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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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23 Oct 2013 A Quick Reminder Regarding Complaints in the Workplace

Last year we reported on a landmark EEOC decision where the Agency concluded that discrimination against transgender individuals is actionable under Title VII. In that case, the EEOC held that Title VII prohibits an employer from taking adverse action based on the fact an employee/applicant fails to “adhere” to gender-based expectations or norms. It remains to be seen whether courts will agree with the EEOC’s position, but the decision appears to suggest that the argument may be viable in some jurisdictions. There’s another angle to…

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22 Oct 2013 Coast-to-Coast Noncompete Dispute Highlights 3 Key Enforcement Strategies

We have written here before about the importance of differences in state laws in the enforcement of noncompete agreements. A Miami court’s decision last week in a dispute between language education companies Rosetta Stone and Open English highlights this difference, as well as strategic points all companies should consider in their noncompete programs. Nicole Wilson was employed by Open English in Florida. She signed an agreement including an agreement not to compete for 6 months after her employment with Open English and not to disclose…

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18 Oct 2013 Timely Attendance Isn’t An Essential Job Function?!?

According to a recent 2nd Circuit Court of Appeals (covering CT, NY and VT) decision (McMillan v. City of New York), employers cannot rely upon their old standby of regular attendance at work as an “essential job function” under the ADA in all cases. The Court held that in this particular case, the City could not show that arriving in a timely fashion at a set time was an essential job function. The City was a victim of its own lax past practice of not…

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17 Oct 2013 Hope for Employers Who Have Ever Felt Bullied by the EEOC

A recent order from an Atlanta federal court should give hope to all employers who have ever felt bullied by the Equal Employment Opportunity Commission. In EEOC v. HomeNurse, Inc., Case No. 1:13-cv-2927, a former employee filed a charge with the EEOC alleging that HomeNurse discriminates against disabled persons, persons who are 40 years old or older, persons with pre-existing genetic conditions and African Americans.  Oddly, though, the former employee was none of these things. She was not disabled, was under 40, had no genetic…

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16 Oct 2013 U.S. Supreme Court Dismisses Age Case Without Reaching Disputed Question

The United States Supreme Court will not be providing an answer – at least for now – to the question of whether state and local government employees can bypass the Age Discrimination in Employment Act and instead head straight to court with age claims under 42 USC 1983. The Court this week dismissed the appeal in Madigan v. Levin, as “improvidently granted.” While the Court did not provide an explanation, it appears from summaries of the oral argument on Oct. 7, 2013 that the justices determined…

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15 Oct 2013 Federal Court Denies Class Certification, Preemptively Denies FLSA Collective Action – Class Members’ Experiences Too Varied

Plaintiffs seeking class certification of a group of California employees failed to establish that certification was proper, according to a federal district court in California. Additionally, the court preemptively denied approval of a nationwide collective action under the Fair Labor Standards Act, determining that the putative class members’ experiences varied too vastly. The case, Till et al. v. Saks, Inc., No. C 11-00504 SBA (N.D. Cal. Sept. 30, 2013), was brought by Dawn Till, a former Assistant Manager and Team Merchandise Manager for Defendants, and…

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14 Oct 2013 Employment Law Legislative Agenda in Ohio Mirrors National Scene

As the Ohio General Assembly swings back into action this fall, there are several pieces of employment related legislation that mirror areas getting attention nationally: 1. Ohio passed a concealed carry law in 2006, but the law specifically allows employers to prohibit weapons on the employer’s premises.  The most controversial aspect of this law with gun rights advocates is that employees may be prohibited from storing weapons in their vehicles.  There is some legislative support to taking away the employer’s ability to impose this restriction. …

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14 Oct 2013 Five Things to Consider When Creating a Bring Your Own Device (BYOD) Policy

As employers and employees become more heavily dependent upon immediate communications through the use of smart phones, many companies still have not created or implemented Bring Your Own Device (BYOD) policies. As a result, employers are vulnerable in having their confidential business and trade secret information exposed, or worse, taken. Employers also risk having legal claims, such as harassment or defamation, asserted against them because of the communications employees make using their smart phones. To minimize these risks, employers may want to consider implementing sound…

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11 Oct 2013 Another Criminal Background Case, Another Blow To The EEOC

Earlier this week, a divided Sixth Circuit Court of Appeals issued another blow to the Equal Employment Opportunity Commission (EEOC) in its pursuit of discrimination claims against employers and criminal background checks.  In a 2-1 decision, the appellate court affirmed the lower court’s award of $751,942 in attorney’s fees, expert witness fees and other litigation costs to Peoplemark, Inc. after the company produced thousands of documents refuting the allegation that it had a “blanket policy” of denying jobs to individuals with felony records.  (EEOC v….

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09 Oct 2013 Government Shutdown Continues And Enforcement Agencies Remain Closed

As we enter the second week of the government shutdown, the federal enforcement agencies remain closed. Among the closed enforcement agencies are the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL). Each agency has prepared contingency plans during the course of the shutdown. Although the Equal Employment Opportunity Commision (EEOC) is currently closed, it has indicated that the time limits for filing a charge of discrimination will not be extended during the shutdown. Instead, claimants are encouraged to still file the charge during the closure and…

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