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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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26 Nov 2013 GINA: Much Ado About Nothing?

Earlier this year it was reported that the EEOC had filed two lawsuits against employers, one in New York and the other in Oklahoma, for violating the Genetic Information Nondiscrimination Act (GINA) by requesting family medical information from employees.  GINA, which became law over five years ago, prohibits discrimination on the basis of genetic information, and specifically makes it unlawful for an employer to discriminate, refuse to hire or discharge any employee because of the employee’s genetic information. After GINA went into effect, there was…

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26 Nov 2013 Behind the Numbers: Employment Discrimination Cases at the Federal Level Decline, But Why?

Readers who enjoy a little data may want to download (free) Professor Theodore Eisenberg’s recent study of federal civil rights legislation data, including federal employment discrimination cases (available here). While certainly longer than a blog post, the article is quick and interesting reading. With respect to federal employment cases, Professor Eisenberg notes the following: 1. As a percent of the federal court docket, employment discrimination cases have steadily declined (though still a substantial portion). 2. There has been an increase in the settlement rate of…

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25 Nov 2013 Creating a “Maternity Projection Chart” Probably Isn’t A Good Idea

Does your company have a “maternity projection chart?”  Well, the defendant in Stotler v. Institute for Integrative Nutrition, et. al., Case No. 13-civ-1275 (S.D. N.Y. Nov. 18, 2013) created one to keep track of its female employees’ potential for having children. The chart included information on the women’s ages, marital status and maternity status, with the last category rating each employee on whether they were “likely” or “fairly likely” to have children. The defendant was a health coaching and nutritional educational school and most of…

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25 Nov 2013 FMLA Does Not Trump Common Sense

The situation is a familiar one to many employers: on the cusp of termination, an under-performing employee suddenly takes FMLA leave. What then? Do we fire the employee upon returning from FMLA leave? Doesn’t that look bad? The short answer is “Yes.” It looks bad. At the very least, it raises eyebrows. But that does not mean the tough decision should not be made. Earlier this month, a federal judge in Tennessee issued what appears to be a reasonable, even-handed decision in a case involving…

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22 Nov 2013 Commission or Piece-Rate? The Distinction Is Significant for FLSA Purposes

The Fair Labor Standards Act (FLSA) generally requires employers to pay employees at one-and-a-half times their hourly rate for every hour that they worked per week in excess of 40 hours. There are exceptions, though, and an Illinois federal court recently handed down a decision which illustrates one of them: Employees that are paid commissions on goods or services sold are exempt from overtime pay – if certain criteria are met – whereas employees who are paid piece-rate are not. At first blush, the distinction…

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20 Nov 2013 Contractor Misclassification Is Back On The Agenda

Most employers that utilize independent contractors know that the classification of workers as “contractors” has been subject to considerable scrutiny over the last few years. At least as far back as 2007, then-Senator Barack Obama sponsored the Independent Contractor Proper Classification Act.  The Senator’s proposed law would have eliminated a 1978 tax code provision that provides a safe harbor to employers that misclassify workers based on commonplace “industry practice.” Further, it would have required employers to notify contractors (a) about their tax obligations; (b) that labor and…

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20 Nov 2013 Useful Online Guide To Keeping Tabs On The ACA

Many employers have spent the last several years trying to understand the intricacies and nuances of the Affordable Care Act. The various delays in the roll-out, which have been underscored in recent weeks with the problems associated with the launch of the website, have done nothing to quiet the air of uncertainty that surrounds the Act. Further, while the delay of the employer mandate last summer provided a temporary respite, this also has only added to the growing number of headaches employers face in keeping…

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18 Nov 2013 Reference to Employee’s “Shelf Life” Not Enough to Prove Age Discrimination

No area of discrimination law presents as many opportunities for the interpretation (or misinterpretation) of workplace remarks as age discrimination. Google “old farts” and “age discrimination.” Seriously. There are many cases and situations where that expression is part of an age discrimination analysis. A reference by a supervisor to an employee’s “shelf life” would not seem to be as likely to indicate discriminatory animus (and “old fart” itself is far from a guarantee of success for an age plaintiff), but it was an importance part of George Roberts’…

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12 Nov 2013 OSHA Develops Plan to Publish Injury and Illness Data Online

The U.S. Occupational Health and Safety Administration (OSHA) contends that giving greater publicity to data on workplace injuries and illnesses will allow employers to distinguish themselves as workplaces that are committed to safety. That is one of the stated reasons behind OSHA’s Notice of Proposed Rulemaking to Improve Tracking of Workplace Injuries and Illnesses. If the new rule goes into effect after a period for notice and comment, then employers with 250 or more employees will be required on a quarterly basis to submit electronically…

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08 Nov 2013 ENDA Takes It to the House

As predicted earlier this week, the Senate, for the first time ever, passed the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination and harassment based on sexual orientation or gender identity. The final vote was 64-32, with all Senate Democrats (save one who did not vote) and 10 Republican senators (including influential members Orrin Hatch, John McCain, and Susan Collins) supporting the bill. Earlier in the week, an amendment passed barring retaliation by the federal government against any religious organizations that exercise their exemption from the…

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