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BT Currents - Hot Topics in Employment Law
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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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04 Mar 2014 Employers Be Warned- Look at the Big Picture When Considering Harassment Allegations

The U.S. District Court for the Eastern District of Wisconsin has issued notice to employers that they must not view employee complaints in a bubble, but rather should take into account similar co-worker complaints in assessing whether they are being placed on notice of possible harassment. Further, the Court has indicated that even remote employees can potentially establish viable hostile work environment claims based on their limited contact with an alleged harasser, if such conduct is severe or pervasive enough. In Dahlke v. Mitchell Bank,…

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27 Feb 2014 How much can a Facebook post cost you? About $80K

Patrick Snay was an instructor at a Florida educational institution. After the school declined to renew his contract, Snay filed a lawsuit alleging age discrimination and retaliation. The parties ultimately settled the lawsuit for an undisclosed amount … well, until Snay’s daughter jumped on Facebook and posted the following: “Mama and Papa Snay won the case against Gulliver,’ she wrote to her more than 1,200 friends. ‘Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” Snay never saw a penny…

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