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BT Currents - Hot Topics in Employment Law
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14 Mar 2013 Judicial Approval No More? The Days of Judicially Scrutinized FLSA Settlements May Be Drawing To a Close

The fact that the settlement of FLSA claims must be pre-approved by a federal court or the DOL has long been greeted by employers with the gnashing of teeth and wringing of hands: nothing is worse than steering a hard-fought case to a resolution that is acceptable to both sides only to have the deal potentially torpedoed by a procedural hurdle at the last minute.  Nevertheless, that has long been the rule.  Best articulated by the seminal case of Lynn’s Food Stores, Inc. v. U.S.,…

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08 Mar 2013 Internal Investigations Can Be Crucial to Defense Against Retaliation Claims

It will come as no surprise to many employers that retaliation charges under Title VII and similar employment laws are, in many instances, more challenging to prevent and defend than discrimination claims. So there is comfort to be found in a pair of rulings from the Seventh Circuit Court of Appeals today, affirming that an employer’s investigation into alleged workplace misconduct can serve to stave off liability in the event of a retaliation lawsuit. In Vaughn v. Vilsack, the Court affirmed summary judgment for the…

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08 Mar 2013 Illinois court revives Whistleblower Act claim of employee who was fired following fine

Say an employee makes a report to a government inspector of an alleged violation of the law, but the government agency already knows of the violation – is the employee still protected from retaliation by his employer under the Illinois Whistleblower Act? A trial court judge in central Illinois did not think so, and granted an employer’s motion to dismiss on the pleadings. But on appeal, the Illinois Appellate Court reversed, ruling that the language of the Whistleblower Act focuses on what the employee reasonably believed,…

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06 Mar 2013 Seventh Circuit to Employers: Be specific, ambiguities in Rule 68 offers of judgment might cost you

The Seventh Circuit recently sent a very important message to employers making offers of judgment to plaintiffs: Be specific. The message was sent via Sanchez v. Prudential Pizza, Inc. et al., Case No. 12-2208. Leading to the Seventh Circuit’s decision, the Plaintiff had sued the Defendant-employer for sex discrimination, sexual harassment, and retaliation under Title VII of the Civil Rights Act of 1964. In advance of trial, the Defendant made an offer of judgment under Federal Rule of Civil Procedure 68, which permits a party defending a claim to…

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01 Mar 2013 Perception Is Reality

Every first year law student learns that if a shooter aims at person A and misses, but his bullet accidentally hits and kills person B, the shooter is still guilty of murder because his intent to kill transfers. Similarly, if an employer discriminates against an employee because it perceives that employee as disabled – even though the employee is not actually disabled – the Americans with Disabilities Act expressly provides that the employer is liable for discrimination. Title VII of the Civil Rights Act of…

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28 Feb 2013 Same Sex Harassment Claim Against Straight Male Supervisor Cannot Be Dismissed, Says Second Circuit

  The Second Circuit Court of Appeals recently ruled that a male employee’s claim for sex discrimination under Title VII against his male supervisor could go forward, reversing the district court’s ruling in favor of the employer.   According to the plaintiff, a certain supervisor at the food manufacturing company where he worked constantly made vulgar comments toward him and other male employees regarding fellatio and using homosexual slurs. In addition, the supervisor frequently grabbed or hit the male employees in their genitalia. There was no…

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27 Feb 2013 Court Upholds Random Alcohol Testing of New Coke Plant Employees

For the last couple of years, the Equal Employment Opportunity Commission (EEOC) has been targeting companies that have implemented random employee drug-testing for class-action lawsuits. Under the Americans with Disabilities Act (ADA), employers are generally limited as to when they can administer medical examinations, including drug tests. The two main exceptions to this limitation are when the examination is job-related and consistent with business necessity (which remains, in the words of the court, “a nebulous concept”), and when confirmation is needed to support an accommodation…

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21 Feb 2013 U.S. Supreme Court Agrees to Clarify FLSA’s Exemption for Donning and Doffing Time

The United States Supreme Court has granted certiorari in Sandifer v. U.S. Steel, Corp., No. 12-417, in order to consider what constitutes “changing clothes” under the Fair Labor Standards Act (FLSA). The appeal was filed by a class of U.S. Steel, Corp. employees who alleged they were not paid for the time spent putting on and taking off their protective gear, in violation of the FLSA.  Though not addressing all aspects of the U.S. Court of Appeals for the Seventh Circuit’s dismissal of the employees’…

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18 Feb 2013 The Letter of the Law Proves Equally Applicable to Employees in FMLA Disputes

In many instances, it is the employer who is penalized for failing to strictly comply with the letter of the law in relation to FMLA leave and notices. Recently, however, an employee in the process of changing medical providers learned the hard way of the equal application of such requirements to both employer and employee, after the Court tossed her suit in finding such transition does not automatically absolve her of the requirement to submit a valid Certification of Health Care Provider (CHCP) to obtain…

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13 Feb 2013 OFCCP to Focus on Criminal Background Checks

Alert to Federal contractors:  The Office of Federal Contract Compliance Programs (OFCCP) has added criminal background checks to its compliance checklist. On Jan. 29, 2013, OFCCP issued Directive 306, notifying federal contractors and subcontractors that use of criminal background checks to screen applicants for open positions may violate Title VII. OFCCP noted that because racial and ethnic minorities are arrested and convicted at a higher rate than whites, excluding job seekers based upon their criminal history may be discriminatory. OFCCP indicated its intent to follow the EEOC’s Enforcement Guidance on the use of arrest and conviction records issued on April 25, 2012. In that Guidance, EEOC noted that use of criminal background…

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