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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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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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08 Apr 2015 Supreme Court Passes on Chance to Apply Uniform Rules on After-Acquired Evidence

  When employers were looking for certainty in the ongoing debate about after-acquired evidence, the U.S. Supreme Court said, “No, thanks.” Instead, the high court let stand a Second Circuit court decision in which an employer was allowed to use evidence to support that it fired an employee for breaking work rules.   In Weber v. Tada, 589 Fed. Appx. 563 (2d Cir. Oct. 9, 2014) the Supreme Court recently declined to grant certiorari, which means that the split among the lower courts is likely…

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27 Mar 2015 Abusive Work Environment Proposed Legislation Introduced in Minnesota

Earlier this week, proposed legislation was introduced in the Minnesota State Senate aimed at making abusive conduct in the workplace illegal and holding both employees and employers accountable. This proposed legislation would be in addition to existing Minnesota laws which prohibit discrimination and retaliation in the workplace.   According to S.F. No. 1932, an employer would be held vicariously liable if an employee subjects another employee to “an abusive work environment.”  The employee could escape individual liability if he or she can demonstrate the employee…

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27 Mar 2015 When is a Disclaimer Not a Disclaimer? Certain Employment Policies Trump “No Contract” Disclaimers in Handbooks

An employer’s whistleblower policy and its grievance policy are implied contractual promises that employees may enforce, notwithstanding the valid disclaimer that employment policies are not contracts contained in the company’s employee handbook. So says the U.S. District Court for the District of Columbia in a recent case involving a non-profit organization’s employee who included multiple implied contract and promissory estoppel claims in her post-termination lawsuit.  Leyden v. American Accreditation Healthcare Commission, No. 1:14-cv-01118, March 18, 2015.  The court ruled that a whistleblower policy and a…

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25 Mar 2015 The Church of a Good Night’s Sleep? One Court Says No.

There is a growing philosophical debate in some circles about whether atheism is itself a religion. At least one California appellate court has now weighed in with an answer.  In Copple v. California Department of Corrections and Rehabilitation, Marshel Copple founded his own branch of atheism called Sun Worshipping Atheism, a religion of which he is the sole member.  The central beliefs of Sun Worshipping Atheism are sleeping eight or more hours a day, getting fresh air daily, exercising frequently, having a job, being social…

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23 Mar 2015 3 Types of Associational Discrimination Claims

Most employers (we hope) are well aware that the Americans with Disabilities Act prohibits discrimination against “qualified individuals with a disability.” Nevertheless, many employers may not realize that the ADA also protects applicants and employees from discrimination based on their relationship or association with an individual who has a disabling condition. Generally speaking, there are three types of associational discrimination claims:   “Expense” discrimination Employer fears that association with disabled person will be costly to the employer.   “Disability by association” A relationship with a…

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17 Mar 2015 A Single “Heil Hitler” Not Hostile Enough, Says the Fifth Circuit

No reasonable employee could believe that a single “Heil Hitler” creates a hostile work environment. Or at least that’s what the Fifth Circuit Court of Appeals recently determined in its March 3, 2015, decision Satterwhite v. City of Houston. In Satterwhite, Courtney Satterwhite, an employee for the City of Houston, reported his co-worker Harry Singh for allegedly using the phrase “Heil Hitler” during a meeting. After later becoming Satterwhite’s supervisor, Singh recommended that Satterwhite be demoted and the City ultimately agreed. Following his demotion, Satterwhite…

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09 Mar 2015 Saks Settles Controversial Transgender Discrimination Case

As a reminder to employers that the threat of transgender discrimination lawsuits is alive and well, Saks & Company recently settled a controversial claim of discrimination where a former salesperson claimed she had been harassed and retaliated against on the basis of her transgender identity.  Saks previously argued in a Motion to Dismiss that transgender individuals were not covered by Title VII, which then sparked outrage from gender rights activists as well as both state and federal regulators.  As we have previously noted in a…

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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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