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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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26 May 2015 This Should Go Without Saying: Replacing an Older Worker with Two Younger Workers is Not Consistent with a Reduction in Force Defense

A recent case from a Chicago federal court is a good reminder that just because you can make a particular argument in defense of a lawsuit doesn’t mean that you should. In Summers v. Electro-Motive Diesel, Inc., Case No 13C1312 (N.D. Ill. May 19, 2015), an employee who had worked for her employer for 40 years was fired, along with a number of other employees. The employee sued for age discrimination. As a reminder, employees must meet the high standard that “but for” their age,…

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21 May 2015 Constructive discharge case reaches the U.S. Supreme Court

While the U.S. Supreme Court is sprinting to the finish line of its current 2014-2015 term at the end of June, the court already is starting to fill its docket of cases for the October 2015 term and a constructive discharge case will be among those heard and decided in the next year.   In a nutshell, a constructive discharge claim arises when an employee asserts that an employer made working conditions so intolerable that a reasonable person in the employee’s position would feel forced…

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07 May 2015 Pitfalls in Citing “Advice of Counsel” in Decision Making

A case decided in April underscores the risks and unanticipated consequences of referring to “advice of counsel” in defending adverse employment actions. A former hospital employee sued in federal court for alleged sexual harassment, assault, retaliation and FMLA violations. In discovery, both the hospital’s CEO and its human resources manager testified not only that they sought the advice of the hospital’s employment attorney when considering whether to place the employee on extended probation, but also that the hospital’s counsel recommended the specific action taken. 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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30 Apr 2015 Alleged Victim of Sex Discrimination Recovers $13 Million

Earlier this month, in the case Robertson v. Hunter Panels LLC et al., a Pennsylvania federal jury awarded a female employee $13 million after finding that she had been a victim of harassment and gender discrimination.  During the six-day trial, members of the jury heard evidence that the plaintiff had earned significantly less than the male who previously occupied her position. There was also evidence that the plaintiff’s supervisors had belittled her in front of other employees. Finally, there was evidence that when the plaintiff…

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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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29 Apr 2015 Supervisors Are Employees Too … to the Tune of $6.6 Million

What termination of a single employee can justify a $6.6 jury award?  (The punitives award was reduced by the lower court from $15.9 million. The employee also received $2.2 million in non-punitive damages). According to the Ninth Circuit Court of Appeals, the federal appeals court for western states including California, the following elements justify a lower court jury’s award in this amount:   Discharge found to be in retaliation for suing for overtime pay, reporting violations to OSHA and Department of Transition, and inciting other…

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29 Apr 2015 U.S. Supreme Court to Provide Guidance on Constructive Discharge Statute of Limitations Period

On April 27, the Supreme Court granted the Petition for a Writ of Certiorari filed by former Englewood, Colorado Postmaster, Marvin Green, agreeing to consider the following question:   Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held?   The petition arose after the U.S. Court…

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28 Apr 2015 Not so Fast: ‘No-Rehire’ Clauses Could be a Restraint on Trade

It is common practice that most employers settling with former employees include a clause in said settlement or separation agreements saying that the employee would never reapply to the company and was also not eligible for rehire. However, there is not clear authority saying those actual clauses are legally permissible. A divided Ninth Circuit panel has recently held that such clauses may constitute an unlawful restraint of trade under California law. As such, employers should give serious consideration and thought to including a pro forma “no re-hire” provision…

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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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