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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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18 Dec 2013 Criminal Background Checks Remain on EEOC’s Radar

Although not an official opinion or interpretation, the EEOC just released discussion letters giving another peak behind the curtain as to the agency’s stance on criminal background discrimination. Answering the letter of an incarcerated veteran who anticipated having a tough time finding employment upon his release, the EEOC, through its Assistant Legal Counsel, reiterated that “[e]xcluding people from employment due to criminal records may raise issues under Title VII, especially if it disproportionately harms people of a particular race or national origin.” While not banning the…

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17 Dec 2013 You May Want To Leave Your Leave Policy Behind

Employers understandably want their employees to miss as little work as possible. This goal may be reflected in their leave of absence policies, which encourage a return to work as soon as they can. While this is not a problematic goal, policies that are overly harsh or inflexible in granting accommodations for disabled workers may result in costly and embarrassing lawsuits. The EEOC recently filed suit against Children’s Hospital and Research Center in Oakland, California because it refused an employee’s request for additional medical leave…

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16 Dec 2013 Introduction of Family and Medical Insurance Leave Act

Late last week, Democratic lawmakers introduced the Family and Medical Insurance Leave Act (FAMILY Act), which would create a national paid family and medical insurance leave program funded by both employee and employer contributions as well as eliminating eligibility requirements currently under the Family and Medical Leave Act (FMLA). The FMLA allows an eligible employee to take up to 12 weeks of protected, unpaid leave to care for the birth or adoption of a child, the serious illness for an immediate family member, or the…

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16 Dec 2013 December Is Noncompete Month in the General Media

It is somewhat unusual that the various tools and alerts that I have set up to stay current on noncompete laws point me towards major newspapers, but that has happened twice this month. First, and the more significant of the two in terms of things employers need to keep an eye on, the Boston Globe published an opinion piece to virtually prohibit noncompete agreements. The column, cleverly entitled “Noncompete Claws,” says that California has created “a unique employment ecosystem that thrives on employee movement” by largely prohibiting…

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16 Dec 2013 OSHA’s New Online Complaint Form May Increase Whistleblower Investigations

On Dec. 5, 2013, the Department of Labor’s Occupational Health and Safety Administration (OSHA) released a new online complaint form that will allow employees to electronically file whistleblower complaints. The introduction of this online complaint form is likely to increase the number of disruptive agency investigations. With the 2010 amendments to the Sarbanes-Oxley Act, OSHA was tasked with authority for investigating whistleblower complaints of “discrimination.” Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. 1514A, prohibits publicly-traded companies from discriminating against an employee due to the employee…

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13 Dec 2013 Federal Minimum Wage Increase Delayed

According to Senator Tom Harkin (D-Iowa), a bill to raise the federal minimum wage to $10.10 per hour has been delayed until after Jan. 1, 2014. Senate Majority Leader Harry Reid (D- Nevada) expressed disappointment over the delay and stated he would “push for an extension of unemployment insurance, as well as an increase in the minimum wage, when the Senate convenes after the New Year.” The bill (S.460) sets forth a staggered increase in the federal minimum wage, with an initial increase to $8.20…

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11 Dec 2013 Court Summarily Dismisses “Familial Status” Claim Under Title VII and the PHRA

The U.S. District Court for the Eastern District of Pennsylvania recently rejected claims of “family status” discrimination under Title VII and the Pennsylvania Human Rights Act (PHRA), finding that “discrimination based on family status alone is not actionable under Title VII.” The case, found here, involved a 52-year old white plaintiff, who is married to an Asian ethnic Chinese woman and has seven mixed race children. Among other allegations, the plaintiff alleged that Pen Argyl Area School District (PAASD) discriminated against families with children of…

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09 Dec 2013 Severe AND Pervasive?

The Fifth Circuit Court of Appeals recently overturned a Texas District Court after it appeared to apply the wrong legal standard in a sexual harassment lawsuit. In Royal v. CCC&R, Tonia Royal was fired after complaining to her supervisor that two maintenance workers regularly visited her office and, among other things, sniffed her in a suggestive manner. Following her termination, Royal initiated a lawsuit alleging she was subjected to unlawful sexual harassment. In order to demonstrate actionable sexual harassment, Royal was required to demonstrate that the conduct…

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09 Dec 2013 Don’t Talk About Employee’s Disability – Even In A Sports Analogy

We often counsel employers to focus on an employee’s ability to perform the job rather than the fact of an employee’s health issues when explaining adverse employment decisions. I love a good sports analogy, but even such an analogy probably should not divert us from this best practice. In a recent decision from the U.S. District Court for the Northern District of Illinois, the judge denied a university’s motion for summary judgment on a professor’s disability discrimination claim when the professor’s Dean wrote the following in…

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06 Dec 2013 Don’t Forget About Potential Associational Claims

At this point, most employers (we hope) are well aware that the ADA prohibits discrimination against “qualified individuals with a disability.” Nevertheless, many employers may not realize that the ADA also protects applicants and employees from discrimination based on their relationship or association with an individual who has a disabling condition. According to the EEOC, the purpose of the association provision of the ADA is to “prevent employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with people who…

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