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BT Currents - Hot Topics in Employment Law
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17 Feb 2014 There Were No Mice Available? Testing Noncompetes and Motivation in Settings That Don’t Sound Much Like Employment

I have expressed skepticism here of academic studies about employers checking social media activity of job applicants. The studies we have seen just don’t seem to demonstrate much to me. Likewise, when I recently saw the headline, “Noncompete Agreements Make Employees Less Motivated,” my antenna went up. We can certainly imagine scenarios where noncompetes make employees less motivated, but I was curious how somebody might have gone about reaching that conclusion. That led me to this post on the Harvard Business Review website, which explained the testing…

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14 Feb 2014 “Too Cute” New York Yoga Instructor To Join “Irresistible” Iowa Dental Assistant?

Just in time for Valentine’s Day…. The regular readers of this blog might remember a case that the Iowa Supreme Court handed down last summer, Nelson v. Knight (Case No. 11-1857). It revolved around a dentist’s decision to fire his assistant because he felt that she was a threat to his marriage. As you might recall, his assistant was not romantically interested in him. He found her to be “irresistible,” though, and he was afraid of what might happen if he continued to employ her….

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11 Feb 2014 Obamacare Employer Mandate Delayed Again For Mid-Size Employers

The Employer Mandate of the Affordable Care Act (the “ACA” or its more commonly known sobriquet “Obamacare”) originally was slated to go into effect on Jan. 1, 2014. Last year employers were given a reprieve when the government pushed the mandate back until the start of 2015. Yesterday, the government pushed back the employer mandate for one more year until 2016. However, there is a significant catch that could trap unwary employers: the change applies only to those employers with between 50 and 99 full-time…

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10 Feb 2014 EEOC Charges Drop In 2013, But Wait, There’s More!

The EEOC has disclosed the number of charges filed last year and the overall trend for employers is positive. For the third year in a row, the number of charges dropped – to 93,727 down from 99,412 in 2012 and the record high of 99,947 in 2011. The chart below illustrates the drop and puts the numbers into perspective back to 1997. As illustrated, the good news is that the number of charges are down; the bad news is that the number of charges essentially…

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10 Feb 2014 Play It Safe III: Termination 2 Weeks After Suicide Attempt Keeps FMLA Claim Alive

We have written here and here about the importance to employers of carefully working through employee health issues before taking job actions against the employees. That does not mean “do whatever the employee wants,” it just means that employers will rarely win these cases if they cannot demonstrate their attempts to work with the employee to determine what the employer’s obligations, if any, are under the ADA, FMLA and other laws that may apply. And yes, we may continue with these posts until the Roman numerals start…

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07 Feb 2014 EEOC Releases Detailed FY 2013 Statistics Showing Highest Monetary Recovery in Agency History

As we previously reported, the EEOC issued its Performance and Accountability Report for FY 2013 in December, which in part summarized the agency’s activity from October 2012 through September 2013. As promised in December, the agency has released more detailed charge and litigation statistics for its FY 2013 activity, providing better insight into what is on its radar (and what employees are complaining about). Data tables provide detailed breakdowns for intake and resolution of charges, in addition to initiated and resolved litigation. A summary of…

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03 Feb 2014 Split Decision: Top 5 Noncompete Stories Lean Slightly in Favor of Enforcement

One frequent question is whether there is a trend in favor of or against noncompete agreements. It has seemed to me in recent years that there is more noise suggesting the tide is turning against noncompete agreements, but these conclusions seemed to be based on anecdotal evidence at best, wishful thinking at worst. Law360 has published articles in recent years offering a list of noncompete decisions, with no reason to tilt the list one way or another, so it is interesting to look at the…

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31 Jan 2014 FMLA Leave for Vacation? Yes, Under the Right Circumstances!

As any HR department will confirm, navigating the Family and Medical Leave Act (FMLA) can be a tricky thing.  More than a few clients have lamented the never-ending struggle to curb FMLA abuse. That being said, a good dose of common sense and good employment counsel can go a long way in preventing future lawsuits. In the recent case of Ballard v. Chi. Park Dist. (found here), the Seventh Circuit Court of Appeals affirmed a lower court’s ruling refusing to grant the CPD summary judgment on…

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30 Jan 2014 Keep Your Nude Photos At Home, or They May End Up In Court

Last week, a New York state court directed a defendant to produce a disc of nude photos that are at the middle of a sexual harassment lawsuit. Danielle Pecile and Cristina Culicea both were employed by Titan Capital Group. According to Pecile and Culicea, Titan principal Russell Abrams gave each of them a CD of photos and asked them to take them to the drug store to develop the photos at the photo machine. Unbeknownst to each woman at the time, each CD allegedly contained…

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29 Jan 2014 Supreme Court Rules That Donning And Doffing Time May Not Be Compensable

On Monday, the Supreme Court ruled in Sandifer v. U.S. Steel, unanimously holding that employees’ time spent donning and doffing protective gear was not compensable under the Fair Labor Standards Act because that time had been excluded from compensation in a collective bargaining agreement. A class of current and former U.S. Steel employees filed suit under the FLSA for back pay for time spent donning and doffing protective gear that U.S. Steel required them to wear. U.S. Steel claimed the time was not compensable under…

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