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BT Currents - Hot Topics in Employment Law
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15 Mar 2013 Some Basic Advice as “March Madness” Begins

It’s mid-March. That – as any fan of college basketball knows – means that the NCAA basketball tournament and “March Madness” are about to begin. As a result, a case that was handed down by the U.S Court of Appeals for the Third Circuit yesterday is timely.  In Covington v. International Association of Approved Basketball Officials, No. 11-3096, 2013 WL 979067 (3d Cir. Mar. 14, 2013), a female referee alleged that the organization that supplies referees for high school basketball games in New Jersey’s Hamilton…

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08 Mar 2013 Internal Investigations Can Be Crucial to Defense Against Retaliation Claims

It will come as no surprise to many employers that retaliation charges under Title VII and similar employment laws are, in many instances, more challenging to prevent and defend than discrimination claims. So there is comfort to be found in a pair of rulings from the Seventh Circuit Court of Appeals today, affirming that an employer’s investigation into alleged workplace misconduct can serve to stave off liability in the event of a retaliation lawsuit. In Vaughn v. Vilsack, the Court affirmed summary judgment for the…

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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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