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BT Currents - Hot Topics in Employment Law
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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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17 Aug 2012 Southern District of New York Denies ADA & FMLA Plaintiff’s Motion For Summary Judgment & Instead Grants Summary Judgment For Employer

Proving there is truth in the age-old saying that you should be careful what you wish for, a plaintiff in New York who moved for summary judgment against his employer instead found himself on the receiving end of summary judgment when the court denied his motion and entered judgment for the employer – even though the employer didn’t move for summary judgment on its own. The case is Rodriguez v. Atria Senior Living Group, Inc. (10-cv-8965-ER), and was issued by the Southern District of New…

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01 Aug 2012 DOL Issues WARN Guidance in Light of Upcoming Sequestration Measures

A newly-issued guidance memorandum from the DOL says that defense contractors do not need to send out WARN notices to their employees in advance of the mandatory sequestration cuts currently slated for January 2, 2013.  As part of the Budget Control Act of 2011, there will be large cuts in the defense budget, which may result in huge layoffs to defense contractor workforces on January 2 unless some further deal can be reached in Congress regarding the deficit. Pursuant to WARN, the defense contractors are required to notify their workers and state and…

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24 May 2012 Illegal Immigration Status Is Not Protected By Title VII

On May 21, 2012, the Seventh Circuit issued a decision in Cortezano v. Salin Bank & Trust Co., No. 11-1631, holding that an individual’s immigration status, by itself, was insufficient to support a national origin discrimination claim under Title VII. The case involved a bank manager whose spouse had come into the United States illegally from Mexico.  The spouse used a tax identification number (which he obtained under what the court described as murky circumstances) to open joint accounts with at the bank.  After the…

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