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BT Currents - Hot Topics in Employment Law
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09 Jan 2013 OSHA’s Site-Specific Targeting Program for 2013 Announced

On Jan. 8, 2013, the Occupational Safety and Health Administration (OSHA) announced that at least 1,260 randomly selected establishments will be inspected by OSHA as part of its Site-Specific Targeting (SST) Program. The initial focus will be on workplaces with above-average injury and illness rates in high-hazard industries. Although the Program was named Site-Specific Targeting 2012 (SST-12), it became effective on Jan. 4, 2013 and is anticipated to continue through January 2014. According to OSHA, the SST-12 Program is aimed at preventing injuries and illnesses…

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09 Jan 2013 8th Circuit Upholds Class Waivers in FLSA Cases

On Jan. 7, 2013, the Eighth Circuit Court of Appeals issued a decision, holding that nothing in the federal Fair Labor Standards Act (FLSA) prohibits enforcement of an arbitration agreement that includes a class waiver. In Owen v. Bristol Care, Inc., former employee, Sharon Owen, brought several claims against Bristol Care, Inc. (“Bristol Care”) under the FLSA and attempted to seek class certification.  Bristol Care argued that Owen had waived all class claims when she executed the Mandatory Arbitration Agreement (Agreement) with the company.  Bristol…

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07 Jan 2013 Texas Legislature Will Consider Employers’ Ability to Access Social Media Passwords

Tomorrow, the Texas Legislature will convene and on the agenda is a bill regarding employers’ ability to require employees to provide their social networking passwords. The bill, HB 318, introduced on Dec. 21, 2012 by Re. Heleln Giddings (D), would make it illegal for employers to require, or even request, that applicants and current employees disclose their usernames and passwords for social networking sites such as LinkedIn, Twitter or Facebook. Many experts have stated that the bill, as currently written, needs to be modified before…

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03 Jan 2013 The EEOC’s Plan of Attack

The United States Equal Employment Opportunity Commission (EEOC) recently approved its Strategic Enforcement Plan (SEP) to establish national enforcement priorities. The SEP is an outgrowth of the EEOC’s Strategic Plan for 2012-2016. The purpose of the SEP is to coordinate the EEOC’s resources to have a “sustainable impact” on reducing discriminatory practices in the workplace. To that end, the SEP identifies six national enforcement priorities, which include: ·         Eliminating barriers in recruitment and hiring:  The EEOC will target class-based recruitment and hiring practices that discriminate against…

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02 Jan 2013 Marital Privilege in Communications on Workplace Computer?

Two or three years ago, employers – and their lawyers – were surprised to find that some courts held that employees had an attorney/client privilege in communications made with their personal lawyers on the company’s computer, even when the employee had signed off on a technology use policy surrendering any expectation of privacy on company technology equipment. The limited body of court decisions on this question continues to be a mixed bag. Now a court has addressed a different evidentiary privilege in the context of workplace…

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28 Dec 2012 REMINDER – FCRA Changes Effective Jan. 1, 2013

Employers who routinely use third party credit reporting agencies for their pre-employment background screening are familiar with the requirements of the Fair Credit Reporting Act (FCRA). Effective Jan. 1, 2013, employers that utilize background checks must use a new “Summary of Consumer Rights” form to notify job applicants and employees of their rights under the FCRA. Under the new changes to the regulations, employers must make clear that the newly-created Consumer Financial Protection Bureau (CFPB), and not the Federal Trade Commission (FTC), is the agency…

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28 Dec 2012 Supreme Court Denies a Request to Temporarily Enjoin the Contraceptive Mandate

On Dec. 26, 2012, Supreme Court Justice Sonia Sotomayor issued a order denying Hobby Lobby’s request to temporarily enjoin the application of part of the Patient Protection and Affordable Care Act (ACA) to the company while the courts considers whether the ACA infringes upon the free exercise of religion. A copy of this decision, Hobby Lobby Stores, Inc. v. Sebelius, can be found here. Hobby Lobby, an arts and crafts retail chainstore, and Mardel, Inc., a chain of Christian-themed bookstores, object to a provision of…

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28 Dec 2012 Iowa Supreme Court Rules that Employer Lawfully Terminated “Irresistible” Employee

Can an employer lawfully terminate a female employee because the employer’s wife is concerned about the nature of the relationship between the employer and the employee?  You bet (at least in Iowa). Dr. James Knight hired Melissa Nelson in 1999 to work as an assistant in his dental office. In the months leading up to Nelson’s termination, Dr. Knight and Nelson began texting each other regarding both work related and personal matters. While most of the texts were innocuous, Dr. Knight did send several messages that were…

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21 Dec 2012 No ADA Protection for Termination Due to Fear of Swine Flu

Earlier this month, the U.S. District Court for the District of Minnesota rejected a former employee’s “respectable argument” that his termination was unlawful under the Americans with Disabilities Act (ADA)  because it was premised on the employer’s fear the plaintiff had been exposed to the swine-flu virus while in Mexico. Specifically, in Valdez v. Minnesota Quarries, Inc., the District Court examined the “interesting question of whether someone who is regarded as having an impairment that…is no more serious than seasonal flu…is “disabled for purposes of the…

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