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BT Currents - Hot Topics in Employment Law
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09 Apr 2014 Ends and Means: Federal Appeals Judge Reflects on Attorney Fee Award Against EEOC

  The EEOC has been more aggressive in the last few years than at any time during my 25 years of practice. It seems a fair question whether its high publicity focus on things like social media and, what I think most plaintiffs’ employment lawyers would agree are routine, release agreements are the best use of its resources – compared, for example, to efficiently doing its less sexy day-to-day work of promptly processing the charges that are brought before it.   This recent post from the…

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06 Apr 2014 Employers, You All Have Secrets: New Report Might Help You Protect Them

    A couple weeks ago, I spoke to an HR group on developing a strategy for protecting valuable information in their organizations. I structured the talk around a series of questions, and the next step in the process could vary depending on the answer to the question. The first question was, “Does your company have info of any kind that, if a competitor obtained it, would give the competitor an unfair advantage?” If an attendee’s answer was “no,” the next step for that attendee…

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23 Mar 2014 Declining FMLA Leave Includes Your FMLA Lawsuit, Court Says

At least one court has held that an employee who declined FMLA leave and chose to use vacation leave instead cannot later invoke the protections of the law. This comes from the Ninth Circuit Court of Appeals, the federal appeals court for California and other far western states, so employers in other states should not rely on this decision but it is instructive. (And of course it is almost always advisable to consult with counsel before terminating an employee who is absent for her own…

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18 Mar 2014 Behind “Obnoxious” Headlines, A Good Noncompete Strategy Reminder

  We have written often on this blog, including here, about the importance of the difference in state laws on noncompete agreements to drafting and enforcement strategies. A New York case involving one such case recently went somewhat viral, probably because of the court’s use of the term “truly obnoxious” four times in the opinion to refer to the employer’s Florida choice of law clause.   Far be it from me to stand in the way of a good headline, but in context the court…

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10 Mar 2014 Illinois Case Reminds (Again): Document Rights and Responsibilities On Company Social Media Accounts

An Illinois employer faces potential liability for accessing an employee’s Facebook and Twitter accounts while the employee was on leave. There is no question the accounts related to the company’s business, and among other things directed traffic to the company website.There were various points of disagreement among the parties about the accounts, however, including:   The employer says it directed the employee to start the Twitter account in question. The employee denies that. The employee says company management had administrator status on the Facebook page in…

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24 Feb 2014 Witness Files: Catching Up On the Characters That We See Over and Over in Workplace Investigations

Last June I authored a blog post about a series of articles that I had started on the i-sight.com blog. The series highlights the various “characters” that employers and their lawyers seem to encounter repeatedly in workplace investigations. I am now up to eight composite witnesses types and counting, most recently focusing on the complainant who has a lawyer. This particular article provides the reader with some considerations to keep in mind in that scenario. A ninth article, which focuses on the employee who for the first time raises harassment or other workplace…

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17 Feb 2014 There Were No Mice Available? Testing Noncompetes and Motivation in Settings That Don’t Sound Much Like Employment

I have expressed skepticism here of academic studies about employers checking social media activity of job applicants. The studies we have seen just don’t seem to demonstrate much to me. Likewise, when I recently saw the headline, “Noncompete Agreements Make Employees Less Motivated,” my antenna went up. We can certainly imagine scenarios where noncompetes make employees less motivated, but I was curious how somebody might have gone about reaching that conclusion. That led me to this post on the Harvard Business Review website, which explained the testing…

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10 Feb 2014 Play It Safe III: Termination 2 Weeks After Suicide Attempt Keeps FMLA Claim Alive

We have written here and here about the importance to employers of carefully working through employee health issues before taking job actions against the employees. That does not mean “do whatever the employee wants,” it just means that employers will rarely win these cases if they cannot demonstrate their attempts to work with the employee to determine what the employer’s obligations, if any, are under the ADA, FMLA and other laws that may apply. And yes, we may continue with these posts until the Roman numerals start…

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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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