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The Legal Stuff
BT Currents - Hot Topics in Employment Law
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15 Aug 2018 Common Sense Prevails in California Wage Victory, Falters in PAGA Action

Section 226 of the California Labor Code requires employers to provide and maintain accurate wage statements, including all applicable pay rates. A plaintiff is “injured” “if the accuracy of any of the items… cannot be reasonably ascertained from the four corners of the wage statement.”   In the recent case Raines v. Coastal Pacific Food Distributors, Inc., an employee sued her employer complaining that she could not readily figure out her overtime wage rate without using a calculator. She also brought a similar PAGA action…

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14 Aug 2018 Does Your Non-Compete Agreement Survive Under Massachusetts’ New Non-Compete Law?

The Bay State’s long-anticipated non-compete law has finally hit the books. After years of debate, speculation, and worry, the final result does not appear to be as bad for employers as we feared.   The Basics   First, let’s review what the new Massachusetts law does not do.   The law – which impacts agreements entered into on or after October 1, 2018 – only applies to non-competes, or similar provisions under which an employee promises not to compete with the employer after the employment…

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30 Jul 2018 Do You Think Your Harassment Training Is Changing Behavior?

Recently I shared on Currents an article I wrote about a wide variety of topics that have come as remedies to the ongoing harassment problem highlighted by months of #MeToo, where I suggest that new and creative ways of training and of finding unreported harassment will be more significant than some of the initial legislative focuses.  Drilling further, in this article, I ask employers:  Do you think your current annual training or video is really changing behavior?   Specifically, I submit there are two primary…

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30 Jul 2018 Eleventh Circuit Overturns Dismissal of Race-Based Minimum Wage Statute Challenge

On July 25, 2018, the U.S. Court of Appeals for the Eleventh Circuit overturned the Northern District of Alabama’s dismissal of a challenge to Alabama’s Minimum Wage and Right-to-Work Act (the “Act”) on the basis that the Alabama State Legislature may have violated the Fourteenth Amendment in enforcing the Act. In April 2015, the City of Birmingham – which is 72 percent African American and 30 percent below the poverty line – passed an ordinance to raise its minimum wage from $8.50 per hour to…

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27 Jul 2018 F is for Fluctuate: Overtime Pay And The Fluctuating Workweek (WTH is FWW?)

While speaking with a client recently about the vast sea of FLSA regulations, a question arose about the use of half-time pay. FLSA’s golden rule for non-exempt employees is one that sounds familiar to many: time-and-a-half pay for hours worked over 40 in a workweek. But what about just half-pay? There is an alternative approach to meeting the FLSA’s overtime requirements that allows employers to pay non-exempt employees on a fixed salary basis. The Department of Labor dubs this method the “Fluctuating Workweek” (or FWW,…

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20 Jul 2018 Sixth Circuit Holds Full-Time Presence at Work not Essential Simply Because an Employer Says So

On July 17, 2018, the U.S. Court of Appeals for the Sixth Circuit reminded employers that determining the essential functions of a position is a highly fact specific endeavor in which categorical rules do not apply.   In Hosttetler v. College of Wooster, Heidi Hostettler worked as a full-time HR Generalist. After giving birth to her child, Hostettler experienced severe postpartum depression and separation anxiety. As a result, Hostetller’s physician determined it was medically necessary that she worked a reduced schedule and recommended that Hostettler…

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13 Jul 2018 Binary Bathrooms? Schools Emerge As Fulcrum On This Issue

Deliberations over the adoption of policies regarding bathroom access can be tricky, especially when the disputes involve young children and concerned parents.  Within the last year, profound disagreement has arisen among what schools should do regarding transgender students and bathroom policies.    In February, President Donald Trump’s Education Department confirmed that it is no longer investigating civil rights complaints from transgender students barred from school bathrooms that match their gender identity. The Education Department spokeswoman Elizabeth Hill in response to questions from The Washington Post…

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05 Jul 2018 E is for Equal Pay: Pay Data Reporting And The Shifting Meaning Of “Equal Work”

Pay equity among men and women has been a “front and center” topic for years.  President Obama made it one of the high priorities for his administration and signed the Lilly Ledbetter Fair Pay Act as his first piece of legislation in 2009.  While the issue and its surrounding policies are nothing new today (nor were they in 2009), it is still leaving employers scratching their heads and is a fitting topic for the next letter up in our Letter of the Law Series, the…

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03 Jul 2018 Establishing Direct Threat: How to Leverage the “Individualized Assessment”

Successfully asserting the Americans with Disabilities Act’s (ADA) direct threat affirmative defense is difficult.  It is disfavored because of the fear that well-intentioned concerns of injury will otherwise result in qualified disabled individuals being excluded from work.  A recent federal trial court decision, involving an operator at an ExxonMobil chemical plant shows how an employer can establish a direct threat disqualification in the face of conflicting medical opinions. The case is Spencer-Martin v ExxonMobil Corp., M.D. La., No. 16-789 (June 15, 2018).   The ADA’s…

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29 Jun 2018 Paid sick leave in Chicago and Cook County: Are you compliant with notice and carry over requirements?

For a year now, the City of Chicago and Cook County paid sick leave ordinances have required employers to provide at least a minimum amount of paid sick leave to eligible employees.  As the July 1 anniversary approaches, employers are reminded that certain aspects of the ordinances may require attention as a new year starts.   Calculation of carry-over. If an employer has not opted for an “immediate grant” to employees of their full paid sick leave entitlement at the start of each year, then…

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