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BT Currents - Hot Topics in Employment Law
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03 Jun 2016 The Seventh Circuit Rejects Class & Collective Action Waivers In Arbitration Agreements

During the last few years, employers have taken comfort in a slew of court decisions that have held – in some form or another – that an arbitration agreement can waive the right to bring a class or collective action. For example, in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), the U.S. Supreme Court found that the Federal Arbitration Act (FAA) preempted state law – and specifically California law – which had expressly prohibited class action waivers. The Supreme Court recently cemented that ruling…

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23 Apr 2016 A RIFing Yarn: How Being Able to Support a RIF Pays Off Down the Road

If getting sued by a former employee is bad, it stands to reason that getting sued by a former human resource employee is worse.  Aside from having to deal with the typical headaches associated with litigation, the employer also has to contend with someone who may know all of its dirty laundry. Mack Trucks / Volvo North America successfully faced down the appeal of such a suit just this last week in the federal Third Circuit.   The case, Andersen v. Mack Trucks, Inc.; Volvo…

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22 Apr 2016 The Benefits of Adopting an Effective Complaint-Reporting Procedure

A recent federal case from Washington reminds employers of the benefits associated with procedures making it easy for employees to complain of harassment or discrimination. The case is Matthiesen v. Autozoners, LLC, U.S. District Court for the Eastern District of Washington (Case No. 2:15-cv-0080).   Matthiesen involved a female employee who worked at an Autozone store for about five months.  The company’s handbook provided several options for reporting concerns about discrimination or harassment: discussing the situation with management, discussing the situation with human resources (HR)…

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21 Mar 2016 2015: EEOC Charges Rebound

  The EEOC charge filing statistics for 2015 are out. Last year at this time, we were looking at the trend of charges continuing to drop from their peak in 2010 and were hoping the trend would continue. Unfortunately, the drop in the overall number of charges stopped and troublingly is going back up:     As you can see, the chart tracks the number of filed EEOC charges going back to the late 1990s. For the most part, the number of charges ebbs and…

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29 Jan 2016 Hold Your Horses: A Plaintiff’s Long Rap Sheet Might Not Get You to the Finish Line

With each case, employers defending discrimination claims know at least these three things: litigation can be expensive, litigation is time-consuming, and the outcome is never a sure thing.   Still, every once in a while, information is revealed that makes the case more thrilling, and little is more exciting than discovering a plaintiff’s criminal past, such as an ADA plaintiff who illegally sold prescription pain medications and also may have engaged in shoplifting.  Sounds like great evidence that should torpedo the plaintiff’s claims, right?  Not…

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23 Dec 2015 A Tale of Two Crews – Companies Failing to Keep Proper Time Records Risk Having Employees Fill the Void

Employees who claim they are entitled to unpaid overtime wages bear the burden of proving that they performed the work for which they were not properly compensated.  However, the Fair Labor Standards Act (FLSA) also requires employers to make, keep and preserve records regarding the total hours that their non-exempt employees work during a workweek. When an employer’s records are not sufficient, a court may “relax” the employee’s burden and allow them to demonstrate overtime compensation through other means – notably through their own testimony…

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22 Dec 2015 Nothing Could Be Finer Than To Incorporate In Carolina . . .

If anyone needs another lesson in the benefits of incorporating a company, consider a decision from earlier this week out of the Western District of North Carolina: Magaha v. W&B Trucking Co., et al.   The underlying story is a fairly typical age discrimination claim: longtime worker for company sues after she is permanently laid off at age 67. During her employment, her hours allegedly were cut for no reason and she repeatedly was the subject of age-based jokes and harassment for which she complained,…

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07 Nov 2015 Noncompete Roundup – Florida Lack Of Evidence Regarding Long-Standing Or Exclusive Relationships With Customers Invalidates Noncompete Injunction On Appeal

Florida historically has taken a tough stand toward enforcing noncompetes, as a recent state-court appellate case illustrates. For those unfamiliar with Sunshine State law on noncompetes, Florida has a statute that requires noncompete agreements to be (a) in writing, (b) signed by the employee, (c) reasonable in terms of time and geography and (d) reasonably necessary to protect the legitimate business interests of the employer. While protecting customer relationships is considered to be a legitimate business interest worthy of protection, this normally does not extend…

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06 Nov 2015 Noncompete Roundup – Oklahoma Fifth Circuit Rejects Contractual Attempts To Bypass Strict Oklahoma Law Against Restrictive Covenants

Many employers would be surprised to learn that Oklahoma has some of the country’s toughest standards when it comes to enforcing restrictive covenants.  The sharp contrast between the laws of the Sooner State and its peers, such as Texas, was recently highlighted in by the Fifth Circuit Court of Appeals in Cardoni v. Prosperity Bank (Case No. 14-20682).   As background, Oklahoma expressly provides that any restraints on a lawful profession, trade or business are void, unless it meets one of a handful of narrow…

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13 Oct 2015 Noncompetes In Mexico

I recently had occasion to look into Mexican law regarding non-competition agreements. For those who are unfamiliar with Mexican noncompete law, it can be summarized succinctly: see California. Like the Golden State, Mexico takes a dim view toward non-competition agreements.  In fact, the unenforceability of restrictive covenants is not even a matter of Mexican statute, it’s actually embedded into the country’s Constitution.   Specifically, Article 5 of the Mexican Constitution provides that “the State cannot permit the execution of any contract, covenant, or agreement having…

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