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BT Currents - Hot Topics in Employment Law
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19 Apr 2018 Zero-Tolerance for Upside-Down Burritos

  A recent decision from the U.S. Court of Appeals for the Eleventh Circuit provides some useful reminders for employers on the benefits of establishing and enforcing zero-tolerance drug policies and effectively documenting performance actions. The case is Caporicci v. Chipotle Mexican Grill, Inc., Eleventh Circuit Case No. 16-13494.   Like many employers, Chipotle has a drug policy, which prohibits any employee from reporting to work under the influence of alcohol, drugs or controlled substances, and also requires that employees who use medically prescribed or…

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16 Apr 2018 Know Before You Go: Does the DOL’s New PAID Program Pay Off For Employers?

  Complying with the spider web of statutes, regulations, and DOL opinion letters regarding the FLSA can be a nightmare for employers. Certainly, many of you may recall the furor that resulted just a little over a year ago when the DOL rolled out an update to the salary basis test. Employers across the country scrambled to make sure they could hit the DOL’s new deadlines and requirements, only to have the rug pulled out at the last moment by court order when the regulations…

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26 Feb 2018 Beginning of a New Trend? Illustration of EEOC Stats Confirms Plummeting Number of Charges

  A few weeks ago, our team wrote about the latest charge filing statistics published by the EEOC.  The agency posts records of charges going back to 1997 – 20 years of data.  Since a picture speaks a thousand words, here is the latest information relative to the total number of charges filed with the agency since 1997:     Stepping back and putting the new numbers into their relative place, a few things are made clear.  The overall rise and fall of charges over…

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23 Feb 2018 Wisconsin Supreme Court Splashes Cold-Water on the Enforceability of Non-Solicitation of Employee Covenants

  Wisconsin is one of the states which has a statute regarding the enforceability of restrictive covenants.  Under Wisconsin law, such a covenant is enforceable within a specific territory and for a specified time, but only if the restrictions imposed are reasonably necessary for the protection of the employer or principal (Wisconsin Statute § 103.465).   Wisconsin courts historically have applied the statute to all forms of employee limitations, including non-disclosure covenants.  See Tatge v. Chambers & Owen, Inc., 579 N.W.2d 217 (Wis. 1998).  In…

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10 Jan 2018 The DOL Just Flipped Its Position on Paying Interns

  Late last week, the DOL effectively revamped the standards for unpaid interns, reversing a rule that had been in place since 2010 and giving private, for-profit employers whiplash.   The FLSA does not define “intern.” However, “[a] person whose work serves only his own interest” is not considered to be “an employee of another person who gives him aid and instruction.”  Walling v. Portland Terminal Co., 330 U.S. 148, 152 (1947).   2010 DOL Standard   The DOL upended that long-standing rule in 2010…

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04 Dec 2017 Holiday Road – Avoiding Potholes in Holiday Parties

  Well, it’s already December (where did the year go?) and we’re all thinking about the most wonderful time of year – cutting out early and going to office parties! Parties are a great way to reward staff, celebrate accomplishments, foster teamwork, and create the foundation for another great year. What could possibly go wrong?   The annual holiday party is rife with traps for the unwary:   What’s in a Name?   For starters, what do you call the event? How about a “Christmas…

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24 Oct 2017 Dawn of a New ICE Age: Are You Ready for Immigration & Customs Enforcement?

  Last week, in a speech at the conservative think tank, The Heritage Foundation, the Acting Director of Immigration and Customs Enforcement announced that his agency is aggressively stepping up worksite enforcement on two major fronts. His announcement raises the question: is your company ready?   ICE Acting Director Tom Homan told attendees that the Homeland Security Investigations agency will increase – by four to five times – the worksite enforcement actions in the coming year. Quintupling the number of worksite enforcement actions certainly sounds…

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12 Sep 2017 California Dreaming: Court Upholds Restrictions in Employment Agreement, Bars Use of Confidential Information

  As most multi-state employers already know, California is inimical to employer-employee non-compete agreements; indeed, the state even has a statute saying as much. Consequently, many employers tend to surrender before imposing any restrictions on departing workers in California. But, there’s hope. A recent decision from the U.S. District Court for the Northern District of California (Fidelity Brokerage Services, LLC v. Brett Rocine, Case No. 17-cv-4993-PJH) provides some solace for businesses trying to fend off competition from faithless employees in the Golden State.   The…

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25 Aug 2017 Get a Room! Rethink Conducting Employee Reviews Over Lunch

  The other day while visiting my dentist, the oral hygienist told me about her prior job, where her supervisor took her out to lunch to discuss her performance review – and frequently did the same with other employees. She thought this was great, especially since the supervisor had a penchant for really good, high-priced seafood.   While that all sounds tasty, one has to question how effective a performance review can be when attempting to crack open crab legs. This brings me back to…

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15 Jun 2017 ‘You’re Doing a Great Job Brownie, er Comey . . . and You’re Fired!’ Avoiding Unforced Errors in Employment Terminations

  Last week, former FBI director James Comey testified before a Senate Committee in front of a packed house and with millions more watching on television (the event even was live-streamed in some D.C.-area bars). During the hearing, Comey expressed confusion over being fired for poor performance because before his termination, the president allegedly told him that he was doing a “good job.”   Comey’s testimony is reminiscent of the firing of another government official – Michael Brown. You may remember that Brown was the…

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