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BT Currents - Hot Topics in Employment Law
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27 Oct 2015 NLRB Once Again Puts Employers on Notice Regarding Handbook Policies

As I’ve noted several times on this blog, the National Labor Relations Board (NLRB) is not messing around when it comes to handbook policies.  In the last few years, the NLRB has been aggressively looking for and cracking down on policies it believes are chilling the rights of employees to take protected, concerted action under the National Labor Relations Act relating to terms and conditions of employment. For handbook purposes, it makes no difference whether the company is a union or non-union shop. While many…

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26 Oct 2015 EEOC News – Online Charge System Now In Place

On May 6, 2015, the Equal Employment Opportunity Commission (EEOC) announced it would be rolling out a new digital charge system to improve customer service and to reduce the use of paper submissions and files. The system is set up to facilitate the secure digital transmission of documents between the EEOC and employers. Employers should start seeing the effects of this change soon, if they have not already. This system applies to private and public employers, unions and employment agencies.   The EEOC initially rolled out the…

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23 Oct 2015 Another Paid Family and Medical Leave Proposal: District of Columbia Considers 16 Weeks of Paid Leave under a Local Government-Administered Mandatory Fund Using a Payroll Tax

Advocates of paid family and medical leave programs continue to press for change. In September, we reported on the Obama Executive Order that mandates paid family and medical leave for federal contractors as part of a paid sick leave requirement. Currently, both California and New Jersey have paid family and medical leave that supplements the unpaid leave benefits provided under the federal Family and Medical Leave Act (FMLA). Earlier this month, seven members of the District of Columbia’s local government Council introduced a bill (the…

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22 Oct 2015 EEOC Defends “Mark of The Beast” Ruling – Religious Beliefs Don’t Have To Make Sense To Be Protected

In August 2015, the EEOC prevailed in a religious discrimination lawsuit against Consol Energy and was awarded in excess of $500,000.00.  Former Consol mine worker Beverly Butcher, who had been with the company for over 35 years, refused to use Consol’s new biometric hand scanners that were installed to track employee time and attendance.  He explained that he believed that scanners would leave the “mark of the beast” and would be a sign for the antichrist.  Consol required Butcher to use the scanners and refused…

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19 Oct 2015 Employee Fired for Facebook Selfie

A Georgia employee was recently terminated from his position at a marketing firm as a result of a disgraceful Facebook “selfie.” In this case, the employee took a “selfie” with a co-worker’s African American son and uploaded the image as his profile picture. The employee’s picture resulted in a number of Facebook “friends” making derogatory, racist, and disgraceful remarks about the child (we won’t be posting them here). In response to some of the remarks, the employee described the child as “feral.” Not surprisingly, the…

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16 Oct 2015 Tenth Circuit Finds Secretly Recorded Age-based Remarks To Be Double-Edged Sword That Can Be Used as Evidence of Plaintiff’s Own Wrongdoing

In Housley v. Spirit Aerosystems, Inc., the U.S. Court of Appeals discussed the significance of the parties’ objections and requests for limiting instructions at trial, which serves as a reminder to plaintiffs and defendants alike. In this case, the plaintiff (a long-time employee of The Boeing Company (Boeing)) sued Spirit and Boeing, alleging that she had been discriminated based on her age (56) after Boeing sold its Wichita facility to Spirit, and Spirit did not hire her based upon the recommendations of Boeing management. Specifically,…

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15 Oct 2015 California Employee Arbitration Bill Vetoed

In a move that has left employers relieved, California Governor Jerry Brown vetoed a bill (AB 465) that would have prohibited employers from implementing arbitration agreements with its employees unless those employees had counsel and negotiated the arbitration agreement. The bill also would impose a $10,000 fine on employers for each violation.   In his veto message earlier this week, Governor Brown explained that the bill imposed a “blanket ban on mandatory arbitration agreements” and this ban “has been consistently struck down in other states…

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13 Oct 2015 Noncompetes In Mexico

I recently had occasion to look into Mexican law regarding non-competition agreements. For those who are unfamiliar with Mexican noncompete law, it can be summarized succinctly: see California. Like the Golden State, Mexico takes a dim view toward non-competition agreements.  In fact, the unenforceability of restrictive covenants is not even a matter of Mexican statute, it’s actually embedded into the country’s Constitution.   Specifically, Article 5 of the Mexican Constitution provides that “the State cannot permit the execution of any contract, covenant, or agreement having…

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12 Oct 2015 Think Before You Shoot on Noncompete: Why The Threatening Letter May Not Be Your First Move

I recently wrote an article about the importance of thinking a few steps ahead before businesses have their lawyers send the proverbial nasty lawyer letter.  Those letters certainly have their place in many contexts, but the article explains why you should think through the possible responses to the letter and be sure before the letter goes in the mail that you are ready to deal with the consequences.   So it is when an employee departs and is believed to be working for a competitor…

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12 Oct 2015 Employee Who Threatened to Shoot His Colleagues with a Shotgun Not a “Qualified Individual” For the Purposes of Oregon’s Disability Statute, Says Ninth Circuit

The inherent tension between employee mental illness and workplace disability discrimination laws has become a hot topic over the last few years. Yet, legal opinions addressing this issue have often led to more questions than answers. For instance, what happens if an employee’s mental illness causes him or her to violate company rules? Can the employer discipline such an employee without running afoul of the Americans with Disabilities Act (ADA)? Or, in the most extreme situation, what disciplinary actions may an employer take against an…

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