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BT Currents - Hot Topics in Employment Law
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16 Jan 2014 Play it Safe: Always Remember to Consider Potential Disability-Related Accommodations For Workplace Restrictions

A recent lawsuit filed by a former professor underscores the importance of taking time to explore potential accommodations for disability-related workplace restrictions – even in situations where it may be the last thing on an employer’s mind. The Plaintiff filed suit against his employer alleging that the institution failed to accommodate his depression and Asperger’s syndrome when he was barred from campus after losing his temper with students and staff. According to his judicial complaint, problems began after he chastised maintenance workers for not rearranging…

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15 Jan 2014 Academic Studies About Screening Applicants’ Social Media: New Cottage Industry?

I may need to start a separate blog to share and comment on the wealth of opinions that seem to be coming forward on the topic of employers screening applicants’ social media.  Hot on the heels of my post applauding what I thought was a sensible and realistic article suggesting that, well, yes if you are an applicant you should expect people to read information you make publicly available, I read about a new study out of North Carolina State University regarding applicants’ attitudes about social media screening…

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13 Jan 2014 OSHA-Proposed Mandatory Reporting Rule Could Include Enterprise-Wide Reporting

As we previously reported in November, OSHA issued a proposed new recordkeeping rule on Nov. 8, 2013 which would require mandatory electronic reporting of recordable work-related injuries and illnesses on a quarterly (> 250 employees) or an annual basis (> 20 employees in certain industries including manufacturing, construction, retail and transportation). OSHA has publicly stated that the proposed rule “does not add any new requirement to keep records” but this is not true with respect to the proposed alternative of “enterprise-wide reporting.”  This has not been publicized by OSHA…

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13 Jan 2014 2013 Ends With A Flurry Of Activity Regarding the Contraception Mandate

As 2013 drew to a close, several non-profit religious employers sought injunctions to prevent the application of the contraception mandate under the Patient Protection and Affordable Care Act on Jan. 1, 2014.  Under the current regulations, a non-profit religious employer need not pay for contraceptive services if it certifies that it has a religious objection to providing these services to its employees. The insurer is then required to provide these items to the employees at no cost to either the employer or the employees. The Obama administration…

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09 Jan 2014 Against the Anchorman: California Court of Appeal Deems Hiring Young, Female Weather Anchors a Protected Exercise of Free Speech

In a recent opinion, a California Court of Appeal held that a television broadcasting company’s decisions to hire young, female weather anchors constituted free speech in connection with a matter of public interest and was thus protected by California’s anti-Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute.  Like anti-SLAPP statutes in other states, California’s anti-SLAPP statute was enacted to stop lawsuits brought to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. In Hunter v. CBS Broadcasting,…

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09 Jan 2014 NLRB “Gives Up the Ghost” On Posting Rule Fight

Over on our labor and employment companion blog (www.btlaborrelations.com) one of my colleagues, Dave Pryzbylski, writes an excellent post that examines the NLRB’s fight over its posting rule. It’s a fight that the NLRB has recently given up the ghost on, and it impacts what employers have to post on the bulletin board at your office, hidden in the corner behind the door. You can check out Dave’s post by clicking on the link below. BT Labor Relations – NLRB Fails to File Appeal to the Supreme Court for Review of…

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09 Jan 2014 Happy New Year: Minnesota’s “Ban the Box” Law Now In Effect

As of January 1, 2014, Minnesota employers are required to comply with “Ban-the-Box” legislation that Governor Mark Dayton signed into law last year. The law prohibits many employers from asking job applicants about criminal backgrounds prior to selection for an interview, or until after making a conditional job offer. The law now applies to private employers, and aligns such pre-employment restrictions with those placed upon public employers in 2009. “Ban-the-Box” refers to the criminal history question commonly including on most job applications that asks an…

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08 Jan 2014 Facebook Background Checking: Shouldn’t Smart Applicants Check Their Privacy Settings?

I have written here and elsewhere that I think the trend in state legislatures to limit employers’ ability to look at social media has gotten out of hand. Very few employers are demanding Facebook and other social media passwords, so legislation limiting that “practice” may scratch an itch, but has little practical impact, at least until legislatures intentionally or inadvertently expand the scope of those statutes to restrict other less intrusive practices – such as looking at information that applicants and employees make publicly available!  It seems…

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03 Jan 2014 The Importance and Limitations of Internal Investigations

Many companies pride themselves on maintaining and rigorously enforcing equal employment opportunity (EEO) policies. From a business perspective, EEO policies help ensure a company is regarded as a fair place to work – improving employee morale and productivity. From a legal perspective, strong EEO policies (a) help protect the company from discrimination, harassment or retaliation claims by identifying and (hopefully) resolving problems ahead of costly litigation; (b) force the company to create a record of its position with respect to an employee’s claims and the…

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03 Jan 2014 Different Strokes for Different Folks (or Red, Blue, and Purple-Pencil America): How The 50 States Differ On Revising Non-Competes

Employers with multistate operations who utilize non-compete covenants to protect their businesses frequently run into questions about whether those agreements will be enforceable across state lines.  While many states (fortunately) tend to view restrictive covenants somewhat similarly, there are some critical – and perhaps surprising – exceptions.  For example, North Dakota will not enforce non-compete agreements by statute, and while Oklahoma may enforce a non-compete, the terms spelled out by that’s states law are extraordinarily more restrictive than in other jurisdictions.   One key distinction…

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