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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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02 Oct 2013 U.S. Supreme Court to Kick Off New Term With Age Discrimination Issue

When the Supreme Court holds its first day of arguments of the new term (traditionally, the first Monday in October), it will hear an Illinois case that raises the issue of whether public employees who claim age discrimination can bypass the requirements of the Age Discrimination in Employment Act and head straight to court under the Equal Protection Clause and 42 U.S.C. 1983. Barring any delays associated with the government shutdown, the Court is expected to hear arguments on Oct. 7, 2013 in Madigan v….

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30 Sep 2013 Does the DOL’s Letter on Law Students Signal a Broader Acceptance of Intern Arrangements?

The subject of unpaid interns doing productive work has become a hot button in recent months. High profile lawsuits have been filed, and it has become a reflex response among informed employers not to entertain the possibility of unpaid interns. Undoubtedly the subject in part has taken center stage because of the difficulty young professionals have in obtaining paid jobs. They understandably want to build their resumes, and many would be quite willing to work for free if the alternative is no work at all. In the…

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27 Sep 2013 Your Facebook “Like” May Be Constitutionally-Protected Speech

According to a recent decision by the United States Court of Appeals for the Fourth Circuit, pressing the “like” button on your Facebook page constitutes substantive speech that may be protected by the First Amendment. Six employees of the Hampton, Virginia Sheriff’s Office were dismissed because they showed support for Sheriff B.J. Roberts’ electoral opponent. They filed suit against Sheriff Roberts, claiming in part that their terminations violated the First Amendment. The United States District Court for the Eastern District of Virginia granted summary judgment…

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25 Sep 2013 Social Media Policy Provides Legitimate, Nondiscriminatory Reason for Termination

Much has been written recently about how employers can avoid findings of unfair labor practices in violation of the National Labor Relations Act by having well-written social media policies. It turns out that a good social media policy also can act as a winning defense in discrimination actions. The United States Court of Appeals for the Fifth Circuit recently upheld a victory for Sam’s Club on an employee’s discrimination claim. Former employee Virginia Rodriguez sued under the Texas Commission on Human Rights Act claiming that…

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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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