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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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10 Jun 2015 Court Says Advice From Counsel is Affirmative Defense to Tortious Interference Claims in Minnesota

Earlier this year, the Minnesota Supreme Court recognized as an affirmative defense the reliance upon legal advice in defending against a claim of tortious interference with a contract. In Sysdyne Corp. v. Rousslang, et al., No. A13-0898 (Minn. Mar. 4, 2015), the former employer (Sysdyne) brought a claim against the hiring company (Xigent Solutions), alleging tortious interference after it hired its former employee (Brian Rousslang) who had a non-competition agreement with Sysdyne.  Sysdyne also brought claims against Rousslang, alleging violation of his non-competition agreement with…

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04 Jun 2015 In California, You Can’t Pick Your Supervisor

A California appellate court recently held that an employee diagnosed with an adjustment disorder triggered by stress caused by her supervisor’s standard oversight of her job performance is not disabled under the California Fair Employment and Housing Act (FEHA). Higgins-Williams v. Sutter Medical Foundation, 2015 Cal.App.LEXIS 455 (May 26, 2015). Coming as quite a surprise and coup to employers, the court rejected the current Californian trend of expanding protection of employees unable to work due to medical conditions.   Employed as a clinical assistant, plaintiff Michaelin…

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26 May 2015 This Should Go Without Saying: Replacing an Older Worker with Two Younger Workers is Not Consistent with a Reduction in Force Defense

A recent case from a Chicago federal court is a good reminder that just because you can make a particular argument in defense of a lawsuit doesn’t mean that you should. In Summers v. Electro-Motive Diesel, Inc., Case No 13C1312 (N.D. Ill. May 19, 2015), an employee who had worked for her employer for 40 years was fired, along with a number of other employees. The employee sued for age discrimination. As a reminder, employees must meet the high standard that “but for” their age,…

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07 May 2015 Pitfalls in Citing “Advice of Counsel” in Decision Making

A case decided in April underscores the risks and unanticipated consequences of referring to “advice of counsel” in defending adverse employment actions. A former hospital employee sued in federal court for alleged sexual harassment, assault, retaliation and FMLA violations. In discovery, both the hospital’s CEO and its human resources manager testified not only that they sought the advice of the hospital’s employment attorney when considering whether to place the employee on extended probation, but also that the hospital’s counsel recommended the specific action taken. The…

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06 May 2015 Legislators in House and Senate Propose Gradual Increase in Minimum Wage to $12

On May 1, a group of 200 Democratic lawmakers introduced the “Raise the Wage Act,” a bill that would increase the federal minimum wage to $8 per hour on Jan. 1, 2016, and by $1 in every succeeding year. Under the bill, the federal minimum wage would reach $12 per hour in 2020. Sponsors of the bill include 32 Senators and 160 members of the House of Representatives. Supporters of the legislation indicated that the wages of 38 million workers would increase by more than…

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01 May 2015 Reference Searches Through Social Media Do Not Create FCRA Claims

In their recruitment efforts, many employers will utilize social media to find suitable candidates for job openings. And, often employers will use the social media tools available to perform reference checks and/or verify a candidate’s employment history, experience and education history. Recently in California, a group of individuals challenged these social media background searches by suing the professional social media website, LinkedIn Corporation, because the information gleaned about these persons allegedly violated their rights under the Fair Credit Reporting Act (FCRA).   In Sweet v….

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01 May 2015 Breaking News: Employees Are Still Posting Inappropriate Content On Facebook. So Let’s Just Learn From Their Lack of Judgment

A Texas veterinarian recently posted a horrific image of herself on Facebook holding a cat killed by an arrow through its head.  Along with the image (too graphic to include here), the employee posted the following:   “My first bow kill lol.  The only good feral tomcat is one with an arrow through it’s (sic) head!  Vet of the year award… gladly accepted. “And no I did not lose my job.  Psshh.  Like someone would get rid of me.  I’m awesome.” Well, she was wrong. …

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30 Apr 2015 Alleged Victim of Sex Discrimination Recovers $13 Million

Earlier this month, in the case Robertson v. Hunter Panels LLC et al., a Pennsylvania federal jury awarded a female employee $13 million after finding that she had been a victim of harassment and gender discrimination.  During the six-day trial, members of the jury heard evidence that the plaintiff had earned significantly less than the male who previously occupied her position. There was also evidence that the plaintiff’s supervisors had belittled her in front of other employees. Finally, there was evidence that when the plaintiff…

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28 Apr 2015 Not so Fast: ‘No-Rehire’ Clauses Could be a Restraint on Trade

It is common practice that most employers settling with former employees include a clause in said settlement or separation agreements saying that the employee would never reapply to the company and was also not eligible for rehire. However, there is not clear authority saying those actual clauses are legally permissible. A divided Ninth Circuit panel has recently held that such clauses may constitute an unlawful restraint of trade under California law. As such, employers should give serious consideration and thought to including a pro forma “no re-hire” provision…

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08 Apr 2015 Supreme Court Passes on Chance to Apply Uniform Rules on After-Acquired Evidence

  When employers were looking for certainty in the ongoing debate about after-acquired evidence, the U.S. Supreme Court said, “No, thanks.” Instead, the high court let stand a Second Circuit court decision in which an employer was allowed to use evidence to support that it fired an employee for breaking work rules.   In Weber v. Tada, 589 Fed. Appx. 563 (2d Cir. Oct. 9, 2014) the Supreme Court recently declined to grant certiorari, which means that the split among the lower courts is likely…

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