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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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15 Aug 2016 Fifth Circuit Triples Down on the Legality of Class Action Waivers in Arbitration Agreements

  On August 10, the Fifth Circuit Court of Appeals – for the third time – rejected the National Labor Relations Board’s (NLRB) position that class action waivers in arbitration agreements are invalid under the National Labor Relations Act. In a short opinion, the Circuit said it was bound by its two previous published opinions directly addressing this issue and ruling that such waivers are valid pursuant to the Federal Arbitration Act.    The ruling last Wednesday was the first time the Fifth Circuit has…

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12 Aug 2016 Seventh Circuit Addresses EEOC’s Stance that Sexual Orientation is Protected by Title VII

  In a recent opinion, the Seventh Circuit held that a plaintiff who claimed she was discriminated against on the basis of her sexual orientation had failed to state a claim under Title VII, reaffirming the Seventh Circuit’s stance that sexual orientation is not a protected classification. However, Judge Rovner’s opinion presents a more nuanced opinion than the Court has taken on the issue in the past, acknowledging logical difficulties in the state of the law.   The plaintiff was a former community college employee…

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04 Aug 2016 Five Lessons from Fox News on Sexual Harassment

  The recent accusations of sexual harassment against Roger Ailes at Fox News, and the response of a high-profile candidate for public office about how women should respond to sexual harassment have crystallized into an opportunity to learn from the mistakes of others.   Since the mid-1980s, we’ve all read about sexual harassment and been trained on it. For the last 25 years, I’ve studied it, investigated it, seen it, taught about it, warned about it, developed policies to guard against it, and defended companies…

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03 Aug 2016 Massachusetts Mandates Pay Equity

  Earlier this week, Massachusetts Gov. Charlie Baker signed into law “An Act to Establish Pay Equity,” which will go into effect July 1, 2018, and mandates:   No employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work; provided, however, that variations in wages shall not be prohibited if based upon:…

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25 Jul 2016 Nevada’s High Court Won’t Get Out Its Pencil To Save Overbroad Noncompete

  In the highly state-law specific world of noncompete agreements, it is always newsworthy when a state’s supreme court weighs in on one of the two key areas where state laws vary. Indeed, we typically only see one or two such decisions per year. Here, the Nevada Supreme Court has answered the question, what color pencil does it use when it finds a noncompete agreement is overly broad?   In Golden Road Motor Inn, Inc. v. Islam, the court found that a one-year, 150-mile noncompete imposed on…

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25 Jul 2016 First Minneapolis, Now St. Paul – Another Earned Sick and Safe Time Mandate

  As explained in an earlier blog, the Minneapolis City Council passed the controversial ordinance that will require employers with at least one employee working in the city of Minneapolis to provide paid sick time. Now, the St. Paul City Council is considering passing a similar measure.   In early August, the city council will receive the proposed ordinance from a city-led task force that was appointed in February 2016 to examine the possibility of extending Earned Sick and Safe Time (ESST) to all employees…

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22 Jul 2016 North Carolina Governor Keeps ‘Bathroom Bill’ Mostly Intact, Pending Court Review

  As a follow-up to my previous post about transgender bathroom access in the workplace, earlier this week, on July 18, North Carolina Governor Pat McCrory signed into law a revised ‘bathroom bill’ that leaves intact the provisions that sparked national controversy by limiting protections for transgender people.   The bill was revised to restore workers’ ability to use state law, and not just federal law, to sue for employment discrimination. However, it leaves intact the provisions that require transgender people to use public bathrooms…

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21 Jul 2016 OSHA Announces Delay in Non-Discrimination Provisions, Higher Fines Still Coming in August

  As we have previously covered in a recent blog post, the Occupation Safety and Health Administration’s (OSHA) new electronic recordkeeping rules also contain controversial anti-retaliation provisions which originally would have been effective on Aug. 10, 2016, for federal OSHA states (and up to six months later in state plan states). Last week, OSHA announced that it was delaying the enforcement until Nov. 1, 2016, of the new provisions which also include prohibitions on blanket post-accident drug testing policies and safety incentive programs.   One…

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20 Jul 2016 Classic Conundrum: Protecting Employees from Themselves

Last week, the EEOC filed a lawsuit against a furniture company in North Carolina for firing a pregnant employee, allegedly because her job involved using potentially dangerous chemicals.   According to the EEOC’s regional attorney in Charlotte, North Carolina, “pregnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume. Companies must not impose paternalistic notions on pregnant women, as doing so can result in unlawful discrimination.”   In the case filed against RTG…

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15 Jul 2016 10th Circuit ADA Ruling Drives Home the Importance of Written Job Descriptions

  A cancer survivor’s Americans with Disabilities Act (ADA) lawsuit against a prospective employer was rejected this week by the U.S. Court of Appeals for the 10th Circuit in Kilcrease v. Domenico Transportation Co. The case involved a truck driver who, after successfully overcoming cancer, applied for work with a trucking company, Domenico Transportation. The job required applicants to (1) hold a Class A commercial driver’s license, (2) have three years of recent and verifiable mountain driving (the company is located in Colorado), (3) have…

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