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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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14 May 2013 Department of Labor Releases Technical Guidance For Employers Relating To Notice to Employees of Health Coverage Options under FLSA Sec. 18B, as Well as Updated COBRA Election Notice

The U.S. Department of Labor Employee Benefits Security Administration (EBSA) recently issued Technical Release 2013-02, in which it provides employers with temporary guidance regarding the notice that must be provided to employees in relation to health care coverage options that will soon be available pursuant to Section 18B of the Fair Labor Standards Act (FLSA). Specifically, beginning on Jan. 1, 2014, individuals and employees of small businesses will have access to coverage through a private health insurance market (referred to as the Health Insurance Marketplace),…

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13 May 2013 Gov. Christie The First to Stand Up to Social Media Legislation Wave?

New Jersey’s legislature recently tried to make it the 8th state to restrict employers from requiring employees to provide social media passwords in the hiring and other employment processes. This trend, somewhat odd in that it addresses a problem that nobody seems to think actually exists (i.e. employers are not really requiring passwords of applicants), started approximately a year ago. New Jersey’s legislation arguably would have been the most restrictive such legislation to date. Governor Christie, however, vetoed the legislation, stating that he would like to see…

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08 May 2013 Is the EEOC Set to Scrutinize Employer Wellness Programs?

On May 8, 2013, the Equal Employment Opportunity Commission (EEOC) hosted a meeting with a group of invited panelists on the treatment of wellness programs under federal law. According to the EEOC, the discussion will focus on various ways employer wellness programs may implicate the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other anti-discrimination statutes enforced by the EEOC. Whether this is a beginning of a new enforcement initiative remains to be seen. Either way, employers should be mindful of potential pitfalls under…

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06 May 2013 Shy Bladder Syndrome Lawsuit Reminds: Applicants Get Reasonable Accommodation

A recently filed Americans with Disabilities Act case alleges that an Iowa hospital refused to accommodate an applicant’s shy bladder syndrome. The condition is an anxiety condition that makes it difficult or impossible for an individual to urinate in non-private or other conditions. Jennifer Connor alleges that she suffers from this condition and was a qualified applicant for a position at the defendant hospital. Ms. Conner would normally run water or flush the toilet in order to be able to use a public restroom. For a mandatory drug test, she was…

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03 May 2013 Three States Pass Legislation on Limiting Access to Social Medial Passwords

  Although Congress recently rejected legislation designed to bar employers from forcing employees to produce their social media passwords, advocates for such laws have been more successful in the state legislatures. Since March 2013, three states – Utah, New Mexico, and Arkansas – have passed laws barring the production of this information. These state laws often contain broad protections. The Arkansas law – which Governor Beebe signed on April 22 – prohibits employers from forcing the employees or applicants to produce passwords, change privacy settings,…

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30 Apr 2013 OSHA Interpretation Letter Allows Non-Union Employees to Designate Union Personnel as “Representative” During OSHA Inspection

In a recently released Interpretation letter (dated Feb. 21, 2013 but not released to the public until April 5, 2013), OSHA has stated that anyone may be designated by workers at a non-union facility as their “representative” during an OSHA inspection, even a union representative. While OSHA claims that this is just a policy clarification of current regulations, this represents a significant departure from previous interpretations in the past. While permitting a union representative at a union facility to accompany an OSHA inspector during the…

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25 Apr 2013 A Supreme Court Update: Notes on Wednesday’s Oral Argument About Title VII Retaliation Claims

Wednesday morning, the Supreme Court heard the final oral argument of its term – and the argument surrounds an employment retaliation case born in the State of Texas. University of Texas Southwestern Medical Center v. Nassar (U.S. No. 12-484). The underlying case involves a doctor who complained of discrimination and was not hired, but candidly, that’s not part of the discussion anymore. The real battle is over what employees should have to prove to win a case of retaliation. The crux of the debate focuses…

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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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