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BT Currents - Hot Topics in Employment Law
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08 Mar 2013 Illinois court revives Whistleblower Act claim of employee who was fired following fine

Say an employee makes a report to a government inspector of an alleged violation of the law, but the government agency already knows of the violation – is the employee still protected from retaliation by his employer under the Illinois Whistleblower Act? A trial court judge in central Illinois did not think so, and granted an employer’s motion to dismiss on the pleadings. But on appeal, the Illinois Appellate Court reversed, ruling that the language of the Whistleblower Act focuses on what the employee reasonably believed,…

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06 Mar 2013 Seventh Circuit to Employers: Be specific, ambiguities in Rule 68 offers of judgment might cost you

The Seventh Circuit recently sent a very important message to employers making offers of judgment to plaintiffs: Be specific. The message was sent via Sanchez v. Prudential Pizza, Inc. et al., Case No. 12-2208. Leading to the Seventh Circuit’s decision, the Plaintiff had sued the Defendant-employer for sex discrimination, sexual harassment, and retaliation under Title VII of the Civil Rights Act of 1964. In advance of trial, the Defendant made an offer of judgment under Federal Rule of Civil Procedure 68, which permits a party defending a claim to…

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01 Mar 2013 Perception Is Reality

Every first year law student learns that if a shooter aims at person A and misses, but his bullet accidentally hits and kills person B, the shooter is still guilty of murder because his intent to kill transfers. Similarly, if an employer discriminates against an employee because it perceives that employee as disabled – even though the employee is not actually disabled – the Americans with Disabilities Act expressly provides that the employer is liable for discrimination. Title VII of the Civil Rights Act of…

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28 Feb 2013 Same Sex Harassment Claim Against Straight Male Supervisor Cannot Be Dismissed, Says Second Circuit

  The Second Circuit Court of Appeals recently ruled that a male employee’s claim for sex discrimination under Title VII against his male supervisor could go forward, reversing the district court’s ruling in favor of the employer.   According to the plaintiff, a certain supervisor at the food manufacturing company where he worked constantly made vulgar comments toward him and other male employees regarding fellatio and using homosexual slurs. In addition, the supervisor frequently grabbed or hit the male employees in their genitalia. There was no…

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11 Feb 2013 OSHA – Regulatory and Enforcement Update

With four more years of the Obama administration, expect increased enforcement efforts from OSHA as we have seen in the past four years. As noted last year, even without formal statutory reform, OSHA managed to double the average fines given to employers through an internal administrative penalty bulletin and the Severe Violator Enforcement Program (SVEP). The outlook for 2013 appears to be more of the same. The scope of enforcement activities of OSHA may expand as well with the creation of the Whistleblower Protection Advisory…

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08 Feb 2013 Breaking – Mixed Bag Ruling In California Mixed Motive Case

Yesterday, the California Supreme Court issued its widely anticipated ruling in Harris v. City of Santa Monica regarding the burdens in so-called mixed motive discrimination cases. Our Alert on the decision can be found here. This particular case had been pending before the court for three years, and should provide some guidance in cases where both legitimate and unlawful factors affect an employment decision. Scott WitlinScott J. Witlin is a partner in the Los Angeles office of Barnes & Thornburg and a member of the firm’s…

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04 Feb 2013 The More Things Change…

When you do something for a long time, you start to see patterns. In employment law, one pattern is that the possible sources of employee-related liability only increase. For example, as our recent article from InsideCounsel discusses, employment law is continually adding “protected classes,” groups of people who are protected by a discrimination law. But the other pattern that goes along with that trend is that the advice to employers about how to handle performance, discipline, and termination situations rarely changes – make mission-related business…

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28 Jan 2013 Paid Leave Can Be a Lawful Option When an Employee Is Facing Criminal Charges

Paid administrative leave for an employee who is charged with a crime is not a materially adverse employment action for purposes of proving an employment discrimination case, according to a recent federal appellate court order. The 10th Circuit’s decision in Benavides v. City of Oklahoma City, is a useful reminder for employers that thorny legal issues may arise when an employee is accused of criminal wrongdoing. The Benavides case illustrates that while an employer cannot prevent an employee from filing a charge of discrimination or lawsuit…

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23 Jan 2013 High Court to Decide Whether “but-for” Standard Applies to Retaliation Claims Under Title VII

The United States Supreme Court has added yet another interesting employment law issue to its docket, agreeing to take up the question of whether Title VII’s retaliation provision and similarly worded statutes require a plaintiff to prove “but-for” causation or instead require only proof that the employer had a mixed motive for the employment decision in question. The Supreme Court granted a petition by the employer to hear its appeal in the case of University of Texas Southwestern Medical Center v. Nassar, Docket No. 12-00484. The…

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03 Jan 2013 The EEOC’s Plan of Attack

The United States Equal Employment Opportunity Commission (EEOC) recently approved its Strategic Enforcement Plan (SEP) to establish national enforcement priorities. The SEP is an outgrowth of the EEOC’s Strategic Plan for 2012-2016. The purpose of the SEP is to coordinate the EEOC’s resources to have a “sustainable impact” on reducing discriminatory practices in the workplace. To that end, the SEP identifies six national enforcement priorities, which include: ·         Eliminating barriers in recruitment and hiring:  The EEOC will target class-based recruitment and hiring practices that discriminate against…

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