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BT Currents - Hot Topics in Employment Law
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18 Sep 2014 OSHA ISSUES NEW MANDATORY REPORTING REQUIREMENTS FOR SERIOUS INJURIES; DATA TO BE MADE PUBLIC

  On September 11, 2014, OSHA announced a final rule which greatly expands the scope of injuries which must be reported to OSHA on an expedited basis. Currently, employers only have an affirmative obligation to report an injury/illness to OSHA under the following circumstances:  a) a work-related fatality (within 8 hours); b) the hospitalization of three (3) or more employees (within 8 hours) or c) the occurrence of a point-of-operation injury on a mechanical power press (within 30 days).   Under the revised standard, an employer…

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19 May 2014 UNPAID INTERNS STRIKE AGAIN – CLASS OF 3000 EX-WARNER INTERNS APPROVED FOR WAGE AND HOUR CASE

  As we have covered in posts beginning last July, there has been a rash of lawsuits filed on behalf of unpaid interns suing their former companies for unpaid minimum wages and overtime.  This has resulted in a variety of conflicting opinions regarding whether these cases are appropriate for class certification or not.  Two of these cases have been appealed to the 2nd Circuit Court of Appeals.  The 2nd Circuit will decide the issue whether interns are “employees” under the federal Fair Labor Standards Act…

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07 Apr 2014 Not April Foolin’: National Labor Relations Board Finds Employer Rule Requiring Positivity and Professionalism Unlawful

On April 1, the National Labor Relations Board (NLRB) ruled unlawful an employer policy requiring that employees refrain from negativity in the workplace and in the community. In Hills and Dales General Hospital Case No. 07-CA-053556, the NLRB continued its recent trend of finding that common employer policies, including policies limiting or requiring civility in social media use, those describing the at-will relationship between an employer and its employees, and certain confidentiality provisions, are overbroad.  We have covered the NLRB’s focus on seemingly innocuous policies in…

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19 Feb 2014 EEOC Challenges Standard Severance Agreement Language

  A new EEOC lawsuit could have repercussions on employers’ standard severance agreements. At issue in the lawsuit, which was filed last week in the Northern District of Illinois, is the language of a standard severance agreement which – according to the EEOC – unlawfully prevents employees from communicating with the agency or filing discrimination claims.   As many employers know, general principles of contract law allow an employee who enters into a severance agreement to waive the right to file a legal claim seeking…

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13 Jan 2014 OSHA-Proposed Mandatory Reporting Rule Could Include Enterprise-Wide Reporting

As we previously reported in November, OSHA issued a proposed new recordkeeping rule on Nov. 8, 2013 which would require mandatory electronic reporting of recordable work-related injuries and illnesses on a quarterly (> 250 employees) or an annual basis (> 20 employees in certain industries including manufacturing, construction, retail and transportation). OSHA has publicly stated that the proposed rule “does not add any new requirement to keep records” but this is not true with respect to the proposed alternative of “enterprise-wide reporting.”  This has not been publicized by OSHA…

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27 Nov 2013 2nd Circuit to Decide Unpaid Interns’ Class Status

  As I discussed in a prior post, there have been numerous lawsuits filed on behalf of unpaid interns suing their former companies for unpaid minimum wages and overtime. These are even more significant based on the number of potential plaintiffs as these have been brought as collective or class actions under the Fair Labor Standards Act (FLSA) or state law. Recently, the 2nd Circuit Court of Appeals has accepted appeals in two different cases from the Southern District of New York which had diametrically opposed holdings. In the Fox…

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18 Oct 2013 Timely Attendance Isn’t An Essential Job Function?!?

According to a recent 2nd Circuit Court of Appeals (covering CT, NY and VT) decision (McMillan v. City of New York), employers cannot rely upon their old standby of regular attendance at work as an “essential job function” under the ADA in all cases. The Court held that in this particular case, the City could not show that arriving in a timely fashion at a set time was an essential job function. The City was a victim of its own lax past practice of not…

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06 Sep 2013 Court Finds Employer’s ADA Direct Threat Evidence Insufficient

On Aug. 30, 2013, a federal district court in Wisconsin denied the employer’s motion for summary judgment in a case where the plaintiff asserted a ADA claim for discriminatory discharge. (EEOC v. Rexnord Industries, LLC).  This was despite the fact that the employer asserted that the employee’s seizure disorder made her a “direct threat” to the safety of herself and those around her. Even under the expansive scope of the ADA Amendments Act, an individual is not a “qualified” individual with a disability if she…

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24 Jul 2013 Unpaid Interns Strike Back – Lawsuits on the Rise Alleging Unpaid Wages

  There has been a recent rash of lawsuits filed by unpaid interns against their former employers alleging that they should have been paid minimum wages and overtime. Unfortunately for employers, the plaintiffs have been successful and the lawsuits are escalating both individually and on a class basis.   It all began with a lawsuit by unpaid interns against Fox Searchlight. These interns worked on the film “Black Swan.” On June 11, 2013, a Federal District Court Judge sided with the interns in his decision…

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18 Jun 2013 OSHA’S Revised Hazard Communications Standard Imposes New Training Requirements by Dec. 1, 2013

OSHA’s revised Hazard Communication Standard (HCS) requires sweeping mandatory training for most employers across the country on the new requirements for chemical labeling as well as the new Safety Data Sheets by Dec. 1, 2013. It was revised to align it with the internationally accepted Globally Harmonized System of Classification and Labeling of Chemicals (GHS). Any employer that uses hazardous chemicals in its workplace is subject to the communication and training requirements of the HCS. OSHA estimates that this revised standard will affect more than…

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