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BT Currents - Hot Topics in Employment Law
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23 Jun 2016 OSHA’s New Mandatory Electronic Recordkeeping Rule The Hidden Requirements for Anti-Retaliation and Discrimination Require Action Before Aug. 10, 2016

As you may be aware, the Occupational Safety and Health Administration (OSHA) has published a new final rule revising the recordkeeping and reporting requirements. OSHA’s summary of its new final rule can be found here and the full text of the recordkeeping regulations can be found here.   While a lot of buzz is occurring around the new electronic submission requirements that become effective Jan. 1, 2017, there are significant developments which are not explicitly referenced in the regulations which require action by Aug. 10,…

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05 Jan 2016 New Year, New Laws: Welcome to 2016 in California

  In true California fashion, new measures that took effect on Jan. 1 will benefit millions of workers while posing additional challenges for employers. Some are broad, while others have a narrower focus. Below is a round-up of the notable New Year’s laws:   Minimum Wage The state minimum wage increased to $10 perhour. The $10 rate is the highest minimum in the nation—don’t worry Californians, Massachusetts also adopted this rate. For some comparison, the federal minimum is $7.25 perhour. Keep in mind that with the…

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21 Nov 2015 Breaking News: Refusing to Allow an Employee to Rescind His Or Her Voluntary Resignation Can Get You Sued

Here is the scenario. Your employee decides to voluntarily resign. She gives plenty of notice. Before her scheduled end date, the employee provides information relevant to a sexual harassment investigation involving her supervisor. Before the scheduled end date, the employee tries to rescind her employment. The supervisor refuses. Here’s the question: Is the refusal to allow the employee the opportunity to rescind her resignation an “adverse employment action” for purposes of a retaliation claim?   It could be, at least according to the Fifth Circuit Court of Appeals. A similar scenario played out…

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07 May 2015 Pitfalls in Citing “Advice of Counsel” in Decision Making

A case decided in April underscores the risks and unanticipated consequences of referring to “advice of counsel” in defending adverse employment actions. A former hospital employee sued in federal court for alleged sexual harassment, assault, retaliation and FMLA violations. In discovery, both the hospital’s CEO and its human resources manager testified not only that they sought the advice of the hospital’s employment attorney when considering whether to place the employee on extended probation, but also that the hospital’s counsel recommended the specific action taken. The…

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29 Apr 2015 Supervisors Are Employees Too … to the Tune of $6.6 Million

What termination of a single employee can justify a $6.6 jury award?  (The punitives award was reduced by the lower court from $15.9 million. The employee also received $2.2 million in non-punitive damages). According to the Ninth Circuit Court of Appeals, the federal appeals court for western states including California, the following elements justify a lower court jury’s award in this amount:   Discharge found to be in retaliation for suing for overtime pay, reporting violations to OSHA and Department of Transition, and inciting other…

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27 Mar 2015 Abusive Work Environment Proposed Legislation Introduced in Minnesota

Earlier this week, proposed legislation was introduced in the Minnesota State Senate aimed at making abusive conduct in the workplace illegal and holding both employees and employers accountable. This proposed legislation would be in addition to existing Minnesota laws which prohibit discrimination and retaliation in the workplace.   According to S.F. No. 1932, an employer would be held vicariously liable if an employee subjects another employee to “an abusive work environment.”  The employee could escape individual liability if he or she can demonstrate the employee…

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27 Mar 2015 When is a Disclaimer Not a Disclaimer? Certain Employment Policies Trump “No Contract” Disclaimers in Handbooks

An employer’s whistleblower policy and its grievance policy are implied contractual promises that employees may enforce, notwithstanding the valid disclaimer that employment policies are not contracts contained in the company’s employee handbook. So says the U.S. District Court for the District of Columbia in a recent case involving a non-profit organization’s employee who included multiple implied contract and promissory estoppel claims in her post-termination lawsuit.  Leyden v. American Accreditation Healthcare Commission, No. 1:14-cv-01118, March 18, 2015.  The court ruled that a whistleblower policy and a…

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06 Feb 2015 EEOC Data Released for 2014 Shows Uptick in Retaliation Charges and Allows For State-By-State Comparison of Charge Activity

The EEOC has released its private sector data tables and a press release regarding enforcement data for fiscal year 2014. This data establishes that 42.8 percent of the 88,778 charges of workplace discrimination received by the agency alleged retaliation – an all-time high, despite there being an overall downtick in overall charge filing attributed to the government shutdown during the reporting period.   Through its enforcement efforts, and prior to litigation, the EEOC obtained more than $296 million in monetary relief, with more than $22…

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20 Nov 2014 Yikes!! AutoZone Hammered with Record $185 Million Dollar Punitive Damages Jury Verdict

A federal jury – not surprisingly from California – recently issued a whopping $185M ($185,000,000) punitive damages verdict in a single-employee gender discrimination case, believed to be a record award. The plaintiff also received over $872k in compensatory damages for front pay, back pay and emotional distress. The case is entitled Juarez v. AutoZone (Case No. 3:08-cv-00417), and currently sits in the Southern District of California.   Ms. Juarez, who originally filed the suit in 2008, claimed that AutoZone imposed a glass ceiling on women…

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03 Nov 2014 Nassar A Year Later: Pennsylvania ADA Retaliation Case Considers Impact of Supreme Court’s Decision LETTER OF THE LAW: CURRENT EMPLOYMENT LAW ISSUES A-Z

Readers will recall a flurry of U.S. Supreme Court decisions as the Court’s term ended in mid-2013. One of these decisions was University of Texas Southwestern Medical Center v. Nassar – this week’s letter of the law is N for Nassar. In Nassar, the Court held that Title VII retaliation claims should be decided under a “but for” rather than “motivating factor” causation test.  This is one of those decisions where almost anybody but an employment lawyer thinks, “That’s nice – what’s that mean?”  Generally…

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