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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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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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01 Apr 2015 No Girls Allowed Isn’t Allowed: Even Roughnecks Have To Follow The Law

Even in the “manliest” of jobs, employers must be careful not to discriminate against female applicants, or it will cost them. On March 24, the United States District Court for the Northern District of Oklahoma denied an employer’s motion for summary judgment against the EEOC in EEOC v. Unit Drilling Company, finding issues of fact regarding female applicants’ discriminatory failure to hire claims.   Unit Drilling Company operates oil drilling rigs and was hiring for the position of floor-hand, an entry-level job that requires no…

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27 Mar 2015 Abusive Work Environment Proposed Legislation Introduced in Minnesota

Earlier this week, proposed legislation was introduced in the Minnesota State Senate aimed at making abusive conduct in the workplace illegal and holding both employees and employers accountable. This proposed legislation would be in addition to existing Minnesota laws which prohibit discrimination and retaliation in the workplace.   According to S.F. No. 1932, an employer would be held vicariously liable if an employee subjects another employee to “an abusive work environment.”  The employee could escape individual liability if he or she can demonstrate the employee…

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27 Mar 2015 When is a Disclaimer Not a Disclaimer? Certain Employment Policies Trump “No Contract” Disclaimers in Handbooks

An employer’s whistleblower policy and its grievance policy are implied contractual promises that employees may enforce, notwithstanding the valid disclaimer that employment policies are not contracts contained in the company’s employee handbook. So says the U.S. District Court for the District of Columbia in a recent case involving a non-profit organization’s employee who included multiple implied contract and promissory estoppel claims in her post-termination lawsuit.  Leyden v. American Accreditation Healthcare Commission, No. 1:14-cv-01118, March 18, 2015.  The court ruled that a whistleblower policy and a…

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26 Mar 2015 NLRB Shows No Signs of Releasing Its Death Grip on Employer Handbooks

Calling the analysis of handbook rules an “evolving area of law” (i.e. whatever the NLRB says is proper on that particular day), NLRB General Counsel Richard Griffin has recently issued a report offering guidance on the propriety of various handbook policies. The 30-page report can be found here.   Griffin noted the uptick and continuing barrage of complaints about handbook policies, and reiterated that the NLRB took such charges seriously. Remember, it matters not whether your shop is union or non-union when it comes to…

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26 Mar 2015 High Court’s Pregnancy Bias Decision Creates a New Standard

  In a 6-3 opinion, the U.S. Supreme Court vacated a decision that rejected a Pregnancy Discrimination Act (PDA) claim against the employer for failing to provide light duty work to a pregnant employee.  In Young v. United Parcel Services, Inc., the Court not only vacated the Fourth Circuit’s prior decision, but also rejected the arguments by both parties regarding the standard under which PDA claims should be analyzed. Instead, the majority embraced the McDonnell Douglas standard and modified it slightly.   Now, absent direct…

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25 Mar 2015 The Church of a Good Night’s Sleep? One Court Says No.

There is a growing philosophical debate in some circles about whether atheism is itself a religion. At least one California appellate court has now weighed in with an answer.  In Copple v. California Department of Corrections and Rehabilitation, Marshel Copple founded his own branch of atheism called Sun Worshipping Atheism, a religion of which he is the sole member.  The central beliefs of Sun Worshipping Atheism are sleeping eight or more hours a day, getting fresh air daily, exercising frequently, having a job, being social…

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23 Mar 2015 3 Types of Associational Discrimination Claims

Most employers (we hope) are well aware that the Americans with Disabilities Act prohibits discrimination against “qualified individuals with a disability.” Nevertheless, many employers may not realize that the ADA also protects applicants and employees from discrimination based on their relationship or association with an individual who has a disabling condition. Generally speaking, there are three types of associational discrimination claims:   “Expense” discrimination Employer fears that association with disabled person will be costly to the employer.   “Disability by association” A relationship with a…

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20 Mar 2015 It’s That Time of Year Again and So Has Begun the Madness of Lost Productivity

  It is that time of year again when traffic to work becomes lighter and the commute easier. It is also that time when, as predictable as ever, there is a sudden surge of “sick” employees at this time. The cause of your employees’ collective “illness”? A little too much basketball.   According to a recent Yahoo Sports Poll, approximately 14 percent of employees will call in sick for the first two days of this annual tradition of college basketball playoffs. For those employees who…

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20 Mar 2015 Non-Union Employers Beware – The NLRB May Come Knocking On Your Door

  In recent years, the National Labor Relations Board (NLRB) has taken a very aggressive stance on policies or work rules contained in employee handbooks. While the stance has been aggressive, it has also sent mixed messages to the employer community because policies that employers may have used for decades to protect their interests and employee privacy are suddenly being stricken down by the NLRB. And whether a policy or work rule is legally sound or may violate the National Labor Relations Act often comes…

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