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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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16 Dec 2013 OSHA’s New Online Complaint Form May Increase Whistleblower Investigations

On Dec. 5, 2013, the Department of Labor’s Occupational Health and Safety Administration (OSHA) released a new online complaint form that will allow employees to electronically file whistleblower complaints. The introduction of this online complaint form is likely to increase the number of disruptive agency investigations. With the 2010 amendments to the Sarbanes-Oxley Act, OSHA was tasked with authority for investigating whistleblower complaints of “discrimination.” Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. 1514A, prohibits publicly-traded companies from discriminating against an employee due to the employee…

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13 Dec 2013 Federal Minimum Wage Increase Delayed

According to Senator Tom Harkin (D-Iowa), a bill to raise the federal minimum wage to $10.10 per hour has been delayed until after Jan. 1, 2014. Senate Majority Leader Harry Reid (D- Nevada) expressed disappointment over the delay and stated he would “push for an extension of unemployment insurance, as well as an increase in the minimum wage, when the Senate convenes after the New Year.” The bill (S.460) sets forth a staggered increase in the federal minimum wage, with an initial increase to $8.20…

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09 Dec 2013 Severe AND Pervasive?

The Fifth Circuit Court of Appeals recently overturned a Texas District Court after it appeared to apply the wrong legal standard in a sexual harassment lawsuit. In Royal v. CCC&R, Tonia Royal was fired after complaining to her supervisor that two maintenance workers regularly visited her office and, among other things, sniffed her in a suggestive manner. Following her termination, Royal initiated a lawsuit alleging she was subjected to unlawful sexual harassment. In order to demonstrate actionable sexual harassment, Royal was required to demonstrate that the conduct…

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06 Dec 2013 Don’t Forget About Potential Associational Claims

At this point, most employers (we hope) are well aware that the ADA prohibits discrimination against “qualified individuals with a disability.” Nevertheless, many employers may not realize that the ADA also protects applicants and employees from discrimination based on their relationship or association with an individual who has a disabling condition. According to the EEOC, the purpose of the association provision of the ADA is to “prevent employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with people who…

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27 Nov 2013 Construction Contractor Sues OFCCP To Block New Regulations

Recently, a construction trade association filed suit in federal court seeking to block the OFCCP’s new “Section 503” regulations on recruiting and hiring disabled persons from taking effect. Whether or not injunctive relief is granted, this lawsuit highlights the increased data-collection challenges that the OFCCPs new regulations will require for all federal contractors. On Nov. 19, 2013, Associated Builders and Contractors, Inc. (ABC) sued the Office of Federal Contract Compliance Programs (OFCCP) and the U.S. Department of Labor (DOL) in the U.S. District Court for…

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22 Nov 2013 Commission or Piece-Rate? The Distinction Is Significant for FLSA Purposes

The Fair Labor Standards Act (FLSA) generally requires employers to pay employees at one-and-a-half times their hourly rate for every hour that they worked per week in excess of 40 hours. There are exceptions, though, and an Illinois federal court recently handed down a decision which illustrates one of them: Employees that are paid commissions on goods or services sold are exempt from overtime pay – if certain criteria are met – whereas employees who are paid piece-rate are not. At first blush, the distinction…

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08 Nov 2013 ENDA Takes It to the House

As predicted earlier this week, the Senate, for the first time ever, passed the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination and harassment based on sexual orientation or gender identity. The final vote was 64-32, with all Senate Democrats (save one who did not vote) and 10 Republican senators (including influential members Orrin Hatch, John McCain, and Susan Collins) supporting the bill. Earlier in the week, an amendment passed barring retaliation by the federal government against any religious organizations that exercise their exemption from the…

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05 Nov 2013 Is This The Beginning of ENDA?

For nearly two decades, the Employment Non-Discrimination Act (ENDA) has consistently been put before Congress, but so far it has never reached the President’s desk. That may be about to change. ENDA, modeled after Title VII (preventing discrimination on the basis of race, sex, color, religion, and national origin), would prohibit the harassment or discrimination against employees based on sexual orientation and gender identity. Notably, the bill provides exceptions for religious schools, organizations and houses of worship. In light of the Supreme Court’s recent opinion…

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28 Oct 2013 Rule Against Non-Union Workplace “Disruptions” Can Run Afoul of NLRA

A recent opinion from an Administrative Law Judge (ALJ) serves as an important reminder for non-unionized employers. As we previously explained, Section 7 of the NLRA gives employees the right to form, join or assist labor organizations. It also guarantees employees the right to engage in other concerted activities for the purpose of mutual aid or protection. Even in the absence of a labor union, an employee complaining about wages, hours or working conditions on behalf of himself or herself and other employees cannot be disciplined…

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23 Oct 2013 A Quick Reminder Regarding Complaints in the Workplace

Last year we reported on a landmark EEOC decision where the Agency concluded that discrimination against transgender individuals is actionable under Title VII. In that case, the EEOC held that Title VII prohibits an employer from taking adverse action based on the fact an employee/applicant fails to “adhere” to gender-based expectations or norms. It remains to be seen whether courts will agree with the EEOC’s position, but the decision appears to suggest that the argument may be viable in some jurisdictions. There’s another angle to…

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