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BT Currents - Hot Topics in Employment Law

28 Apr 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 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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27 Mar Abusive Work Environment Proposed Legislation Introduced in Minnesota

Earlier this week, proposed legislation was introduced in the Minnesota State Senate aimed at making abusive conduct in the workplace illegal and holding both employees and employers accountable. This proposed legislation would be in addition to existing Minnesota laws which prohibit discrimination and retaliation in the workplace.   According to S.F. No. 1932, an employer would be held vicariously liable if an employee subjects another employee to “an abusive work environment.”  The employee could escape individual liability if he or she can demonstrate the employee…

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27 Mar When is a Disclaimer Not a Disclaimer? Certain Employment Policies Trump “No Contract” Disclaimers in Handbooks

An employer’s whistleblower policy and its grievance policy are implied contractual promises that employees may enforce, notwithstanding the valid disclaimer that employment policies are not contracts contained in the company’s employee handbook. So says the U.S. District Court for the District of Columbia in a recent case involving a non-profit organization’s employee who included multiple implied contract and promissory estoppel claims in her post-termination lawsuit.  Leyden v. American Accreditation Healthcare Commission, No. 1:14-cv-01118, March 18, 2015.  The court ruled that a whistleblower policy and a…

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26 Mar NLRB Shows No Signs of Releasing Its Death Grip on Employer Handbooks

Calling the analysis of handbook rules an “evolving area of law” (i.e. whatever the NLRB says is proper on that particular day), NLRB General Counsel Richard Griffin has recently issued a report offering guidance on the propriety of various handbook policies. The 30-page report can be found here.   Griffin noted the uptick and continuing barrage of complaints about handbook policies, and reiterated that the NLRB took such charges seriously. Remember, it matters not whether your shop is union or non-union when it comes to…

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