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BT Currents - Hot Topics in Employment Law
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19 Dec 2012 The Top 10 Ways To Reduce Discovery Costs: Nos. 10-6

It should come as no surprise to most employers that employment litigation is on the rise. It also should come as no surprise that discovery is seen as the biggest single driver of litigation expenses. Recent studies have shown that discovery can consume up to 68 percent of the costs in a case. Unsurprisingly, the vast majority of attorneys – both plaintiff and defense attorneys alike – agree that the costs of litigation and particularly discovery are not proportional to the value of a case….

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17 Dec 2012 Federal Court Finds Employee Handbook Provision May Constitute an Agreement

The U.S. District Court for the Northern District of Illinois recently held that an employee handbook provision may constitute an enforceable agreement under the Illinois Wage Payment and Collection Act (IWPCA), even if it does not create an enforceable contract between the employer and employee. In Wharton v. Comcast Corp., N.D. Ill., No. 12-cv-1157 (Dec. 6, 2012), the plaintiffs alleged that the defendant violated the IWCPA by failing to pay them for pre-shift work, post-shift work, and work during meal breaks, in addition to certain…

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12 Dec 2012 Outreach Agreement May Signal EEOC Focus on National Origin Discrimination

The EEOC recently announced that its Phoenix District Office entered a Memorandum of Understanding with several consulates of Mexico in Arizona. The Agreement establishes a collaborative relationship between the EEOC and the Mexican consulates with the purpose of addressing issues and providing resources aimed at preventing employment discrimination involving Mexican nationals in the workplace. As part of the Agreement, the EEOC will provide the Mexican consulates with Spanish-language materials “explaining the laws enforced by the EEOC.” Further, the EEOC will supply representatives to meet with Mexican nationals in Arizona for…

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10 Dec 2012 “Employee” Status Not Necessarily Dependent on Compensation

While Title VII discrimination claims apply only to “employees” and “employers,” the statute’s definitions of those terms are spectacularly unhelpful. An employee is someone who is employed by an employer. 42 U.S.C. § 2000e(b) & (f). Thanks, Congress! In light of this thoroughly circular definition, courts use agency principles to determine employment status when such is not clear. An illustrative opinion was recently issued by the Northern District of Illinois in Volling v. Antioch Rescue Squad. In Volling, one of the main questions was whether the members…

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05 Dec 2012 Census Bureau Release Workforce EEO Numbers

Last week, the U.S. Census Bureau released the 2006-2010 American Community Survey EEO tabulation that examines the diversity in the U.S. labor force. In the past, the Census Bureau has produced the tabulation after every 10-year census. However, for the first time, the bureau used the 2006-2010 American Community Survey estimates in its report.  The actual tables produced by the tabulation can be generated at the Census Bureau’s American FactFinder page available here. Federal agencies use the numerous tabulations as a monitoring device while employers…

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29 Nov 2012 Southern District of Indiana Limits Scope of Discovery Sought From Former Employers for Whom Plaintiff May Obtain Re-Employment Pursuant to Union Working Agreement

In an opinion issued earlier this week in Grant v. Graycor Industrial Constructors, Inc., Cause No. 3:12-cv-44-RLY-WGH, Magistrate Judge Hussmann of the U.S. District Court for the Southern District of Indiana affirmed the propriety of discovery from a plaintiff’s prior employers in the context of a Title VII discrimination/retaliation suit, while discussing the potential limits on such discovery under certain circumstances, and providing guidance to employers as to factors to consider when pursuing non-party discovery. Specifically, Judge Hussman held that information regarding a plaintiff’s prior…

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27 Nov 2012 Supreme Court Examines “Supervisor” Definition In Bias Suits

On Monday, the U.S. Supreme Court heard oral arguments regarding the definition of a “supervisor” as it relates to an employer’s vicarious liability under Title VII of the Civil Rights Act of 1964.  In Vance v. Ball State University, the Court pressed both sides to explain what the impact would be should it expand the “supervisor” definition under Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) should the Court choose to expand the…

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26 Nov 2012 Seventh Circuit Rejects EEOC’s Claim of Confidentiality Violations Under the Americans with Disabilities Act

In its opinion issued in EEOC v. Thrivent Financial for Lutherans, No. 11-2848, which can be found here, the U.S. Court of Appeals for the Seventh Circuit affirmed the award of summary judgment to Thrivent Financial for Lutherans (Thrivent), and rejected the Equal Employment Opportunity Commission’s (EEOC) arguments that Thrivent had violated the Americans with Disabilities Act (ADA) when it had revealed information regarding a former contract employee’s migraine condition to a prospective employer. The Seventh Circuit’s rationale hinged on the fact that Thrivent had…

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26 Nov 2012 When Is Facebook Activity “Solicitation?”

Employers who have restrictive covenants with employees likely are familiar with non-solicitation agreements, where employees agree not to “solicit” the employer’s customers or other business associates after the employment relationship terminates. After an employee leaves and questions are raised about whether the employee is violating his or her contractual obligations to the now-former employer, often there is a question as to when communication and contact with customers becomes prohibited solicitation. A Massachusetts court’s decision in the recent case, Invidia LLC v. DiFonzo 2012 WL 5576406…

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21 Nov 2012 They Know They Have It Too Good

As we reported earlier this week, federal government over pays its employees compared to the private sector by anywhere from 15-59% in wages (depending upon how you do the calculations) and by 44% when it comes to benefits. Using these figures, bringing the $200 billion the government spends on civilian employee compensation in line with the private sector could save the government hundreds of billions of dollars over 10 years — before cutting any programs or entitlements. Now realizing that their largely unnoticed government largess…

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