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BT Currents - Hot Topics in Employment Law
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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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05 Sep 2013 New Final Rules Require Federal Contractors to Increase Efforts to Hire Veterans and Disabled Individuals

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently issued much-anticipated Final Rules that will require federal contractors to engage in specific and measurable recruitment efforts to hire veterans and persons with disabilities. These Final Rules formally take effect 180 days after being published in the Federal Register. The new regulations make significant changes to the Vietnam Era Veterans’ Readjustment and Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act of 1973. For additional information on the Final Rules and…

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03 Sep 2013 State Lines May Not Be When It Comes to Noncompetes

  Hans Murphy’s post here last week on the recent Texas noncompete decision is just the latest reminder that state laws vary dramatically when it comes to the enforcement of noncompete agreements.  Employers often think that if they specify in their noncompete agreements that the law of their home state will be applied, then they will avoid the difficulties encountered in enforcing agreements in Texas and other less enforcement-friendly states. In fact, courts will often disregard choice of law clauses if their effect would be to negate…

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03 Sep 2013 Reason for Separation? We Don’t Need No Stinkin’ Reason! (Or, do we?)

Client: “I want to fire my employee.”Attorney: “Why?”Client: “Because I’ve had it. I can’t deal with this employee anymore.”Attorney: “I understand, but why?” Client: “Why? Why?! Because I’ve had it. I’ve just had it. Besides, this is an at-will state and I can fire someone at my will…” (Client’s voice rises) “I don’t need a reason!” The lessons embedded in this dialogue amount to a full-day seminar, but for purposes of this blog, let’s focus on the “reasons” for firing employees. First, in general, we…

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30 Aug 2013 Do You Have Restrictive Covenants In Texas? If So, Be Careful What You Ask For

Many employers who have multistate operations know that the enforceability of a restrictive covenant depends largely on the state in question.  While obviously no state will rubber stamp whatever restrictive covenant an employer can think up, even a properly structured and reasonable covenant – which would be enforced without question in most of the country – may not get any traction in some states. Texas is not the hardest state in which to seek the enforcement of a restrictive covenant (that distinction surprisingly lies with…

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30 Aug 2013 Employers May Inadvertently Break the Law When They Discipline Employees for Facebook “Wall” Posts

A recent case makes clear that employers can violate the federal Stored Communications Act of 1986 (the SCA) when they discipline employees based on the content of nonpublic Facebook “wall” postings – depending on how they obtain the incriminating information. In Ehling v. Monmouth-Ocean Hospital Service Corp., a case in federal court in New Jersey, the plaintiff was a hospital paramedic who alleged that the her former employer violated the SCA when it fired her for a comment on her Facebook wall. The hospital thought her…

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26 Aug 2013 You May Have More Employees Than You Think (Part II)

Following on last week’s post about a Sixth Circuit case counting certain volunteers as employees for purposes of determining whether an employer has the requisite number of employees to be covered by the FMLA, recent guidance from the EEOC cautions employers that individuals designated as “partners” or other owner-type positions may in fact be employees for purposes of determining eligibility under the Age Discrimination in Employment Act (ADEA). These two involve different laws and different groups of potential employees, but share the important takeaway for employers –…

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21 Aug 2013 Sixth Circuit Counts Paid Volunteers As Employees Under the FMLA

A divided Sixth Circuit recently came to a surprising decision regarding the definition of “employee” under the Family Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA). In Mendel v. City of Gilbraltar, No. 12-1231 (6th Cir. Aug. 15, 2013), the Court determined that paid volunteer firefighters were “employees” for purposes of the FMLA and FLSA. The plaintiff police dispatcher brought suit against the city alleging a violation of his rights under the FMLA. The city moved for summary judgment on the basis that it…

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