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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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07 Sep 2012 Class Arbitration Prohibited if Not Authorized in Agreement

A California appeals court recently held that a former security officer’s wage-and-hour class action suit must be submitted to arbitration on an individual basis and that class arbitration is prohibited unless expressly noted in the arbitration agreement. In Jesus Reyes v. Liberman Broadcasting, Inc., the California Court of Appeal, Second Appellate District, reversed the lower court’s denial of the employer’s motion to compel arbitration based on the arbitration agreement Reyes signed before working for Liberman Broadcasting, Inc. (LBI).  In this arbitration agreement, Reyes agreed to arbitrate…

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06 Sep 2012 Follow Us On Twitter!

Because sometimes 140 characters is all you have time to read or if you want to have a notification of when we post, we have established a Twitter account for the Barnes & Thornburg Labor Department. The feed is focused on topical and timely information including notifications of postings to the Department’s two blogs, BTLaborRelations and BTCurrents, as well as other breaking labor and employment law news.  You can follow us @BTLawLE. Hope to see you there! BT CurrentsBT Currents is managed by the attorneys in Barnes & Thornburg’s…

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04 Sep 2012 OFCCP Audits Focus on Veteran Hiring

Although the new veterans hiring rules have been delayed, the Office of Federal Contract Compliance Programs (OFCCP) will focus its audits in aggressively interpreting the current regulations to support the affirmative action policies. The OFCCP has proposed new rules for veterans that would require contractors to track those who apply for jobs and write reports explaining decisions not to hire protected veterans. However, these proposed regulations have been delayed for at least nine months. Despite the regulatory delay, the OFCCP will use the audits as…

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04 Sep 2012 The NLRB, EEOC and Social Media

Be careful, the National Labor Relations Board (NLRB) is not the only federal agency interested in the interplay between social media and workplace decisions. On August 24, the Equal Employment Opportunity Commission (EEOC) Training Institute held a workshop where it addressed, among other things, the Commission’s interest in social media’s impact on the enforcement of federal employment discrimination laws. How can an employer get tripped up? Consider a case alleging that an employee was terminated – before she was clearly “showing” – on the basis of pregnancy discrimination. The employee typically…

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30 Aug 2012 The EEOC’s “Fall Tour”

The EEOC is hitting the road this fall on a cross-country tour aimed at demystifying the Americans with Disabilities Act Amendments Act (ADAAA).  Two of the EEOC’s commissioners, Chai Feldblum and Victoria Lipnic, will hold a series of seminars dealing with issues such as essential job functions and job descriptions; the basics of reasonable accommodation; and leave, modified schedules and telecommuting as reasonable accommodations.  The dates and locations of the seminars are: Sept. 11 in Seattle (Doubletree Seattle Airport) Sept. 13 in Los Angeles (Four…

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27 Aug 2012 EEOC Sues Burger King Franchisee Over Employee’s Religious Accommodation Request

The Equal Employment Opportunity Commission (EEOC) is suing a Burger King franchisee – Fries Restaurant Management, LLC – for religious discrimination, a violation of Title VII of the Civil Rights Act of 1964. The facts underlying the lawsuit are straightforward: Ashanti McShan, a member of the Pentecostal Church, adheres to an interpretation of scripture regarding the wearing of clothing that is befitting of one’s gender. McShan allegedly informed Burger King of her religious belief during her employment interview, and was told she could wear a…

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16 Aug 2012 Indiana Plaintiff Defeats Legitimate Nondiscriminatory Reason Defense

A usually reliable defense in federal court employment cases is the legitimate, nondiscriminatory reason, but recently, that defense turned out not to be enough in a sex discrimination claim. As a refresher, an employee who believes she was not selected for a given position because of her race or sex – or any other protected characteristic, for that matter – can establish a prima facie case of discrimination at the summary judgment stage using the commonly used McDonnell Douglas method.  To do so, she must…

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16 Aug 2012 Another California Court of Appeal Struggles to Come To Grips with Arbitration

Earlier in August, we issued an Alert detailing continued hostility to arbitration of employment disputes in some corners of the California state courts, even following the U.S. Supreme Court decisions in Stolt-Nielsen v. AnimalFeeds Internat. Corp., __ U.S. __ [130 S.Ct. 1758] (2010) (“Stolt-Nielsen”) and AT&T Mobility LLC v. Concepcion, 563 U.S. __, 131 S.Ct. 1740 (2011) (“Concepcion”).  On August 13, 2012, yet another California Court of Appeal weighed into the fray, but provided little clarity. The California Court of Appeal decision in Truly Nolen of…

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13 Aug 2012 Obama nominates Yang for EEOC Commissioner

According to a recent White House press release, President Obama will nominate Jenny R. Yang for EEOC Commissioner. This nomination follows the recent early resignation of Stuart J. Ishimaru, leaving a vacancy on the five-seat Commission. Ms. Yang is currently a partner at a law firm in Washington, D.C., where she has practiced in the Civil Rights and Employment Practice Group since 2003. If her nomination is confirmed by the Senate, she will serve as Commissioner until July 1, 2017 and she will be the fourth…

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07 Aug 2012 EEOC General Counsel Discusses Drop in Systemic Case Filings, Announces New Priorities

As the EEOC anticipates filing fewer systemic cases in fiscal year 2012 than it did in FY 2011, it also will shift its priorities to hiring discrimination cases and cases involving vulnerable workers, according to recent statements by EEOC General Counsel P. David Lopez. In discussing systemic case filings, Lopez attributed the drop to existing litigation and limited resources to take on new cases. The EEOC established its “Systemic Initiative” in 2006, defining systemic cases as “pattern or practice, policy and/or class cases where the alleged discrimination…

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