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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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01 Apr 2014 This Should Go Without Saying: An Employee Who Is Only Potentially Qualified for FMLA Leave Is Not Actually Qualified For Leave

Under the Family Medical Leave Act (“FMLA”), a qualified employee is permitted to take up to 12 weeks of leave in order to seek treatment for “a serious health condition that makes the employee unable to perform the functions of the position of such employee.”  Additionally, the FMLA prohibits employers from retaliating against employees who have given notice of their need to take qualifying leave.  What happens, though, when an employee simply gives notice of his need to take potentially qualifying leave at some point…

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26 Mar 2014 Have You Double-Checked The Language Of Your Non-Compete Lately? If Not, You Need To…

A recent decision of the Indiana Court of Appeals could drive a stake through the heart of many non-compete agreements.  The case, Clark’s Sales and Service, Inc. v. Smith and Ferguson Enterprises, involved a long-time salesman for an appliance retailer.  Mid-way through his 14-year employment tenure (and after a key colleague went to go work for one of the company’s competitors), his employer required him to sign a non-compete agreement. The key provisions of the non-compete should be familiar to most employers.   For two…

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23 Mar 2014 Declining FMLA Leave Includes Your FMLA Lawsuit, Court Says

At least one court has held that an employee who declined FMLA leave and chose to use vacation leave instead cannot later invoke the protections of the law. This comes from the Ninth Circuit Court of Appeals, the federal appeals court for California and other far western states, so employers in other states should not rely on this decision but it is instructive. (And of course it is almost always advisable to consult with counsel before terminating an employee who is absent for her own…

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20 Mar 2014 EEOC turns its focus to the impact of social media in employment litigation

The U.S. Equal Employment Opportunity Commission is concerned that efforts to access “private” social media communications through discovery in employment discrimination litigation could have “a chilling effect” on people seeking to “exercise their rights under federal anti-discrimination laws,” according to EEOC’s own summary of a recent meeting on the topic of social media in the workplace.   The EEOC held a Social Media Commission meeting at its headquarters in Washington, D.C. on March 12 to gather information about the use of social media in the…

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18 Mar 2014 Behind “Obnoxious” Headlines, A Good Noncompete Strategy Reminder

  We have written often on this blog, including here, about the importance of the difference in state laws on noncompete agreements to drafting and enforcement strategies. A New York case involving one such case recently went somewhat viral, probably because of the court’s use of the term “truly obnoxious” four times in the opinion to refer to the employer’s Florida choice of law clause.   Far be it from me to stand in the way of a good headline, but in context the court…

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17 Mar 2014 Second Circuit Upholds Dismissal of Untimely Filed State Law Claims from Title VII Harassment Suit

Last week the U.S. Court of Appeals ruled that filing a charge of discrimination with the U.S. Equal Opportunity Commission (EEOC) does not toll the limitations periods for filing state law tort claims, even if the state law claims arise out of the same factual circumstances as the discrimination alleged in the EEOC Charge. Castagna v. Luceno, No. 13-076-cv, 2014 WL 840964 (2d Cir. March 5, 2014). This issue has not yet been decided in most of the federal appeals courts, but the Second Circuit…

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14 Mar 2014 USERRA – Don’t Forget about Service Members on Military Leave During Your Asset Sale

USERRA is one of those laws that may affect very few members of your workforce, but if it does, you better know what your obligations are. A recent decision issued by the Eighth Circuit Court of Appeals serves as a good reminder to employers of some of those obligations.   In Dorris v. TXD Services, LP (8th Cir. Feb. 27, 2014), the Eighth Circuit reversed a district court’s order granting summary judgment to an employer who failed to include a service member’s name on a list…

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13 Mar 2014 EEOC and FTC Team up to Offer Guidance on Employee Background Checks

The U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Fair Trade Commission (“FTC,” the commission responsible for enforcing the Fair Credit Reporting Act) have co-published two technical assistance publications – one aimed at employers and one aimed at employees and applicants – explaining how their rules apply to background checks used for hiring, retention, promotion, or reassignment purposes.   The EEOC confirmed that it is legal to ask questions about an applicant’s background as long as the questions do not discriminate on the basis of…

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10 Mar 2014 Illinois Case Reminds (Again): Document Rights and Responsibilities On Company Social Media Accounts

An Illinois employer faces potential liability for accessing an employee’s Facebook and Twitter accounts while the employee was on leave. There is no question the accounts related to the company’s business, and among other things directed traffic to the company website.There were various points of disagreement among the parties about the accounts, however, including:   The employer says it directed the employee to start the Twitter account in question. The employee denies that. The employee says company management had administrator status on the Facebook page in…

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06 Mar 2014 No Exposure to Allergens in the Workplace – Is there a Reasonable Accommodation Under the ADA?

It’s common for employers to receive complaints from employees about allergens in the workplace. But what is an employer obligated to do when an employee’s physician explicitly restricts that employee from having any exposure to an allergen that cannot be eliminated from the workplace? Well, let’s put on our ADA hat. What are employers obligated to do? Oh yes, that’s right – engage in the interactive process! Here’s a real life example that may have some practical applications to situations you’re currently facing. In Horn…

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