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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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28 Feb 2013 Same Sex Harassment Claim Against Straight Male Supervisor Cannot Be Dismissed, Says Second Circuit

  The Second Circuit Court of Appeals recently ruled that a male employee’s claim for sex discrimination under Title VII against his male supervisor could go forward, reversing the district court’s ruling in favor of the employer.   According to the plaintiff, a certain supervisor at the food manufacturing company where he worked constantly made vulgar comments toward him and other male employees regarding fellatio and using homosexual slurs. In addition, the supervisor frequently grabbed or hit the male employees in their genitalia. There was no…

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27 Feb 2013 Court Upholds Random Alcohol Testing of New Coke Plant Employees

For the last couple of years, the Equal Employment Opportunity Commission (EEOC) has been targeting companies that have implemented random employee drug-testing for class-action lawsuits. Under the Americans with Disabilities Act (ADA), employers are generally limited as to when they can administer medical examinations, including drug tests. The two main exceptions to this limitation are when the examination is job-related and consistent with business necessity (which remains, in the words of the court, “a nebulous concept”), and when confirmation is needed to support an accommodation…

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21 Feb 2013 U.S. Supreme Court Agrees to Clarify FLSA’s Exemption for Donning and Doffing Time

The United States Supreme Court has granted certiorari in Sandifer v. U.S. Steel, Corp., No. 12-417, in order to consider what constitutes “changing clothes” under the Fair Labor Standards Act (FLSA). The appeal was filed by a class of U.S. Steel, Corp. employees who alleged they were not paid for the time spent putting on and taking off their protective gear, in violation of the FLSA.  Though not addressing all aspects of the U.S. Court of Appeals for the Seventh Circuit’s dismissal of the employees’…

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18 Feb 2013 The Letter of the Law Proves Equally Applicable to Employees in FMLA Disputes

In many instances, it is the employer who is penalized for failing to strictly comply with the letter of the law in relation to FMLA leave and notices. Recently, however, an employee in the process of changing medical providers learned the hard way of the equal application of such requirements to both employer and employee, after the Court tossed her suit in finding such transition does not automatically absolve her of the requirement to submit a valid Certification of Health Care Provider (CHCP) to obtain…

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13 Feb 2013 OFCCP to Focus on Criminal Background Checks

Alert to Federal contractors:  The Office of Federal Contract Compliance Programs (OFCCP) has added criminal background checks to its compliance checklist. On Jan. 29, 2013, OFCCP issued Directive 306, notifying federal contractors and subcontractors that use of criminal background checks to screen applicants for open positions may violate Title VII. OFCCP noted that because racial and ethnic minorities are arrested and convicted at a higher rate than whites, excluding job seekers based upon their criminal history may be discriminatory. OFCCP indicated its intent to follow the EEOC’s Enforcement Guidance on the use of arrest and conviction records issued on April 25, 2012. In that Guidance, EEOC noted that use of criminal background…

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12 Feb 2013 Accommodating the Commute

Most employers are aware of their duty to engage in the interactive process in order to explore accommodations that will allow an employee to perform the essential functions of their position. But what if the employee’s requested accommodation relates solely to their commute to work? Does the Americans with Disabilities Act (ADA) require that an employer remove barriers that exist outside the workplace? In Regan v. Faurecia Automotive Seating, Inc., 679 F.3d 475 (6th Cir. May 10, 2012), the plaintiff suffered from narcolepsy. While working…

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11 Feb 2013 OSHA – Regulatory and Enforcement Update

With four more years of the Obama administration, expect increased enforcement efforts from OSHA as we have seen in the past four years. As noted last year, even without formal statutory reform, OSHA managed to double the average fines given to employers through an internal administrative penalty bulletin and the Severe Violator Enforcement Program (SVEP). The outlook for 2013 appears to be more of the same. The scope of enforcement activities of OSHA may expand as well with the creation of the Whistleblower Protection Advisory…

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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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