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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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02 Sep 2015 Man Bites Dog: Court Vacates Arbitration Award Against Sexual Harasser

It is the rare occasion when a court throws out an arbitration award. Typically the court’s ability to do so is quite limited by statute and/or the collective bargaining agreement under which the arbitration award. But a New York appellate court recently vacated an arbitrator’s award that put a bus driver (and union official) back to work even though he did not even show up to a hearing to contest sexual harassment charges against him. Recognizing its limited ability to vacate an arbitration award, the court…

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01 Sep 2015 Comment Period for Controversial Overtime Rule Closes Soon

The U.S. Department of Labor (DOL) will not extend the comment period for its controversial proposed Overtime Rule, which was formally published on July 6, 2015. As a result, the comment period will close Friday, Sept. 4, 2015. Comments can be submitted on the proposed Overtime Rule at www.regulations.gov.   The proposed Overtime Rule sparked controversy as it would extend overtime protections to persons currently falling within the exempt status definition under the Fair Labor Standards Act (FLSA). Currently, to qualify as exempt from the…

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01 Sep 2015 Hiring Advertisements May Help Avoid Claims Under the ADA

Employers should carefully consider what their hiring advertisements say and include language regarding the essential functions of the positions for which they are hiring; such wording may assist in a discrimination claim.  In Kilcrease v. Domenico Transp. Co., Court No. 13-cv-03193-WYD-MJW (D. Colo. Aug. 28, 2015), the employer successfully defended claims under the Americans with Disabilities Act (ADA), as amended and such success was based, in large part, upon the company’s job advertisement which clearly outlined the essential functions of the position.   Mark Kilcrease…

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01 Sep 2015 Employer Changes Mind, Denies Accommodation to Deaf Applicant, Heads to Jury

A federal appellate court ruled that an employer that rescinded an offer of employment to a deaf applicant for a position monitoring plasma donors does not get summary judgment on the applicant’s Americans with Disabilities Act (ADA) failure to accommodate claim, and the case should proceed to a jury.  The court found the applicant presented two potential accommodations that would overcome her inability to hear audible alarms from donors the reasonableness of which must be determined by a jury – (1) installing visual or vibrating…

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31 Aug 2015 Are Your Employees Religious Enough For The NLRB?

The NLRB is at the center of the most recent battle over religious freedom. At issue is the religious character of faculty at religious colleges and universities. Since the U.S. Supreme Court’s ruling in NLRB v. Catholic Bishop of Chicago, the board has been barred from regulating employees in religious educational institutions. However, in recent years, the board has tried to narrow the reach of the Catholic Bishop of Chicago case by arguing that it only applied to institutions of a “substantial religious character.” When…

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31 Aug 2015 Pay Attention to Those Doctor’s Notes

It should be obvious to most that an employee seeking FMLA leave must provide some type of notice to his or her employer. The question that often arises, however, is what type of notice suffices to confer an employee with FMLA protection? The FMLA regulations themselves offer little help in answering this question. Pursuant to these regulations, a notice will confer FMLA protection if it:   Is “sufficient” to make the employer aware that the employee needs FMLA-qualifying leave; and Provides the anticipated timing and…

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28 Aug 2015 California Strikes Again! Senate ‘OKs’ Bill Limiting Employment Arbitration

  This week the California State Senate passed a measure that would block most employers from forcing workers to agree to arbitrate labor disputes instead of filing claims with state agencies or courts.  The senate approved the measure, AB-465—which is sponsored by the California Labor Federation and has drawn fierce opposition from the California Chamber of Commerce. Following AB-465’s passage, the senate ordered the bill to the assembly. The bill would add a new provision to the Labor Code to prohibit any person from:  …

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27 Aug 2015 The Witness Files: 10 People We Keep Seeing in Workplace Investigations (cont.)

I have written here and here on BT Currents about the fact that it seems there are a handful of types of characters – among the complainants, the accuseds and the innocent bystanders alike – who seem to present themselves over and over again in workplace investigations, and a series I have written on i-sight.com about these characters and key strategies for dealing with each of them. The 10 characters I have identified are the following:   Complainants – Poor performer – Questionable complainant –…

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24 Aug 2015 DOL TO CONSIDER RULE ON PORTABLE ELECTRONIC DEVICES OUTSIDE OF WORKING HOURS

Perhaps in anticipation of the greater number of non-exempt employees as a result of the proposed increase in salary for exempt employees, the Department of Labor (DOL) has announced that it will be seeking public input on the question of employees’ use of portable technology outside their workplace and normal working hours. This was introduced as a part of the DOL’s Spring 2015 regulatory agenda and it is anticipated that they will issue this public request for information by the end of the month.  …

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19 Aug 2015 Not All Good Deeds Are Punished: A Paid Suspension Is Not An Adverse Employment Action For Title VII

Chalk up a victory for logic.   Addressing an issue of first impression, the federal Third Circuit Court of Appeals (which covers Delaware, New Jersey and Pennsylvania), recently held that an employee’s suspension with pay is not an adverse employment action for purposes of Title VII. In doing so, the Third Circuit has joined several of its sister Circuits across the country, including the Second, Fourth, Fifth, Sixth and Eighth Circuits.   The case, Jones v. Southeastern Pennsylvania Transportation Authority involved an employee who was…

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