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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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21 Apr 2014 Yes, You Really Were Giving Up FMLA Rights When You Signed That Document and Accepted 13 Weeks Severance

  Granted that many workers are not sophisticated in legal matters and severance agreements are not always written in plain English, but it seems fairly intuitive that when an employer offers an employee the choice of 13 weeks severance or a performance improvement plan, and the employee takes the severance and signs the document, she is not going to be able to sue the company.  Kudos to the U.S. Court of Appeals for the 11th Circuit in striking a blow for that principle in Paylor v…

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14 Apr 2014 It’s Back: Proposal to Ban Massachusetts Noncompetes (and Related Economic Theories)

  I have written here before about efforts in Massachusetts to ban noncompetes, which seem to have been kicking around for years without any real change.  Last week, Massachusetts Governor Patrick announced that he is proposing legislation to largely ban noncompetes, as they are in California.  The theory behind this is that Massachusetts loses tech talent to California, where tech wizards can be employed usually with little concern about being bound by a noncompete when they change jobs, and that noncompetes stifle innovation.  It is common…

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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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