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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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17 Aug 2012 Eighth Circuit Holds That Independent Sales Representative Is Contractor Despite 27-Year Engagement With Company

In recent years, there has been a lot of attention devoted to properly designating employees as contractors.  The recent spike in lawsuits and aggressive enforcement actions by state and federal agencies have made many employers edgy about whether they are misclassifying contractors. Fortunately, the Eighth Circuit handed down a decision yesterday in Fesler v. Whelen Engineering Co., No. 11-2666 (8th Cir. Aug. 16, 2012), which should provide some useful guidance on this issue, and especially for employers that engage outside sales personnel for long periods…

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17 Aug 2012 The Patchwork Application of the CFAA

Go ahead, all you employees on the west coast and the mid-southeast. Please. Use your employer’s computers to download confidential documents, surreptitiously transfer the company’s contacts, and “borrow” all the forms you need to start your own competing company. As it turns out, the federal law known as the Computer Fraud and Abuse Act (CFAA) doesn’t apply to you. (*Side note* We aren’t suggesting that you actually do this.) But, beware if you live in other parts of the country—for example, in Chicago, Dallas or Atlanta. …

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17 Aug 2012 Southern District of New York Denies ADA & FMLA Plaintiff’s Motion For Summary Judgment & Instead Grants Summary Judgment For Employer

Proving there is truth in the age-old saying that you should be careful what you wish for, a plaintiff in New York who moved for summary judgment against his employer instead found himself on the receiving end of summary judgment when the court denied his motion and entered judgment for the employer – even though the employer didn’t move for summary judgment on its own. The case is Rodriguez v. Atria Senior Living Group, Inc. (10-cv-8965-ER), and was issued by the Southern District of New…

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16 Aug 2012 Indiana Plaintiff Defeats Legitimate Nondiscriminatory Reason Defense

A usually reliable defense in federal court employment cases is the legitimate, nondiscriminatory reason, but recently, that defense turned out not to be enough in a sex discrimination claim. As a refresher, an employee who believes she was not selected for a given position because of her race or sex – or any other protected characteristic, for that matter – can establish a prima facie case of discrimination at the summary judgment stage using the commonly used McDonnell Douglas method.  To do so, she must…

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16 Aug 2012 Another California Court of Appeal Struggles to Come To Grips with Arbitration

Earlier in August, we issued an Alert detailing continued hostility to arbitration of employment disputes in some corners of the California state courts, even following the U.S. Supreme Court decisions in Stolt-Nielsen v. AnimalFeeds Internat. Corp., __ U.S. __ [130 S.Ct. 1758] (2010) (“Stolt-Nielsen”) and AT&T Mobility LLC v. Concepcion, 563 U.S. __, 131 S.Ct. 1740 (2011) (“Concepcion”).  On August 13, 2012, yet another California Court of Appeal weighed into the fray, but provided little clarity. The California Court of Appeal decision in Truly Nolen of…

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13 Aug 2012 Obama nominates Yang for EEOC Commissioner

According to a recent White House press release, President Obama will nominate Jenny R. Yang for EEOC Commissioner. This nomination follows the recent early resignation of Stuart J. Ishimaru, leaving a vacancy on the five-seat Commission. Ms. Yang is currently a partner at a law firm in Washington, D.C., where she has practiced in the Civil Rights and Employment Practice Group since 2003. If her nomination is confirmed by the Senate, she will serve as Commissioner until July 1, 2017 and she will be the fourth…

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08 Aug 2012 EEOC’s Litigation Focus Includes Cases Involving Teen Workers

While the EEOC receives thousands of charges each year, it selects very few to go forward to litigation with EEOC as the plaintiff. It is no easy task to predict which specific charges will become lawsuits litigated by EEOC, but charges that involve allegations of discriminatory treatment against multiple individuals – including teen workers – seem to be among those that attract attention at the federal agency. A case in point is the recent resolution for $1 million of a federal court lawsuit that EEOC brought in Wisconsin…

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07 Aug 2012 EEOC General Counsel Discusses Drop in Systemic Case Filings, Announces New Priorities

As the EEOC anticipates filing fewer systemic cases in fiscal year 2012 than it did in FY 2011, it also will shift its priorities to hiring discrimination cases and cases involving vulnerable workers, according to recent statements by EEOC General Counsel P. David Lopez. In discussing systemic case filings, Lopez attributed the drop to existing litigation and limited resources to take on new cases. The EEOC established its “Systemic Initiative” in 2006, defining systemic cases as “pattern or practice, policy and/or class cases where the alleged discrimination…

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06 Aug 2012 New Illinois Law Prohibits Employers from Seeking Social Media Password Information

Employers in Illinois will be prohibited from seeking social networking password information from employees and applicants starting Jan. 1, 2013, now that Illinois Governor Pat Quinn has signed into law Public Act 097-0875, which is an amendment to the Right to Privacy in the Workplace Act, 820 ILCS 55/10. As we previously reported, the legislation makes it unlawful for an employer to require an employee or applicant to disclose passwords or other related social networking account information in order for the employer to access information…

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03 Aug 2012 Split Among Federal Circuits Deepens Regarding Administrative Exhaustion of Post-Charge Retaliation Claims

Year after year, retaliation is at or near the top of the list of the most common charges filed with the EEOC.  After receiving a right to sue notice, many plaintiffs, however, add a retaliation claim to their federal court complaints based on alleged employer conduct occurring after the EEOC charges have been filed. Traditionally, these claims have been allowed to proceed – despite not having been raised in the EEOC charge – under the theory that such claims grow out of or are sufficiently…

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