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BT Currents - Hot Topics in Employment Law
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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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09 Sep 2013 Decision Reminds Employers: Minimalist Medical Inquiries Are a Must

Employers need input from employees’ doctors in order to determine their and their employees’ respective rights and obligations under the Americans with Disabilities Act (ADA), Family and Medical Leave Act, disability plans, and workers’ compensation statutes. Yet employers potentially violate the ADA’s restrictions on medical inquiries if they ask for too much medical information about employees. A decision last week from the U.S. District for the District of Colorado underscores this tension, and reminds all employer to ensure that their forms for obtaining medical information…

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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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