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BT Currents - Hot Topics in Employment Law
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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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29 Jun 2018 Round Up: Court Rules Rounding Payroll System Permissible Even When (a slight) Majority of Employees Lose Time

A California state appeals court recently held that two California hospitals’ practice of rounding all employee time punches to the nearest quarter-hour was allowed, even when a majority of employees lost time. California law permits employers to round time entries when the payroll rounding system is neutral on its face “without an eye toward whether the employer or the employee is benefiting from the rounding,” and when it does not “systematically undercompensate employees over time.”   In this case, one hospital’s rounding payroll system subtracted time…

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28 Jun 2018 Seventh Circuit Revisits Contractor Misclassification

Courts in the U.S. have been grappling with the misclassification of independent contractors for more than 20 years. As our readers well know, there is no standardized test to determine whether a worker is a contractor. Various courts and government agencies all have adopted their own criteria. Fortunately, most of them overlap, but there can be critical differences in the factors and how they are applied.   In 2015, the Wage and Hour Division of the U.S. Department of Labor (DOL) firmly supported the “economic…

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27 Jun 2018 Will There Be An Epic Backlash?

By now, most have heard about the U.S. Supreme Court’s May 21, 2018 opinion in Epic Systems Corporation v. Lewis. Epic actually decided a trio of consolidated cases before the high court and held, as a matter of law, that class action waivers within arbitration agreements are enforceable, that is, arbitration agreements between an employee and employer may prohibit the employee from participating in most claims against the employer other than through one-on-one arbitration.   Workers’ advocates are echoing Justice Ruth Bader Ginsburg’s stinging dissent,…

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26 Jun 2018 D is for Drugs: Employee Drug Use and What You Should Know

For those left wondering what is really going on in the complicated world of employee drug use (illegal, legal, and “semi-legal”), I thought I would spend this episode of Letter of the Law highlighting a few issues employers face when they know of or suspect drug use by their employees. 1. Drug Testing – Whether and when employers can require drug testing is a loaded question.  Private employers long understood that they were often within their rights to conduct testing for new hires, based on…

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18 Jun 2018 What will really move the needle in improving harassment prevention?

I just published an article in the Ohio State Bar Association Labor & Employment news examining which of the hot topics of discussion in the wake of #MeToo are likely to actually decrease workplace harassment.  The question is not whether it is a good idea to improve harassment prevention – even most employers that have done an excellent job complying with their legal requirements and promptly addressing complaints believe there is unreported harassment out there and they want to  find it.   The question is…

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14 Jun 2018 Supreme Court Says No To Repeat Class Actions After Statute Of Limitations

On June 11, the U.S. Supreme Court unanimously held that filing a class action lawsuit does not toll the statute of limitations for the class to file the same claims again in the future. This means that if the class files claims but is denied class certification, it cannot return to court and file the same claims again if the limitations period expired during the course of the previous litigation.   In China Agritech, Inc. v. Resh, a class of stockholders timely filed a lawsuit…

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