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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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20 Apr 2018 En Banc Panel Rules in Favor For Administrator In Pay Disparity Case

The question before the panel was simple: can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act, the panel held that prior salary – whether alone or in combination with other factors – may not justify a difference in pay between male and female workers doing the same job.   The opinion was written by Judge Stephen R. Reinhardt prior to his death in early April…

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19 Apr 2018 Zero-Tolerance for Upside-Down Burritos

  A recent decision from the U.S. Court of Appeals for the Eleventh Circuit provides some useful reminders for employers on the benefits of establishing and enforcing zero-tolerance drug policies and effectively documenting performance actions. The case is Caporicci v. Chipotle Mexican Grill, Inc., Eleventh Circuit Case No. 16-13494.   Like many employers, Chipotle has a drug policy, which prohibits any employee from reporting to work under the influence of alcohol, drugs or controlled substances, and also requires that employees who use medically prescribed or…

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28 Mar 2018 Employment Posters and Policies – Is There A Duty To Translate?

When setting workplace expectations, proactive employers should recognize the varying levels of literacy and English fluency in today’s workforce, as well as the need for employment information to be accessible to individuals with disabilities. Plain English policies, which are clear to the average reader, are important.  But is there a duty to translate key employment documents or information?   Under federal law, there are at least three instances in which an employer may be required to provide notices in a language other than English:  …

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27 Mar 2018 Will You Agree to an Inclusion Rider?

  During the March 4 Academy Awards, actor Frances McDormand introduced a national audience to the diversity-focused contract provision known as an “inclusion rider.” It requires producers to set inclusion goals for on-screen and off-screen talent from under-represented groups. Such goals are intended to “reflect the world in which we actually live.” In a given production, such a rider might establish a goal that the cast be 50% female, 40% under-represented ethnic groups, 20% people with disabilities and 5% LGBT.   Employers large and small…

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23 Mar 2018 Medical Marijuana is Coming to Ohio– What Employers Need to Know

  In 2016, Ohio approved the legalization of medical marijuana, but the law does not go into effect until September 2018. Some Ohio business owners might be nervous at the prospect of employees soon having greater access to marijuana, but they needn’t worry, as the law was written in a pro-employer manner.   Nothing in Ohio’s medical marijuana law:   Requires employers to accommodate an employee’s use, possession, or distribution of marijuana in the workplace Prohibits employers from disciplining, terminating, refusing to hire, or otherwise…

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12 Mar 2018 Sixth Circuit Holds Transgender Status Protected Under Title VII

  On March 7, the U.S. Court of Appeals for the Sixth Circuit weighed in on the continuing debate surrounding the scope of Title VII’s prohibition on sex discrimination. In a landmark decision, the court ruled that Title VII prohibits discrimination on the basis of transgender and transitioning status and further held that bare compliance with Title VII presents no substantial burden upon an employer’s sincerely held religious beliefs, precluding a defense under the Religious Freedom Restoration Act (“RFRA”).   In EEOC v. R.G. &…

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28 Feb 2018 U.S. Supreme Court to Take Up Independent Contractor Arbitration Case

  Our sister labor and employment blog, Labor Relations, recently posted about an important case on the horizon for those in the transportation industry. This week, the Supreme Court agreed to hear the appeal of New Prime, Inc., a transportation company that is asking the Court to overrule the First Circuit and find that an independent contractor’s class action claim should be compelled to arbitration.   Employers who rely on arbitration agreements with their employees and independent contractors will want to pay attention as the…

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28 Feb 2018 Dodd-Frank Whistleblowers: Supreme Court Holds Internal Complaints are Not Enough

  Last week, the U.S. Supreme Court held in the Digital Realty Trust, Inc. v. Somers case  that the definition of a “whistleblower” under the Dodd-Frank Act (“Dodd-Frank”) does not cover internal complaints made only to the company.  The employee is required to file a formal complaint with the U.S. Securities and Exchange Commission (“SEC”) to qualify for the increased remedies and greater protections as compared to the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”).  The Court found no ambiguity in the express definition of a “whistleblower”…

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27 Feb 2018 Another Court Reverses Course: Second Circuit Holds Title VII Forbids Sexual Orientation Discrimination

  The U.S. Court of Appeals for the Second Circuit issued an opinion on Monday of this week and explicitly held that Title VII prohibits discrimination on the basis of sexual orientation.   In the closely watched case, Zarda v. Altitude Express, Inc., a full panel of the Second Circuit revisited the question of sexual orientation coverage under Title VII.  In its decision, the Court cited the history and intent behind the passage of Title VII – namely, that it was intended to be a…

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23 Feb 2018 Wisconsin Supreme Court Splashes Cold-Water on the Enforceability of Non-Solicitation of Employee Covenants

  Wisconsin is one of the states which has a statute regarding the enforceability of restrictive covenants.  Under Wisconsin law, such a covenant is enforceable within a specific territory and for a specified time, but only if the restrictions imposed are reasonably necessary for the protection of the employer or principal (Wisconsin Statute § 103.465).   Wisconsin courts historically have applied the statute to all forms of employee limitations, including non-disclosure covenants.  See Tatge v. Chambers & Owen, Inc., 579 N.W.2d 217 (Wis. 1998).  In…

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