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Posted in Discrimination
The Equal Employment Opportunity Commission (“EEOC”) recently released its enforcement and litigation statistics for FY2020. In summary, the EEOC’s data shows that there were 67,448 charges of discrimination filed in FY2020, which represents 5,227 fewer charges that were filed in FY2019. Of those charges, retaliation continues to be the most frequently cited claim -- accounting for 55.85 percent of all charges filed in FY2020. Disability and color discrimination claims increased marginally while genetic information claims doubled from the prior year. The remaining ...
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On Wednesday, February 10, the CDC announced that individuals who are fully vaccinated against SARS-CoV-2 do not necessarily have to quarantine following exposure to someone with suspected or confirmed COVID-19.
In addition, businesses have asked the U.S. Equal Opportunity Commission (EEOC) to clarify the types of incentives employers can legally provide employees to encourage them to get COVID-19 vaccinations. Incentives offered by some employers might, for example, include: 
  • Time off from work to get vaccinated, often with pay
  • Incentive bonus (for example, $100)
  • Gift cards
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With two COVID-19 vaccines already authorized for emergency use in the United States and more likely forthcoming soon, employers are asking whether they can and should require employees to get vaccinated. This alert identifies some of the major issues that employers are likely to face when rolling out policies related to vaccinations. 
Can Employers Require Employees to Get Vaccinated?

Recently released guidance from the federal Equal Employment Opportunity Commission (EEOC) strongly suggests that employers can require employees to get vaccinated. Although the guidance does ...
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The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Many of the updates to the guidance document are consistent with the EEOCs March webinar on COVID-19, but the updates also provide additional clarifying information regarding the Americans with Disabilities Act (ADA) and COVID-19 screening. The ADA continues to apply during the COVID-19 pandemic and requires that any employment disability-related inquiries or medical exams, including COVID-19 ...
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Posted in Discrimination
The Equal Employment Opportunity Commission (the EEOC) announced yesterday that, due to the COVID-19 Pandemic, it would suspend the anticipated opening of its 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections. The EEOCs EEO-1 Component 1 data collection process requires an employer to report the number of employees working for a covered business and sort those employees by job category, race, ethnicity, and gender. In turn, the EEOCs EEO-3 data collection process requires race, ethnicity, and gender reporting by local unions and the EEO-5 data ...
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Employers have been facing an incredible range of complex and varied issues during the COVID-19 pandemic. Not least among these have been how best to respond lawfully to workers for whom work is available but who are reluctant to work, refuse to be in the workplace, or who may be unavailable because they are sick or have been exposed to the virus. Now, as the nation begins to contemplate a reopening process that will significantly increase the number of open workplaces, these questions will arise with increasing frequency. Making sound decisions about how to respond to employees with ...
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Posted in Discrimination
After a surge of unorthodox flight companions ranging from pigs, to squirrels, and even a peacock the U.S. Department of Transportation recently announced a proposed rule that would allow only specially trained emotional support dogs to qualify as service animals and to fly, free of charge, on domestic flights. This proposed rule change comes after multiple complaints from flight attendants, fellow passengers, and advocacy groups about the rise in untrained animals aboard domestic flights and the impact on others on flights. Such complaints have included allergies, safety ...
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The Supreme Court recently heard oral argument in a series of cases that will determine whether federal employment discrimination protection extends to sexual orientation and gender identity. The Courts decisions in the cases could have a far-reaching impact on employers nationwide.


Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex and national origin. At issue in the trio of cases currently before the Court is whether sex applies to sexual orientation and gender identity. If it does, gay, lesbian, and transgender ...
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Posted in Discrimination

The deadline for employers with annual EEO-1 reporting requirements to submit Component 2 pay data is just over a month away. Employers must file 2017 and 2018 Component 2 compensation data by September 30, 2019.


With the deadline approaching, the Equal Employment Opportunity Commission (EEOC) has released guidance to filing employers through answers to Frequently Asked Questions. Among other issues, the EEOC addressed reporting non-binary gender employees. Previously, the EEOC required an employer to list an employees gender for EEO-1 reporting as male or female. The EEOC ...
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Posted in Discrimination

Last month, the Seventh Circuit (which has jurisdiction over appeals from federal district courts in Illinois, Indiana, and Wisconsin) decided two cases with claims under the Americans with Disabilities Act (ADA). In one case, the Seventh Circuit joined multiple other circuits in holding that obesity, on its own, is not a protected disability under the ADA. In the other, however, the Seventh Circuit revived claims of an employee who alleges he was discriminated against due to his alcoholism.


Richardson v. Chicago Transit Authority


During an examination of his fitness to return to ...
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Posted in Discrimination

On Monday, the U.S. Supreme Court unanimously held that Title VIIs requirement that claimants exhaust administrative remedies by filing a charge with the Equal Employment Opportunity Commission (EEOC) before suing is not jurisdictional. The decision, issued in Fort Bend County v. Davis, means that an employer that fails to timely assert a failure to exhaust affirmative defense to a lawsuit waives the ability to later seek dismissal of the suit on this ground. As a result of the Courts ruling, employers need to be vigilant in timely asserting any failure to exhaust defense at the ...
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Posted in Discrimination

Pursuant to an April 25 court order, employers with annual EEO-1 reporting requirements will now have until September 30, 2019 to provide the new Component 2 pay data.


Background


As we discussed in our recent update, the Equal Employment Opportunity Commission (EEOC) requires employers with at least 100 employees and federal contractors with 50 or more employees and contracts of $50,000 or more to file annual EEO-1 reports. The EEO-1 report collects, through its Component 1 requirements, the demographic makeup of the employers workforce by race, gender, ethnicity, and job ...
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Posted in Discrimination

Employers with annual EEO-1 reporting requirements can soon expect to have new pay data reporting requirements for 2018. The reporting deadline could be as early as May 31, 2019, but the deadline is more likely to be set for later this year.


Background


The Equal Employment Opportunity Commission (EEOC) requires employers with at least 100 employees and federal contractors with 50 or more employees and contracts of $50,000 or more to file annual EEO-1 reports. The EEO-1 report collects, through its Component 1 requirements, the demographic makeup of the employers workforce by race ...
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The trend of location specific employment laws is continuing. A new discrimination law and guidance have taken effect, respectively, in the state of New York and New York City, and a new discrimination law will take effect next month in the city of Portland, Oregon. Employers with multijurisdictional operations should continue to monitor location specific developments that may affect their operations.


New Yorks Gender Expression Non-Discrimination Act


Employers with New York operations should take heed of New Yorks Gender Expression Non-Discrimination Act (GENDA), which ...
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In December of 2018, the 8th Circuit Court of Appeals addressed the interaction between a reasonable accommodation under the Americans with Disabilities Act (ADA) and a work attendance policy holding that unauthorized absences under an attendance policy can be used to terminate an employee for whom accommodations are being made under the ADA. In Lipp v. Cargill Meat Solutions Corporation, the 8th Circuit affirmed dismissal of an employees lawsuit alleging her employer discriminated against her when it failed to accommodate her need for intermittent absences under the ADA and ...
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Posted in Discrimination

In the midst of the #MeToo movement, the wave of proposed and actual changes to state sexual harassment laws is continuing. Earlier this year, we posted on a proposed change to Minnesotas sexual harassment law that did not pass, but, as proposed, was intended to lower the legal standard for proving actionable sexual harassment in Minnesota. Now, California is pursuing a similar goal. Late last month, the California (CA) legislature passed a bill, SB 1300, that could have a significant impact on the ways in which employers need to seek to prevent and to respond to potential sexual ...
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In the #MeToo Era, employers who are focused on proactive sexual harassment prevention and response measures should also be mindful of other aspects of gender equity, such as pay equity. The Wall Street Journal recently reportedthat the U.S. Equal Employment Opportunity Commission (EEOC) is investigating Uber for potential gender discrimination in hiring and in its pay practices. The investigation is in line with the EEOCs 2017-2021 Strategic Enforcement Plan, which included a focus on equal pay protections as a strategic priority.


Uber is just one of a number of companies facing ...
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Posted in Discrimination

As our readers know, the Americans with Disabilities Act (ADA) addresses both physical and mental health disabilities of employees. Under the ADA, employers with 15 or more employees may not discriminate against an employee or applicant on the basis of a qualifying disability. In addition, in certain circumstances, the ADA requires employers to provide a reasonable accommodation to enable the employee or applicant to do the essential functions of the job.


Recently, the Equal Opportunity Commission (EEOC) issued two new publications relating to mental health conditions under ...
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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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Posted in Discrimination
On the 20th of this month several well-known companies, including T-Mobile, Amazon, and Cox Media Group, were named parties in a class action lawsuit filed in California related to their online hiring practices. The plaintiffs in the lawsuit are seeking class-action status to represent Facebook users age 40 or older who may have been denied the chance to learn about job openings. The action alleges that advertisements were placed on Facebook that restricted who could see the advertisements by age. This new area of attack by the plaintiffs bar targets advertisements on all social ...
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Posted in Discrimination
On Nov. 1, 2017, the Equal Employment Opportunity Commission (EEOC) launched an online intake portal to allow individuals to quickly and directly submit inquiries and intake interview requests to the EEOC. It remains to be seen whether online access to the EEOCs intake and inquiry process will lead to an increase in discrimination charges, but the new reporting mechanism undoubtedly provides potential claimants with easier access to the EEOC.
 
Previously, in order to file a charge with the EEOC, an individual needed to visit an EEOC office in person, visit a state or local fair ...
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Hurricane Harvey has caused unprecedented damage in Texas, resulting in thousands of companies temporarily (or perhaps even permanently) closing down operations. While the main focus is and should be the safety of everyone affected by Harvey, this natural disaster brings with it a host of legal and practical issues for employers. Even if a company is not in the storms path, it should consider using Harvey as an opportunity to think through some of the preparations that can make disasters a bit easier to manage. Below are a few common questions employers may be faced with in an emergency.
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Last week a federal judge in Washington, D.C. directed the Equal Employment Opportunity Commission to revisit its regulations governing employee wellness programs but did not vacate the regulations.  The court noted that striking down the regulations until they could be revised may have significant disruptive consequences and it assumed that the EEOC could address the failings it identified in short order.  Nonetheless, the decision not to stay implementation or vacate the regulations creates confusion for employer wellness programs.

The EEOCs wellness regulations took ...

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Posted in Discrimination
The Trump administrations proposed budget for the upcoming federal fiscal year contains a streamlining proposal that is evoking strong opposition from both employer and employee groups. Namely, the administration has proposed merging the federal Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP).
 
Employers and employee rights groups are rarely on the same side of regulatory matters, but in this case, there is almost unanimous opposition to the proposed agency merger. Presumably, the Trump administration believes ...
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Memorial Day signals the beginning of summer. Here in Minnesota, lake-goers open their cabins and put out their docks, and families gather for backyard cookouts. For many, Memorial Day has special meaning as we remember those who died in military service in our country's armed forces. In honor of Memorial Day, we take a look at USERRA and other laws that afford legal protections to service members, veterans, and their families.
 
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides reemployment rights to persons who must be absent from ...
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Posted in Discrimination

Last week, the United States Supreme Court ruled that appellate courts reviewing a lower court ruling on the enforceability of an Equal Employment Opportunity Commission (EEOC) subpoena must use an abuse of discretion standard. By requiring this deferential standard, the Supreme Court positions lower courts to be able to impose reasonable limits on the EEOCs investigatory powers.

The Supreme Courts ruling was issued in the case of McLane Co., Inc. v. Equal Employment Opportunity Commission. The McLane case arose out of McLanes termination of Damiana Ochoa for her failure to pass a ...

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Earlier this week, the U.S. Supreme Court reversed course and sent a case that it had previously accepted for review, Gloucester County School Board v. G.G., back to the lower appellate court. The case involves the question of whether a Virginia high school must, under the anti-sex discrimination provisions of Title IX, grant a trans-male student bathroom access based on his gender identity rather than his anatomy. When the case was accepted for review by the Supreme Court, one of the legal questions up for review was whether a 2016 U.S. Department of Education (DOE) guidance document ...

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Since the days of former President Franklin D. Roosevelt, the United States has closely tracked a new presidents first 100 days in office. Here at Gray Plant Mooty, our employment and labor law teams have been monitoring and will continue to track activity by the Trump administration in the employment and benefits law area. This alert is the first in what we intend to be a series of updates to our employer clients on key developments during the first 100 days.
 
Department of Labor Developments
When President Trump was elected in November 2016, the U.S. Department of Labor (DOL) was fighting ...
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Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued a proposed guidance document on workplace harassment. The EEOC is seeking public comment on the guidance through February 9, 2017.

Preventing systemic harassment is listed as a priority in the EEOCs Strategic Enforcement Plan for 2017-2021. In 2015, harassment charges represented over 30 percent of all charges filed with the EEOC. The same year, the EEOC created a task force to analyze workplace harassment and identify innovative and creative prevention strategies. The task force issued its findings ...

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Last week, the Equal Employment Opportunity Commission (EEOC) announced the approval of the new EEO-1 report form by the White House Office of Management and Budget (OMB). Beginning in March 2018, the EEOC will use the revised EEO-1 report to collect summary employee pay data from certain employers. Specifically, private employers with 100 or more employees are required to fill out the revised EEO-1 report on an annual basis. Federal contractors and subcontractors with 50-99 employees will not have to submit summary pay data, but they will continue to report demographic data ...

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Insubordination is a term that shows up frequently in documentation and discussions about why an employee was, or should be, disciplined or terminated. According to the dictionary definition, insubordinate means not obeying authority or refusing to follow orders. Following direction from ones boss is a pretty important part of any job, so insubordination certainly sounds like it should be a terminable offense. However, it is risky for employers to accept a charge of insubordination at face value without analyzing the nature of the conflict that is driving it. Labor law protects a ...

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In our January 29, 2016 post, we informed you that the U.S. Equal Employment Opportunity Commission (EEOC) had published a proposed enforcement guidance on Retaliation and Related Issues for public comment. On August 25, 2016, the EEOC issued the final enforcement guidance, which is available here: 
The new enforcement guidance replaces the retaliation section of the EEOCs 1998 Compliance Manual and addresses the issue of retaliation under various federal anti-discrimination statutes, including the ...
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As discussed in prior posts, the Equal Employment Opportunity Commission (EEOC) has a strategic enforcement agenda focused on expanding Title VII protections to encompass gender identity and sexual orientation. Courts are weighing in, with varied results. According to the EEOCs website, a number of federal courts have sided with the EEOCs interpretation of Title VII, primarily in the context of gender identity. On July 28, 2016, however, the U.S. Court of Appeals for the Seventh Circuit held that, under past Circuit precedent, Title VIIs anti-discrimination protections do not ...
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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 Chinese employer made news last week for an unusual workplace discipline episode after a cellphone video revealed employees receiving public spankings for poor performance. The cellphone video shows a man with a wooden stick spanking eight employees four times each. The employer, a bank, claimed the spankings occurred during a team-building exercise facilitated by a corporate coach.
Corporal punishment is illegal in China, and, not surprisingly, a spanking policy or team-building endeavor of this kind would raise serious legal issues for U.S. employers as well. 
In ...
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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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Posted in Discrimination
On May 16th, the Equal Employment Opportunity Commission (EEOC) released final regulations designed to reconcile contradictory rules for employers related to employee wellness programs and non-discrimination laws. An EEOC summary of the final regulations is available here, and you can find the final rules here and other commentary and coverage here, here, and here.
 
The Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) include clear restrictions on an employers ability to collect and use employee health information. Just ask the ...
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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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A helpful rule of thumb for employers trying to navigate compliance with the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and other laws affected by employees health or medical conditions, is to leave the diagnosing to doctors. Employers are obligated to provide leave where appropriate, or accommodations when needed, but an employer who tries to determine on their own whether an employee (or an employees family member) has a real medical issue, what the cause of that issue is, or what it will take to accommodate that issue, puts itself at higher risk of ...
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As noted in a previous blog post, Justice Scalia's sudden passing last month will have a big impact on how key labor and employment cases are decided by the U.S. Supreme Court. On March 16th, President Obama nominated Judge Merrick Garland to fill Justice Scalia's seat. Judge Garland is currently the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). The D.C. Circuit is a primary forum for challenges to administrative actions, including actions by the National Labor Relations Board (NLRB). This means that Judge Garlands judicial record is of ...
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This week, the U.S. Equal Employment Opportunity Commission (EEOC) made the landmark announcement that it has sued two companies for sexual orientation discrimination under Title VII. On March 1, 2016, the EEOC filed suit against Scott Medical Health Center in federal district court in Pennsylvania and Pallet Companies d/b/a IFCO Systems in federal district court in Maryland.  Both cases allege that the defendant employers discriminated against the plaintiffs based on sexual orientation and, by doing so, violated Title VII of the Civil Rights Act of 1964. Title VII does not ...
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Workplace wellness programs continue to grow in popularity, despite being an enforcement target of the Equal Employment Opportunity Commission (EEOC). We have previously posted some updates on the evolving law and regulations in this arena, as well as some compliance recommendations.

Some popular wellness program features include financial incentives, disincentives, and data mining. According to some sources, more than a third of U.S. employers use financial incentives to encourage employees to participate in wellness programs. In addition, data mining and use of big data ...

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Regardless of ones political views, the passing of a sitting United States Supreme Court Justice always has the potential to create major waves on the waterfront of federal law. But the recent death of Justice Antonin Scalia, in particular, could have significant implications for employers. There are currently several cases pending before the Supreme Court that raise important employment and labor law questions. The potential voting shifts that always follow a reconfiguration of the Supreme Court could impact the ultimate outcome of those cases.

Just a few of the employment and ...
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In a recent ruling, the White case, the Minnesota Court of Appeals held that an employee who has been terminated for misconduct caused by mental illness, such as depression, may nevertheless be eligible for Minnesota unemployment benefits.   Notably, the Court also ruled that an unemployment judge has an affirmative duty to help such a claimant present relevant evidence if the claimant is unrepresented by counsel.
 

The Minnesota unemployment law generally provides that employees terminated through no fault of their own are entitled to benefits.  Individuals who voluntarily quit ...

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The Equal Employment Opportunity Commission (EEOC) is preparing to issue a new enforcement guidance on Retaliation and Related Issues. The impending guidance, available here, is not yet final, but has been published by the EEOC for public comment. Once the guidance is finalized, it will not technically carry the force of law, but it will feel like it does. While courts are not obligated to follow EEOC guidance, the EEOC itself relies on its own enforcement guidance documents when addressing discrimination charges or litigating on behalf of claimants. Employers should, therefore ...
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In furtherance of pay equality and greater pay transparency, new requirements for federal contractors took effect on January 11, 2016, making it unlawful to discriminate against a party who inquires about, discusses, or discloses pay or compensation. (See 41 C.F.R. Part 60-1.) The executive order is intended to promote pay transparency and openness by permitting workers and job applicants the freedom to share information about pay or compensation without the threat of subsequent discrimination.

The executive order is one of the methods the Obama administration has chosen to ...

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In the early days of 2016, the Equal Employment Opportunity Commission (EEOC) continues its strategic enforcement focus on LGBT rights. Last week, the EEOC filed an amicus brief in a U.S. Court of Appeals for the Eleventh Circuit case, Burrows v. College of Central Florida.  In its brief, the EEOC argued that employment discrimination based on an individual's sexual orientation is a form of sex discrimination and unlawful under Title VII of the Civil Rights Act.


In the Burrows case, the plaintiff, a college administrator, sued her former employer, claiming she was ...

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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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Even for employers with the best of intentions, workplace wellness plans carry risk. We have previously posted about some of the perils and pitfalls that can result from corporate efforts to help employees stay well. We also wrote about a local company that found itself in the Equal Employment Opportunity Commissions (EEOC) crosshairs because of its wellness plan.

After facing increased EEOC scrutiny, employers may soon be receiving some welcome news from the EEOC. Last week, the EEOC issued a Notice of Proposed Rulemaking for a rule that, if finalized, would amend regulations ...
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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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Nearly every employer has dealt with a difficult employee, a tense termination, or a particularly serious workplace conflict. In the wake of a tragic event like the recent Roanoke news station shooting, many employers are looking for better ways to handle employee conflicts and protect employees. According to OSHA statistics, each year nearly two million Americans report being victims of workplace violence (which includes physical violence, threats, harassment, and abuse). While no policy, procedure, or safety measure can guarantee security, employer policies and ...
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The EEOCs current strategic plan includes, as an enforcement priority, a focus on the employment rights of lesbian, gay, bisexual and transgender (LGBT) individuals. On the heels of prior EEOC rulings and lawsuits aimed at expanding LGBT workplace protections, the EEOC recently issued a lengthy opinion on July 16, 2015, in which it concluded that Title VII prohibits sexual orientation discrimination. While the decision involved a federal government employer, the ruling has practical implications for private employers that are required to comply with Title VII. The decision is ...
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Posted in Discrimination
There's only a few more sleeps ahead of us before the Americans with Disabilities Act (ADA) turns 25 years old. The law was signed by President George H.W. Bush on July 26, 1990. If you want to take a trip down memory lane, you can find a video of the Presidents signing ceremony here. As the ADAs historic moment approaches, you can also watch for one of the various celebration events going on around the country and track the ADA Legacy Bus as it nears the completion of its year-long celebration and awareness tour.
 

Since the ADA was enacted, the landmark law has been expanded by the enactment of the ...

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As distribution of medical marijuana is set to begin in Minnesota on July 1, 2015, a new ruling from the Colorado Supreme Court further clouds the air for employers attempting to handle the employment ramifications of marijuana use in the twenty-four jurisdictions now permitting marijuana use.
 

On June 15, 2015, the Colorado Supreme Court held that an employer was permitted to discharge an employee due to his licensed medical use of marijuana at home during nonworking hours. In the case, Coats v. Dish Network, the employee had worked for the employer for three years before he tested ...

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A hiring policy based on looks is like nails on a chalkboard to an employment lawyer. So it comes as no surprise that the "Look Policy" of an Abercrombie & Fitch (A&F) store caused A&F trouble before the Supreme Court last week when the Court found in favor of the EEOC on a charge of religious discrimination against the clothing retailer. However, the decision has implications that reach beyond image-based hiring and sets standards of proof for religious accommodation claims and Title VII generally.

The Court's 8-1 opinion held that an employer need not have actual knowledge of an ...

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This month, the EEOC began to roll out ACT Digital, the agency's first step to a digital charge system. ACT Digital will enable electronic transmission of documents filed between the parties to a charge and the EEOC. Implementation began on May 6 with EEOC offices in the Charlotte and San Francisco areas. EEOC offices in Denver, Detroit, Indianapolis, and Phoenix will also begin implementation by the end of May. The remaining EEOC offices will roll out implementation in stages, with the EEOC expecting ACT Digital to be available in all offices by Oct. 1, 2015.

Phase 1 of implementation ...
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Two recent articles pose interesting questions regarding recruiting and retaining younger workers. The first, at Fortune.com, and a related Wall Street Journal blog post, consider whether an employment advertisement seeking digital natives is evidence of age discrimination. The article notes that the term digital native was coined by author Marc Prensky and refers to individuals who grew up with technology, becoming native speakers of the digital language of computers, video games and the Internet.

Fortune found, however, that employers have used the term in a way that could ...
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Posted in Discrimination
Earlier this week, the U.S. Supreme Court issued a much anticipated ruling on the question of whether courts have the authority to review the adequacy of the Equal Employment Opportunity Commissions (EEOC) pre-lawsuit efforts to settle a case under Title VII of the Civil Rights Act of 1964. The EEOCs website contains a press release declaring the Courts Mach Mining ruling a step forward for discrimination victims, but other commentators have declared the ruling to be a victory for employers. This mixed reaction likely stems from the fact that the Courts opinion, when read carefully ...
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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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In an update to a previous post, the highly anticipated United States Supreme Court decision in UPS v. Young was announced last week. In a 6-3 decision, the Court vacated rulings of the district court and the Fourth Circuit Court of Appeals, both having issued summary judgment in favor of UPS. The Court remanded the decision to determine whether the policies of UPS were legitimate and nondiscriminatory. The Court stated the Fourth Circuit had not yet considered the combined effects of UPS' other accommodation policies or the strength of UPS' justifications for the ...
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We recently alerted you to proposed legislation that, if passed, would expand last years Minnesota Womens Economic Security Act (WESA) by requiring paid sick and safe time off benefits for almost all Minnesota employees and extending pregnancy accommodation and parental leave obligations to all Minnesota employers.  You should be aware that Minnesota lawmakers are at it again. Late last month, additional legislation (HF 1093 and SF 1085) was proposed that is aimed at benefiting working parents. Together with the earlier proposed sick and safe leave bill, the legislation is being ...
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As we previously reported, the EEOCs targeting of employer background checks has been controversial and continues to fizzle in the courts. Recently, in EEOC v. Freeman, the U.S. Court of Appeals for the Fourth Circuit affirmed a lower courts grant of summary judgment to an employer. The Fourth Circuit found that the EEOC failed to establish a prima facie case of discrimination with respect to the employers background checks, because the EEOCs expert testimony and corresponding statistical analysis was unreliable. This is the same reason that the EEOCs background check ...

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On February 23, 2015, the Department of Labor (DOL) announced the final rule to revise the definition of spouse under the Family Medical Leave Act (FMLA). The changes to the FMLA regulations will take effect on March 27, 2015.

The changes to the rules are the result of last years U.S. Supreme Court decision, United States v. Windsor, overruling Section 3 of the Defense of Marriage Act (DOMA) which defined marriage for purposes of federal law as being between one man and one woman. Consistent with Section 3 of the DOMA, the DOL has traditionally defined marriage for FMLA purposes as ...

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Posted in Discrimination
The EEOC released its FY2014 (Oct. 1, 2013 Sept. 30, 2014) enforcement statistics last week.

Overall, the EEOC reported a decrease in filed charges compared with recent years.  The agency attributed the 5.2 percent decline from FY2013, at least partially to the government shutdown in October 2013. However, it also appears that apart from the shutdown, charges are slightly declining in recent years with FY2013 showing a 5.7 percent decline from the prior year.
As in prior years, retaliation claims were the most frequently filed charge in FY2014. As such, it may be timely to ...
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In conversations with clients and employment law colleagues, I have dubbed 2014 the year of the employee handbook. In the wake of the passage last year of the Minnesota Women's Economic Security Act (WESA), Minnesota employers were required to update employee handbooks and practices to address new wage disclosure rights, new anti-discrimination protections, and, as applicable, expanded protections for pregnancy, parental leave, and the use of employer-provided sick time.

If certain Minnesota DFL Senators have their way, Minnesota employers may need to pull out those ...

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A new year may bring new employment chances for Minnesotans with criminal records. Minnesota's new Second Chance law, providing for broader and more effective expungement of criminal records, became effective on Jan. 1, 2015. Expungement is a process for the sealing of ones criminal record through a court order. The revised expungement law is meant to provide a more effective remedy for those persons who are able to qualify for an expungement of their criminal record, including ensuring that information held by various governmental agencies is also effectively expunged ...

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2014 has been a big year for pregnancy protections in employment law. In May, Minnesota enacted a new pregnancy accommodation law, and in July the federal Equal Employment Opportunity Commission (EEOC) issued an updated pregnancy discrimination guidance document. Developments in this area are set to continue in the upcoming year. Last week, the U.S. Supreme Court heard oral arguments in the Young  v. UPS case a highly watched case involving an employers potential duty to accommodate pregnant workers under the federal Pregnancy Discrimination Act (PDA). It is well-settled ...
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Believe it or not, 2014 is drawing to a close and a new year is around the corner. As you prepare for 2015, here are some items on the U.S. Department of Labors regulatory agenda that you will want to track:


We've been on the look-out for proposed revisions to the Fair Labor Standard Acts (FLSA) white collar exemptions from overtime and minimum wage requirements since March of 2014. That was when President Obama issued a directive for the Labor Secretary to modernize and streamline the existing regulations and increase the minimum salary for the white collar exemptions. The Department of ...

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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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On Monday a federal jury in California awarded $185 million to a former AutoZone store manager who alleged that throughout her employment she had been discriminated against, demoted, and ultimately terminated because of her gender and in retaliation for complaining about discrimination. Rosario Juarez worked at an AutoZone retail store in San Diego from 2000 to 2008. Although she received promotions and advanced in positions within the store, these allegedly occurred only after she raised complaints about disparate treatment of women employees. 

After Juarez informed the ...

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For the first time in weeks, online news reports have been relatively Ebola free. This week, the last Ebola patient in the U.S. was declared Ebola free and released from the New York hospital where he had been quarantined. There are currently no known Ebola cases in the U.S. 


Nevertheless, I am continuing to field questions about how employers can keep their workplaces free of the potentially deadly Ebola virus. In addition to being concerned about their employees well-being, these employers are mindful that federal and state OSHA laws require employers to take reasonable ...

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As we mentioned in a post last month, the EEOC has a clear agenda to target employer wellness programs. In our earlier post, we discussed two lawsuits against employers in Wisconsin. Now, the EEOC has set its sights on one of our local employers - Honeywell. Last week, the EEOC sued Honeywell over a wellness program that involves employees and their spouses being asked to participate in biometric screening and a determination of body mass index. According to the EEOCs complaint, employees who don't participate along with their spouses are assessed a surcharge of up to $500 on ...
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I love wellness programs. I am a sucker for discounts of any sort, and I especially like the idea of rewarding healthy behavior. My bicycle has a tag that logs my work commute when I pass the electronic stations throughout the Twin Cities, and I smile every time I hear its gratifying beep.

So, I understand why employers like wellness programs. What's not to like about incentivizing healthy lifestyle changes while also lowering health insurance costs, decreasing absenteeism, and increasing productivity? As is so often the case, however, the devil is in the details.  If wellness ...

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If you do business with the federal government, chances are that you're feeling weighed down by the various new requirements placed on you over the past year. We've discussed these requirements in past posts here and here. That's why you may be surprised to hear that the US Department of Labor's Veteran Employment and Training Service (VETS) published a final rule last week that actually makes something easier for federal contractors. The rule modifies and simplifies the reporting requirements under the Vietnam Era Veterans' adjustment Assistance Act (VEVRAA) for federal ...

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If you're an Amazon Prime member or you've shopped online at Amazon lately, you've probably heard that Amazon launched a new TV series last week, "Transparent," about a 70 year old divorced father who announces to his children that he intends to transition from a man to a woman. The "Transparent" series is getting rave reviews and comes at a time of increased societal and legal focus on the rights of transgender individuals.


Indeed, just before the launch of the "Transparent" series, the U.S. Equal Employment Opportunity Commission (EEOC) filed its first ever lawsuits alleging sex ...

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Another Sunday has come and gone and with it, somewhat predictably, another Vikings loss. What's remarkable about this week, however, is that the team was without its star player, Adrian Peterson. Mr. Peterson has been barred from team activities pending the resolution of his criminal indictment for child abuse. Mr. Peterson has admitted to disciplining his 4-year-old son with a wooden switch and injuring the child in the process. The Vikings organization has been widely criticized for its initial response to Adrian Petersons indictment. The Vikings initially planned ...

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Significant electronic data breaches made headlines again this week. Supervalu announced that millions of customer credit card numbers were stolen at various stores. In addition, one of the nations largest hospital chains - Community Health Systems - announced that the personal data of up to 4.5 million patients was taken when hackers bypassed the company's security measures. These latest breaches come at a time when a private research report is indicating that the medical sector has had more data breaches in the last two years than military and banking sectors combined. As we've ...
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Dust off your handbooks and rethink your employment policies the EEOC has just announced some significant changes in how it is going to investigate and litigate pregnancy discrimination claims.

In its first comprehensive pregnancy guidance update in thirty years, the EEOC issued new pregnancy discrimination guidance in mid-July. The updated guidance is effective immediately, superseding the prior guidance and addressing the application of many laws passed since 1983 - including the 1990 Americans with Disabilities Act (ADA) and the 1993 Family Medical Leave Act (FMLA) - to ...

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Some high profile companies, including two technology giants, made headlines this week after former employees filed lawsuits against them alleging discrimination and harassment.  The case against Yahoo is likely to be particularly interesting, because the executive accused of harassment is alleging that she's being defamed by false allegations. You can read more about each of these lawsuits below, and you can revisit one of our recent prior posts for more information on the same topic.  In other news from Silicon Valley, Google is making headlines this week for its work on ...

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Minnesota recently became the 22nd state to legalize medical marijuana use and, as part of the new law, to enact new potential employment protections for registered users of medical marijuana. Minnesota's new marijuana law has already gone into effect, but distribution of marijuana for medical purposes is not expected until July 1, 2015. Employers should use this extra time to familiarize themselves with Minnesota's new law and its potential implications. While the new Minnesota law purports to impose some new employment law obligations on employers, it also raises many ...

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Last week a New York federal court certified a class of approximately 250,000 African-American job applicants in a race discrimination case against the U.S. Census Bureau. The plaintiffs allege that they were unlawfully excluded from consideration for door-to-door census positions due to arrest records that never resulted in convictions. In other instances, applicants were allegedly rejected based on convictions for minor crimes or convictions that were so old they should not have been considered. The lawsuit alleges that the Census Bureaus practices disparately ...

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June 2014 is Lesbian, Gay, Bisexual, and Transgender (LGBT) Pride month, and President Obama is set to mark the month by using his pen and phone approach to expand workplace protections for LGBT individuals. Frustrated with the inability to get various employment-related laws through Congress, President Obama has taken to using his executive authority to make progress where he can primarily with federal government contractors.  So far this year, President Obama has issued executive orders raising the federal minimum wage for federal contractors and requiring contractors to ...
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Posted in Discrimination

If Minnesota employers recently detected vague but ominous tremors beneath their feet, it may have resulted from very recent activity coming out of the Minnesota state capitol. With one very short amendment to the Minnesota Human Rights Act (the "MHRA") that was signed into law by Governor Dayton on May 13, the legal exposure landscape for employment discrimination claims may have shifted radically. Specifically, the MHRA was amended to now grant a right to a jury trial for violations of that law.

As most employers are aware, the MHRA is the Minnesota statute that prohibits ...
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By now, you've probably heard of the audio recording of racist statements by L.A. Clippers owner Donald Sterling that has gone viral. Yesterday, the NBA commissioner announced that Sterling will be banned for life from the NBA and fined $2.5 million, the highest fine permitted by the NBAs constitution and bylaws. It also appears that Sterling stands to lose his ownership stake in the Clippers. 

Sterling's statements were recorded by a former girlfriend during a conversation in Sterling's home and later leaked to TMZ. There has been near-universal support for the NBAs swift and ...

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Are you working in your pajamas right now? Or from the beach? If so, you may be one of the many Americans who telecommute. This week, a Forbes article discussed the rise of telecommuting, the reasons telecommuting is becoming more common, and why it's not for everyone. Meanwhile, a federal appellate court held that telecommuting may be required as a form of reasonable accommodation for a disabled employee. The court had previously held, back in 2004, that telecommuting was not a form of reasonable accommodation, but it explained that the technological evolution of the last decade now ...

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The Equal Employment Opportunity Commission (EEOC) has recently issued an informal guidance on the issue of religious dress and grooming. The guidance comes in wake of several suits accusing employers of religious discrimination for refusing to accommodate certain types of religious dress or grooming.

The EEOCs Religious Garb and Grooming in the Workplace:  Rights and Responsibilities guidance uses a question and answer format and covers a wide range of topics. In particular, the guidance notes the following:
 
       All employees covered by Title VII of the Civil Rights Act of 1964 ...
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Overtime pay is a big theme this week following President Obamas directive that the U.S. Department of Labor work to update the existing federal regulations on overtime pay. The most prominent change that is expected is an increase in the $455 minimum weekly salary that must be paid for an employee to be exempt from overtime pay requirements under federal wage and hour law.  Before any overtime pay change can be finalized, the Department of Labor must complete a rule making process that could take a year or longer.  Speaking of overtime, March Madness has begun once again.  Check out the links ...

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Across the country, federal government contractors are preparing to meet next weeks deadline for starting to comply with new affirmative action rules.  Last fall, the Office of Federal Contract Compliance Programs (OFCCP) announced new affirmative action rules related to individuals with disabilities and protected veterans.  Those new rules become effective next week on Monday, March 24, 2014.  Some of the new requirements imposed by the rules have a March 24th compliance deadline.  Others can wait until a contractor currently in the middle of its affirmative action plan ...

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If you work in HR or Student Services for a college or university, you're likely well aware of the Campus SaVE Act and the fact that it has added a long list of items to your to do list. When the law was first passed a year ago, its March 2014 effective date seemed so far away. Time sure flies! Not only is the Act going into effect, the U.S. Department of Education recently issued draft regulations on the law. The regulations wont be final for some time, but they will provide additional guidance to institutions on complying with the Act.
 
The Campus SaVE Act amends existing law to promote ...
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Posted in Discrimination

I have not followed NFL football for many years, but the recent NFL report about the Miami Dolphins definitely caught my attention. The report, prepared for the NFL by a New York law firm, concluded that Richie Incognito and other Miami Dolphin players inappropriately bullied and harassed offensive lineman Jonathan Martin through improper physical touching and by persistently taunting him with sexually explicit remarks about his mother and sister, and racist and homophobic slurs. Martin abruptly left the Miami Dolphins in 2013.

Unfortunately, the behavior described in ...
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Alabama State University is taking flak over the employment agreement it recently inked with its new president, Gwendolyn Boyd. No one seems concerned with the size of Dr. Boyd's salary and benefits. It is the clause restricting her ability to have slumber parties that is turning heads. The agreement provides that so long as Dr. Boyd is president and a single person, she shall not be allowed to cohabitate in the presidents residence with any person with whom she has a romantic relation.

Given the role college and university presidents play in wooing big donors and serving as chief ...

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The holiday season is a time for reflection, including reflection on our technology habits. Many individuals are aiming to be truly home for the Christmas holiday by engaging in digital detox plans and setting their smartphones and other mobile devices aside to spend time with family and friends. Disconnecting from workplace technology during non-work hours is also becoming a trend at other times of the year, and many employers are encouraging this trend. Another take-away from this holiday season may be to reflect on what your shopping habits can teach you about hiring ...

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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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Last Thursday, November 7, 2013, the U.S. Senate passed the Employment Non-Discrimination Act (ENDA) by a vote of 64-32. Similar to existing federal nondiscrimination laws, ENDA would be enforced by the EEOC and would prohibit most employers with 15 or more employees and labor organizations from taking adverse employment action or treating employees differently because of their actual or perceived sexual orientation or gender identity. Although this is a significant step forward for this bill, ENDA still faces tough opposition in the GOP-led House of Representatives, where ...
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Its Halloween, and we employment lawyers would be remiss if we didn't comment on the ways that workplace Halloween costumes can sometimes go wrong. The negative flack that celebrity Julianne Hough is receiving in the news for her blackface Halloween costume highlights the reality that, while Halloween revelry at work can be great fun, it can also come with a risk that an employee crosses over a racial, cultural, political, or other line and offends someone.


As such, it is a good idea to be thoughtful about office festivities and costumes. A little time spent on the front end can ...
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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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New federal and state laws are continuing to impact our relationship with technology and online resources.  This was recently illustrated by the roll out of web-based health insurance exchanges under the federal Patient Protection and Affordable Care Act. The roll out did not go smoothly, and the news was filled with stories of technological glitches and errors that, to some extent, took center stage over the continued partisan split over the substance of the law. At the state level, California passed a law that gives people under the age of eighteen the right to have personal ...

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 Last week, attorneys general of nine states signed a five page letter addressed to the Equal Employment Opportunity Commission. The letter sharply criticizes the EEOCs guidance related to employers use of criminal background checks, and calls the EEOCs position misguided and a gross federal overreach. It accuses the EEOC of attempting to expand Title VIIs protected classes to persons with conviction records.

 
The letter was sent from West Virginias attorney general and signed by the attorneys general of Montana, Alabama, Nebraska, Colorado, South Carolina, Georgia, Utah ...
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The EEOCs Notification Letters have been sent and the lines are now open to complete the EEO-1 survey. Reports must be submitted by the September 30, 2013 deadline.
The EEO-1 is the form that the EEOC uses to collect workforce data from employers with more than 100 employees. Federal government contractors and first-tier subcontractors who have 50 or more employees and a contract or subcontract of $50,000 or more must also report. As the EEOCs websitemakes clear, employers meeting the reporting thresholds have a legal obligation to provide the data; it is not voluntary. Qualifying ...
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Last week, I presented an employment law update at my firms annual Health Law Institute.  While the presentation was aimed at employers in the health care industry, it also involved a review of recent state and federal law developments that affect all employers.  I knew the audience would be looking for practical take-aways, so I put together a checklist of employer to-do items in light of the recent developments.   I thought the readers of this blog might appreciate a list too.  So here are some important employment law compliance to-do items:

     1.  Post the new FMLA poster, update your FMLA ...

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The United States Supreme Court issued two long awaited and employer friendly decisions today. Both relate to issues raised under Title VII of the Civil Rights Act of 1964. 
Vance v. Ball State University: Who is a Supervisor?

Under Title VII, employers may be strictly liable for harassment by a supervisor. Employers may also be liable for harassment by a co-worker, but only if the company knew or should have known of the co-workers conduct and failed to take prompt and appropriate corrective action. A question that remained disputed until the Vance decision was who qualified as a ...

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What do discount retailer Dollar General and luxury automobile manufacturer BMW have in common? No, they haven't started selling BMWs at Dollar General stores. Rather, both companies were sued last week by the Equal Employment Opportunity Commission (EEOC) based on the agency's allegation that their criminal background check policies disproportionately impact black job applicants and employees. These are the first lawsuits brought by the EEOC since the agency issued guidance back in April 2012 (blogged about here) requiring employers to engage in an individualized ...

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When I'm not lawyering, I like to spend time around horses. That sometimes means spending time observing the habits of horse barn owners and other operators of small agricultural facilities. For an employment lawyer, its scary out there on the farm. If you read the help wanted ads on horse industry list serves and web sites, or peruse the bulletin boards at feed stores, or talk to stable and farm owners, you'll quickly conclude that unlawful employment practices are common and that compliance is not a big concern.
Agricultural workers and non-agricultural workers are treated ...
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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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In an interesting convergence of events, two Minnesota employers recently found themselves on the wrong side of Minnesota's marital status discrimination law just as Minnesota is preparing for same sex marriages to become legal on August 1, 2013. These recent cases serve as an important reminder that Minnesota law prohibits employment discrimination based on marital status, including discrimination based on the situation or identity of an employees spouse. Minnesota employers should also be mindful that, come August, both opposite sex and same sex spouses will be protected by ...

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 Last week the Minnesota House of Representatives passed Ban the Box legislation, which prohibits private employers from asking applicants about their criminal record until after they have been selected for an interview. The bill, Senate File 523, passed easily on a 107-26 vote, with 35 Republican Representatives joining all DFL Representatives voting in support.  Governor Mark Dayton has indicated his support and is expected to sign the bill into law.

With passage of this legislation, Minnesota will be the third state to expand Ban the Box to private employers.  Proponents believe ...

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Posted in Discrimination
Last week in The Modern Workplace Week in Review, we posted a link to an article discussing the results of a survey that found that most people believe you should never friend your boss (81% of those surveyed). 

From an employment law standpoint, I think the more interesting question is:  should a boss friend an employee? I decided to conduct an informal survey of my peers here at The Modern Workplace.  I asked my colleagues if it was okay for a boss to friend an employee, and the resounding answer was NO. Why not? There are both legal and personal reasons why friending an employee, even if you do not ...
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The United States Supreme Court will be deciding an important affirmative action case this term and has now agreed to hear a second, similar case. These are not employment cases, but the Court's decisions will still be of interest to those of us who advise employers and who have followed the twists and turns of affirmative action over the years. Some observers think that the Court's decision in Fisher is going to signal the end of affirmative action once and for all. Others predict a divided Court and decisions so narrowly tailored that they have no real impact on the future of affirmative ...

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It turns out that Facebook can be used for more than just reconnecting with old friends and getting employees in trouble (though there is still plenty of that going on). Now, depending on who you are and where you live, you might be vulnerable to legal service via Facebook. A New York federal court recently ruled that the FTC may serve defendants in India using both email and Facebook. It reasoned that such service was proper under the Federal Rules of Civil Procedure and the Hague Service Convention. Similarly, Texas lawmakers are considering a bill that would allow for service via social ...
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Today is Presidents Day, or, as it is officially called, Washington's Birthday.  We also celebrate Black History Month each February, making this month a time for reflection on the long history behind our country's efforts towards achieving equality in the workplace.  In honor of both Presidents Day and Black History Month, I'm sharing the list below of Presidents who were in office when our country passed some of its landmark federal civil rights or employment laws, along with some interesting facts about each of the Presidents who played a role in the history behind our current ...
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Here at The Modern Workplace, we have often cautioned employers to be very careful when hiring to avoid claims of discrimination. In particular, we have cautioned employers about using an employees class (such as gender, race, etc.) when making a hiring decision. Our advice may be different, at least in Minnesota, if the class of workers involved is veterans or their spouses.
During the last legislative session, the Minnesota Legislature enacted a new law which allows private employers to offer favorable treatment to veterans and their spouses in the hiring process.  The new ...
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Posted in Discrimination
They served their country, and now businesses want to return the favor. Yesterday, Wal-Mart announced one of the largest veterans' preference initiatives of all time. Starting Memorial Day, 2013, the mega-retailer is promising to give a job to any veteran who has been honorably discharged within the preceding 12 months. The initiative is expected to employ over 100,000 veterans in the next five years.
Employing veterans is not only good for the veterans; it can also be good for business. It can provide financial rewards through various tax credits, such as the Returning Heroes Tax ...
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As we welcome 2013, its time to focus on New Years resolutions. With President Obamas re-election and governmental agencies announcing increased enforcement efforts in the employment area, 2013 is likely to be an active year for employers. Now is a good time to focus on what the year may bring and to position your company to minimize employment law risks. A few resolutions that should make your priority list include:
1. Update Your Employee Handbook: 2012 brought a number of legal changes, including an aggressive focus by the National Labor Relations Board (NLRB) on the enforcement of ...
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While employers should take steps to comply with all applicable legal obligations, it doesn't hurt to know those areas of compliance that are going to be given particular attention by enforcement agencies. Earlier this week, the EEOC announced its Strategic Enforcement Plan  (SEP) for Fiscal Years 2013 2016. The SEP gives employers a peek at the measures the EEOC believes are needed to achieve its goal of deterring discriminatory practices in the workplace.

The SEP identifies the following six enforcement priorities:

  1. Eliminating Barriers in Recruitment and Hiring. The Commission ...
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Posted in Discrimination
Employers have been justifiably concerned about the recent significant expansion of employees rights under the Americans with Disabilities Act (See EEOC fact sheet here). However, all hope may not be lost. As employees return from their exotic holiday travel, firing them based on pandemic flu panic may yet be legal.
This week, a Minnesota Federal Judge issued an order considering:
the interesting question of whether someone who is regarded as having an impairment that in fact is no more serious than seasonal flu but that, for a period of time, is  widely (although mistakenly ...
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Posted in Discrimination
Perhaps you think this is the most wonderful time of the year, or perhaps you think its the most stressful.  Either way, its here, and our workplaces aren't immune from the impact of the holidays.  It can sometimes be tricky for employers to allow goodwill and celebration without offending those who do not celebrate Christmas. 
The topics of religious accommodation and religious discrimination have been touched on in previous posts.  This post is focused on the specific issues that arise during the holiday season.  Note that these comments are intended for secular employers only.  ...
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Usually, our Week in Review posts are full of examples of what can go wrong when employees use social media. This week, we can report a different kind of story. A group of women are harnessing the power of Twitter to promote positive change in the gaming industry. Using the hashtag #1ReasonWhy, these women are speaking out against what they describe as the pervasive culture of sexism in the gaming industry. The question of "why are there so few lady game creators?" has been answered by hundreds of industry professionals, including game developers, journalists, and others ...

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The U.S. Supreme Court heard oral arguments on Monday in Vance v. Ball State University, a case that could create a more uniform legal standard for determining when an employee is a supervisor under federal harassment law.
 Fourteen years ago, the Supreme Court ruled that employers can be held strictly liable for sexual harassment and other forms of unlawful harassment by a supervisor. When a supervisor engages in unlawful harassment that results in a tangible, adverse action against an employee, an employer is automatically liable for that harassment. In contrast, employers ...
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Happy Thanksgiving! I hope all of you out there are enjoying good food and even better company. But, in case you need a welcome distraction from intense family bonding (or Black Friday strategizing), here's what is new in the world of technology and the workplace:

In an EEOC sexual harassment suit against HoneyBaked Ham, Co., a district court judge has ruled that the plaintiffs must turn over their cellphones and social media passwords to a court-appointed forensic expert. This expert is charged with going through text messages and social media content to determine what is relevant ...

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Anyone who picks up a newspaper knows that our world can be very violent, including domestic violence, sexual assault and stalking. Employers often see firsthand the impact of such violence on their employees. Most of the time, employers who learn that an employee is experiencing some form of domestic violence, sexual assault, or stalking will do what they can to help the employee manage the situation. Sometimes, however, employers of victims of violence react in a negative way. The Equal Employment Opportunity Commission (EEOC) has recently issued a guidance describing how the ...

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The United States Department of Labor recently announced the creation of a virtual workplace flexibility toolkit designed to provide employers, employees, policy makers, and others with information and resources about workplace flexibility.
October is National Disability Employment Awareness Month, and the Toolkit is designed in part to assist employers of disabled workers who seek accommodations. The Toolkit web site makes clear, however, that it is intended to address all kinds of complex employment situations, including the circumstances of parents of young ...
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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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The blogosphere has been buzzing over recent actions taken by the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) to limit employer requests for confidentiality during workplace investigations. Confidentiality has long been viewed as a hallmark of a good investigation for important reasons, including preserving evidence, encouraging witness cooperation, and reducing retaliation risks. In light of recent NLRB and EEOC activity, however, employers will need to think more carefully about when and how to make confidentiality ...
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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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Employers these days have a lot of obligations. They have bills to pay, workers to manage, customers to satisfy, and laws to follow. But what happens when two obligations conflict? What is an employer to do?   When in doubt, follow the law right?  But one Minnesota employer recently discovered things aren't that simple, especially when the law may be telling the employer to do two different things.

A company in southeast Minnesota had approximately 30 Somali workers walk off the job on Monday morning to protest the companys new dress code policy. The policy, which prohibits women from ...

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April 2012 was a busy month for the EEOC.  In addition to issuing new Guidance on discrimination against ex-convicts, the EEOC strengthened discrimination protections for another traditionally marginalized group - transgender individuals. In the case of Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the EEOC found, for the first time, that transgender discrimination is illegal sex discrimination under Title VII of the Civil Rights Act of 1964.
Gender identity and sexual orientation discrimination is already unlawful under Minnesota state law and in a number of ...
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On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued a new Enforcement Guidance on the use of criminal history information in making hiring and other employment decisions. This Guidance furthers the EEOCs strategic focus on eradicating systemic race discrimination, as discussed in earlier blog posts (4/25/12 and 1/27/12). Because persons of color are arrested and convicted at disproportionate rates, excluding individuals from employment based on a criminal record can be unlawful race discrimination under Title VII of the Civil Rights Act of 1964. To ...
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The EEOCs recently announced Strategic Plan for Fiscal Years 2012 2016 identifies systemic discrimination as a main focus of the next few years. What does this mean for employers? Among other things, employers need to be cautious about policies that, although facially nondiscriminatory, end up adversely impacting legally protected groups.
Given the publicity surrounding the EEOCs recent settlement with Pepsi, the enforcement and litigation priorities  referenced in its new strategic plan are certain to include the elimination of policies that unreasonably hamper the ...
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This week brought some protection for employees in their use of work computers and social media.  The en banc Ninth Circuit ruled that employees who violate an employer's computer use policy do not commit a federal crime under the Computer Fraud and Abuse Act.  But employees should take note that the circuits are split on this issue.  The Maryland legislature also sided with employees by becoming the first state to pass a bill banning employers from requiring social media passwords.  The bill currently awaits the governor's signature.
Technology and the Workplace
9th Circuit Narrows ...
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I just read an online article which claims that employers are turning to gaming techniques to recruit and screen potential applicants. In fact, I learned another new word: Gamification. Apparently, some companies are finding that gaming techniques help them find better hires when the traditional applicant screening methods are not effective at finding employees with the right mixture of skills. With the expected shortage of skilled workers that will result from the retirement of the baby boomers, finding employees with the right skills and attributes has become even more ...
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As the law attempts to keep up with technology, judges often must draw difficult lines concerning social media and individual rights.  A recent ruling by an NLRB administrative law judge held that a provision in an employer's social medial policy prohibiting any online commenting on work-related legal matters was too broad.  However, the judge upheld another portion of the policy prohibiting unapproved posting of photos showing employees in uniform.  A Washington case asks whether an employer engaged in disability discrimination when it fired an employee after ...
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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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Earlier this month, Pepsi Beverage Co. entered into a conciliation agreement with the Equal Employment Opportunity Commission in which the company agreed to pay $3.13 million and offer employment to 300 black applicants who were denied employment because of the companys background investigation policies.  The case has received media attention, but much of it appears to simply be a reminder of the pitfalls of requesting information about an applicants arrest records.  Pepsis policy of inquiring into arrest records was ill advised, but its worth noting that the practice of excluding ...
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The work of those in highly visible positions (political figures, executives, business owners and litigants) is subjected to a great deal of public scrutiny. Women who are in these roles are no exception, and views about their performance, strengths, weaknesses and personality are widely discussed in the media. The articles below discuss some of the current technological and legal issues that have come up this week, both those involving women and the world at large.  
Technology and the Workplace

The Newest Tech Start-Ups and the Women Who Founded Them ...
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Performance reviews can be a managers least favorite part of the job. They can be uncomfortable, confrontational and emotional. So, often, instead of addressing incidents of misconduct or poor performance with the employee, managers avoid the issue, and may even give a neutral or positive review. Then, when the manager concludes that discipline or termination are warranted, there is no documentation to back-up assertions of negative job performance, which can make things difficult if an employee later claims the action was taken for unlawful reason.  But even leaving aside the ...
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Technology can change faster than policies, procedures and people. There is a gap between how generations work and communicate - yet they have to work together. The articles here focus on the newest ways we use technology in our lives and workplace, and whether the new is better than the old.
 
Technology and the Workplace
Only those 35 and Younger, Gen Y Capital Partners Fund Young Tech Entrepreneurs Only (TechCrunch)
When Will Employees be Replaced by Robots? In New York Casinos, Now. (Gizmodo)
Employees and Ipads: Bonuses, Gifts and Hearing Aid Adjusters? (Star Tribune)
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CNN Money.com reported this week that the number of wireless cell phone and tablet devices in the U.S. has outpaced the U.S. population.  With all of this connectivity going on, it could be easy to forget that not everyone has equal access to the internet and an equal ability to apply for jobs online.  Studies in recent years indicate that minorities and disabled individuals, as a group, have less or different access than Caucasians and non-disabled persons.  As a result of this disparity, often dubbed the digital divide, employers should tread carefully in establishing exclusive online ...
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The General Counsel (GC) for the National Labor Relations Board (NLRB) plays a major role in deciding which cases the agency will prosecute and which legal theories it will apply in making those prosecutorial decisions.  This means the GCs recent analysis of fourteen separate social media cases (NLRB Press Release and link to the GCs Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases) is highly instructive for the many employers and their lawyers who have been closely watching the NLRBs enforcement activity in this ...
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Our last post set out some of the key points for employers from the recently-published analysis of social media cases by the General Counsel (GC) for the National Labor Relations Board (NLRB).  (NLRB Press Release and link to the GCs Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases)  In this post we set out some of the key points about employer policies and employee handbooks gleaned from the GCs analysis. 
Most private employers are covered by the National Labor Relations Act (NLRA) and need to be mindful of the GCs ...
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Although this work week was shortened by the Memorial Day holiday, there were plenty of stories in the world of technology, law, and the workplace.  Maybe it's because I just (finally) saw The Social Network, but the news about San Francisco start-up Hipster's unique search for employees stood out to me. Hipster, looking for engineers, has taken to the web with a hilarious (though somewhat concerning) pitch:  they are offering $10,000, a year's supply of Pabst Blue Ribbon beer, and an assortment of hilarious "hipster" accessories, such as a fixed gear bicycle, skinny jeans, and even ...

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As Megan Anderson wrote in her post "Does Your Company Have a "Workyard" Bully?," proposed anti-workplace bullying legislation is on the rise across the country.  Earlier this month, the trend made its way to the Land of 10,000 Lakes, as Minnesota became the 21st state to introduce workplace bullying legislation
The legislation, introduced as S.F. No. 1352, has been referred to the Minnesota Senate's Jobs and Economic Growth Committee.  A companion version, H.F. 1701, was introduced in the Minnesota House of Representatives and referred to the House Commerce and Regulatory ...
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Posted in Discrimination
For many years now, employers with more than 15 employees have had a legal duty to make "reasonable accommodations" that allow qualified workers with disabilities to successfully perform their jobs. Such accommodations - everything from ramping stairs to TTYs to adjusted work hours - are meant to level the playing field. There are limits to this mandate, of course: employers may not be asked to suffer "undue hardship" in order to provide accommodations. Courts and commentators have written millions of pages about what's reasonable and what's an undue hardship, but in the end it's ...
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As I wrote about earlier this week, Campbell Mithun made waves last week when the Minneapolis-based advertising agency <a "="" href="http://www.fastcompany.com/1742560/tweeting-your-way-to-a-summer-internship?partner=rss&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+fastcompany/headlines+(Fast+Company+Headlines)" title="http://www.fastcompany.com/1742560/tweeting-your-way-to-a-summer-internship?partner=" utm_campaign="Feed:+fastcompany/headlines+(Fast+Company+Headlines ...
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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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