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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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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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21 Nov 2012 Hand it Over: Federal Judge Orders Plaintiffs in Discrimination Lawsuit to Produce Cell Phones and Facebook Account Passwords

Plaintiffs in an employment discrimination lawsuit brought by the Equal Employment Opportunity Commission (“EEOC”) recently were ordered to hand over their cell phones and Facebook account passwords for in camera (i.e. private) inspection by a federal Magistrate Judge. In this case, the EEOC brought suit alleging the defendant employer had subjected a class of female employees to sexual harassment and retaliation. During the course of discovery, the employer moved to compel the production of various text messages and social media posts. According to the Magistrate…

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19 Nov 2012 Overpaying Our Way Over The Edge of The Fiscal Cliff

While the debate about the fiscal cliff has been about what services to eliminate and how much to raise taxes, ignored almost entirely is the fact that the government grossly overpays for the services it buys. According to the most recent data from the Bureau of Labor Statistics, the median salary for a federal government employee (including the Post Office) was $70,100 per year. For all private sector workers, that number was $43,980. That is, federal government employees are paid 59.4 percent more in salary…

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16 Nov 2012 En Banc Sixth Circuit Strikes Down Portions of Michigan’s Constitutional Amendment on Affirmative Action

Yesterday (Nov. 15, 2012), the United States Court of Appeals for the Sixth Circuit, sitting en banc, voted 8 to 7 to strike down portions of the amendment to Michigan’s constitution that barred the use of affirmative action in the admissions to public colleges and universities. The copy of the decision can be found here. In 2006, Michigan voters passed a referendum known as Proposal 2, which amended the Michigan Constitution to bar discrimination, as well as preferential treatment, toward “any individual or group on…

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