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BT Currents - Hot Topics in Employment Law
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19 Aug 2013 OFCCP Champions the Rights of Male Workers

Employment Discrimination | Janilyn Daub

Who said no one cares about the white male under 40? Take heart men – the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) cares about you and your employment rights. As part of an affirmative action audit of a government contractor, OFCCP found that the contractor discriminated against males applying for entry-level positions that involved contact with the public.  Perceptions that women have better customer service skills played into hiring decisions favoring women, found OFCCP. As a result, 200 qualified male applicants did not…

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15 Aug 2013 FMLA Extended to Same-Sex Couples in 13 States

Employee Health Issues | Jerry Lutkus

Labor Secretary Thomas E. Perez has quickly responded to the Supreme Court’s decision in Windsor.  In an e-mail, Perez announced that the Department of Labor has already updated several guidance documents to remove DOMA and its definition of spouse from the FMLA. The net effect of the move is that spousal leave and job restoration protections are now available to the spouses of legally married same-sex couples in states that permit same-sex marriage.  The FMLA defines “spouse” as a husband or wife recognized under the…

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15 Aug 2013 Second Circuit Rules that Class Action Waivers are Allowed Under the FLSA

Fair Labor Standards Act | Doug Oldham

Employers recently won a major victory in the Second Circuit with the release of Sutherland v. Ernst & Young, LLP, in which the court held that class action waivers are not prohibited under the Fair Labor Standards Act (FLSA). Consequently, arbitration agreements with employees that require them to arbitrate their claims individually are lawful in the Second Circuit. The court previously had invalidated class action waivers in arbitration agreements in In re American Express Merchants’ Litigation (AmEx I) on the theory that plaintiffs would face…

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13 Aug 2013 EEOC Not Faring Well in Background Check Disparate Impact Cases

EEOC | BT Currents

The EEOC’s crackdown on the use of background checks has taken another body blow, this time delivered by federal Judge Roger Titus out of the District of Maryland. After a recent spate of adverse decisions in such cases (including cases against BMW Group and Kaplan Higher Education Corp.), national event planning company Freeman found itself in the agency’s cross-hairs. The opinion, granting Freeman summary judgment, can be found here.  While acknowledging that it is possible to prove a discriminatory disparate impact (here, against African-Americans and…

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12 Aug 2013 Sixth Circuit: No Way to Agree to Shorten FLSA Statute of Limitations

Fair Labor Standards Act | Bill Nolan

In 2004, a Sixth Circuit decision, Thurman v. DaimlerChrysler, drew much attention by upholding in the context of a Title VII and state law discrimination claim a provision on the employer’s employment application that read: I agree that any claim or lawsuit relating to my service with [DaimlerChrysler] or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to…

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09 Aug 2013 EEOC Hit With $4.7 Million in Attorneys’ Fees and Costs

EEOC | BT Currents

On Aug. 1, the U.S. Equal Employment Opportunity Commission (EEOC) was ordered to pay $4.7 million in attorneys’ fees and costs in the litigation it brought against CRST Van Expedited (CRST) in 2007. In that litigation, the EEOC alleged that female workers had been sexually harassed by male employees and trainers. CRST challenged the sweeping sexual harassment claims brought by the EEOC and U.S. District Court Judge Linda R. Readle agreed, describing the EEOC’s tactics in identifying the class of female workers as a “moving…

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05 Aug 2013 Pardon the Interruption: The 2013 ABA Blawg 100 List

Social Media and Technology | BT Currents

Once a year, the ABA Journal publishes a list of the 100 best legal blogs. This year, the call for nominations is due no later than Aug. 9, 2013. Not to toot our own horn, but we here at BT Currents think we’ve carved a nice little niche in the employment blog world and wouldn’t argue with the editors of the ABA Journal if BT Labor Relations made this year’s list.  There’s just one little problem: We can’t nominate ourselves for this year’s list. Bummer. Fortunately, that’s where you, our regular readers come in….

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26 Jul 2013 Indiana Court of Appeals Upholds the Enforcement of a Five-Year Non-compete Agreement

Noncompetes and Trade Secrets | Mark Scudder

When Indiana employers draft non-compete agreements, they must weigh whether the Indiana courts will find their agreements’ restrictions to be reasonable, and therefore enforceable.  The Indiana Court of Appeal recently issued a decision which illustrates how restrictive these agreements can be.  In Mayne v. O’Bannon Publishing Co. d/b/a Corydon Instant Press, the court upheld the enforcement of a five-year non-compete agreement covering a two-county area. O’Bannon Publishing Co. employed Elizabeth Mayne as a manager at its facility in Harrision County, Indiana, which is directly across the…

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25 Jul 2013 Associational Discrimination: Perfectly Healthy Employee Can Have Disability Claim

Employment Discrimination | Bill Nolan

A recent Massachusetts Supreme Court decision highlights a form of discrimination that employers may not always remember – associational discrimination. Associational discrimination is workplace discrimination against one for his relationship with another, and is expressly recognized in the Americans with Disabilities Act. In this case, the court recognized such a claim under a counterpart state law. In Flagg v. Alimed, Inc., a long-time employee’s wife had surgery for a brain tumor and the employee needed extra time to care for his children. The employee’s manager told him “to…

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24 Jul 2013 Unpaid Interns Strike Back – Lawsuits on the Rise Alleging Unpaid Wages

Fair Labor Standards Act | Mark Kittaka

  There has been a recent rash of lawsuits filed by unpaid interns against their former employers alleging that they should have been paid minimum wages and overtime. Unfortunately for employers, the plaintiffs have been successful and the lawsuits are escalating both individually and on a class basis.   It all began with a lawsuit by unpaid interns against Fox Searchlight. These interns worked on the film “Black Swan.” On June 11, 2013, a Federal District Court Judge sided with the interns in his decision…

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