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BT Currents - Hot Topics in Employment Law
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15 Mar 2013 Did They Just Say That? A Reminder That Off-The-Cuff Remarks Handcuff Employers in Employment Lawsuits

A recent race discrimination and retaliation case in Pennsylvania underscores the risks of off-the-cuff remarks by managers.  The case in the Middle District of Pennsylvania, Johnson v. Hershey Creamery Corp., No. 1:11-cv-00776 (M.D. Pa. Mar. 8, 2013), involved an African-American who worked as a seasonal employee for Hershey Creamery.  At the end of each season, the employee was laid off.  One year, two of his Caucasian co-workers were hired as full-time, regular employees.  When he asked why he was not hired, Hershey told him that…

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14 Mar 2013 Judicial Approval No More? The Days of Judicially Scrutinized FLSA Settlements May Be Drawing To a Close

The fact that the settlement of FLSA claims must be pre-approved by a federal court or the DOL has long been greeted by employers with the gnashing of teeth and wringing of hands: nothing is worse than steering a hard-fought case to a resolution that is acceptable to both sides only to have the deal potentially torpedoed by a procedural hurdle at the last minute.  Nevertheless, that has long been the rule.  Best articulated by the seminal case of Lynn’s Food Stores, Inc. v. U.S.,…

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30 Jan 2013 2012 EEOC Charge Filing Stats Are In

A few weeks ago, we looked at the total number of EEOC charges filed with the agency from 1997-2011. The charge numbers for 2012 just came in and as expected, the total numbers have dropped – but by an almost imperceptible amount. Here is the updated chart: The total number of charges filed in 2011 was 99,947.  For those with magnifying glasses, this fell in 2012 by a little more than 500 to 99,412.  Looking at the chart as a whole, it is clear that the…

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20 Dec 2012 All I Want For Christmas Are Some Stats

The following chart graphically depicts the total number of EEOC charges filed with the agency from 1997-2011.  http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm  What is immediately apparent from this chart is the relationship between the overall economy and the number of filings. The chart begins in the prosperous 90’s (this is how far back the EEOC’s historical online information goes). As the country continued with the dot-com boom, you can see the number of filings going down. The filings, however, tick up again beginning in 2000 as the economy worsened into recession and…

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20 Dec 2012 The Top 10 Ways To Reduce Discovery Costs: Nos. 5-1

Yesterday we posted Part I of the article, “The Top 10 Ways to Reduce Discovery Costs: Nos. 10-6.” You can read the article by clicking here. Today, we complete our list by featuring the top 5 ways to reduce discovery costs. 5. Don’t Destroy Evidence. No responsible employer would intentionally destroy evidence. The problem, however, is that responsible employers can have irresponsible and/or negligent employees. Accordingly, all employers should have procedures for advising their employees of reasonably anticipated litigation so that the company properly preserves…

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19 Dec 2012 When Numbers Count

Normally, numerosity is something a plaintiff needs to establish in order to maintain a class claim. Turning that factor neatly on its head, JPMorgan successfully defeated conditional certification of an FLSA collection action through the overwhelming support of its workforce in a recent decision out of the Middle District of Florida. The case, Hart v. JP Morgan Chase Bank, N.A., involved a debt collector who claimed that he worked about 3-4 hours a week for which he was not paid. Among other things, he claimed…

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19 Dec 2012 The Top 10 Ways To Reduce Discovery Costs: Nos. 10-6

It should come as no surprise to most employers that employment litigation is on the rise. It also should come as no surprise that discovery is seen as the biggest single driver of litigation expenses. Recent studies have shown that discovery can consume up to 68 percent of the costs in a case. Unsurprisingly, the vast majority of attorneys – both plaintiff and defense attorneys alike – agree that the costs of litigation and particularly discovery are not proportional to the value of a case….

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06 Nov 2012 D-Day for ObamaCare?

Today is Election Day, and many believe that it represents what may be the last realistic challenge to the implementation of the Affordable Care Act (a/k/a ObamaCare).  If the President wins re-election, it is virtually certain that the Act will be implemented as planned in January 2014.  However, what many overlook is that even if the President loses, the Act still may survive – depending on which party winds up controlling the Senate and whether there is sufficient political will to repeal the law.  As…

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28 Sep 2012 Federal Court In Washington Rules That Sales Agent Is A Contractor, Not An Employee

Earlier this week the Western District of Washington provided a succinct illustration of the difference between independent contractors and employees. In Daskam v. Allstate (Case No. C11-0131RSL), the court shot down an FLSA claim by an Allstate sales agent who alleged that he had been misclassified as a contractor, and in reality, should have been treated as an employee entitled to overtime wage benefits. The sales agent built his case around the fact that he had a long-term relationship with Allstate and that the company…

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17 Aug 2012 Eighth Circuit Holds That Independent Sales Representative Is Contractor Despite 27-Year Engagement With Company

In recent years, there has been a lot of attention devoted to properly designating employees as contractors.  The recent spike in lawsuits and aggressive enforcement actions by state and federal agencies have made many employers edgy about whether they are misclassifying contractors. Fortunately, the Eighth Circuit handed down a decision yesterday in Fesler v. Whelen Engineering Co., No. 11-2666 (8th Cir. Aug. 16, 2012), which should provide some useful guidance on this issue, and especially for employers that engage outside sales personnel for long periods…

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