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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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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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03 Apr 2013 What Happens on Facebook Stays on Facebook…Or Else

A Magistrate Judge within the United States District Court for the District of New Jersey recently affirmed the significance of social media postings in litigation proceedings, finding deactivation of a plaintiff’s Facebook account to constitute spoliation of evidence and warrant the issuance of an adverse inference against him at trial. Specifically, in Gatto v. United Air Lines, Inc., found here, a plaintiff alleged to have suffered an injury while working at the airport claimed, among other things, that his injuries precluded him from working and…

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02 Apr 2013 Seventh Circuit Finds Menial Tasks, Isolation, and Allegations of Violence Provide Pipeline to Jury Trial

In reversing a district court’s grant of summary judgment on an employee’s hostile work environment claim under Title VII, the Court of Appeals for the Seventh Circuit found a female plumber to have alleged sufficient facts to make it to a jury trial. Specifically, in Hall v. City of Chicago, found here, the only female plumber working within a particular division for the City of Chicago, alleged, among other things, that she was forced to do menial tasks (e.g., sorting of the exact same documents…

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