Monday, February 1, 2016
EEOC proposed significant pay equality changes to EEO-1
If your company has 100 or more employees, you should be very familiar with the federal government’s EEO-1 survey. The EEOC requires that you annually complete and file this form, which requests demographic on your employees, broken down by protected classes and job categories.
Last Friday, the White House made a game changing announcement about the information it proposes you submit in your EEO-1 filings.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, September 24, 2012
The one question I would ask President Obama during the debates
Four years ago, Dan Schwartz, on his Connecticut Employment Law Blog, answered the following question: What One Question Regarding Labor & Employment Law Would You Ask the Candidates During the Debates?
Four years ago, you campaigned on a promise to help working families. You promised to expand the FMLA to cover smaller employers, and promised that employers would be required to provide paid sick days to all employees. Yet, four years later, your track record on these issues is spotty at best. The only accomplishment to which you can point in the Lilly Ledbetter Fair Pay Act. What can you say to working families to earn their trust that the next four years will be different?Tomorrow, my question for Mitt Romney.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, April 1, 2011
WIRTW #171 (the actual retail price without going over edition)
Congratulations to Kristen ten Brink (@onthe10brink on Twitter), who submitted the winning bid to Medical Costs Price Is Right:
The actual retail price of a 19-day at the Cleveland Clinic, including all procedures, labs, doctors, etc., is $106,885.10, which is at least half of what I expected. Kristen, either email or DM me your contact information and I’ll send out your exciting prize package. And, thank you to everyone who participated.
Here’s the rest of what I read this week:
Dukes v. Wal-Mart
- A Skeptical U.S. Supreme Court Vigorously Questions Certification of a Mammoth Sex-Discrimination Class Action Lawsuit – from Employer Law Report
- Class-Action Lawsuits: Not The Answer for Workplace Gender Discrimination – from Harvard Business Review
- The Strong Pull of a “Day in Court”; Lessons Learned from Wal-Mart v. Dukes – from Daniel Schwartz’s Connecticut Employment Law Blog
- Supreme Court Hears Oral Arguments in Dukes v. WalMart Class Action Case – from HR Lawyer’s Blog
- SCOTUS Hears Largest Employment Law Class Action Ever – from Philip Miles’s Lawffice Space
- Fatal inconsistency in Wal-Mart Stores v. Dukes? – from LawMemo Employment Law Blog
- Oral Argument Held In Wal-Mart v. Dukes – from Laconic Law Blog
- The High Court’s Dukes v. Wal-Mart Hearing: Here is What it Might Mean – from TLNT
- Analysis Of The Supreme Court Argument In Dukes – from Workplace Class Action Litigation
- “Justices Take Up Key Issue in Wal-Mart Bias Suit” – from How Appealing
- Argument recap: A fatal flaw detected? – from SCOTUSblog
- Wal-Mart Class Action Goes to US Supreme Court – from San Antonio Employment Law Blog
- Dukes Proving To Be a Hazard to Wal-Mart – from Abovethelaw.com
- Duke v. Wal-Mart at Forbes Woman: Implicit Gender Bias and Social Science Evidence – from Settle It Now Negotiation Blog
- Reflections on the Supreme Court Argument in Dukes v. Wal-Mart – from TLNT
- Wal-Mart, The Missing Link, and Class Certification – from Stephanie Thomas’s The Proactive Employer Blog
Discrimination
- Booze, wild beaver, and a pregnant bartender. What! – from Eric Meyer’s The Employer Handbook Blog
- Former Employee Fired for Wearing Shorts – from San Antonio Employment Law Blog
- The Lilly Ledbetter Chickens Come Home To Roost – from Discriminations
- Is the ‘Mommy Track’ Still Taboo? – from The Juggle (WSJ)
- The USERRA does not provide a claim for hostile work environment – from Employment Law Matters
- 5 Ways Employers Make Plaintiffs’ Lawyers Very, Very Happy – from Employment and Labor Insider
- “Grace Period for ADA Modifications Proposed in Congress” – from Walter Olson’s Overlawyered
- Employment Nondiscrimination Act Back in Play – from Southwest Florida HR Law & Solutions
- I Reported Harassment and Now HR Wants to Meet With Me. What Do I Do? – from Screw You Guys, I’m Going Home
Wage & Hour
- Some Things Don't Have to Be In Writing: Supreme Court Protects Employees Against Retaliation After Making Verbal Complaints of Wage and Hour Violations – from Washington Workplace Law
- FLSA Scenarios: How Well Do You Know the Law? – from Michael Haberman’s Omega HR Solutions
- FMLA Atop the Top Ten Things that Trouble Human Resources - The Tricky Part of FMLA Leave Made Simple – from Employment Law 101
Social Media & Workplace Technology
- Look Before You Tweet: Employer May Be Liable For Impersonating Employee On Facebook, Twitter – from Hunton Employment & Labor Law Perspectives™
- E-Mail, Twitter, and Unsurprising Changes – from YourHRGuy
- Court Rules That Instant Message Conversation Modified the Terms of a Written Contract – from Technology & Marketing Law Blog
- McAfee Report: Hackers Are Targeting Corporate Trade Secrets Now – from Trade Secrets Blog
Labor Relations
- UPDATE: House Committee Votes to Amend Senate Bill 5 – from Vorys on Labor
- Ohio Set To Enact Anti-Union Bill – from Workplace Prof Blog
- Ohio’s John Kasich Signs Law Limiting Government Union Power – from LaborUnionReport
- NLRB Holds Employee’s Secret Recording of Meeting is Protected Activity – from Wisconsin Employment & Labor Law Blog
- Appeals Court Gives Hospital Go-Ahead to Ban Smoking Without Union’s Consent – from Joe’s HR and Benefits Blog
- Growth and evolution in the law on protected concerted activity – from Work Matters
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, December 3, 2010
WIRTW #155 (the two-drink-maximum edition)
I was not the only one this week commenting on the legal risks of office holiday parties:
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The Office Holiday Party - Alcohol-Induced Stupidity Can Lead to Serious Sexual Harassment Claims – from Daniel Schwartz’s Connecticut Employment Law Blog
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How To Avoid Holiday Party Pitfalls (and Liability) – from World of Work
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Your Career: Surviving the office holiday party – from msnbc.com
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Time to Get Your “Drink On” at the Office Holiday Party! – from Fistful of Talent
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Behave at Office Holiday Parties – from Lawyerist
If you’re planning on voting for me at the ABA’s Blawg 100, please do so before you indulge too much at your office party and forget to vote at all.
Here’s the rest of what I read this week:
Discrimination
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The FMLA, the ADA and retaliation – from Michael Maslanka’s Work Matters
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3d Circuit: Untimely Failure-to-Promote Claim Is Not Saved by Ledbetter Fair Pay Act – from Molly DiBianca’s Delaware Employment Law Blog
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Supreme Court May Clarify Use Of “Me Too” Evidence Of Employment Discrimination – from Hunton Employment & Labor Law Perspectives™
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A Room with a View – The Costly Consequences of Ignoring a Small Request for Accommodation – from Wyatt Employment Law Report
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Employers and the newly expanded ADA – from Overlawyered
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Record Gender Discrimination Class Action Settlement And Fee Award Given Final Approval – from Workplace Class Action Litigation
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I’m Harassed By Your Affairs With Others: A New Legal Threat Emerges (Gender Plus)... – from Kris Dunn, The HR Capitalist
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Lawsuit Alleges Hiring Discrimination Due to Credit Background Checks – from employeescreenIQ Blog
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10 Tips For Avoiding GINA Violations – from Workplace Privacy Counsel
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Disparate Impact Suit - Credit Checks – from Michael Fox’s Jottings By An Employer’s Lawyer
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Documentation is Key to Surviving OFCCP Audit – from New York Labor and Employment Law Report
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BIG LIES: “The check's in the mail,” and “I can fire you for a good, bad, or no reason” – from Employment and Labor Insider
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Job Descriptions and the ADA: Are Those ‘Essential Functions’ Really Essential? – from Case In Point
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Combining Romance and Work, Can Lead to Demotion or Even Termination From Employment – from Minnesota Labor & Employment Law Blog
Wage & Hour
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Wal-Mart Stores v. Dukes: Will SCOTUS grant certiorari? – from LawMemo Employment Law Blog
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Workplace Flexibility and the Military – from Workplace Prof Blog
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Verizon FMLA settlement may exceed $6 million – from The FMLA Blog
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Steeped-Up Independent Contractor Enforcement Initiatives Coming Down The Pike Full Steam – from Wage & Hour - Development & Highlights
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ESPN Zone Closure Prompts Lawsuit by Laid Off Workers – from Maryland Employment Law Developments
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You Be The Judge: Did the boss or the worker close FMLA door? – from HR Cafe
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Leon Rodriguez to Be Nominated for the Top Job at the Wage and Hour Division – from Wage & Hour Counsel
DOL/ABA Partnership
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The DOL’s Holiday Gift for the Plaintiff’s Bar – from FMLA Insights
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DOL/ABA Lawyer-Referral Program Threatens More FLSA Litigation – from Wage and Hour Laws Blog
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USDOL + ABA = Trouble? – from HR Observations
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DOL-Private Bar Collaboration for Workers with Employment Complaints – from EFCA & Labor Law Reform Blog
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The DOL’s Lawyer Referral Arrangement with ABA Not Likely to Help Employers or Employees – from Iowa Employment Law Blog
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White House Task Force Announces DOL-ABA Partnership to Facilitate Wage and Hour Challenges – from Washington D.C. Employment Law Update
Social Networking & Technology
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When the iPad Is the Only Computer Your Employees Need—or Want – from BusinessWeek
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When It Comes To Smartphones, Employers Better Watch Out – from Workplace Diva
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Blackberries, iPhones and Androids: Do SmartPhones Belong in Meetings? – from Suzanne Lucas, “The Evil HR Lady,” writing at bNet
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“Cyber Monday”: Myth Or Must-Day For Online Shopping? – from NPR
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Managing the Workplace in the Age of Social Media – from CPEhr
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How Grinchy Should Employers Be About Online Shopping? – from Manpower Employment Blawg
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, November 30, 2010
Do you know? EEOC reports record charge filings for 2010
The EEOC recently published its fiscal year 2010 FY 2010 Performance and Accountability Report. Given the state of the economy, its findings are not all that surprising. The EEOC reported a record number of discrimination charge filings, 99,922, its highest total in the agency’s 45-year history. What is surprising, however, is what the EEOC is doing with all these charges—it’s closing files.
Despite the record number of filings, the EEOC resolved 104,999 charges, leaving it with an inventory of 86,338 at the end of its fiscal year. While that number seems high, it’s less than a 1% increase from the end of FY 2009. By way of contrast, the EEOC’s pending inventory increased nearly 16% from FY 2008 to FY 2009. In other words, the EEOC is resolving cases—whether by mediation and settlement, litigation, or dismissals and right to sue letters.
Here’s what the EEOC has to say about the cause of this record number of filings:
This surge in charge receipts is due in part to the expanded statutory authorities that EEOC has been given with the ADA Amendments Act (ADAAA) of 2008; the Genetic Information Nondiscrimination Act (GINA) of 2008; and the Lilly Ledbetter Fair Pay Act of 2009 (the Ledbetter Act). We also attribute the rise in charge receipts to EEOC becoming more accessible, making charge filing easier and providing better, more responsive customer service. Our internal Intake Information Group expanded the agency’s availability by phone and e-mail. Additionally, in the last four years, the EEOC has concentrated on revamping its charge intake services, expanding walk-in hours, and issuing a plain language brochure to assist potential charging parties in understanding their rights and the EEOC charge process. Individuals can now contact the agency by phone, by mail, by e-mail, by going to the EEOC website, or by visiting EEOC field offices.
These record filings have resulted in record recoveries. In FY 2010, the EEOC secured more than $319.3 million for more than 18,898 people through administrative enforcement activities—mediation, settlements, conciliations, and withdrawals with benefits. This figure represents the highest level of monetary relief ever obtained by the Commission, and a $25.2 million increase from FY 2009. Of this record recovery, $85 million came from the resolution of 285 lawsuits brought by the EEOC.
What does all this mean for employers? The EEOC is no longer an agency where charges go to die. Employers can expect more thorough investigations, quicker resolutions, and more aggressive enforcement. If you are charged with discrimination with the EEOC, you should take it seriously; the EEOC is.
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, November 18, 2010
The failure of the Paycheck Fairness Act ends the golden age of employment law
The Democrats swept into office in January 2009 with promises of paradigm-shifting labor and employment law reforms: card check union recognition, Title VII coverage for sexual orientation and gender identity, expanded FMLA coverage, the end of arbitration agreements, and paid sick leave are but a few of the campaign issues on which the Democrats won the the White House and substantial majorities in both halves of Congress.
Yesterday, the Senate failed to vote to close debate on the Paycheck Fairness Act. That vote, coupled with the incoming Republican majority in the House, means that we likely have seen the end of any significant employment law reforms by the Obama administration’s first (only?) term. The scorecard is stunning. The lone significant employment law legislation to become law under Obama’s watch is the Lilly Ledbetter Fair Pay Act, which, in and of itself, is not all that significant. It affects the timeliness of discrimination claims, and potentially exposes businesses to more lawsuits. Yet, if you ranked the various pieces of legislation discussed and debated over the last two years, Ledbetter would rank pretty low in terms of societal impact.
In comparison, President Bush passed three key pieces of employment legislation during his last year in office: the FMLA military leave amendments, the ADA amendments, and the Genetic Information Nondiscrimination Act. The significance of these three laws will be felt for years to come.
In early 2009, I joined the chorus of employment lawyers who believed that President Obama would change the landscape of labor and employment law. No one ever likes to be wrong. For the sake of American businesses, many of which are still trying to climb out of the worse recession in 80 years, I have never been so happy to have been off the mark.
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, November 12, 2010
WIRTW #152 (the Facebook firing edition)
Last week, I wrote about the NLRB’s complaint against a Connecticut company claiming that its social networking policy violated federal labor law. Since then, the story has exploded across the Internet, being picked up by the New York Times, the Wall Street Journal, Law.com, the ABA, CNN, ABC News, MSNBC, Fox News, NPR, and cnet, to name a few. The NLRB itself has even gotten in on the act, updating its own Facebook page to publicly discuss the issue (not to pre-decide the case or anything). It’s also been a popular topic across the blogosphere:
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Are Employee’s Facebook Posts Protected Activity? – from Delaware Employment Law Blog
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NLRB Alleges that Connecticut Company Illegally Fired Employee Over Comments on Facebook – from Connecticut Employment Law Blog
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How does the NLRB’s Facebook firing complaint relate to the struggle against workplace bullying? – from Minding the Workplace
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NLRB Files Complaint Against CT Employer for Firing Employee Over Facebook Postings – from Wisconsin Labor & Employment Law Blog
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More On American Medical Response -- a/k/a The “Facebook Firing” Case – from Labor Relations Today
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Is Bashing your Boss on Facebook Protected Activity? – from HR Lawyer’s Blog
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Employee Fired for Disparaging Her Boss on Facebook – from San Antonio Employment Law Blog
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When Are Facebook Updates a Firing Offense? – from HBR.org
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NLRB: Facebook Discussions Between Co-Workers are Protected Speech – from Work in Progress
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NLRB Issues Complaint Over Employee’s Posting on Facebook – from Wyatt Employment Law Report
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Case To Watch: NLRB Challenges Employer’s Termination of Employee Based on Violation of Social Media Policy – from Digital Workplace Blog
Here’s the rest of what I read this week:
Discrimination
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Update: Teacher who allegedly branded cross onto student’s arm drops suit – from Walter Olson’s Overlawyered
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Non-sexual acts can support a sexual harassment claim – from Sindy Warren at the Warren & Hays Employment Law Blog
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Combating Stereotypes of Workers with Disabilities – from DOL’s Work in Progress
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Third Circuit Holds Ledbetter Fair Pay Act Does Not Save Untimely Failure-to-Promote Claims – from Pennsylvania Labor and Employment Blog
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Work-Life Balance: Men Want It, Too – from Work and Family Blog
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The role of incorrect perception in retaliation, hostile environment claims – from Work Matters
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‘Zip It’ Doesn't Work When Firing Employees – from Case In Point
HR and Employee Relations
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Ethics Policies: You Got ‘Em – Now Flaunt ‘Em! – from Employment Essentials
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Maybe You Should Just Offer Reasonable Bereavement – from Evil HR Lady
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Telecommuting and HR – from Michael Haberman’s HR Observations
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10 Things You Probably Don’t Want To Post On Facebook If You’re Looking For A Job – from fyiscreening.com
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HR Plays Too Much Defense – from Fistful of Talent
Litigation
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Satan No Obstacle to Settlement – from Philip Miles’s Lawffice Space
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Supreme Court Hears Arguments in Arbitration Preemption Case – from Washington D.C. Employment Law Update
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Workplace Prof Blog: Sternlight on theSCOTUS Class-Action Arbitration Case – from Workplace Prof Blog
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Court of Appeal: No Attorney Present at Plaintiff’s Mental Examination – from What’s New in Employment Law?
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Garbage Objections = Sanctions – from Resolving Discovery Disputes
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Twelve Ways To Alienate The Trial Judge – from Litigation, Evaluation and Trial Strategy Blog
Technology
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The Future of Human Resources and Social Media – from Mashable
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U.S. Loses Argument that the Computer Fraud & Abuse Act Applies to Employees Who Access Work Computers – from Trade Secrets & Non-Compete Blog
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Firesheep: A Wolf in Sheep's Clothing - Beware! – from Sharon Nelson’s Ride The Lightning
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What is the ABA Commission on Ethics 20/20 considering re law blogs? – from Real Lawyers Have Blogs
Wage & Hour
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GINA Rules Require New Disclosures In Requests For FMLA Certification – from FMLA Insights
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Sixth Circuit’s FMLA Reminders to Employers, Part Three: It Ain’t Over ‘Til It’s Over – from Iowa Employer Law Blog
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Overtime: It’s the Work, Not the Title That Matters – from The Word on Employment Law with John Phillips
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Another Interesting Development from Last Tuesday - $4 MDV for FLSA Retaliation – from Michael Fox’s Jottings By An Employer’s Lawyer
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Second Circuit Affirms Denial of Class Certification for Hertz Station Managers and Provides Guidance on FLSA Certification Standard – from Employment Class Action Blog
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, October 8, 2010
WIRTW #147 (the SCOTUS preview edition)
This week marked the beginning of the Supreme Court’s October 2010 term, which has three important employment cases on its docket.
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Kasten v. Saint-Gobain Performance Plastics, which will decide whether an oral complaint of a violation of the Fair Labor Standards Act qualifies for protection under that law’s anti-retaliation provision.
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Staub v. Proctor Hospital, which will decide the viability of the “cat’s paw” in discrimination cases—when may an employer be held liable based on the unlawful intent of employees who caused or influenced, but did not make, the ultimate employment decision.
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Thompson v. North American Stainless, which will decide the legal viability of “associational retaliation”—retaliation against one who engaged in no protected activity but is closely related to one who did.
The hyperlinks will take you to my previous thoughts on each of these cases. I’ve had a lot to say about Thompson, since it was a 6th Circuit case. I’ll have more to say on all of these cases after they are argued later this fall, and again after they are decided next year.
Here’s the rest of what I read this week:
Discrimination & Litigation
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Bad Math = Bad Policy – from Stephanie Thomas’s The Proactive Employer
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A SAD Story In So Many Very Different Ways – from Michael Fox’s Jottings By An Employer’s Lawyer
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Why Men Matter in the Work-Life Debate – from The Glass Hammer
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Complaints about management style are not protected activity, per Sixth Circuit – from Sindy Warren at the Warren & Hays Employment Law Blog
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EEOC sues on obesity-as-disability theory – from Walter Olson’s Overlawyered
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One-third of U.S. Workers Still Have A Problem With Their Gay Co-workers – from Workplace Diva
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Prompt Action by Employer Nixes Racial Harassment Claim – from The Word on Employment Law with John Phillips
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Failure-to-Promote Not Covered by Ledbetter FPA - New Third Circuit Decision – from Philip Miles’s Lawffice Space
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Employment Discrimination Potpourri: It’s Hard Out Here for New Mothers and Large Women – from Abovethelaw
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EEOC Must Attempt Conciliation of Class-Wide Claims Before Litigating Them – from Employment Class Action Blog
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The Many Flavors of Retaliation – from Maryland Employment Law Developments
Social Networking & Technology
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Will Facebook’s New Download Feature Change E-Discovery on Social Networks? – from Daniel Schwartz’s Connecticut Employment Law Blog
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Lawyers: Gather Ye Text Messages While Ye May – from Law.com’s Inside Opinions: Legal Blogs
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Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery – from Electronic Discovery Law
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Materials from Social Media Policies – from Compliance Building
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Here’s Why You Don’t Really Need A Social Media Policy – from Lance Haun at TLNT
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N.Y. Ethics Opinion re: Social Networking – from Molly DiBianca’s Going Paperless
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Discretion Is the Better Part of Valor (and Cell Phone Usage) – from Adria Martinelli at the Delaware Employment Law Blog
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LinkedIn: A Violation of Your Employee’s Non-Compete? – from Trade Secrets & Non-Compete Blog
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First Step? Hire a Computer Forensics Expert – from Trade Secret / Noncompete Blog
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HR Tech 2010: “Social” Is Now HR’s Baby (Sorry, Marketing Department!) – from Fistful of Talent
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Don’t Facebook Me: Why You Shouldn’t Google During the Recruiting Process – from Laurie Ruettimann at TLNT
Privacy
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Do You Know Your HIPAA? – from CPEhr
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U.S. Supreme Court’s Decision in NASA Case Could Have Significant Implications for Private Employers – from Workplace Privacy Counsel
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Supreme Court Set to Hear NASA Background Check Case – from employeescreenIQ Blog
Trade Secrets & Non-Competes
- Maintaining Trade Secret Status For Customer Lists: Five Steps Every Company Can Take to Protect Customer Information – from Trade Secrets & Non-Compete Blog
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Top 5 Defenses to Non-Competes – from Rob Radcliff’s Smooth Transitions
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Trade Secrets of Pharmacies Allegedly Misappropriated By CVS Caremark – from Trade Secrets Blog
Wage & Hour
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Class Certification Denied Due to Dissimilarity In Putative “Class” The Way To Go! – from Wage & Hour - Development & Highlights
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Sixth Circuit’s FMLA Employer Reminders, Part One: Send the “Rights and Responsibilities” Notice – from Iowa Employer Law Blog
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Just Because You Sent a Message Does Not Excuse Your Lateness – from Michael Haberman’s HR Observations
Labor
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Non-Union Employee Has Standing to Seek Injunction Against Employer and Union Under Labor Management Relations Act – from Hunton Employment & Labor Law Perspectives™
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Pro-Company – from hrwhiz.com
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NLRB Acting General Counsel Announces Effort to Enhance Pursuit of 10(j) Injunctions in Discharge Cases – from Labor Relations Today
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 24, 2010
WIRTW #145 (the bad legislation edition)
Earlier this week, I urged you, my readers, to take a stand against the Paycheck Fairness Act by calling or emailing your Senators and expressing your opposition to this bill. The following bloggers share my concerns (albeit some more than others):
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Read This Before You Decide on Paycheck Fairness Act – from Stephanie Thomas’s The Proactive Employer
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One last push for the misnamed Paycheck Fairness Act – from Carter Wood at PointOfLaw Forum
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Paycheck Fairness Act Poised for Passage – from Ann Bares at Compensation Force
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Paycheck Fairness Act: You Decide Is This Necessary? – from Michael Haberman’s HR Observations
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Labor Secretary and Lilly Ledbetter Push for Paycheck Fairness Act – from Shopfloor.org
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A Late Addition to the Roster: Paycheck Fairness Act Finally Appears in the Senate – from Employment Class Action Blog
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Fair Pay Isn’t Always Equal Pay – from Christina Hoff Sommers at the New York Times
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Unfair “Paycheck Fairness Act” shafts workers with dangerous jobs; equal pay for unequal work – from Hans Bader at DC SCOTUS Examiner
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“Wage Discrimination Touches Everyone,” Says Lilly Ledbetter – from BLR
Here’s the rest of what I read this week:
Discrimination
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Italian-Americans choose the wrong causes – from Rob Schwartz’s Fairness Matters
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Dissecting the EEOC’s Position on Criminal Background Checks – from employeescreenIQ Blog
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Muslims Report Rising Discrimination at Work – from Steven Greenhouse at the New York Times
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McDonnell Douglas Bites the Dust in Tennessee – from Michael Fox’s Jottings By An Employer’s Lawyer
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Many Types of Evidence Help Prove a Discrimination Case – from Tom Crane’s San Antonio Employment Law Blog
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Tenth Circuit Decides Important Age Discrimination Case – from Today’s Workplace
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Should Employers Try More Cases Before Juries? – from Patrick Smith’s Iowa Employment Law Blog
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The Internet - The Next Frontier for the ADA: Will Your Website Comply? – from Pennsylvania Labor and Employment Blog
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Harassment complaints: Don’t let your corrective action be the tree falling in the woods – from Sindy Warren at the Warren & Hays Employment Law Blog
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Caution: Improper Harassment Investigations Can Result in a Hostile Work Environment Claim – from Wyatt Employment Law Report
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Employee Sues, Settles, Gets Rehired – from Workplace Prof Blog
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Plaintiff failed to show that Facebook pics supported hostile workplace claim – from Evan Brown’s Internet Cases
Wage & Hour
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The FMLA Connection (in Connecticut) to Organ Donors and How Employers Can Help – from Dan Schwartz’s Connecticut Employment Law Blog
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Tougher regulations and penalties when employing minors – from Employment Law Bits
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OSHA’s Applicability to NFL – from The Word on Employment Law with John Phillips
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NDAA 2011 to Amend USERRA to Permit 2 Weeks of Annual Leave for Family of Deployed Members of the Uniformed Service – from The FMLA Blog
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Seventh Circuit Clarifies Overtime Damages For Misclassified Employees – from Wage and Hour Laws Blog
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Failure to Follow Employer’s Leave Procedures Dooms FMLA Claim – from FMLA Insights
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Congress Proposes Additional Independent Contractor Legislation: “The Fair Playing Field Act” Receives Strong Support From White House – from Hunton Employment & Labor Law Perspectives™
Employee Relations
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B is for Bully – from Victoria Pynchon’s Settle It Now Negotiation Blog
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Why You’re More Likely Than Ever to be Held Hostage Over That Office Romance – from Kris Dunn’s The HR Capitalist
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Employee privacy: Audit uncovers on-the-job sexting – from Stephen Meyer’s HR Cafe
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Superbug Reminds Employers to Get a Pandemic Policy – from Delaware Employment Law Blog
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They Know Who You (and your employees) Are! – from Philip Miles’s Lawffice Space
Trade Secrets and Non-Compete Agreements
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Eight Reasons Small Businesses Should Use Non-Compete Agreements – from Trade Secrets & Non-Compete Blog
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Noncompete Agreements: Stopping Former Employee From Soliciting May Not Protect Business – from Rush Nigut’s Rush on Business
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Protecting your business from an employee departure - the IT response – from Rob Radcliff’s Smooth Transitions
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Why Should I Be Concerned If Only One of My Sales Managers has Signed the Company Noncompete/Confidentiality Agreement? – from Trade Secret / Noncompete Blog
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, June 25, 2010
WIRTW #132
Although earlier this week I touched on Rent-A-Center v. Jackson, I did not discuss it in-depth. Thankfully, there are a lot of bloggers who did:
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Breaking: U.S. Supreme Court Affirms Arbitration Provisions in Employment Disputes; What It Means for Employers – from Dan Schwartz’s Connecticut Employment Law Blog
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The Potential Impact of Today’s Supreme Court's 5-4 Decision on Arbitrability – from Michael Fox’s Jottings By An Employer’s Lawyer
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SCOTUS Addresses Arbitrability Determination – from Philip Miles’s Lawffice Space
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New SCOTUS Arbitration Opinion: Both Boring & Important – from Tim Eavenson’s Current Employment
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Supreme Court Rules in Favor of Employer on Arbitration Agreements – from Tom Crane’s San Antonio Employment Law Blog
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Supreme Court Expands Enforcement of Arbitration Clauses Calling for The Arbitrator To Decide Arbitrability Issues – from Wyatt Employment Law Report
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Victory for Business in Rent-A-Center West v. Jackson – from Sarah Cole at the ADR Prof Blog
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Supreme Court: Arbitrator, Not Court, Decides Whether Arbitration Agreement is Unconscionable – from the Workplace Prof Blog
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New rule for deciding validity of agreements to arbitrate arbitration – from SCOTUS Blog
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SCOTUS: Arbitrator, not court, decides whether arbitration agreement is unconscionable (5-4) – from LawMemo
Here’s the rest of what I read this week:
Wage & Hour
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Counting Sheep Over Ledbetter – from Stephanie Thomas at Compensation Cafe
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A Wage/Hour Story Told in Million-Dollar Lawsuits and Wage and Hour Simple? I Don't Think So – from HR Daily Advisor
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Minimum Wage — HR Song of the Week – from The Word on Employment Law with John Phillips
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Senate Committee Holds Hearing on Worker Misclassification – from Washington D.C. Employment Law Update
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Sales Representatives’ Overtime Lawsuits Continue To Result In Conflicting Decisions – from Hunton Employment & Labor Perspectives™
Discrimination
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Gay worker bullied and harassed at Las Vegas Walmart: What’s next, “always low prices” on pink triangles? – from David Yamada’s Minding the Workplace
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The ADA and your EAP – from Sindy Warren at the Warren & Hays Employment Law Blog
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Can Social Recruiting Lead to Discrimination and Equal Opportunity Issues? – from Newton Software Blog
Competition & Technology
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Can Social Media Violate a Non-compete Clause? – from Lawyerist
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To Get Injunctive Relief, Be Able to Prove Specific Irreparable Harm – from Trading Secrets
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Email Rules - Beyond Foul Language – from Rob Radcliff’s Smooth Transitions
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Watch Out for Metadata – from Ken Adams’s AdamsDrafting
Miscellaneous
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Trends in Employment Background Screening – from Nick Fishman at employeescreenIQ Blog
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“Winning” Workplace Arguments is Really Just Consensus Building – from Victoria Pynchon’s Settle It Now Negotiation Blog
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Why and how to choose caddies and local counsel – from Michael’s Maslanka’s Work Matters
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Strategic Use of Swearing in the Workplace – from Bob Sutton
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, February 5, 2010
WIRTW #113
The theme of this week’s review is déjà vu. In each category, I’ve linked back to at least one post I’ve written on a similar subject.
Social Media
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5 Non-Negotiable Provisions for Your Social-Media Policy from Molly DiBianca at Delaware Employment Law. For my thoughts on drafting a social media policy, see Drafting a social networking policy: 7 considerations.
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It’s Not Just for Teenagers – More Businesses are Using Facebook to Connect from Jennifer Hays at the Warren & Hays Employment Law Blog.
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Privacy: Facebook Legal Department Hopes for Guidance from Court from Megan Erickson’s Social Networking Law Blog.
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Do You Really Want To Take on the 350 Million Pound Gorilla in the Room? from Dan Schwartz’s Connecticut Employment Law.
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Facebook and FINRA: FINRA's Social Media Guidance from Rob Radcliff’s Smooth Transitions.
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A Master’s Class in Hiring a Person With Credit Wrecked By Bad Health and Being Laid Off from Frank Roche’s KnowHR Blog.
Background Checks
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More on Resume Fraud and Fake Job References from Nick Fishman at employeescreenIQ Blog. For my thoughts on fake job references, see Do you know? Fake job references?
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Avoid A Few Common Mistakes When Conducting Background Checks from the New York Labor and Employment Law Report.
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Ring Ring or Ding Ding? Know the Legal Way to Answer Reference Calls from Mindy Chapman’s Case In Point.
Discrimination & Harassment
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Will 6th Circuit case result in cert grant, end employee-rights run at high court? from Colleen McGushins’ Work Matters. For my thoughts on the issue of associational retaliation see En banc panel of 6th Circuit reverses prior holding in Thompson v. North American Stainless and rejects associational retaliation claims.
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English Only Rules Spark Controversy from San Antonio Employment Law. For my thoughts on English-only rules, see EEOC settlement highlights red flags for English-only policies.
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When Is It Okay to Cuss Out Your Boss? from Dennis Westlind’s World of Work. For more on foul language in the workplace, see Warning – vulgar language ahead: 11th Circuit decides whether tasteless workplace behavior is actionable as sexual harassment.
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Movement on Paycheck Fairness Act? from The Word by John Phillips. For my thoughts on the Paycheck Fairness Act, see Something wicked this way comes – Congress’s 2010 employment law agenda.
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Pornography Investigation at SEC Ongoing from Debra Reilly’s Workplace Investigations Blog.
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Once Again---Avoiding the Appearance of Bias Backfires from HR Briefcase.
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Despite Assertions to Contrary, Employment Laws Do Exist from World of Work.
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A Year After Ledbetter - What's Next for Fair Pay for Women? from Workplace Fairness.
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Top 5 HR Mistakes That Small Businesses Make from Michael Haberman’s HR Observations.
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Employers Should Be Vigilant as the EEOC Anticipates Increased Charges, Funding, and Enforcement in 2010 from WorkplaceHorizons.
Courts and Litigation
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Employment Agreement Shortening Statute of Limitation Is Invalid from Labor Employment Law Blog. For the legality of these types of provisions in Ohio, see Some alternatives to arbitration of employment claims.
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Access to an Employment Case Jury Ordered from Workplace Prof Blog.
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A new look at 12(B)(6)? from Russ Bensing’s The Briefcase.
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Stripper Dances Off With $100K From Club in DUI Case from On Point.
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Stripper: getting tipsy was part of my job (update) from Overlawyered.
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What a Mess: The Tenure Appeal Meeting at Ohio University by Bob Sutton.
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SEIU Blog Accepts Chamber’s EFCA Polling Results; Misstates Arbitration Provision from The ChamberPost. For my earlier thoughts on public perception of the EFCA and the need for labor unions, see Employee Free Choice Act officially kicks off, but does anyone care?
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State of the Unions - EFCA-Lite and the Private Sector Decline from Philip Miles’s Lawffice Space.
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Senate Confirms Patricia Smith as Labor Solicitor from Washington D.C. Employment Law Update
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, December 29, 2009
Top 10 Labor & Employment Law Stories of 2009: Numbers 6 and 5
6. The U.S. Supreme Court’s Pro-Employee decisions. 2009 brought us two important pro-employee Supreme Court decisions. In Crawford v. Metropolitan Gov’t of Nashville, the Court held that Title VII’s anti-retaliation provision covers employees who answer questions during employers’ internal investigations. In Ricci v. DeStefano, the court found that disparate treatment of non-minorities trumps a disparate impact on minorities.
5. The Ledbetter Fair Pay Act. A mere 9 days after his inauguration, President Obama made the Ledbetter Fair Pay Act the first piece of legislation he signed into law. The Ledbetter Act reversed the Supreme Court’s eponymous decision, which had held that in Title VII pay discrimination cases the statute of limitations begins to run when the pay-setting decision is made. This law provides that a new and separate violation occurs each time a person receives a paycheck resulting from “a discriminatory compensation decision.” Thus, each paycheck that reflects an alleged discriminatory pay decision will start a new and distinct limitations period. Unfortunately for employers, courts have been applying this law broadly by extending statutes of limitations for all sorts of employment decisions – promotions and demotions, for example.
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, April 9, 2009
Preparing for the golden age of labor and employment law
As an employment lawyer, my practice has a lot of different aspects. I’m a counselor, helping clients tame workplace issues before they become problems. I’m a drafter, writing employee handbooks, policies, contracts, and forms. I’m an investigator, questioning employees involved in harassment and other complaints. I’m a trainer, guiding workforces, managers, and supervisors through the alphabet soup that makes up our labor and employment laws. I’m a negotiator, trying to amicably resolve employee disputes before they become fights. And, I’m a litigator and trial lawyer, navigating companies through our state and federal courts and administrative agencies.
All these roles will be tested over the next several years. A liberal Congress, a Democrat President, and the worst economic downturn in 80 years have combined to create a world of problems for our nation’s struggling employers. The Ledbetter Fair Pay Act has already increased pay discrimination liability, and myriad layoffs have heightened the risk for age and other discrimination lawsuits. If Congress has its way, over the next several years the Employee Free Choice Act will make it significantly easier for unions to organize and bargain favorable first contracts, the FMLA will be expanded to cover smaller employers, and paid sick leave will become a reality. For these reasons, we may be at the dawning of the golden age of labor and employment law.
In light of all of these changes, it is critical that businesses not be caught unprepared. According to April 8th’s Wall Street Journal, “U.S. businesses, fearful of rising union influence and a crackdown by the Obama administration on workplace practices, are scrambling for legal advice and training.” Luckily for my readers, KJK is offering some of this advice and training for free. On May 13, my colleagues and I will present How to Stay Union Free in a Union-Friendly World, a free seminar on how to best position your non-union business to stay that way. Feel free to contact me for more information, or if you would like to attend.
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.
For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, February 12, 2009
Courts open Pandora’s Box in applying the Ledbetter Fair Pay Act
Today I am going to get technical and talk about statutory interpretation. Bear with me, though, because how some courts are incorrectly interpreting the Ledbetter Fair Pay Act has crucial implications for businesses
Michael Fox at Jottings by an Employer’s Lawyer highlights the following key passage in the Ledbetter Act:
For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
Plaintiffs are arguing that the phrase “or other practice” covers the full panoply of employment decisions, such as promotions and demotions, and not just pay-setting decisions or policies. At least two courts have bought this argument:
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Bush v. Orange County Corrections Dept., (M.D. Fla. 2/2/09), which held that plaintiffs could timely challenge demotions, which resulted in reductions in pay, that occurred 16 years before earlier than their EEOC charges.
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Gilmore v. Macy’s Retail Holdings, (D.N.J. 2/4/09), which held that the Ledbetter Act applies to a discriminatory promotion that would have been to a higher paying job.
Applying the Ledbetter Act to cases such as Bush and Gilmore, which involved long-ago promotions and demotions, is misplaced. For “or other practice” to have the expansive meaning given by the Bush and Gilmore courts, a comma is missing. Because there is no comma between “decision” and “or other practice,” “or other practice” modifies “compensation.” Thus, the more reasoned interpretation of this provision of the Ledbetter Act is that the Act covers a discriminatory compensation decision or other discriminatory compensation practice. A promotions or demotion is a personnel decision, not a compensation decision or practice.
The overly broad interpretation applied by the Bush and Gilmore courts goes well beyond the issue in the Ledbetter decision that the Ledbetter Act intended to overturn. Every employment decision, whether a hiring, promotion, demotion, or termination, has some effect on compensation. The Ledbetter Act cannot be so broad as to cover any and every personnel decision. This broad of a reading of the statute will eliminate virtually every statute of limitations in federal discrimination claims, providing employees with an unlimited amount of time to file any discrimination claim. If the Ledbetter Act means what Bush and Gilmore say it means, the Ledbetter Act could prove to be devastating for employers.
No Ohio court has yet to apply the Ledbetter Act. Ultimately, the meaning of “or other practice” will be up to the courts of appeals and the Supreme Court. Nevertheless, it is important for employers to realize that only two weeks into its life, at least two courts have broadly applied the Ledbetter Act to cover much more than the Ledbetter decision it overturned.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 30, 2009
WIRTW #64
It’s been a very busy week. We had the first employment law Supreme Court decision and the first new employment law of the new year. And, we had a lot to read from a lot of excellent bloggers.
The ChamberPost refers to the Ledbetter Fair Pay Act as a scam.
Human Rights in the Workplace discusses the legal risks associated with social networking in the workplace.
The Connecticut Employment Law Blog gives insight on President Obama’s choices to run the EEOC and the NLRB.
George’s Employment Blawg provides a thorough analysis of the Employee Free Choice Act.
What's New in Employment Law? spots a huge faux pas by Starbucks’s CEO. As a PR move, he cut his own salary from $1.2 million to $10,000 annually, lowering his pay below the threshold to qualify as an exempt employee.
Bob Sutton coins the phrase Asshole Collar, bosses with a white collar and colored shirt.
The Ohio Labor Lawyers provide some insight on what to do when a union business agent shows up with signed authorization cards.
Where Great Workplaces Start give some examples of alternatives to layoffs, such as wage reductions or reduced work schedules.
The HR Capitalist shows everyone what a strip club’s employee handbook looks like.
Gruntled Employees gives a grammar lesson on the difference between to lay off (a verb), layoff (a noun), laid-off (an adjective).
World of Work reports on the 10th Circuit’s dismissal of a WARN Act case.
The Evil HR Lady on email etiquette.
LawMemo Employment Law Blog discusses a case that could potentially come before the Supreme Court, on the issue of what qualifies as a mixed-motive discrimination case.
On.point presents the story of a dismissal of a sex discrimination lawsuit brought by a transsexual.
Workplace Privacy Counsel points out that under GINA, one could be held liable for the disclosure of genetic information even if it was made inadvertently.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, January 29, 2009
As promised, President Obama signs Ledbetter Fair Pay Act
http://www.cnn.com/2009/POLITICS/01/29/obama.fair.pay/index.html for the details.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, January 27, 2009
Note the effective date of the Ledbetter bill
From PointofLaw.com, on the effective date of the Ledbetter Fair Pay Act:
SEC. 6. EFFECTIVE DATE.
This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973, that are pending on or after that date.
May 28th? The Supreme Court issued its Ledbetter ruling on May 29, 2007, so Lilly Ledbetter's suit was still pending then. So does she get another shot at her lawsuit?
It looks like the Ledbetter bill will completely wipe away the Supreme Court’s Ledbetter decision, as if it never even happened. President Obama has promised to sign this bill into law on Thursday, January 29.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 23, 2009
Ledbetter passes Senate – President’s signature is next
It’s looking like the Lilly Ledbetter Fair Pay Act will be the first piece of legislation President Obama will sign into law. The Washington Post reports that yesterday it passed the Senate by a vote of 61-36. The Washington Post goes on to quote Lilly Ledbetter, who said that she had spoken to the President following the Senate vote, and that “he has assured me that he will see me in the White House, hopefully in just a few days.”
For more the Ledbetter Act and its implications for employers, see Ledbetter Fair Pay Act likely to be first employment legislation of the Obama Presidency and Are we overreacting to Ledbetter?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 9, 2009
WIRTW #61
What I’m Reading returns after an extended holiday break.
To follow up on my post from earlier this week on the Ledbetter Fair Pay Act, Michael Moore’s Pennsylvania Labor & Employment Blog comments on the record retention nightmare that this law would create for employers. Michael also has some good thoughts on compliance with the ADA Amendments Act.
In the wake of Boston College firing its head football coach after he accepted an interview with the New York Jets, Gruntled Employees has some thoughts on employee loyalty.
The Workplace Prof Blog reports on a recent NLRB decision that found an unfair labor practice from an attorney’s deposition questions.
With tongue firmly planted in cheek, LaborPains offers 10 New Year’s resolutions for labor union officials.
Where Great Workplaces Start gives us another list, the top 5 ways to be an HR hero in 2009.
The Cleveland Law Library Weblog reminds everyone that as of 1/1/09, Ohio’s minimum wage increased to $7.30 per hour.
Overlawyered brings the story of four Piqua, Ohio, employees who are suing their co-workers for their share of a $207 million Mega-Millions payout. Their claim: “The four said they were out of the office and unavailable to contribute to the office pool for the Dec. 12 drawing but allege an oral agreement that winnings would be shared whether workers happened to be around to contribute or not.”
The Word on Employment Law with John Phillips reminds us that some people simply have too much time on their hands. The evidence, an EEOC complaint alleging religious discrimination stemming from an employee’s use of “Merry Christmas” instead of “Happy Holidays.”
The ABA Journal reports on a Hooters Waitress, fired for having visible bruises courtesy of some domestic abuse, who won her unemployment claim.
The Delaware Employment Law Blog asks a very important question: Why don’t employers care about employees’ internet use?
Jottings By An Employer's Lawyer compares whether recession juries are good or bad for employers. I agree with Michael that large jury awards are usually fueled by anger against the employer and not sympathy for the employee. If this is true, then lawyers picking juries for the foreseeable future will want to try to weed out those potential jurors who have been affected by the recession and harbor anger against corporations as a result.
Maybe you’ve heard, but Wal-Mart recently settled almost all of its pending 76 wage and hour class actions for a staggering $640 million. The Wall Street Journal’s Law Blog suggests that Wal-Mart might have been motivated the Employee Free Choice Act and ponied up as a preemptive strike against unionization.
Meanwhile, World of Work argues that the Employee Free Choice Act may not be as done of deal as some other commentators are suggesting.
Another hot legislative issue, family and caregiver issues, will receive special attention during President Obama’s administration, according to Corporate Voices for Working Families.
Finally, the FMLA Blog reports on a case in which the court held that an employer’s honest suspicion of employee fraud justified its insistence for a second medical opinion.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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