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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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12 Nov 2013 OSHA Develops Plan to Publish Injury and Illness Data Online

The U.S. Occupational Health and Safety Administration (OSHA) contends that giving greater publicity to data on workplace injuries and illnesses will allow employers to distinguish themselves as workplaces that are committed to safety. That is one of the stated reasons behind OSHA’s Notice of Proposed Rulemaking to Improve Tracking of Workplace Injuries and Illnesses. If the new rule goes into effect after a period for notice and comment, then employers with 250 or more employees will be required on a quarterly basis to submit electronically…

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08 Nov 2013 ENDA Takes It to the House

As predicted earlier this week, the Senate, for the first time ever, passed the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination and harassment based on sexual orientation or gender identity. The final vote was 64-32, with all Senate Democrats (save one who did not vote) and 10 Republican senators (including influential members Orrin Hatch, John McCain, and Susan Collins) supporting the bill. Earlier in the week, an amendment passed barring retaliation by the federal government against any religious organizations that exercise their exemption from the…

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07 Nov 2013 What About the Dads? Does Your Paternity Leave Policy Discriminate?

Paternity leave advocates have found a new poster boy, as CNN reporter Josh Levs has filed an EEOC charge of sex discrimination against CNN’s parent company, Time Warner. Levs, whose wife just had a child, claims that Time Warner’s parental leave policy discriminates against biological fathers. The policy in question grants 10 weeks of paid leave to women who give birth and to both men and women who become parents through adoption or surrogacy. However, the policy only provides two weeks of paid leave to…

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05 Nov 2013 Is This The Beginning of ENDA?

For nearly two decades, the Employment Non-Discrimination Act (ENDA) has consistently been put before Congress, but so far it has never reached the President’s desk. That may be about to change. ENDA, modeled after Title VII (preventing discrimination on the basis of race, sex, color, religion, and national origin), would prohibit the harassment or discrimination against employees based on sexual orientation and gender identity. Notably, the bill provides exceptions for religious schools, organizations and houses of worship. In light of the Supreme Court’s recent opinion…

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01 Nov 2013 Untimeliness, Hearsay, and Failure to Link Alleged Negative References and Third-Party Job Rescissions to Protected Activity Doom Employee’s Retaliation Claim

The U.S. District Court for the Southern District of Indiana has dismissed the retaliation claims raised against Eli Lilly and Company (Lilly) by former employee Cassandra Welch (Welch), reaffirming that discrete acts of alleged retaliation must independently meet timeliness requirements under 42 U.S.C. § 1981 (imposing a four year statute of limitations), and finding a void of evidence to link eighteen job rescissions to any retaliatory animus on behalf of Lilly. Specifically, in Welch v. Eli Lilly Co., found here, Plaintiff Welch had been terminated…

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30 Oct 2013 Informal Layoff Decision Survives Age Discrimination Claim – But You May Not Want To Try This At Home

A recent decision from the Northern District of Ohio rejected a truck driver’s claim that his selection for a layoff was due to age discrimination where his evidence consisted of (1) the fact that younger drivers were not laid off and (2) his supervisor’s comment that driving was a “young man’s game.” The case, McCormick v AIM Integrated Logistics, Case No. 4:11cv01524, involved a full service truck leasing company which laid off three drivers, ages 55 (the plaintiff), 54 and 51, but which kept drivers…

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29 Oct 2013 Facebook Users Beware: Even Posts You Claim Not to Have Written Can Haunt You

In yet another case emphasizing the growing impact of social media on the workplace, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment in favor of an employer who terminated its employee based on its honest belief that he had posted a disparaging comment on Facebook, which created workplace concerns. Specifically, in Smizer v. Community Mennonite Early Learning Center, found here, the Plaintiff (a male) claimed that the Defendant – whose Director was the Plaintiff’s own mother – had discriminated against him…

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28 Oct 2013 Rule Against Non-Union Workplace “Disruptions” Can Run Afoul of NLRA

A recent opinion from an Administrative Law Judge (ALJ) serves as an important reminder for non-unionized employers. As we previously explained, Section 7 of the NLRA gives employees the right to form, join or assist labor organizations. It also guarantees employees the right to engage in other concerted activities for the purpose of mutual aid or protection. Even in the absence of a labor union, an employee complaining about wages, hours or working conditions on behalf of himself or herself and other employees cannot be disciplined…

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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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