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BT Currents - Hot Topics in Employment Law
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30 Apr 2013 OSHA Interpretation Letter Allows Non-Union Employees to Designate Union Personnel as “Representative” During OSHA Inspection

In a recently released Interpretation letter (dated Feb. 21, 2013 but not released to the public until April 5, 2013), OSHA has stated that anyone may be designated by workers at a non-union facility as their “representative” during an OSHA inspection, even a union representative. While OSHA claims that this is just a policy clarification of current regulations, this represents a significant departure from previous interpretations in the past. While permitting a union representative at a union facility to accompany an OSHA inspector during the…

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25 Apr 2013 A Supreme Court Update: Notes on Wednesday’s Oral Argument About Title VII Retaliation Claims

Wednesday morning, the Supreme Court heard the final oral argument of its term – and the argument surrounds an employment retaliation case born in the State of Texas. University of Texas Southwestern Medical Center v. Nassar (U.S. No. 12-484). The underlying case involves a doctor who complained of discrimination and was not hired, but candidly, that’s not part of the discussion anymore. The real battle is over what employees should have to prove to win a case of retaliation. The crux of the debate focuses…

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24 Apr 2013 Congress Rejects Password Protection Amendment To CISPA

On April 23, 2013, the House of Representatives rejected a last-minute attempt to amend the Cyber Intelligence Sharing and Protection Act (CISPA) to include a provision that would ban private employers and the federal government from asking for employees’ social media passwords. Since the advent of social media, employers have used data uploaded on sites such as Facebook, Myspace, etc. to mine for information on employees and prospective applicants for employment. As savvy users of social media sites began to erect password-protection walls, employers have…

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24 Apr 2013 Testing the Supreme Court (again) on Retaliation Claims

Today, (Wed., April 24th), the Supreme Court hears oral argument in a closely watched employment retaliation case from the Fifth Circuit: University of Texas Southwestern Medical Center v. Nassar (U.S. No. 12-484). The ruling in this case, whatever the outcome, is likely to significantly impact employers and their ability to defend themselves against the ever-increasing number of retaliation claims. Here is a quick overview of the issues at hand. The central question in the Nassar case is what is the appropriate standard of proof for…

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24 Apr 2013 Inconsistent Treatment Of Employees Gets You Every Time

Although you might think that cussing in the workplace should get an employee fired, a recent decision from the District of Colorado shows that it all comes down to the context. The court denied summary judgment for an employer, finding that the plaintiff-employee had established a prima face case of age discrimination and provided sufficient evidence of pretext. The case, Roach v. Safeway, Inc., Case No. 12-cv-1239-RBJ, involved a 60-year old store manager with 40 years of seniority in the company. The employee had an overall…

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17 Apr 2013 Employment Rule Book’s Silence Does Not Overcome Presumption of At-Will Employment

The concept of at-will employment remains alive and well in Illinois, at least as expressed by the U.S. Court of Appeals for the Seventh Circuit. In a recent ruling in favor of a municipal employer, the Court of Appeals examined the extent to which an employment rule book could alter the at-will employment relationship into one in which the employee could have a right to continued employment absent “cause” for discipline or termination. In Cromwell v. City of Momence, the Appellate Court rejected the argument…

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12 Apr 2013 Administration’s Budget Reveals Priorities

President Obama’s $3.8 trillion FY 2014 budget request has been released. In this era of cutbacks and fiscal cliffs, special funds earmarked for certain types of enforcement activities – as well as funds removed from other functions – give a clear picture of the Obama administration’s workplace priorities. Although the total budget request for OSHA increases only about $1.5M over last year’s budget for a total of $570.5M, there is a $5.9M increase in the budget for OSHA’s whistleblower enforcement program ($21.8M from $15.9M the…

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11 Apr 2013 Washington State Legislators Withdraw Bill Allowing Employers to Access Social Media Accounts During Investigations

A proposed bill amendment in Washington’s state legislature that could have allowed employers the right to demand access to employees’ social media accounts during company investigations has been withdrawn this week. In January, state senators introduced S.B. 5211 to prevent employers from asking current and prospective employees to provide their social media passwords. The House Labor Committee proposed a controversial amendment that would have granted employers the right not just to request, but also the right to demand, access to employees’ and applicants’ Facebook, Twitter,…

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05 Apr 2013 D.C. District Court Finds That OFCCP Requirements Extend to Hospitals with HMOs

The federal district court for the District of Columbia recently ruled that three hospitals were deemed to be subcontractors and subject to the Office of Federal Contract Compliance Program’s (OFCCP) jurisdiction and reporting requirements because of the hospitals’ contractual relationships with an HMO. As a result, the district court held that the hospitals were subject to the EEO and affirmative action requirements of an Executive Order 11246, the Rehab Act and VEVRAA. In UPMC Braddock v Harris, the three hospitals subcontracted with UPMC Health Plan…

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04 Apr 2013 ADA Charge Verified by Counsel Is Insufficient; Plaintiff Failed to Exhaust Administrative Remedies

In Davenport v Asbury, Inc, the plaintiff, Lori Davenport, brought several claims against her former employer, including an alleged violation of the Americans with Disabilities Act, as amended (ADA). The U.S. District Court, Eastern District of Tennessee dismissed Ms. Davenport’s ADA claim, holding that she failed to exhaust her administrative remedies. The dismissal occurred as a result of a technicality wherein Ms. Davenport personally failed to verify the allegations set forth in her EEOC Charge of Discrimination, which must be filed prior to litigating any…

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