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The Modern Workplace

The Modern Workplace

Posts in Class Action & Litigation.

Earlier this month, the U.S. Supreme Court addressed whether, after denial of class certification, a putative class member can file a new class action after the applicable statute of limitations has expired, as opposed to joining an existing case or pursuing an individual lawsuit. The Court held, in China Agritech, that this is not allowed, creating potentially significant ramifications for employers. Had the Court ruled the other way, claimants who were unsuccessful in obtaining class certification might have had the ability to perpetually file new class actions, one after the ...
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Tip pooling in the hospitality industry has been affected by a recent act of Congress and a Minnesota class action that have garnered significant attention. The Congressional act will have limited impact on Minnesota employers because they continue to be subject to substantial restrictions on tip pooling under state law. Tip pooling is the practice of sharing tips between front-of-house staff and back-of-house staff. On March 23, 2018, Congress passed a budget reconciliation bill that included a rider amending the federal Fair Labor Standards Act (FLSA) and related tip pooling ...
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Although the Trump administration has signaled its intention to shift away from the prior administrations efforts to expand LGBTQ+ equity rights in the workplace, a federal appellate court recently held that discrimination based on an individuals status as transgender or gender-transitioning is prohibited by Title VII of the Civil Rights Act of 1964. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the Sixth Circuit Court of Appeals held that discrimination based on an employees status as transgender or gender-transitioning is prohibited sex discrimination under Title VII. In ...
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With many laws protecting workers classified as employees and not offering protection for those classified as independent contractors, a workers classification has broad implications for the worker and for the company using the workers services. In the rise of the sharing economy, companies like Uber Technologies, Inc. and Grubhub, Inc. have classified their drivers as independent contractors; and workers have turned to the courts to challenge that classification. 


In the first federal court decision on this issue, a federal magistrate judge in California ruled on February 8 ...
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In the midst of the growing Me Too movement, employers may find it more expensive to settle employment claims of sexual harassment or sexual abuse. A provision in the new tax law signed by President Trump on Dec. 22, 2017 (the Tax Cuts and Jobs Act) provides that, effective as of the signing of the law, a business can no longer deduct the costs incurred to settle employment sexual harassment or abuse claims if a nondisclosure agreement is included in the settlement.  This provision was added to the tax law in response to the Me Too movement and growing criticism of the historic practice of ...
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In our December 16, 2016, post, we reported that petitions for certiorari to the U.S. Supreme Court were filed with respect to five U.S. Circuit Courts of Appeals opinions concerning whether arbitration clauses requiring individual arbitration in lieu of class or collective lawsuits (class-action waivers) are invalid under federal labor law. There is a clear circuit divide on this issue, the resolution of which will impact thousands of employers and potentially millions of American workers.

The Supreme Court granted certiorari on January 13, 2017, as to opinions rendered by the ...

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In our September 23rdpost, we reported that the National Labor Relations Board (NLRB) and the U.S. Department of Justice filed a petition for certiorari in NLRB v. Murphy Oil decided by the 5th Circuit Court of Appeals, asking the U.S. Supreme Court to determine whether arbitration clauses requiring workers to arbitrate disputes individually and not on the basis of collective or class actions (class-action waivers)are invalid under federal labor law. As we reported in September, the petition was filed in the face of a clear split among the federal Circuit Courts of Appeals. The U.S ...

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On September 9, 2016, the National Labor Relations Board (NLRB) and the U.S. Justice Department filed a petition for certiorari in NLRB v. Murphy Oil, asking the U.S. Supreme Court to determine whether arbitration clauses requiring workers to arbitrate disputes individually and not on the basis of collective or class actions (class action waivers)are invalid under federal labor law. Given the clear split on this legal issue among the federal circuit courts, the Supreme Court appears likely to accept review.

What's the Split and Where Does Minnesota Stand?

Class Action Waivers Are ...

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As we've discussed in prior posts, a top strategic enforcement focus of the EEOC is protecting LGBTQ individuals from discrimination in the workplace. The EEOC filed its first Title VII lawsuits alleging sex discrimination against transgender individuals in late 2014, and the EEOCs efforts in this area continue to make headlines.
The EEOCs most recent suit, filed last week, is against Bojangles Restaurants, Inc., which operates a chain of fast food restaurants in the Southeast portion of the United States. In the lawsuit, the EEOC claims that a transgender woman, Jonathan Wolfe ...
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A white news anchor has filed a race discrimination lawsuit against her former employer, a Pittsburgh television station. Wendy Bell made headlines earlier this year when she was let go from her anchor position after posting controversial comments on a Facebook page sponsored by the television station. Now, Bell is making headlines again for her unusual race discrimination claims.

Earlier this spring, the Washington Post reported that Bell was fired after she posted comments on Facebook about a mass shooting that Bell had recently covered on air.

In her comments, Bell stated You ...

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Last week, we wrote about employer best practices with respect to responding to possible employee medical issues. A recent case out of the Eighth Circuit showcases one employers creative approach to thinking about possible future medical issues.

BNSF Railway Company, based in Nebraska, reportedly has had a policy of not hiring any applicant for a safety sensitive position if the applicant has a Body Mass Index (BMI) of 40 or higher. According to the Centers for Disease Control and Prevention, a person with a BMI of 30 or higher is considered obese.  In the recent Eighth Circuit case ...

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On March 22, 2016, the United States Supreme Court issued an opinion making it clear that employees can establish commonality through the analysis of an expert, and application of his representative sample evidence, for purposes of class certification of state law claims, under Rule 23, and certifying FLSA claims as a collective action, under 29 U.S.C. 216. Tyson Foods, Inc. v. Bouaphakeo, __ S. Ct. __, No. 14-1146, 2016 WL 1092414 (March 22, 2016).

The plaintiffs in Tyson Foods worked in the kill, cut, and retrim departments of a Tyson Foods pork processing plant in Iowa. To do their ...

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We've previously posted on the growing social and legal movement for transgender equity. In recent developments, a Minnesota-based federal court ruled that Lisa Scott, a transgender woman, could proceed to trial on a claim that her rejection as a plasma donor was unlawful transgender discrimination under the Minnesota Human Rights Act (MHRA). The MHRA prohibits employment discrimination based on gender identity, but also contains provisions that prohibit business discrimination based on gender identity. Scotts lawsuit is based on the business discrimination provisions of ...
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Three former University of Minnesota-Duluth coaches filed suit against the University Board of Regents on Monday in federal court. Former women's hockey coach Shannon Miller, former softball coach Jen Banford, and former women's basketball coach Annette Wiles allege that University administrators discriminated against them based on their gender and sexual orientation and failed to properly investigate reports of harassment and discrimination. The lawsuit also claims disparities between the men's and women's athletic programs at the University.
This lawsuit comes at a ...
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The Minnesota Court of Appeals has made it a bit tougher to enforce certain non-competition agreements, but, with careful drafting, employers can safeguard themselves against the Court's ruling. In J.A.B., Inc. v. Naegle, 867 N.W.2d 254 (Minn. Ct. App. 2015), the Court of Appeals held that a two-year non-solicitation agreement that did not expressly recite the legal consideration for the agreement was unenforceable in light of Minnesota's statute of frauds, set forth at Minn. Stat. 513.01.

Under fundamental principles of contract law, a contract must be supported by ...

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A recent court order in a case in Iowa reminded me of how easy it is for employers to waive the attorney-client privilege by disclosing (deliberately or inadvertently) the advice they receive from their attorneys. The order shows that a careless reference indicating that a decision was based on the advice of counsel opened the door and required the disclosure of conversations between the attorney and the client. Whitney v. Franklin General Hospital (U.S. District Court for the Northern District of Iowa, Ruling on Motion to Quash, April 23, 2015).
One of the oldest recognized ...
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The Equal Employment Opportunity Commission (EEOC) forged new ground earlier this month when it ordered the U.S. Army to pay damages to a transgender employee based on a discriminatory restroom policy. We have reported in past posts on the EEOCs increased enforcement focus on transgender rights in the workplace under Title VII of the Civil Rights Act of 1964, as well as the increased societal focus on this issue. (See, prior posts here and here.) The EEOCs recent April 1st ruling in Tamara Lusardi v. John M. McHugh, Secretary, Department of the Army reflects this trend and sets forth ...

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On Monday, the current Ranking Member of the U.S. Senate Committee on Health, Education, Labor and Pensions (and chairman in the next Congress) Lamar Alexander issued a report critical of the Equal Employment Opportunity Commissions (EEOC) litigation tactics and management. Among other concerns, the report found that:
Todays EEOC . . . is pursuing many questionable cases through sometimes overly aggressive means and, as a result, has suffered significant court losses that are embarrassing to the agency and costly to taxpayers. Courts have found EEOCs litigation tactics to be so ...
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Unless you were unplugged, you probably saw all the high profile names that made legal headlines last week. Included in that list was David Letterman. In a quick whirlwind of activity, a CBS intern filed a wage and hour lawsuit against CBS News and Letterman's production company, Worldwide Pants, only to drop the suit a short time later with a public apology. In the lawsuit, the CBS intern claimed that unpaid Late Show student interns were employees and that the failure to pay them wages violated wage and hour laws. The suit, had it proceeded, would have sought to recover back wages ...
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Wage theft is becoming a popular phrase in the media. A New York Times article recently announced that More Workers Are Claiming Wage Theft. Other news outlets are using the phrase to describe lawsuits brought by workers of a wide mix of employers, ranging from Jimmy John's to NFL franchises. Wage theft even has its own website.

At its core, wage theft is simply a catchphrase designed to draw attention to violations of wage and hour laws. The use of the term wage theft appears to be a relatively recent phenomenon. There were more references to wage theft in U.S. newspapers during the ...

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Apple is making the news this week in connection with its recently issued 'iTime' patent for a new smartwatch device and as anticipation grows for the soon-to-be released iPhone 6. The news on Apple isn't only technology related though. Apple is also fighting a class action lawsuit in California for allegedly denying lunch breaks and final paychecks to employees. The link below provides greater detail on this lawsuit, as well as other employment-related lawsuits Apple is currently defending. Be sure to add a review of your wage and hour practices to your to-do list this year.  And, for ...

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In a recent Week in Review post, we referenced a Wall Street Journal article about Zappos.com. It has abandoned job postings in favor of a radically different approach. Instead of posting job descriptions at online career sites, Zappos will maintain a social media network of Zappos Insiders. Through social media, people interested in working at Zappos will network and connect with current employees and provide (sometimes public) information about their skills and interests in hopes of being tapped to work in a specific job. As the Wall Street Journal article points out ...

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The assault on internet security continues to fill news headlines this week. On the heels of the Heartbleed bug, Microsoft announced this week that a security vulnerability exists in all versions of Internet Explorer, with no known fix. This vulnerability is especially concerning for employers, who often do not control the browser choices of employees. Also, you can read below to discover the various ways that security breaches can affect our everyday lives, including jamming up traffic and "war driving" at your favorite free wi-fi spot.
 
Recent Week in Review topics are also back ...

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Not all technology-based changes in the workplace involve social media and smartphones. This week's headlines and blog posts highlight other ways in which technology is changing the way we work.  For example, employers are currently facing the decision of how to approach e-cigarettes in the workplace, and some employers are skipping the booth-filled convention centers and instead opting for virtual career fairs to find top candidates.  We also have linked to an article below about employees who put your cybersecurity at risk and how to deal with them.  Finally, learn how to craft email ...

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The Supreme Court announced last week that it will hear two cases in which for-profit businesses are challenging the Affordable Care Acts (ACA) contraceptive mandate on freedom of religion grounds. The key issue before the Supreme Court will be whether or not corporations have religious rights.

The two lawsuits at issue were brought by Hobby Lobby, a company owned by Evangelical Christians, and Conestoga Wood Specialties, a family business owned by devout Mennonites. In both cases, the companies claim that the ACAs mandate that all group health plans provide and pay for all ...
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This week, Dropbox unveiled its new "Dropbox for Business" initiative, which gives employees a greater ability to establish digital work-life balance.  The product includes two data folders - one for business data and one for personal data so that businesses and workers have the ability to segregate digital work and personal data.  The Dropbox announcement came on the same day that Amazon unveiled a similar product. Airbnb also frequented the headlines this week, both for its new, streamlined app and for the scrutiny its vacation and home rental business is under from regulators.  ...

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Ive had succession planning on my mind this week following the release of a research poll that indicates that about half of older Americans are delaying retirement plans to work longer. The poll, which was conducted by the Associated Press-NORC Center for Public Affairs Research, indicates that over eighty percent of older Americans plan to work during their retirement years and almost fifty percent expect to delay retirement. Eleven percent of those surveyed indicated they dont expect to ever retire. These survey results may stem from a number of factors. The recent recession has ...

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Given a recent uptick in court rulings enforcing class action waivers, it may be time to revisit whether your company prefers to resolve disputes with employees in court or through arbitration. Class action waivers in arbitration agreements have been gaining in popularity with employers since the U.S. Supreme Court upheld an arbitration clause containing a class-action waiver in the AT&T Mobility v. Concepcion case in 2010 and again this year in the American Express Co. v. Italian Restaurants case. These Supreme Court cases involved consumer disputes, but numerous employers ...

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The 2013 U.S. Supreme Court term features several employment law cases important to employers and human resource professionals, including the following significant pending cases:


Vance v. Ball State University: This case involves the definition of a supervisor for purposes of harassment claims under Title VII of the Civil Rights Act. Under current law, employers may be held strictly liable for the acts of supervisors but harassment by a co-worker will not create liability unless the employer knew or should have known about the harassment. This decision will clarify a ...

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Agencies employing personal care assistants (PCAs) might want to up their unemployment insurance coverage. For the second time in recent months, the Minnesota Court of Appeals has struck down a law that precludes family members who act as PCAs from obtaining certain benefits. In the case of Weir v. ACCRA Care, Inc., the court determined that a statutory prohibition preventing immediate-family-member PCAs from obtaining unemployment benefits is unconstitutional. The court made a similar ruling in December of 2012 in Healthstar Home Health, Inc. v. Jesson. In that case, a ...
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You may have read recent media reports about a dispute between a doctor and his patients son in which the doctor sued the patients son for, among other things, referring to the doctor as a real tool. Frustrated by the care that his father received from the doctor at St. Luke's Hospital in Duluth, Dennis Laurion posted online that [w]hen I mentioned Dr. McKee's name to a friend who is a nurse, she said, Dr. McKee is a real tool.  Upset by this and other negative comments posted by Laurion, Dr. McKee sued him for defamation. The case was eventually appealed to the Minnesota Supreme Court, where ...
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Most people are aware that both federal and state statutes address discrimination. Most often, though, its developments in federal law that grab the headlines. Businesses of all kinds should be aware of the requirements of both federal and state discrimination statutes and should keep in mind that state discrimination laws can have a broader reach and pose greater risks than federal statutes. 
A recent press report helps illustrate the point. A California family alleged that American Airlines discriminated in providing transportation because of the family's son, who has Down ...
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While reading a recent article in the Wall Street Journal, I was reminded how important it is for companies to be sure that the right people within their organization are informed of new and ongoing litigation and of the company's obligation to preserve potential evidence. When a lawsuit commences, your attorney should send you a litigation hold letter, informing your company of its obligation to preserve documents that may be relevant to the lawsuit. Most people understand that this means that they cant go shred a bunch of documents that might be relevant. What not everyone ...
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I remember being told as a child that two wrongs do not make a right. This was the common response I got if I tried to justify bad behavior by saying that Id been provoked or that others had done the same thing. I imagine that, like me, parents all over the world still commonly use the phrase two wrongs don't make a right in encouraging children to do the right thing. The lawsuit filed earlier this week by former Minnesota Senate aide Michael Brodkorb should, however, serve as a reminder to employers that this childhood lesson doesn't always apply in the employment discrimination context.
In the ...
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Yesterday investigators, led by former FBI Director Louis Freeh, published their independent report concerning Penn States response to reports of suspected child abuse by former football coach Jerry Sandusky. Sandusky was arrested in 2011 and convicted last month of 45 counts of sexual abuse involving 10 boys over a 15-year period. 
 
Freehs 267-page report is scathing in its criticism of the University and its leaders. Freeh said in a statement that [t]he most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized. Messrs ...
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Tired of hearing about privacy?  Perhaps you should avoid the news for a little while longer, then, because this week the war over online privacy heated up when Congress decided to join the fight. On Wednesday, the Password Protection Act of 2012 was introduced in the US Senate.  It seeks to prohibit employers from coercing prospective and current employees to provide access to any secured information stored online or from retaliating against employees' refusals to do so. An identical bill is being debated in the House. A California bill with the same aims unanimously passed the Assembly ...

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There is a chance that what your employees actually do in the day-to-day performance of their jobs isn't what's written in their job descriptions. This may not appear to be a problem if the work is getting done, but inaccurate or incomplete job descriptions can and do create problems for employers, especially if the EEOC or the Department of Labor comes calling. Employers are wise to include routine review and updating of job descriptions on their list of spring cleaning priorities. In addition to being part of a good defense against some claims of unfair or unlawful treatment, accurate ...
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This week produced more evidence that technology pervades every aspect of our lives, from our work, to our health, to our dreams? That's right, there's an App for that. But don't lose heart just yet, because this week also saw some pushback against the tech-takeover. In the working world, two Nashville men set out to prove that even television shows have to follow the law in hiring cast members. These men are suing ABC for race discrimination, stating that in the 10 years and 23 combined seasons of "The Bachelor" and "The Bachelorette" there has never been a person of color in the central ...
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Even non-union employers need to be careful about their labor law obligations.  Most readers have either given or heard this advice multiple times, but labor law risks are still sometimes overlooked.    As an example, in one of the strangest employment-related news stories of the week, a Florida law firm  reportedly fired 14 employees because they wore orange to work on a Friday.  According to the news report, the law firm called the employees into a conference room and an executive accused them of engaging in a protest.  An employee explained that they were not engaged in a protest, but ...

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Last month, my colleague Kathryn Nash wrote about the dangers when employers, particularly for-profit companies, offer unpaid internships.  This is a legal issue that has been around for quite some time, but for some reason maybe because the risks of getting caught had not seemed very high many companies continue to hire unpaid interns.  (For a funny take on unpaid internships, check out the "Stuff White People Like" blog entry #105.)


Well, the stakes for companies using unpaid interns have just gotten higher.  Last Wednesday, an intern filed a wage and hour claim against Charlie Rose and ...

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We communicate with our clients by email all the time. Email correspondence is the rule, not the exception, for lawyers and clients these days. We email back and forth about policies, practices, investigations, terminations, leaves, complaints, contracts, union activity, and all the other employment-related issues that we deal with. Sometimes these emails contain highly sensitive information about the employer or employee. Sometimes we discuss legal strategy. Most of the time, information we communicate electronically is information we would never want to share with ...
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This week technology once again helped and hurt the workplace.  Companies are using cloud computing to save thousands of dollars, but employees still waste countless hours on email and the web.  Meanwhile, new technology is making headlines this week, from Google goggles to an app that locates your iPhone for you.  Plus, rumors are circulating about Microsoft Office on the iPad.  Even if it's not true, a new app will give you access to a Windows 7 desktop from your iPad.

Technology and the Workplace
Should You Send That Email? (FastCo)
Your Facebook Profile Can Predict Your Job ...

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Last Friday, Governor Mark Dayton vetoed four GOP-sponsored litigation reform bills that had been approved by the Minnesota House and Minnesota Senate. We previously posted about these bills, which were aimed at limiting litigation costs and which were the first bills to reach the Governors desk this legislative session. Had they passed, the bills would have: (1) reduced the statute of limitations for filing a lawsuit; (2) limited the recovery of attorneys fees by successful claimants; (3) created stronger appeal rights to challenge a case being designated as a class action; and ...
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I recently read an article in the Star Tribune highlighting four bills that have passed the Minnesota House which are intended to limit the costs of lawsuits. According to the article, the bills are favored by a coalition of business groups. What caught my eye was the statement that one of the bills would limit attorney fees in certain cases, such as wrongful termination or sexual harassment, where state law requires the fees be paid as part of the lawsuit. I wasnt sure how fees could be limited in sexual harassment cases but not in other types of harassment cases. I did some digging and ...
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This week we see the push and pull between the benefits that new technology can provide and the difficulties it creates when we try to integrate it into our current systems. A number of problems have arisen recently based on the availability of cell phone GPS data and the security of data organizational and protection software. These, and other technological issues affecting our lives, have been collected below.
Technology and the Law
Conflict Between Circuit Courts on Legality of Cellphone Tracking (SecurityNewsDaily)
Legality of Malls Tracking Shoppers Using their ...
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One of the most litigated issues in todays employment arena is the classification of employees under the overtime exemption provisions of the Fair Labor Standards Act (FLSA). Generally, under the FLSA, employees must be paid overtime for any time worked over forty (40) hours per week. However, the FLSA also classifies certain types of positions as exempt from the overtime requirements. In order to qualify for the exemption, the employee must meet the specific requirements of each exemption. Unfortunately, many employers wrongfully classify employees as exempt when, in fact, the ...
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The proliferation of social media has presented businesses with many challenges as well as many opportunities.  To address the challenges, employers have adopted policies aimed at guiding employees on appropriate use of social media.  Due to the slow pace at which cases make their way through our legal system, there is a dearth of published court opinions analyzing the propriety of such policies.  A recent Minnesota Court of Appeals decision is one of the first in this state to provide such guidance.  Although the case involved a student disciplinary matter at a public university, the ...
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Over the last year, Regional Directors of the National Labor Relations Board have initiated several high-profile complaints against employers for policies and conduct related to social media.  (See Megan Anderson's article about this trend here.)  In these complaints, the NLRB has alleged that employers violated Section 7 of the National Labor Relations Act by maintaining overly broad social media policies or by disciplining employees for protected concerted activity (or both).  However, many of the cases have settled, and none have advanced to trial, leaving a trail of ...

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In a consumer products case that will likely have a significant impact on employers and employees who enter into arbitration agreements, the U.S. Supreme Court ruled last Wednesday, April 27, 2011, that the Federal Arbitration Act preempts states from prohibiting enforcement of arbitration agreements that bar arbitration of class action disputes (AT&T Mobility LLC v. Concepcion, Docket No. 09-893, April 27, 2011). In a divided decision, the Court reversed a Ninth Circuit Court of Appeals decision that a class action arbitration waiver in AT&Ts wireless service agreement was ...

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The news last week about iPads and iPhones regularly recording geographic locations in a hidden file raises yet another challenge for employers. Consider the possibilities:
An employee complains that a supervisor who has her iPhone number in order to reach her for work reasons has been calling her repeatedly asking her out on dates and he is showing up where she goes after work with her friends. She suspects he may be tracking her every move using her number.

A line supervisor reports to HR that an employee has been lying about illness as the reason for frequent absences and shares that he ...
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On Monday, the United States Supreme Court agreed to hear yet another significant employment law case in its 2010-2011 term.  The case, Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, addresses the controversial ministerial exception to discrimination laws.


According to the school's petition (via SCOTUS blog), the question presented to the Supreme Court is:
[w]hether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches ...
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The news this week in the world of labor and employment law and technology can be summed up in two words:  Charlie Sheen.  (I would have also accepted Tiger Blood.)  Our own Megan Anderson wrote about the fiasco and its lessons for employers about responding to negative statements on the Internet.  One day later, Sheen filed suit in California state court, alleging a variety of claims includingas Jon Hyman predicteddisability discrimination!
 
Although the news coverage (and, lets be honest, your Facebook news feed) made it seem like Charlie Sheen was the only big news story this week, there ...
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You may be wondering what cats have to do with employment law. Well, last week the U.S. Supreme Court recognized the cats paw theory of employment discrimination for the first time, making it easier for employees to prove discrimination and for employers to get burned by legal liability. The phrase cats paw stems from an Aesop fable in which a monkey uses flattery to induce a cat to retrieve roasting chestnuts from a hot fire and then absconds with the chestnuts after the cat has burned its paws. Based on the fable, cats paw refers to a person who is unwittingly used to accomplish another's ...

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Employment Practices Liability Insurance (EPLI) has been around for about 20 years now, and for some employers it has been a good investment. For others, it has been a disappointment, and for still others it remains a mystery. My own view is that every employer should consider adding EPLI to its insurance coverage, but should do so with a clear understanding of EPLI's limitations and cost.

So, what should employers expect and what should they watch out for when they shop for EPLI? That's the focus of today's post.

Employers should first understand what, if any, coverage they have for ...
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