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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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17 Oct 2013 Hope for Employers Who Have Ever Felt Bullied by the EEOC

A recent order from an Atlanta federal court should give hope to all employers who have ever felt bullied by the Equal Employment Opportunity Commission. In EEOC v. HomeNurse, Inc., Case No. 1:13-cv-2927, a former employee filed a charge with the EEOC alleging that HomeNurse discriminates against disabled persons, persons who are 40 years old or older, persons with pre-existing genetic conditions and African Americans.  Oddly, though, the former employee was none of these things. She was not disabled, was under 40, had no genetic…

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15 Oct 2013 Federal Court Denies Class Certification, Preemptively Denies FLSA Collective Action – Class Members’ Experiences Too Varied

Plaintiffs seeking class certification of a group of California employees failed to establish that certification was proper, according to a federal district court in California. Additionally, the court preemptively denied approval of a nationwide collective action under the Fair Labor Standards Act, determining that the putative class members’ experiences varied too vastly. The case, Till et al. v. Saks, Inc., No. C 11-00504 SBA (N.D. Cal. Sept. 30, 2013), was brought by Dawn Till, a former Assistant Manager and Team Merchandise Manager for Defendants, and…

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14 Oct 2013 Five Things to Consider When Creating a Bring Your Own Device (BYOD) Policy

As employers and employees become more heavily dependent upon immediate communications through the use of smart phones, many companies still have not created or implemented Bring Your Own Device (BYOD) policies. As a result, employers are vulnerable in having their confidential business and trade secret information exposed, or worse, taken. Employers also risk having legal claims, such as harassment or defamation, asserted against them because of the communications employees make using their smart phones. To minimize these risks, employers may want to consider implementing sound…

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11 Oct 2013 Another Criminal Background Case, Another Blow To The EEOC

Earlier this week, a divided Sixth Circuit Court of Appeals issued another blow to the Equal Employment Opportunity Commission (EEOC) in its pursuit of discrimination claims against employers and criminal background checks.  In a 2-1 decision, the appellate court affirmed the lower court’s award of $751,942 in attorney’s fees, expert witness fees and other litigation costs to Peoplemark, Inc. after the company produced thousands of documents refuting the allegation that it had a “blanket policy” of denying jobs to individuals with felony records.  (EEOC v….

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09 Oct 2013 Government Shutdown Continues And Enforcement Agencies Remain Closed

As we enter the second week of the government shutdown, the federal enforcement agencies remain closed. Among the closed enforcement agencies are the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL). Each agency has prepared contingency plans during the course of the shutdown. Although the Equal Employment Opportunity Commision (EEOC) is currently closed, it has indicated that the time limits for filing a charge of discrimination will not be extended during the shutdown. Instead, claimants are encouraged to still file the charge during the closure and…

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07 Oct 2013 Fifield Appeal Denied – New Rule Regarding Consideration for Restrictive Covenants in Illinois Survives

  Recently, the Illinois Supreme Court denied the Petitioner’s leave to appeal in Fifield v. Premier Dealer Services, Inc., No. 1-12-0327, 2013 IL App (1st) 120327 (Jun. 24, 2013), leaving Illinois employers stuck with greater hurdles than ever before when attempting to protect their legitimate business interests through the enforcement of post-employment restrictive covenants. Specifically, the Illinois Appellate Court for the First District ruled that – when the only consideration is employment itself – two years of continued employment is necessary to support the enforcement…

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24 Sep 2013 What Did The Fifth Circuit Say About Reasonable Accommodations?

In order to be covered under the Americans with Disabilities Act, an employee must be a “qualified individual with a disability.” A “qualified individual,” in turn, must be able to perform the essential functions of his or her job with or without an accommodation. Based on these simple premises, most employers understand that they must provide reasonable accommodations to help their employees perform those essential functions (and, indeed, this is the type of accommodation that employees generally request). Accordingly, many employers would likely agree with…

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18 Sep 2013 Home Health Care Workers Now Protected Under the FLSA

On Tuesday, the Department of Labor (DOL) issued its Final Rule regarding home health care workers and protections under the federal Fair Labor Standards Act (FLSA).  Under the Final Rule, which will become effective Jan. 1, 2015, the minimum wage and overtime protections will extend to nearly 2 million in-home health care workers who care for the elderly, ill and disabled. The Final Rule revised certain definitions, including “domestic service employment” and “companionship services.”  Since 1974, “domestic service” employees have been covered by the FLSA and have…

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16 Sep 2013 October 1st Is Coming: Are You Prepared for the Health Reform Deadline?

Under the Patient Protection and Affordable Care Act (PPACA), the Health Insurance Marketplace was created.  As a result, on October 1, 2013, all employers subject to the federal Fair Labor Standards Act are required to distribute a notice of coverage options to their employees.  For employees hired after October 1, employers must provide the notice of coverage options within 14 days from the date of hire. Many employers remain unsure as to what the notice of coverage must contain in order to be compliant with…

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30 Aug 2013 Employers May Inadvertently Break the Law When They Discipline Employees for Facebook “Wall” Posts

A recent case makes clear that employers can violate the federal Stored Communications Act of 1986 (the SCA) when they discipline employees based on the content of nonpublic Facebook “wall” postings – depending on how they obtain the incriminating information. In Ehling v. Monmouth-Ocean Hospital Service Corp., a case in federal court in New Jersey, the plaintiff was a hospital paramedic who alleged that the her former employer violated the SCA when it fired her for a comment on her Facebook wall. The hospital thought her…

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