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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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24 Sep 2013 What Did The Fifth Circuit Say About Reasonable Accommodations?

In order to be covered under the Americans with Disabilities Act, an employee must be a “qualified individual with a disability.” A “qualified individual,” in turn, must be able to perform the essential functions of his or her job with or without an accommodation. Based on these simple premises, most employers understand that they must provide reasonable accommodations to help their employees perform those essential functions (and, indeed, this is the type of accommodation that employees generally request). Accordingly, many employers would likely agree with…

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20 Sep 2013 SEC Proposes Disclosure of Difference Between CEO and Worker Pay

A hotly-divided Board of the U.S. Securities and Exchange Commission (SEC) released a proposal this week calling for public companies to disclose compensation data allowing for a comparison of their Chief Executive Officer’s pay to the median pay of their rank-and-file employees. The release of this proposal, passed by a vote of 3-2 along party lines, is now open for public comment over the next couple of months. In order for the proposal to go into effect, the SEC will again vote on it after the…

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18 Sep 2013 Home Health Care Workers Now Protected Under the FLSA

On Tuesday, the Department of Labor (DOL) issued its Final Rule regarding home health care workers and protections under the federal Fair Labor Standards Act (FLSA).  Under the Final Rule, which will become effective Jan. 1, 2015, the minimum wage and overtime protections will extend to nearly 2 million in-home health care workers who care for the elderly, ill and disabled. The Final Rule revised certain definitions, including “domestic service employment” and “companionship services.”  Since 1974, “domestic service” employees have been covered by the FLSA and have…

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16 Sep 2013 CFPB Issues Guidance on Payroll Card Use

The Consumer Financial Protection Bureau (“CFPB”), the agency responsible for enforcing the Electronic Fund Transfer Act (“EFTA”) and related Regulation E (which apply to employers and institutions using or providing payroll cards), recently issued Bulletin 2013-10, found here), explicitly prohibiting the mandatory use of payroll card accounts at an employer-selected financial institution and otherwise discussing the requirements for such use.  Notably, the EFTA and Regulation E specifically preempt any state laws relating to EFTs, unless the state law offers more consumer protections. Of particular importance…

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16 Sep 2013 October 1st Is Coming: Are You Prepared for the Health Reform Deadline?

Under the Patient Protection and Affordable Care Act (PPACA), the Health Insurance Marketplace was created.  As a result, on October 1, 2013, all employers subject to the federal Fair Labor Standards Act are required to distribute a notice of coverage options to their employees.  For employees hired after October 1, employers must provide the notice of coverage options within 14 days from the date of hire. Many employers remain unsure as to what the notice of coverage must contain in order to be compliant with…

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16 Sep 2013 Governor Would Like Massachusetts to Join California As a Non-Noncompete State

Not long ago, Mark Scudder wrote here about the enforcement of a five-year noncompete by an Indiana state court. At the other end of the spectrum of this highly state-specific issue, Massachusetts Governor Deval Patrick made news this week by announcing that he is in favor of making noncompetes unenforceable in Massachusetts.  There is a significant school of thought in Massachusetts that it is disadvantaged in recruiting high-tech talent by the fact that chief rival California, in effect, prohibits employers from using noncompetes.  That talent,…

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09 Sep 2013 Decision Reminds Employers: Minimalist Medical Inquiries Are a Must

Employers need input from employees’ doctors in order to determine their and their employees’ respective rights and obligations under the Americans with Disabilities Act (ADA), Family and Medical Leave Act, disability plans, and workers’ compensation statutes. Yet employers potentially violate the ADA’s restrictions on medical inquiries if they ask for too much medical information about employees. A decision last week from the U.S. District for the District of Colorado underscores this tension, and reminds all employer to ensure that their forms for obtaining medical information…

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06 Sep 2013 Court Finds Employer’s ADA Direct Threat Evidence Insufficient

On Aug. 30, 2013, a federal district court in Wisconsin denied the employer’s motion for summary judgment in a case where the plaintiff asserted a ADA claim for discriminatory discharge. (EEOC v. Rexnord Industries, LLC).  This was despite the fact that the employer asserted that the employee’s seizure disorder made her a “direct threat” to the safety of herself and those around her. Even under the expansive scope of the ADA Amendments Act, an individual is not a “qualified” individual with a disability if she…

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05 Sep 2013 American Medical Association Recognizes Obesity as a Disease – A Windfall for the Plaintiffs’ Bar?

At the American Medical Association’s annual meeting in June of this year, the AMA passed a resolution which defined obesity as a disease. Since then, commentators have worried that this decision could adversely affect employers by leading to an increase in lawsuits under the Americans with Disabilities Act (ADA) and Family Medical Leave Act (FMLA), or even lead to Workers’ Compensation claims relating to obesity. Following the AMA’s decision, commentators have identified a new case filed in the United States District Court for the Eastern…

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05 Sep 2013 Code of Silence is a Challenge When Employers Address Workplace Bullying

While a certain amount of levity in the workplace can promote collegiality and teamwork, if employees’ playful banter crosses the line into relentless taunting and bullying, morale can suffer and the risk of lawsuits can increase. Yet employers may find it difficult to uncover and eradicate bullying because employees are afraid to speak up. The immense pressure for victims to remain silent is illustrated in a recent Chicago Tribune article that gave prominent attention to the subject of workplace bullying. The news report described in detail how employees of…

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