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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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06 Dec 2013 California Court of Appeals Overturns Superior Court Denial of Class Certification

A California Court of Appeal issued a decision that should serve as a cautionary tale for defendants in California class actions. The appellate court overturned a Superior Court judge’s decision denying class certification in a an alleged misclassification case where the judge found that plaintiffs had failed to establish that: their claims were typical of the class; they could adequately represent the class; common questions predominated the claims; and a class action is the superior means of resolving the litigation. In Martinez v. Joe’s Crab…

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02 Dec 2013 “Using Social Media to Discriminate”: Please Read the Fine Print

A recent study of how hiring managers respond to phony social media accounts has been featured in some outlets with bold headlines along the lines of “Employers May Use Social Media to Discriminate.” Here is what the study, by researchers at Carnegie Mellon, really concluded:  The study involved sending dummy resumes to employers and creating dummy social media accounts to accompany those resumes. (While the subject matter of the research is undeniably important, is anybody else furrowing their brows a little about, um, lying to employers for purposes…

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27 Nov 2013 It’s Official—The Supreme Court Announces That It Will Review The Contraceptive Mandate

On Nov. 26, 2013, U.S. Supreme Court announced that it will review two cases in which for-profit employers challenged the application of the contraceptive mandate under the Patient Protection and Affordable Care Act. The cases are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialites Corp. v. Sebelius.  Both employers say that their religious beliefs bar them from providing employees with drugs or other items that they consider abortifacients. These employers argue that the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act…

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27 Nov 2013 Construction Contractor Sues OFCCP To Block New Regulations

Recently, a construction trade association filed suit in federal court seeking to block the OFCCP’s new “Section 503” regulations on recruiting and hiring disabled persons from taking effect. Whether or not injunctive relief is granted, this lawsuit highlights the increased data-collection challenges that the OFCCPs new regulations will require for all federal contractors. On Nov. 19, 2013, Associated Builders and Contractors, Inc. (ABC) sued the Office of Federal Contract Compliance Programs (OFCCP) and the U.S. Department of Labor (DOL) in the U.S. District Court for…

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27 Nov 2013 2nd Circuit to Decide Unpaid Interns’ Class Status

  As I discussed in a prior post, there have been numerous lawsuits filed on behalf of unpaid interns suing their former companies for unpaid minimum wages and overtime. These are even more significant based on the number of potential plaintiffs as these have been brought as collective or class actions under the Fair Labor Standards Act (FLSA) or state law. Recently, the 2nd Circuit Court of Appeals has accepted appeals in two different cases from the Southern District of New York which had diametrically opposed holdings. In the Fox…

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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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