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BT Currents - Hot Topics in Employment Law
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24 Oct 2012 On The Radar: Supreme Court Set to Resolve Circuit Split as to Definition of Supervisor Under Title VII

The Supreme Court of the United States has agreed to review a Seventh Circuit decision involving the definition of a “supervisor” under Title VII.  The case, Vance v. Ball State University, could have significant employment law ramifications because “supervisors” automatically subject an employer to vicarious liability for its supervisors’ harassing conduct. Currently, the Seventh Circuit requires that employees have the authority “to hire, fire, demote, promote, transfer, or discipline an employee” to be considered a supervisor.  This bright-line, narrow definition ensures that alleged supervisors have…

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22 Oct 2012 EEOC Must Abide By 300-Day Rule in Pattern and Practice Case, Says New Jersey Federal Court

Although federal courts are divided on the issue, recent case law seems to be trending toward holding the Equal Employment Opportunity Commission (EEOC) accountable for complying with the normal requirement under Title VII and the Americans with Disabilities Act (ADA) that administrative charges must be filed within 300 days (or 180 days where there is no state agency equivalent to the EEOC) of the discriminatory event. In the latest case to weigh in on the issue, the District of New Jersey dismissed all potential claims…

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19 Oct 2012 Proposed Legislation Would Reform Ohio Employment Bias Laws

S.B. 383, which can be found here, was introduced earlier this week in the Ohio state Senate and seeks drastic change to Ohio’s state employment bias laws. Specifically, if the legislation were to be passed and enacted in its current form, a number of employer-friendly revisions would be made.  Included among those proposed changes are: 1.      a requirement that an employee opt to choose either to file an administrative charge with the Ohio Civil Rights Commission or to file a complaint in court (as opposed…

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18 Oct 2012 Seventh Circuit Sides With Defendants On Eavesdropping Case

Earlier this week, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment for the employer and two individual defendants in an eavesdropping claim brought by a former employee, who was fired after making a threatening telephone call to a colleague at his home.  In Carroll v. Merrill Lynch, the plaintiff, Mary Carroll, was fired as a result of her conduct during a phone call with her co-worker, Jim Kelliher, whom she called at his home on Thanksgiving night.  Upon hearing the exchange…

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16 Oct 2012 High Court Will Not Evaluate Whether Summary Judgment Orders Violate Plaintiffs’ Seventh Amendment Rights

Yesterday, the U.S. Supreme Court denied an Illinois police officer’s petition for review of whether the Seventh Amendment’s right to jury trial is violated when a federal court grants an employer’s motion for summary judgment (Kidwell v. Eisenhauer, U.S., No. 12-226, cert. denied Oct. 15, 2012). Kenneth Kidwell, the petitioner and an Illinois police officer, alleged he was terminated as a result of his criticisms of the police department’s management.  Kidwell argued this was in violation of his First Amendment rights. Ultimately, the Seventh Circuit disagreed…

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16 Oct 2012 Congressional Investigation Targets WARN Act Guidance Issued to Defense Contractors

A congressional investigation has been initiated in response to the Obama administration’s guidance advising defense contractors not to issue budget-driven layoff notices in accordance with federal WARN Act provisions.  The investigation, lead by Rep. Darrell Issa (R-Calif.), who serves as the Chair of the U.S. House of Representatives’ Oversight Committee, seeks correspondence between the White House and various defense firms to determine whether any guidance issued runs afoul of WARN Act requirements and encourages contractors to disregard employment laws. Specifically, with the upcoming November elections,…

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11 Oct 2012 Ohio Supreme Court Reverses Self on Noncompete in Merger Situation

Earlier this year, the Ohio Supreme Court surprised observers in the Acordia of Ohio LLC v. Fishel case by holding that an acquiring company in a statutory merger could not enforce noncompetes entered into with the acquired company by employees who continued to be employed absent clear contractual agreement to that.  Today, the Court in effect reversed itself, coming back into line with the great majority of the states. A summary from the court can be found here.  Historically, in a corporate merger where the acquirer buys…

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10 Oct 2012 Even When You Win, You Might Still Lose: NLRB Strikes Back After Employer Prevails In Federal Court

While we typically defer to the BT Labor Relations Blog when it comes to analysis of “traditional labor” matters, the National Labor Relations Board’s (NLRB) decision in Federal Security, Inc. is worth mentioning here. Federal Security provides armed security guards to public housing sites in Chicago.  The Company fired 19 of its security guards after they staged a “walk out.” The guards subsequently filed an unfair labor practice charge alleging their walk out was “protected concerted activity” under the National Labor Relations Act (NLRA) (i.e., the right for employees to act together…

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04 Oct 2012 NLRB Social Media Decisions Leave Questions for Employers

The NLRB issued its first decision on a social media policy on Sept. 7, 2012 (Costco Wholesale Corp.) finding the employer’s policy of preventing employees from posting statements that “damage the Company, defame any individual or damage any person’s reputation” as being unlawful.  This was to be expected given the ever expanding interpretations of the NLRB’s General Counsel set forth in his three prior Guidance Memoranda on social media policies.  However, on Sept. 28, 2012, the NLRB ruled on its first social media termination case and…

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04 Oct 2012 California Passes Law to Regulate Access to Employees’ Social Media Accounts

California has become the third state to pass a law restricting an employer’s right to require access to applicant’s or employee’s social media accounts as a term and condition of employment. Maryland and Illinois passed similar laws earlier this year. The new law takes effect Jan. 1, 2013. The law does provide that an employer still has the right to require that an employee disclose such passwords if it is relevant to an investigation into employee misconduct or violation of applicable laws.  While most employers do not have…

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