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BT Currents - Hot Topics in Employment Law
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08 Feb 2013 Breaking – Mixed Bag Ruling In California Mixed Motive Case

Yesterday, the California Supreme Court issued its widely anticipated ruling in Harris v. City of Santa Monica regarding the burdens in so-called mixed motive discrimination cases. Our Alert on the decision can be found here. This particular case had been pending before the court for three years, and should provide some guidance in cases where both legitimate and unlawful factors affect an employment decision.

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08 Feb 2013 Obama Administration Revises the Contraceptive Mandate, but Provides No Accommodations for For-Profit Companies with Religious Objections

On February 1, 2013, the Obama administration issued new proposed rules which would amend the contraceptive mandate under the Patient Protection and Affordable Care Act.  The proposed rules, which can be found here, provide no relief to for-profit companies with religious objections to the contraceptive mandate.  Instead, the new proposed rules provide some additional accommodations for religious employers.  For example, under the new proposed rules, an entity may qualify for the religious employer exemption even if it serves or hires people of different religious faiths. …

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06 Feb 2013 Happy Anniversary, FMLA!

It’s been an adventurous 20 years! Since President Bill Clinton signed you into law on Feb. 5, 1993, FMLA, you have never failed us. Employment lawyers and HR professionals around the country have relied upon you for job security and cursed you for (and your accompanying regulations) our constant headaches. According to the DOL’s 2012 Survey, though, you are apparently beginning to grow on us. FMLA, your anniversary gives us the opportunity to reflect on some of your highlights. Your Most Challenging Features It is probably cliché to gently chide you for your rules (or lack…

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04 Feb 2013 The More Things Change…

When you do something for a long time, you start to see patterns. In employment law, one pattern is that the possible sources of employee-related liability only increase. For example, as our recent article from InsideCounsel discusses, employment law is continually adding “protected classes,” groups of people who are protected by a discrimination law. But the other pattern that goes along with that trend is that the advice to employers about how to handle performance, discipline, and termination situations rarely changes – make mission-related business…

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01 Feb 2013 The FLSA Also Requires Employers To Provide Private Lactation Break Rooms

Most employers know that the Fair Labor Standards Act (the FLSA) requires them to pay a minimum wage of $7.25 per hour. Most employers know, too, that the FLSA requires them to pay overtime at one-and-a-half times an employee’s regular rate of pay. But many employers may not be aware that the FLSA, as amended by the Affordable Care Act, also requires that they provide break time and private spaces – other than bathrooms – for nursing mothers to express breast milk. The FLSA amendment…

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30 Jan 2013 2012 EEOC Charge Filing Stats Are In

A few weeks ago, we looked at the total number of EEOC charges filed with the agency from 1997-2011. The charge numbers for 2012 just came in and as expected, the total numbers have dropped – but by an almost imperceptible amount. Here is the updated chart: The total number of charges filed in 2011 was 99,947.  For those with magnifying glasses, this fell in 2012 by a little more than 500 to 99,412.  Looking at the chart as a whole, it is clear that the…

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28 Jan 2013 Paid Leave Can Be a Lawful Option When an Employee Is Facing Criminal Charges

Paid administrative leave for an employee who is charged with a crime is not a materially adverse employment action for purposes of proving an employment discrimination case, according to a recent federal appellate court order. The 10th Circuit’s decision in Benavides v. City of Oklahoma City, is a useful reminder for employers that thorny legal issues may arise when an employee is accused of criminal wrongdoing. The Benavides case illustrates that while an employer cannot prevent an employee from filing a charge of discrimination or lawsuit…

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23 Jan 2013 High Court to Decide Whether “but-for” Standard Applies to Retaliation Claims Under Title VII

The United States Supreme Court has added yet another interesting employment law issue to its docket, agreeing to take up the question of whether Title VII’s retaliation provision and similarly worded statutes require a plaintiff to prove “but-for” causation or instead require only proof that the employer had a mixed motive for the employment decision in question. The Supreme Court granted a petition by the employer to hear its appeal in the case of University of Texas Southwestern Medical Center v. Nassar, Docket No. 12-00484. The…

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22 Jan 2013 Social Media Regulation Attracts Mainstream Media Attention

Regulation of employees’ use of social media continues to make headlines, with an article in today’s New York Times just the latest example of continuing coverage of the subject by national news organizations. The article, available here, summarizes the good and bad in social media policies, pointing out that a policy with specifics is more likely to withstand legal scrutiny than very general, sweeping policies that have the potential to chill lawful speech. Thus, employers are well-advised to adopt policies that remind employees to avoid harassment,…

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17 Jan 2013 Can Employees Take FMLA Leave for the Flu?

With a nationwide flu epidemic in full swing, employee absences have been spiking the last several weeks. Not surprisingly, both employees and employers have been asking whether the FMLA might cover those flu-related absences. As is often the case with the law, the answer is a resounding “maybe.” While most colds, and even the flu, do not rise to the level of seriousness required to be covered under the FMLA, at least two federal circuit courts (the 4th and 8th Circuits) have recently held that as long…

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