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BT Currents - Hot Topics in Employment Law
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14 Apr 2014 It’s Back: Proposal to Ban Massachusetts Noncompetes (and Related Economic Theories)

  I have written here before about efforts in Massachusetts to ban noncompetes, which seem to have been kicking around for years without any real change.  Last week, Massachusetts Governor Patrick announced that he is proposing legislation to largely ban noncompetes, as they are in California.  The theory behind this is that Massachusetts loses tech talent to California, where tech wizards can be employed usually with little concern about being bound by a noncompete when they change jobs, and that noncompetes stifle innovation.  It is common…

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10 Apr 2014 Inconsistent Statements Can Be Costly For Employers

  The United States District Court for the Northern District of Oklahoma recently denied an employer’s motion for summary judgment on a former employee’s FMLA interference claim. While litigating the matter, the employer argued that the employee never truly was eligible to receive benefits under the FMLA (despite previously granting the employee leave under the Act). In response, the employee presented evidence that a supervisor had assured her while she was out on leave that her job was secure.  According to the court, this assurance…

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10 Apr 2014 Top Tech Companies Headed to Trial in Talent Poaching Conspiracy Case

  Several top tech companies are headed to trial on claims that they engaged in a talent poaching conspiracy involving agreements not to solicit each other’s employees.  Trial is set to begin next month in the Northern District of California federal court.   On Friday, March 28, 2014, in the class action case titled In re: High-Tech Employee Antitrust Litigation, Judge Lucy Koh decided to send several tech companies to trial when she rejected their summary judgment motions by finding that the plaintiffs, a class…

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09 Apr 2014 Ends and Means: Federal Appeals Judge Reflects on Attorney Fee Award Against EEOC

  The EEOC has been more aggressive in the last few years than at any time during my 25 years of practice. It seems a fair question whether its high publicity focus on things like social media and, what I think most plaintiffs’ employment lawyers would agree are routine, release agreements are the best use of its resources – compared, for example, to efficiently doing its less sexy day-to-day work of promptly processing the charges that are brought before it.   This recent post from the…

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08 Apr 2014 Act One in Unpaid Intern Appeal Has Begun

  Act One has begun in the appeal of the unpaid movie and publishing interns.  The scene starts with adversaries finding themselves in the unusual position of playing the role of the appellant at the same time.  Cut to a flashback when last year, two New York federal district court judges reached contrary conclusions in the two separate cases that had been filed, with one judge granting and the other denying class certification.  Fast forward past the court’s granting interlocutory appeals in both cases and…

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07 Apr 2014 Not April Foolin’: National Labor Relations Board Finds Employer Rule Requiring Positivity and Professionalism Unlawful

On April 1, the National Labor Relations Board (NLRB) ruled unlawful an employer policy requiring that employees refrain from negativity in the workplace and in the community. In Hills and Dales General Hospital Case No. 07-CA-053556, the NLRB continued its recent trend of finding that common employer policies, including policies limiting or requiring civility in social media use, those describing the at-will relationship between an employer and its employees, and certain confidentiality provisions, are overbroad.  We have covered the NLRB’s focus on seemingly innocuous policies in…

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06 Apr 2014 Employers, You All Have Secrets: New Report Might Help You Protect Them

    A couple weeks ago, I spoke to an HR group on developing a strategy for protecting valuable information in their organizations. I structured the talk around a series of questions, and the next step in the process could vary depending on the answer to the question. The first question was, “Does your company have info of any kind that, if a competitor obtained it, would give the competitor an unfair advantage?” If an attendee’s answer was “no,” the next step for that attendee…

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04 Apr 2014 Both Sides Face Tough Questions As The Supreme Court Hears Oral Argument Regarding the Contraceptive Mandate

On March 25, 2014, the U.S. Supreme Court heard the long-awaited oral argument in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius.  In both cases, for-profit employers argued that the contraceptive mandate under the Patient Protection and Affordable Care Act violated their religious beliefs as protected by the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act.  In contrast, the government argued that for-profit corporations cannot exercise religion and therefore cannot challenge the mandate on religious grounds….

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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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