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BT Currents - Hot Topics in Employment Law
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22 Sep 2014 CAUTIONARY TALE FOR PUBLIC EMPLOYERS – REMEMBER THE FIRST AMENDMENT

  When a public employee makes unpopular public statements, the employer must remember that the employee’s statements could be protected by the First Amendment. On September 15, 2014, the Firth Circuit Court of Appeals in Christian Cutler v. Stephen F. Austin State University affirmed the trial court’s ruling that the University and four University officials had no immunity from a First Amendment retaliation claim. Cutler, the University’s Director of Art Galleries, received an invitation from a member of Congress to judge a high school art…

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19 Sep 2014 Jehovah’s Witness’s Claims Highlight Employer Need to Manage Workplace Religion Issues LETTER OF THE LAW: CURRENT EMPLOYMENT LAW ISSUES A-Z

  A “split decision” on a Jehovah’s Witness’s claims against his university employer serves as a good refresher for employers on the issues they must be aware of in dealing with employee religious issues.  For this week’s letter of the law, J is for Bernard Westbrook, the Jehovah’s Witness who brought these claims.  The decision from a federal district court in North Carolina can be found here.   Bernard Westbrook was first employed by North Carolina A&T University in 1994, and first began working for…

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18 Sep 2014 OSHA ISSUES NEW MANDATORY REPORTING REQUIREMENTS FOR SERIOUS INJURIES; DATA TO BE MADE PUBLIC

  On September 11, 2014, OSHA announced a final rule which greatly expands the scope of injuries which must be reported to OSHA on an expedited basis. Currently, employers only have an affirmative obligation to report an injury/illness to OSHA under the following circumstances:  a) a work-related fatality (within 8 hours); b) the hospitalization of three (3) or more employees (within 8 hours) or c) the occurrence of a point-of-operation injury on a mechanical power press (within 30 days).   Under the revised standard, an employer…

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18 Sep 2014 Reminder: Pregnant Employees are a Protected Class

  This should come as no newsflash: Just because you own a company, an organization, a pro basketball team or a pro baseball team, does not mean that you have a license to do or say whatever you want. At least, not without stirring up some trouble.   Donald Sterling, the former owner of the L.A. Clippers was ousted from the NBA after allegedly racist remarks were made public. Last week, we learned that Atlanta Hawks controlling owner Bruce Levenson self-reported that he sent a…

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17 Sep 2014 What’s In Your RIF? Age Discrimination Decision Highlights Documenting Rationale For A RIF, And That Even as Adults, A Plaintiff Should Not Just Copy Someone Else’s Work . . .

  Consistent with the age-old adage that there is no free ride, the Second Circuit Court of Appeals rejected an age discrimination claim of a former employee who based his case on comments allegedly made to another employee.   The case involved a long-time employee of a large financial company who began work in 1988 and survived multiple mergers and restructurings. But, in 2010, his performance was rated in the bottom tier of employee rankings in the company. Coincidentally, his employee conducted a reduction in force (RIF)…

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15 Sep 2014 FMLA Certifications: When “Unknown” and “Probably” Aren’t Enough

  The words on the FMLA Certification jump out at us: “Unknown.” “Unpredictable.” “Probably.” Instead of the certainty we were looking for, we have more questions.   The DOL regulations require that the FMLA Certifications not only be “complete,” but also “sufficient.” What is “sufficient?” In looking at this issue recently, we found no DOL advisory opinions, although there are some court rulings to guide us.   As an initial matter, rely on the regulations: a medical certification is incomplete if information requested is not provided,…

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05 Sep 2014 New Illinois Law Will Require Pregnancy Accommodations Starting January 1, 2015

  Illinois employers should start preparing to provide reasonable accommodations to pregnant employees and new mothers – including leaves of absence – under a new law that will go into effect on January 1, 2015. Notice posting will be required and employers also may need to revise employee handbooks or policy manuals in anticipation of the effective date of the new law.   The Illinois law, which amends the Illinois Human Rights Act, will allow women to request reasonable accommodations in the workplace for medical…

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05 Sep 2014 Indiana Follows Illinois in Key Noncompete Decisions from the Heartland LETTER OF THE LAW: CURRENT EMPLOYMENT LAW ISSUES A-Z

  With apologies to Iowa, home to the somewhat famous (infamous?) case of the dental assistant fired for being irresistible and Idaho (not yet featured in BT Currents), Letter of the Law this week features two of the “I states” for some of the more noteworthy noncompete decisions of the last year. As readers know, the key driver in noncompete drafting and enforcement often is the dynamic of varying state laws. Employers and practitioners need to keep tabs on developments outside their own state because, try as…

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02 Sep 2014 NLRB “Likes” Employees’ Facebook Argument

  The NLRB recently ruled that “liking” a Facebook comment is protected, concerted activity under the National Labor Relations Act (NLRA). Thus, firing an employee for “liking” what the company deemed to be a disparaging remark regarding tax withholdings was unlawful. The decision can be found here.   In short, employees of a bar & grille were not happy when they found out that their employer had miscalculated tax withholdings (meaning they still owed money), so they did what more and more folks seem to…

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28 Aug 2014 Seventh Circuit Judges Grill State Attorneys on Gay Marriage

  On August 26, state officials from Wisconsin and Indiana faced blistering scrutiny from a panel of Seventh Circuit judges as they argued in favor of reinstating laws in each state banning gay marriage. Judges Posner, Hamilton and Williams pushed them to their limits and asked a number of pointed questions regarding their arguments.   Judge Posner took the attorneys to task regarding the interests of children, quickly interrupting Indiana’s Solicitor General Thomas Fisher and asking if children wouldn’t want their parents to be married…

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