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BT Currents - Hot Topics in Employment Law
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01 Jun 2015 EEOC Wins Big at Supreme Court on Religious Accommodation Case

This morning, the U.S. Supreme Court handed the EEOC a victory over national retailer Abercrombie & Fitch on a question of religious accommodation.   The court addressed whether an employer must have actual knowledge of an applicant’s need for a religious accommodation to violate Title VII. By a vote of 8-1, the high court said, “no.”   It started when Abercrombie did not hire a woman who appeared for her interview wearing a headscarf, which would have violated the clothing store’s strict dress code. The…

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30 Apr 2015 Paradigm Shift: Triple Standard of Reasonable Accommodations

The old reliable rules seem less reliable these days. It is no longer enough to treat all employees the same. We have entered an era of interactive processes, individualized assessments and reasonable accommodation.   The term “reasonable accommodation” flows most easily in connection with the Americans with Disabilities Act, as we note its 25th anniversary.  But, as a reminder, it also applies to the religion clause of Title VII and now, thanks to a recent U.S. Supreme Court decision, we need to consider it in…

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29 Apr 2015 Unanimity and Clarity: U.S. Supreme Court Outlines Standards for Judicial Review of EEOC Conciliation

In a unanimous decision this morning, the U.S. Supreme Court held that courts have limited authority to second-guess the EEOC’s conciliation efforts in enforcing Title VII – ending a circuit court split, and clarifying the “proper scope of review.”   In Mach Mining LLC v. EEOC, the parties battled over the EEOC’s conciliation tactics after the federal agency found probable cause that Mach Mining had discriminated against a group of female employees based on sex. The employer accused the EEOC of failing to bargain in…

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14 Apr 2015 Caveat to the FMLA Final Rule on Same-Sex Spouses: Not Yet

Put an asterisk on my February blog entry that “spouse means spouse” under the FMLA.   In late March, a federal judge in Wichita Falls, Texas, issued a preliminary injunction against the Department of Labor – to keep it from enforcing its new and expanded definition of “spouse” after being challenged by the states of Texas, Arkansas, Louisiana and Nebraska. Those four states object to the Department of Labor’s revised definition of “spouse” to include same-sex spouses because they claim the agency’s new rule would…

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26 Feb 2015 Who Knew? U.S. Supreme Court Justices Offer Employment Tips

It was Supreme Court Justice Sonia Sotomayor who offered the first tip: “So why can’t the employer just simply say, ‘We have a Look Policy that doesn’t permit beards? Can you comply with that policy?’”   Justice Samuel Alito refined the suggestion; instead of asking whether an applicant can comply, he said, “Just say ‘Do you have any problem with that?’”   These surprisingly practical strategies might be the best take-away from the legal battle of EEOC v. Abercrombie & Fitch, the case where dress…

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24 Feb 2015 FMLA Final Rule: ‘Spouse’ Means Same-Sex Spouse (Even in Alabama)

Even for HR veterans, administering the FMLA still triggers occasional anxiety attacks. Within the last two weeks, I was asked, “How should we treat same-sex spouses under the FMLA?” On at least this cause for nervousness, the Department of Labor has finally issued clear guidance.   On Feb. 23, Secretary of Labor Thomas Perez announced, in essence, that under the FMLA, “spouse” means “spouse,” even if you are living in a state that does not recognize same sex marriages.   The DOL’s Final Rule announced…

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16 Jan 2015 Will the EEOC Get its Wings Clipped? Mach Mining’s Challenge to the EEOC before the Supreme Court

  On Jan. 13, during oral argument, U.S. Supreme Court Justice Antonin Scalia echoed businesses’ skepticism about the EEOC’s pre-suit settlement strategy, saying  “there is considerable incentive on the EEOC to fail in conciliation so that it can bring a big­deal lawsuit and get a lot of press and put a lot of pressure on this employer and on other employers. There are real incentives to have conciliation fail.”   Justice Scalia made his comments in the case of Mach Mining L.L.C. v. Equal Employment…

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24 Sep 2014 SEC Awards Whistleblower Largest Bounty Ever

  The Securities & Exchange Commission announced Monday that it is awarding more than $30 million dollars to a confidential whistleblower who led federal officials to an internal fraud that officials say would otherwise have gone undetected.   The Dodd-Frank Act, enacted in 2010, established a bounty program to reward employees who report wrongdoing to the SEC.  You can read more about the details of this latest award (and the other developments under Dodd-Frank and Sarbanes-Oxley) in the blog post by our colleague, B&T litigation…

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15 Sep 2014 FMLA Certifications: When “Unknown” and “Probably” Aren’t Enough

  The words on the FMLA Certification jump out at us: “Unknown.” “Unpredictable.” “Probably.” Instead of the certainty we were looking for, we have more questions.   The DOL regulations require that the FMLA Certifications not only be “complete,” but also “sufficient.” What is “sufficient?” In looking at this issue recently, we found no DOL advisory opinions, although there are some court rulings to guide us.   As an initial matter, rely on the regulations: a medical certification is incomplete if information requested is not provided,…

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20 Jun 2014 FMLA Protections Should Include Same-Sex Spouses Everywhere, says DOL

  Same-sex spouses everywhere in the United States–even if they live in states that don’t recognize their marriages—should be entitled to the benefits and protections under the Family and Medical Leave Act (FMLA), according to a proposal announced earlier today  by Labor Secretary Thomas Perez.   This announcement is consistent with the Obama Administration’s aggressive use of the powers of the Executive Branch and with the Supreme Court’s decision last summer in United States v. Windsor, which struck down key provisions of the “Defense of…

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