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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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30 Apr 2015 Alleged Victim of Sex Discrimination Recovers $13 Million

Earlier this month, in the case Robertson v. Hunter Panels LLC et al., a Pennsylvania federal jury awarded a female employee $13 million after finding that she had been a victim of harassment and gender discrimination.  During the six-day trial, members of the jury heard evidence that the plaintiff had earned significantly less than the male who previously occupied her position. There was also evidence that the plaintiff’s supervisors had belittled her in front of other employees. Finally, there was evidence that when the plaintiff…

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29 Apr 2015 Unanimity and Clarity: U.S. Supreme Court Outlines Standards for Judicial Review of EEOC Conciliation

In a unanimous decision this morning, the U.S. Supreme Court held that courts have limited authority to second-guess the EEOC’s conciliation efforts in enforcing Title VII – ending a circuit court split, and clarifying the “proper scope of review.”   In Mach Mining LLC v. EEOC, the parties battled over the EEOC’s conciliation tactics after the federal agency found probable cause that Mach Mining had discriminated against a group of female employees based on sex. The employer accused the EEOC of failing to bargain in…

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29 Apr 2015 Supervisors Are Employees Too … to the Tune of $6.6 Million

What termination of a single employee can justify a $6.6 jury award?  (The punitives award was reduced by the lower court from $15.9 million. The employee also received $2.2 million in non-punitive damages). According to the Ninth Circuit Court of Appeals, the federal appeals court for western states including California, the following elements justify a lower court jury’s award in this amount:   Discharge found to be in retaliation for suing for overtime pay, reporting violations to OSHA and Department of Transition, and inciting other…

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29 Apr 2015 U.S. Supreme Court to Provide Guidance on Constructive Discharge Statute of Limitations Period

On April 27, the Supreme Court granted the Petition for a Writ of Certiorari filed by former Englewood, Colorado Postmaster, Marvin Green, agreeing to consider the following question:   Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held?   The petition arose after the U.S. Court…

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28 Apr 2015 Not so Fast: ‘No-Rehire’ Clauses Could be a Restraint on Trade

It is common practice that most employers settling with former employees include a clause in said settlement or separation agreements saying that the employee would never reapply to the company and was also not eligible for rehire. However, there is not clear authority saying those actual clauses are legally permissible. A divided Ninth Circuit panel has recently held that such clauses may constitute an unlawful restraint of trade under California law. As such, employers should give serious consideration and thought to including a pro forma “no re-hire” provision…

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17 Apr 2015 EEOC RELEASES PROPOSED RULE ON EMPLOYER WELLNESS PROGRAMS

On April 16, 2015, the EEOC issued a Notice of Proposed Rulemaking that would amend the regulations and interpretive guidance under Title I of the Americans with Disabilities Act (ADA) as they relate to employer wellness programs. A copy of the proposed rule can be found here.   Barnes & Thornburg has issued an Employment Alert on the proposed regulations. This proposed rule was highly anticipated as recent lawsuits filed by the EEOC raised questions about when wellness plans violated the ADA.

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17 Apr 2015 THE SEC JOINS THE NLRB IN ATTACKING EMPLOYEE CONFIDENTIALITY AGREEMENTS

Recently, the U.S. Securities and Exchange Commission (SEC) fined an employer $130,000 for making employees sign confidentiality agreements during an investigation. The agreement stated that the employees could be terminated if they discussed the investigation with anyone outside the company without prior approval of the company’s legal department. The SEC charged the company with violating whistleblower protection Rule 21F-17 enacted under the Dodd-Frank Act, which prohibits companies from taking any action to impede whistleblowers from reporting possible securities violations to the SEC.  This case is…

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14 Apr 2015 Caveat to the FMLA Final Rule on Same-Sex Spouses: Not Yet

Put an asterisk on my February blog entry that “spouse means spouse” under the FMLA.   In late March, a federal judge in Wichita Falls, Texas, issued a preliminary injunction against the Department of Labor – to keep it from enforcing its new and expanded definition of “spouse” after being challenged by the states of Texas, Arkansas, Louisiana and Nebraska. Those four states object to the Department of Labor’s revised definition of “spouse” to include same-sex spouses because they claim the agency’s new rule would…

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13 Apr 2015 Did California Just Fire No-Employment Provisions From Settlement Agreements?

Many employers who negotiate settlements to end a hard-fought battle with a former employee prefer an agreement that the employee will never work for them again. After all, it is perfectly understandable that after a company spends untold thousands in legal bills and severance wishes for complete closure on a difficult chapter, as well as some certainty that they won’t have to worry about the possibility that the employee – now armed with settlement funds – would try another lawsuit based on a failure to…

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08 Apr 2015 Supreme Court Passes on Chance to Apply Uniform Rules on After-Acquired Evidence

  When employers were looking for certainty in the ongoing debate about after-acquired evidence, the U.S. Supreme Court said, “No, thanks.” Instead, the high court let stand a Second Circuit court decision in which an employer was allowed to use evidence to support that it fired an employee for breaking work rules.   In Weber v. Tada, 589 Fed. Appx. 563 (2d Cir. Oct. 9, 2014) the Supreme Court recently declined to grant certiorari, which means that the split among the lower courts is likely…

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