,” though certainly that is true and valuable. Rather: EMPLOYERS MISS OUT ON EASY LIABILITY AVOIDANCE OPPORTUNITIES, thereby diverting time, money and energy from building their organization and bettering their goods and services. Here and here are recent examples. These are lost…

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05 Jan 2015 California Class Action an Occasion for All Employers to Review Vacation Practices LETTER OF THE LAW: CURRENT EMPLOYMENT LAW ISSUES A-Z

Many employers will have noted the decision last month where a federal court in California held that approximately 65,000 class members could maintain a class action against J.C. Penney’s under California law. That lawsuit challenges the company’s policy that employees forfeit accrued vacation benefits on termination. The issue in this decision was whether the plaintiffs met the commonality tests that allow a matter to be advanced as a class action rather than as a series of individual actions – individual actions that likely would not…

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