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BT Currents - Hot Topics in Employment Law
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12 Jun 2013 Unanimous Supreme Court Upholds Arbitrator’s Decision to Allow Class Arbitration

On June 10, 2013, the U.S. Supreme Court issued a unanimous decision in Oxford Health Plans LLC v. Sutter. A copy of the opinion can be found here. The opinion, authored by Justice Elena Kagan, upholds an arbitrator’s decision to allow class arbitration on the grounds that the Federal Arbitration Act bars the Court from substituting its interpretation of the contract for the arbitrator’s interpretation. A Barnes & Thornburg Employment Alert discussing this case in more detail can be found here. Oxford Health and the Court’s…

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07 Jun 2013 Don’t Overlook The Gems In EEOC Files

A recent decision out of a Louisiana federal court demonstrates that all employers who are sued in cases where the Equal Employment Opportunity Commission (EEOC) handled an administrative charge should promptly send out a FOIA request to obtain the EEOC’s file. In Williams v. Cardinal Health Systems 200, LLC, a female employee reported to her employer that her husband had gotten into a fistfight with one of her co-workers, allegedly because the co-worker was sending her inappropriate text messages. The employee was fired shortly thereafter…

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06 Jun 2013 What Judges Really Want: Reasonable Litigants

Recently, a paralegal sued the law firm that she had been working for in New York City.  She alleged that the firm’s named partner had sexually harassed her in violation of New York’s anti-discrimination laws by implying that she should engage in a sexual relationship with him, by demanding that she feed him with chopsticks at an Asian restaurant, by chasing after her when she left the restaurant, and by eventually firing her for rebutting his advances. She also alleged that the firm failed to…

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03 Jun 2013 EEOC Files Two Genetic Information Nondiscrimination Act Lawsuits in Two Weeks

The EEOC recently filed its first-ever lawsuit alleging a violation of the Genetic Information Nondiscrimination Act (GINA) – and subsequently filed its second GINA lawsuit one week later. The first lawsuit settled, with a fabrics distributor paying $50,000 and agreeing to take other specified actions (i.e. posting an anti-discrimination notice, among other things) after the EEOC alleged a violation of GINA and the Americans with Disabilities Act (ADA). Specifically, with respect to GINA, the EEOC charged that the distributor violated the Act when it asked…

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30 May 2013 The Trouble With The So-Called “Equal Opportunity Harasser” – Another Cautionary Case

Under Title VII, if a supervisor is obnoxious and abusive to everyone in the workplace, subjecting women and men alike to a barrage of insults, vulgar innuendo, and sexual propositions, the employer is not liable for hostile work environment sexual harassment under Title VII. The rationale is that if a person is an “equal opportunity harasser” then the harassment is not “because of sex” and thus Title VII provides no remedy. Therefore, the equal-opportunity harasser defense may let employers off the hook for liability for sexual harassment, depending…

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23 May 2013 NLRB Offers Further Clarification Regarding Expression of Employees’ Section 7 Rights on Social Media

On May 8, the National Labor Relations Board (NLRB) issued an advice memorandum that further clarified its position regarding employees’ use of social media to make cybergripes pursuant to their Section 7 Rights. In In re: Tasker Healthcare Group, d/b/a/ Skinsmart Dermatology, no. 04-CA-094222, Charging Party and a group of nine other current and former employees participated in a private Facebook group message.  While the discussion started off as purely social, the tone changed when Charging Party referenced with disapproval a former employee who was…

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22 May 2013 Hot Topic: The Use of Criminal Records to Make Hiring Decisions

Medical testing giant Quest Diagnostics Inc. (42,000 employees worldwide) recently found out the hard way that government agencies across the country are ramping up enforcement of state and federal laws restricting the use of criminal convictions when making hiring decisions. While the Equal Employment Opportunity Commission (EEOC) uses Title VII’s prohibition against disparate impacts against employees relating to race or national origin to investigate companies’ hiring policies in relation to criminal records, many states, such as New York, have laws specifically limiting the use of…

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17 May 2013 EEOC Offers Updated ADA Guidance Q&A’s Pertaining to Cancer, Diabetes, Epilepsy and Intellectual Disabilities

In a measure to keep up with the changes made by the Americans with Disabilities Amendments Act (ADAAA) in relation to what employees and applicants must show to establish that they have a “disability,” the Equal Employment Opportunity Commission (EEOC) has revised its informal “Question and Answer” guidance forms pertaining to four categories of medical conditions – cancer, diabetes, epilepsy, and intellectual disabilities – to provide clarification as to how employers should address such conditions and to confirm that individuals having each of the types…

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16 May 2013 OFCCP Notice Issued Regarding New Census EEO Tab

The Office of Federal Contract Compliance Programs (OFCCP) has issued a notice regarding the date on which federal contractors must begin using the 2006-2010 EEO Tabulation (2010 EEO Tab), which was released to the public on Nov. 29, 2012.  Effective Jan. 1, 2014, federal contractors must begin using the 2010 EEO Tab to develop all Affirmative Action Programs (AAPs) and the OFCCP, likely, will begin using the same at that time. As federal supply and service contractors may know, the employers must prepare and maintain AAPs…

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15 May 2013 Minnesota Passes “Ban the Box” Legislation

This week, Minnesota’s Governor Mark Dayton signed into law legislation known as “Ban the Box.” The law is prohibits most private employers from asking job applicants about criminal backgrounds until either (a) at the point of an interview; or (b) after a provision job offer is made. The statute is known as “Ban the Box” because it refers to the criminal history question included on most job applications wherein the applicant would check off the box as to whether he or she had previously been…

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