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BT Currents - Hot Topics in Employment Law
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27 Jul 2012 Offers of Judgment Support Dismissal of Wage and Hour Claims

A federal district court in Illinois recently granted an employer’s motion to dismiss federal and state wage and hour claims asserted by two employees because the court determined it lacked subject matter jurisdiction.  In Avila v Watts Electric Co, Inc, the employer made offers of judgment to both employees, which included the “total amount of wages owed” and “reasonable attorney’s fees and costs to be determined by the court.”  The plaintiffs each rejected these offers of judgment.  Watts Electric Co. then filed a Rule 68…

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25 Jul 2012 EEOC Cannot Claim “Deliberative Process Privilege” To Preclude Investigator’s Deposition

The United States District Court of the Southern Division of Alabama recently denied the Equal Employment Opportunity Commission’s (EEOC) motion to quash the deposition of the investigator assigned to the underlying Charge of Discrimination. In Equal Employment Opportunity Commission v. Southern Haulers, Inc., the EEOC argued that the “deliberative process privilege” prohibited the defendant from deposing the investigator about “the steps she took in conducting the investigation, the documents produced by EEOC as part of its investigative file, inconsistencies in the documents contained in EEOC’s…

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24 Jul 2012 Pennsylvania District Court Conditionally Recognizes Novel “Over-50” Class

The U.S. District Court for the Western District of Pennsylvania has denied an employer’s motion to certify various questions for interlocutory appeal in relation to the grant of conditional certification of a class of employees over the age of 50 in an Age Discrimination in Employment Act (“ADEA”) lawsuit filed against it.  Specifically, in Karlo v. Pittsburg Glass Works, LLC., No. 10-1283, slip op. (W.D. Pa., July 20, 2012) (Barry Fischer, J. ), the defendant sought leave to certify three questions for appeal in relation…

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23 Jul 2012 Plaintiff’s Claim for Direct Violation of Breast Milk Expression Provisions of the PPACA Required to Be Filed Directly With DOL

The United States District Court for the Northern District of Iowa recently dismissed a plaintiff’s claim pertaining to her right to privacy in expressing breast milk in the workplace, pursuant to the Patient Protection and Affordable Care Act (the “Act”).  The opinion, which can be found here, granted the defendant’s motion to dismiss in part, finding that the more appropriate forum for the plaintiff’s complaint — that she was not afforded a place to express breast milk that was “shielded from view and free from…

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20 Jul 2012 Electronic Monitoring of Employees’ Telephone Conversations: A Quick Reminder for Employers

Some employers concerned with excessive use of business phones for personal use may wish to adopt a practice of monitoring employees’ telephone calls placed over company phone lines. Other employers might wish to monitor phone usage in order to evaluate the level of customer service provided by their employees.  And suspected wrongdoing by one or more employees may cause employers to want to monitor telephone usage. Whatever the reason for monitoring, employers need to be aware that the practice is not without risk. For example, the Omnibus…

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17 Jul 2012 EEOC Meeting on Strategic Enforcement Plan

In February 2012, the United States Equal Employment Opportunity Commission (EEOC) approved a Strategic Plan for Fiscal Years 2012-2016. The first performance measure of the Plan requires the EEOC to approve a Strategic Enforcement Plan, which it currently is developing. The purpose of the Plan is to leverage agency resources to focus on high impact lawsuits that will obtain relief for large numbers of individuals.  The text of the Plan can be found here.  To that end, the EEOC will hold an open meeting on…

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16 Jul 2012 Sixth Circuit Expands on “Cat’s Paw” Discrimination

Readers may remember the Staub v Proctor Hospital decision issued by the U.S. Supreme Court in March 2011, essentially holding under the “cat’s paw” theory that employers may be liable for discrimination if the decision maker relies on input from subordinates with discriminatory intent, even if the decision maker did not have discriminatory motives. In addition to the question, “why is it called ‘cat’s paw’ anyway” (more on that below), employers as with most Supreme Court decisions are waiting to see how the rule evolves as…

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13 Jul 2012 OSHA – Employers have a duty to help prevent heat-related illnesses

Although the oppressive heat wave that affected much of the country is behind us for now, as the summer rolls on we can expect that additional hot weather will continue to pose challenges for those who work outdoors or in locations where heat can build up to extreme levels. Prevention of heat-related illnesses can be even more of a priority with temperatures in excess of 100 degrees that cause the heat index to soar to potentially dangerous levels.  To help employers anticipate issues that can arise when…

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12 Jul 2012 Crossing the Minefield of Criminal Background Checks

The EEOC’s recent guidance on criminal background checks spawned numerous legal updates, alerts and webinars (including ours) talking about the new limitations for employers on pre-employment inquiries and applications.  In Indiana, this focus has underscored the importance of two other laws regarding background checks: 1. The federal Fair Credit Reporting Act (FCRA), and2.  July 1 changes to Indiana’s law on an individual’s criminal history (HEA 1033).  As a reminder, an employer that relies on a third party for criminal history reports has waded into coverage…

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11 Jul 2012 Montana Supreme Court Holds Obesity Alone Is An Impairment

On July 6, 2012, the Montana Supreme Court held that obesity alone, without any underlying physiological disorder or condition, constitutes an impairment for purposes of the Montana Human Rights Act “MHRA).  A copy of the case, BNSF Railway Co. v. Feit, can be found here.  In BNSF Railway, Feit, an applicant for employment at BNSF, filed an administrative complaint with the Montana Department of Labor and Industry (the “Department”) claiming that BNSF discriminated against him because of a perceived disability—obesity—in violation of the MHRA.  The…

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