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BT Currents - Hot Topics in Employment Law
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03 Sep 2013 Reason for Separation? We Don’t Need No Stinkin’ Reason! (Or, do we?)

Client: “I want to fire my employee.”Attorney: “Why?”Client: “Because I’ve had it. I can’t deal with this employee anymore.”Attorney: “I understand, but why?” Client: “Why? Why?! Because I’ve had it. I’ve just had it. Besides, this is an at-will state and I can fire someone at my will…” (Client’s voice rises) “I don’t need a reason!” The lessons embedded in this dialogue amount to a full-day seminar, but for purposes of this blog, let’s focus on the “reasons” for firing employees. First, in general, we…

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18 Jun 2013 EEOC Makes Good On Its Promise To Rekindle Disparate Impact Claims: Files Lawsuits Against Dollar General and BMW

You can’t say that we didn’t warn you.  Last week, the EEOC made good on its promise to protect those adversely affected because of criminal background checks. The EEOC filed two lawsuits – one in federal court in Chicago against the national small-box retailer, Dollar General; and another in South Carolina against BMW. These lawsuits appear to be the first lawsuits filed by the EEOC since it issued its criminal background check enforcement guidance in April of 2012 – and the first since issuing its…

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25 Apr 2013 A Supreme Court Update: Notes on Wednesday’s Oral Argument About Title VII Retaliation Claims

Wednesday morning, the Supreme Court heard the final oral argument of its term – and the argument surrounds an employment retaliation case born in the State of Texas. University of Texas Southwestern Medical Center v. Nassar (U.S. No. 12-484). The underlying case involves a doctor who complained of discrimination and was not hired, but candidly, that’s not part of the discussion anymore. The real battle is over what employees should have to prove to win a case of retaliation. The crux of the debate focuses…

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24 Apr 2013 Testing the Supreme Court (again) on Retaliation Claims

Today, (Wed., April 24th), the Supreme Court hears oral argument in a closely watched employment retaliation case from the Fifth Circuit: University of Texas Southwestern Medical Center v. Nassar (U.S. No. 12-484). The ruling in this case, whatever the outcome, is likely to significantly impact employers and their ability to defend themselves against the ever-increasing number of retaliation claims. Here is a quick overview of the issues at hand. The central question in the Nassar case is what is the appropriate standard of proof for…

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18 Mar 2013 Employee Retaliation Claims: Will the Supreme Court Stem the Tide?

It was no surprise for practitioners and their clients alike to learn that, statistically, retaliation claims remain the largest number of claims brought before the EEOC (in 2012, almost 38,000 charges alleged retaliation—38.1% of all charges). Worse, retaliation claims are expensive to defend. This point is painfully highlighted in this week’s submissions with the U.S. Supreme Court. Last week, the U.S. Chamber of Commerce (along with the Retail Litigation Center) filed with the Supreme Court an amici curiae brief in a case in which retaliation…

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06 Feb 2013 Happy Anniversary, FMLA!

It’s been an adventurous 20 years! Since President Bill Clinton signed you into law on Feb. 5, 1993, FMLA, you have never failed us. Employment lawyers and HR professionals around the country have relied upon you for job security and cursed you for (and your accompanying regulations) our constant headaches. According to the DOL’s 2012 Survey, though, you are apparently beginning to grow on us. FMLA, your anniversary gives us the opportunity to reflect on some of your highlights. Your Most Challenging Features It is probably cliché to gently chide you for your rules (or lack…

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20 Dec 2012 Businesses Brace for Another Round of EEOC Challenges

On Dec. 17, 2012, the EEOC revealed its “priorities and goals,” giving businesses some forecast of the EEOC climate and danger zones during next four years. In technical terms, the Commission approved (by a 3-1 vote) its formal Strategic Enforcement Plan (SEP), which identified the following six (6) national priorities: – Eliminating barriers in recruitment and hiring – Protecting immigrant, migrant and other vulnerable workers – Addressing emerging and developing employment discrimination issues – Enforcing Equal Pay Laws – Preserving Access to the Legal System – Preventing Harassment through Systemic Enforcement and Outreach In other words,…

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17 Aug 2012 The Patchwork Application of the CFAA

Go ahead, all you employees on the west coast and the mid-southeast. Please. Use your employer’s computers to download confidential documents, surreptitiously transfer the company’s contacts, and “borrow” all the forms you need to start your own competing company. As it turns out, the federal law known as the Computer Fraud and Abuse Act (CFAA) doesn’t apply to you. (*Side note* We aren’t suggesting that you actually do this.) But, beware if you live in other parts of the country—for example, in Chicago, Dallas or Atlanta. …

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12 Jul 2012 Crossing the Minefield of Criminal Background Checks

The EEOC’s recent guidance on criminal background checks spawned numerous legal updates, alerts and webinars (including ours) talking about the new limitations for employers on pre-employment inquiries and applications.  In Indiana, this focus has underscored the importance of two other laws regarding background checks: 1. The federal Fair Credit Reporting Act (FCRA), and2.  July 1 changes to Indiana’s law on an individual’s criminal history (HEA 1033).  As a reminder, an employer that relies on a third party for criminal history reports has waded into coverage…

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