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BT Currents - Hot Topics in Employment Law
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26 Dec 2013 Trends for 2014: A Death Knell for Unpaid Internships?

At least one major media organization – New York City-based magazine publisher Conde Nast – will ring in 2014 by saying goodbye to its unpaid internship program, a decision that has generated both cheers and jeers in news coverage.   Given the large amount of media attention that was focused on unpaid intern wage-and-hour lawsuits in 2013, it will be no surprise if more big-name employers – and perhaps some major educational institutions – make adjustments to the way they handle internship programs.   In…

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23 Dec 2013 Seventh Circuit: Failure to Conciliate is Not a Defense in EEOC Lawsuits

Employers who are defendants in actions brought by the EEOC in federal court cannot assert failure to conciliate as an affirmative defense, the U.S. Court of Appeals for the Seventh Circuit has ruled. In so doing, the Seventh Circuit is the first federal circuit court of appeal to explicitly reject the failure-to-conciliate defense, the Court noted in its lengthy opinion released Friday. In determining a question of law brought up on an interlocutory appeal, the Seventh Circuit ruled in EEOC v. Mach Mining, LLC that…

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23 Dec 2013 Coast to Coast Noncompete Part 2: Still Going in 3 Courts in 2 States

A few weeks ago I wrote this post about a dispute between two language learning companies over two relatively short term employees. The dispute illustrates some common strategic lessons of which employers must take account in planning, administering and enforcing noncompete agreements. Perhaps most significant, the dispute is a classic example of the gamesmanship over forum states (and the various laws that may favor or disfavor one of the other party) that characterizes many noncompete cases. Because this is an interesting dispute for employers who have noncompete agreements…

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18 Dec 2013 Criminal Background Checks Remain on EEOC’s Radar

Although not an official opinion or interpretation, the EEOC just released discussion letters giving another peak behind the curtain as to the agency’s stance on criminal background discrimination. Answering the letter of an incarcerated veteran who anticipated having a tough time finding employment upon his release, the EEOC, through its Assistant Legal Counsel, reiterated that “[e]xcluding people from employment due to criminal records may raise issues under Title VII, especially if it disproportionately harms people of a particular race or national origin.” While not banning the…

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17 Dec 2013 You May Want To Leave Your Leave Policy Behind

Employers understandably want their employees to miss as little work as possible. This goal may be reflected in their leave of absence policies, which encourage a return to work as soon as they can. While this is not a problematic goal, policies that are overly harsh or inflexible in granting accommodations for disabled workers may result in costly and embarrassing lawsuits. The EEOC recently filed suit against Children’s Hospital and Research Center in Oakland, California because it refused an employee’s request for additional medical leave…

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16 Dec 2013 Introduction of Family and Medical Insurance Leave Act

Late last week, Democratic lawmakers introduced the Family and Medical Insurance Leave Act (FAMILY Act), which would create a national paid family and medical insurance leave program funded by both employee and employer contributions as well as eliminating eligibility requirements currently under the Family and Medical Leave Act (FMLA). The FMLA allows an eligible employee to take up to 12 weeks of protected, unpaid leave to care for the birth or adoption of a child, the serious illness for an immediate family member, or the…

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16 Dec 2013 December Is Noncompete Month in the General Media

It is somewhat unusual that the various tools and alerts that I have set up to stay current on noncompete laws point me towards major newspapers, but that has happened twice this month. First, and the more significant of the two in terms of things employers need to keep an eye on, the Boston Globe published an opinion piece to virtually prohibit noncompete agreements. The column, cleverly entitled “Noncompete Claws,” says that California has created “a unique employment ecosystem that thrives on employee movement” by largely prohibiting…

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16 Dec 2013 OSHA’s New Online Complaint Form May Increase Whistleblower Investigations

On Dec. 5, 2013, the Department of Labor’s Occupational Health and Safety Administration (OSHA) released a new online complaint form that will allow employees to electronically file whistleblower complaints. The introduction of this online complaint form is likely to increase the number of disruptive agency investigations. With the 2010 amendments to the Sarbanes-Oxley Act, OSHA was tasked with authority for investigating whistleblower complaints of “discrimination.” Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. 1514A, prohibits publicly-traded companies from discriminating against an employee due to the employee…

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13 Dec 2013 Federal Minimum Wage Increase Delayed

According to Senator Tom Harkin (D-Iowa), a bill to raise the federal minimum wage to $10.10 per hour has been delayed until after Jan. 1, 2014. Senate Majority Leader Harry Reid (D- Nevada) expressed disappointment over the delay and stated he would “push for an extension of unemployment insurance, as well as an increase in the minimum wage, when the Senate convenes after the New Year.” The bill (S.460) sets forth a staggered increase in the federal minimum wage, with an initial increase to $8.20…

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11 Dec 2013 Court Summarily Dismisses “Familial Status” Claim Under Title VII and the PHRA

The U.S. District Court for the Eastern District of Pennsylvania recently rejected claims of “family status” discrimination under Title VII and the Pennsylvania Human Rights Act (PHRA), finding that “discrimination based on family status alone is not actionable under Title VII.” The case, found here, involved a 52-year old white plaintiff, who is married to an Asian ethnic Chinese woman and has seven mixed race children. Among other allegations, the plaintiff alleged that Pen Argyl Area School District (PAASD) discriminated against families with children of…

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