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BT Currents - Hot Topics in Employment Law
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19 Sep 2016 Does New Illinois Law Signify A Third Frontier of Noncompete State-by-State Variations?

  Recently, Jennifer Cerven wrote on Currents about a new Illinois law that prohibits noncompete agreements for low wage workers, i.e. those making less than $13/hour. There has been heightened dialogue about such restrictions since the publicity surrounding the Jimmy John’s noncompete requirement for some of its sandwich makers. I have suggested here before that most courts I know would be discinlined to enforce a noncompete with such an employee anyway, though as one parent of a summer camp counselor appropriately pointed out to me after that post,…

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16 Sep 2016 Oklahoma and U.S. DOL Agree to Tag-Team Worker Misclassification Initiatives

  As the effort to stamp-out worker misclassification under the Fair Labor Standards Act continues to run strong, Oklahoma is the latest state to join the U.S. Department of Labor’s Misclassification Initiative. Specifically, the Oklahoma Employment Security Commission entered into a three-year Common Interest Agreement with the U.S. DOL’s Wage and Hour Division, under which the agencies agree to share data, exchange information, and coordinate investigations and other enforcement actions within Oklahoma. As part of this collaboration each agency will be responsible for designating a…

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12 Sep 2016 Employee Misclassification as Independent Contractor We Knew about the DOL and IRS Issues - Now the NLRB Says it May be an Unfair Labor Practice

  As we have noted in prior blog posts, the Department of Labor (DOL) has increasingly taken the position that employers more often than not are misclassifying statutory “employees” as independent contractors. Misclassifications such as this can result in back-pay, liquidated damages and attorney’s fees for individuals as well as potential civil penalties. This is in addition to the IRS penalties that may be imposed for failing to pay back payroll taxes for individuals who are actually employees and not independent contractors. As noted on…

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08 Sep 2016 EEOC Issues Anti-Retaliation Guidance First Guidance in Nearly Two Decades Puts Employers on Notice of EEOC’s Workplace Retaliation View

  On Aug. 29, the U.S. Equal Opportunity Employment Commission (EEOC) issued its much awaited Enforcement Guidance on Retaliation and Related Issues – its first enforcement guidance on workplace retaliation in more than 18 years. In addition to retaliation, this guidance also addresses the “interference” provision under the Americans with Disabilities Act (ADA), which prohibits threats, coercion or other actions that inhibit the exercise of ADA rights.   This guidance was highly anticipated as “retaliation is asserted in nearly 45 percent of all charges [received]…

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07 Sep 2016 Illinois Cracks Down on Noncompetes for Low-Wage Workers

  Should the teenage workers who make your deli sandwich (or bus tables or perform other routine entry-level work) be able to move from one job to another without running afoul of a noncompete? The court of public opinion thought so, as evidenced by the controversy that erupted over the Jimmy Johns sandwich chain’s much-publicized business plan that even low-level workers should be subjected to post-employment restrictions, as we reported here.   Now the Illinois General Assembly has stepped in with the new Illinois Freedom…

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02 Sep 2016 Illinois Employers Who Provide Sick Leave Must Allow Workers to Use It for Children and Family Members

  Employers who provide sick leave benefits for employees in Illinois will soon have to allow employees to use their accrued paid sick time to care for their children and other family members and not just for their own illnesses.   Starting January 1, 2017, any Illinois worker who is entitled to sick leave will be able to use it for absences due to an illness, injury, or medical appointment for a child, spouse, or certain other family members on the same terms as sick…

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31 Aug 2016 EEOC: Drug Testing Policies Must Allow for Reasonable Accommodation

  The Equal Employment Opportunity Commission (EEOC) recently filed suit against a car dealership alleging that its drug testing policy did not contain exceptions for qualified persons with disabilities. The lawsuit, EEOC v. Bell Leasing, Inc., Civil Action No. 2:16-cv-02848, was filed on August 25, in the U.S. District Court for the District of Arizona. The EEOC alleges the employer made a job offer to an applicant contingent upon a successful drug test.  When the applicant tested positive for a prohibited substance, the employer rescinded…

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30 Aug 2016 North Carolina Court Blocks ‘Bathroom Bill’ at UNC

  As an update to our previous posts (here and here) about bathroom access rights for transgender individuals, there are new developments in the North Carolina “bathroom bill” debacle. On August 26, a North Carolina federal court blocked the University of North Carolina from applying the state’s controversial bathroom bill. The bill requires transgender people to use bathrooms and locker rooms that correspond to their sex at birth rather than the gender with which they identify.   In a lengthy order filed in the U.S….

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29 Aug 2016 Seventh Circuit Discards Well-Worn Standard for Discrimination Cases Does this Herald the End of the Golden Age of Summary Judgment for Employers?

  Late last week, the often employer-friendly Seventh Circuit Court of Appeals tossed out the basis upon which discrimination claims have been analyzed for almost a generation. The decision, Ortiz v. Werner Enterprises (Case No. 15-2574), foreshadows dramatic and huge repercussions for employers in Indiana, Illinois and Wisconsin.   Background on Direct and Indirect Tests   For more than 20 years, courts in the Seventh Circuit have recognized two avenues of proving discrimination: the direct and indirect methods. Before last week, a plaintiff-employee in the…

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25 Aug 2016 Ray of Hope Peeks Through a Mound of Proposed EEOC Data Requirements: Senators Fight to Nix EEOC Plan

  The way things are going at the EEOC, the next time it requires additional information on the annual EEO-1 report, it will want to know what kind of underwear each employee wears broken down by race, sex and national origin. OK, that’s an exaggeration, but many employers probably wouldn’t be surprised.   In January, the EEOC proposed a rule requiring larger employers to report pay and hours worked data, in addition to standard demographic data. The new information is intended to give government agencies…

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