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The Modern Workplace

Posts in Leave.
Posted in COVID-19, Leave
Here we go again… California has passed new legislation (Senate Bill 95) requiring a larger group of employers to provide paid leave for many more COVID-19-related reasons than previously allowed.
Q: Who must provide the SB 95 leave?

A: California employers (including public entities) with more than 25 employees nationally.

Q. Who is eligible for the SB 95 leave?

A. “Covered employees” is defined as California-based employees who are unable to work or telework for one of the qualifying reasons.[1]
Q. What reasons qualify for the SB 95 leave?
A. There are more qualifying reasons ...
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We know that we are all feeling a bit overwhelmed by the fast-pace of information being circulated about employment related COVID-19 issues and laws. In an effort to help you organize and retain COVID-19 information in a concise way, you will find links below to each of the Employment Alerts, Blog Posts, and Webinars by Lathrop GPM on COVID-19 employment issues. We will continue to keep you up to date with Alerts and blog posts as the various federal and state agencies issues new laws, regulations, and answers to the questions posed by employers. Please check here on the Modern Workplace ...
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Posted in Leave, Wage & Hour

The Minneapolis City Council adopted a new Wage Theft ordinance on August 8 that adds requirements on top of those in the new Minnesota Wage Theft law that became effective July 1. The city ordinance will be effective January 1, 2020, and will require employers to satisfy the citys wage theft requirements for all employees who work at least 80 hours in a year within the geographical boundaries of Minneapolis, regardless of the location of the employer. Violations of the ordinance subject an employer to a variety of damages, costs, and penalties.

New Information Requirements for ...
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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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There is never a shortage of changes in employment law.  By now, Minnesota employers should be aware that Minnesotas minimum-wage rates changed on January 1, 2019.  For 2019, the states minimum wage is $9.86 an hour for large employers and $8.04 an hour for smaller employers.  As you may recall, large employers are those with annual gross revenues of $500,000 or more. 

Remember, also, that your Minnesota posting needs to be updated. The revised poster pack can be found online at 
www.dli.mn.gov/sites/default/files/pdf/mn_poster_pack.pdfand printed. For federal government ...
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Posted in Leave, Wage & Hour

I have been watching the weather carefully, because my family will be doing some tree trimming this weekend. As you can imagine, I was a bit concerned when I heard about potential snowfall. The threat of snow reminded me that inclement weather often results in questions from employers about how to address the related wage and hour issues that arise when they shut down their business for weather or employees are unable to get to work. In preparation for the upcoming winter snowstorm season, I offer the following guidelines:
  • What to Do When You Shut Down Your Business Due to Inclement ...
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If you are an FMLA-covered employer or you conduct employment-related background checks, youll want to take note that federal agencies have issued updated forms that may need to be incorporated into your practices. In September 2018, the U.S. Department of Labor (DOL) issued new model Family and Medical Leave Act (FMLA) certification forms and, that same month, the federal Consumer Finance Protection Bureau (CFPB) updated its Summary of Rights form for use in conducting background checks falling under the federal Fair Credit Reporting Act (FCRA).



New Model FMLA Certification ...
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Posted in Leave

With the midterm elections less than a month away, it is a good time for employers to refresh on the laws related to employee voting leave. In these contentious political times, employers may see an uptick in employee voting absences on Election Day and preparing in advance can minimize business disruptions.

Many states have laws that entitle employees to take reasonable time off on election days to vote. For example, employees in Minnesota have a right to paid time off to vote. On election day, every Minnesota employee that is eligible to vote may be absent from work for the time necessary ...
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The U.S. Department of Labor (DOL) has been busy. It recently issuedsix new opinion letters on various compliance issues. As described below, four of the letters involve the federal Fair Labor Standards Act (FLSA) and two of the letters involve the federal Family and Medical Leave Act (FMLA). While DOL opinion letters are issued in response to a particular employers submission of a question to the DOL, employers that rely on a DOL opinion letter in setting their practices have a legal safe harbor defense if faced with, as applicable, a FLSA or FMLA legal challenge. That being said, courts ...
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Several Members of Congress have introduced competing bills related to paid leave and flexible work schedules. The proposals have sparked debate at the federal level about whether and how to require paid family leave, paid sick time, and flexible scheduling.


The Economic Security for New Parents Act

The Economic Security for New Parents Act would give workers at least two months off at about two-thirds of their regular salary in order to care for newborn or newly adopted children. The workers would fund the bill themselves by deferring Social Security benefits for several months ...
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Posted in Leave

The City of Duluth, Minnesota recently became the third major Minnesota city to enact a local law providing eligible employees with paid leave for sick or safe time absences. On May 29, 2018, the Duluth City Council adopted Ordinance No. 10571 (the Ordinance), which establishes minimum standards for earned sick and safe time leave. The Ordinance is set to take effect on January 1, 2020. 


Covered Employers and Employees


The Ordinance is written to apply to employers with five or more employees nationwideregardless of where those employees are located. Employee eligibility, however ...
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Posted in Leave
The Minneapolis Department of Civil Rights has settled its first case of retaliation under the paid sick-leave ordinance that went into effect on July 1, 2017. The paid sick-leave ordinance requires that employers with six or more employees provide Minneapolis employees with one hour of paid sick leave for every 30 hours worked within Minneapolis. The ordinance applies to full and part time employees, temporary employees, and paid interns. Under the ordinance, retaliation against employees for exercising their sick leave rights is strictly prohibited.

In the recently settled ...
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Posted in Leave
This past Monday, September 18th, the Minnesota Court of Appeals upheld a lower courts refusal to enjoin the City of Minneapolis from enforcing its Sick and Safe leave ordinance as to Minneapolis employers while litigation challenging the ordinance proceeds.  The Court of Appeals did, however, affirm the lower courts order prohibiting enforcement of the ordinance as to employers located outside Minneapolis.
The Minneapolis ordinance was passed in May 2016 and became effective on July 1, 2017. The ordinance has been challenged in Hennepin County District Court by the Minnesota ...
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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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As expected, Minnesota Governor Mark Dayton has vetoed legislation passed by the Minnesota legislature that would have preempted local governments ability to enact laws that set wage, vacation, or sick time requirements, or other employment benefit levels higher than those set by state-wide law. The vetoed legislation (the Uniform Labor Standards bill) was passed by the Minnesota state legislature late last month and was perceived, to a great degree, as a response to the enactment of Minneapolis and St. Paul city ordinances creating mandatory sick leave benefits for employees ...
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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 Leave

A lot has happened since our last blog posts on the Minneapolis paid sick leave ordinance and the St. Paul paid sick leave ordinance. While the initial implementation dates for both ordinances are still scheduled for this summer on July 1, 2017, a Hennepin County District Court issued a temporary injunction in January 2017 prohibiting the City of Minneapolis from enforcing the Minneapolis ordinance against any employer based outside the geographic boundaries of the city. The Hennepin County District Court decision is being appealed by the City of Minneapolis. Nonetheless, the ...

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While the presidential inauguration is front and center, here are two quick items employers will want to take note of:

  1. A Hennepin County Court judge has issued an order temporarily blocking enforcement of Minneapolis new paid sick time ordinance against employers who are not located within the city limits.

  2. There is a new I-9 form that must be used starting this Sunday, January 22. Previous versions of the I-9 may not be used with new hires after that date.

Minneapolis Paid Sick and Safe Time. We have previously blogged about the Minneapolis paid sick leave ordinance. The ordinance ...

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Well, what a year 2016 has been! As the retrospectives start pouring in, we want to get ahead of the curve and look back on some of the workplace and employment law developments of 2016.

According to a recent Forbes article, innovations in the world of work this year have included Dutch desks that pull up to the ceiling at 5:30 pm, putting an exclamation point on the end of the workday, and desks in Greece that convert into beds for power naps or overnighters. We see the latter as especially rife with employment law risk. Overtime anyone? (Not to mention the potential for office romance gone awry ...

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Posted in Leave

With the presidential and general election rapidly approaching, Minnesota and all employers need to be mindful of employees rights to reasonable voting leave under state laws. Election season, particularly polarizing presidential campaigns and elections, can also present some headaches for well-intended employers.

 

Minnesota employees have a right to paid time off to vote. State law gives employees the right to be absent from work for the time necessary to appear at the employees polling place, cast a ballot, and return to work. Generally, an employer may not dock pay, personal ...

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Posted in Leave
Nearly a year ago, we began discussing the growing movement from the local to the national level to require employers to provide employees with paid sick leave. Just last week, St. Paul became the latest city to pass an ordinance that guarantees paid sick leave for covered employees who work 80 hours or more in the city per year.
Here are some key details of the St. Paul sick leave ordinance:
  • The ordinance will become effective July 1, 2017 for employers with 24 or more employees. The effective date is January 1, 2018 for employers with 23 or fewer employees.
  • The ordinance requires all
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After ongoing discussions for more than a year, the Minneapolis City Council voted unanimously on Friday May 27, 2016, to become the first city in the Midwest and the 23rd city nationally to mandate paid sick leave for employees. Minneapolis Mayor Betsy Hodges first called on the Minneapolis City Council to pass a local sick leave ordinance in her April 2015 State of the City address. Since that time, numerous businesses, community members, and a fifteen-member task force named the Workplace Partnership Group have been studying and weighing in on the passage of a sick leave ordinance.
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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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Last week, the Eighth Circuit Court of Appeals upheld a National Labor Relations Board (NLRB) ruling that a Jimmy Johns franchisee engaged in unfair labor practices and violated the rights of workers under the National Labor Relations Act (NLRA), after the employees were terminated for staging a public campaign protesting the company's sick leave policy.

In MikLin Enterprises, Inc. v. National Labor Relations Board, employees were fired after displaying posters which protested the company's sick leave policy at the franchisee's Jimmy John's sites. The employees had ...
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The holiday season picks up in full swing this week with the celebration of Thanksgiving. Along with the merriment of the holiday season, though, comes a dramatic drop in productivity and a rise in vacations, flu epidemics, religious celebrations, weather contingencies, employee reviews, and holiday party antics. Here are answers to some of the vexing employment law questions that typically become as ubiquitous at this time of year as snowflakes in Minnesota:

  • Are employees entitled to time-and-a-half pay for holidays worked?  No unless time worked on a holiday includes overtime ...
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Posted in Leave, Wage & Hour
The Star Tribune reported today that the Minneapolis mayor and city council have, at least for now, tabled a controversial proposal to require businesses to adopt predictable scheduling practices or face monetary penalties. As discussed in last weeks post, the City's earlier proposal would have penalized Minneapolis-based employers for failing to give substantial advance notice of work schedules or changing schedules on short notice. The proposal faced significant opposition from Minneapolis businesses and even some of the workers that the proposal was intended to help (see ...
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Throughout the year, we've posted about efforts at the federal and Minnesota legislative level to enact paid sick leave laws.  So far, there's no federal or Minnesota state-wide law, but there is clearly a growing movement afoot around the country to pass such laws. And now, the Minneapolis City Council is getting in on the action. The City Council is considering an ordinance that has been referred to as one of the most far-reaching paid sick leave initiatives in the nation. The proposed ordinance, known as the Working Family Agenda, would require every business in the city of Minneapolis ...
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As anticipated, President Barack Obama celebrated Labor Day by issuing an executive order mandating that federal contractors provide paid sick leave to their employees. The executive order requires that federal contractors and subcontractors provide their employees up to seven days of paid leave per year for themselves, to care for a sick family member, or to address domestic violence and stalking situations.

President Obamas order is the latest in a series of executive orders aimed at federal contractors as the administration tries, so far unsuccessfully, to get broader ...
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Continuing his pen and phone approach to effecting change, The New York Times announced last week that President Obama is considering using his executive authority to mandate paid sick days for federal government contractors and subcontractors.

The draft executive order, which is marked pre-decisional and deliberative, would require a minimum of 56 hours (or seven work days) per year of paid sick leave for employees of federal contractors and subcontractors. Under the draft executive order, the paid sick leave would allow an employee to take paid time off to care for themselves or a ...
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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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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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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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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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Posted in Leave
With the general election less than a week away, Minnesota employers need to be mindful of the states voting rights leave law. 


In Minnesota, an employee has a right to paid time off to vote. State law gives employees the right to be absent from work for the time necessary to appear at the employees polling place, cast a ballot, and return to work. Generally, an employer may not dock pay, personal leave, or vacation for voting leave. An employer who refuses, abridges, or interferes with an employees right to voting leave is guilty of a misdemeanor.

Here are some suggestions on managing ...

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Posted in Leave

When I conduct employment trainings, I often caution executives and managers to think before they email. In my experience, people tend to be more casual and to use poorer judgment when they email than when they write a memo or letter that, by its nature, seems more formal.

Now, it turns out, that you better be careful before you snail mail too. In what some commentators are calling a game changing decision, the U.S. Court of Appeals for the Third Circuit recently held that a former employee could proceed to trial in her lawsuit under the federal Family Medical Leave Act (FMLA) based on her ...

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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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This week, the Minnesota Governor signed the Women's Economic Security Act (WESA) into law. The WESA makes a sweeping variety of changes and additions to Minnesota law aimed at protecting women's economic security. These changes include, among others, modifications to the length of Minnesota parental leave, a new required handbook notice regarding employees freedom to discuss wages and benefits, and the addition of a new protected class under the Minnesota Human Rights Act.  Some of WESAs provisions are effective immediately and others are effective later this year ...
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R u liable 4 your employee's txt msg?  In some situations, the answer may be yes. Two courts reviewed employee texting issues this week. The first court reviewed whether an employer can be liable for an employee's unauthorized disclosure of confidential health information via text message.  The second court addressed whether a text message to a supervisor can qualify as a request for leave under the Family Medical Leave Act. These cases and the other articles linked below provide valuable insights for employers in determining best practices related to workplace ...

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The Obama Administration announced this week that it will give employers with more than 50 but less than 100 employees one more year to comply with the Affordable Care Acts employer mandate. (But beware: You cant lay off workers to ensure that you fall below the 100 employee mark!) That means that these employers have until 2016 to provide insurance to full-time employees before being subject to any penalties for non-compliance.

While employers covered by this extension may be breathing a sigh of relief, they shouldn't forestall putting in place one of the key action items for ACA ...
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Social media and technology seem to be doing more harm than good in the workplace this week. A new study suggests that some employers may be using Facebook profiles to discriminate against job applicants based on legally protected information. Other employers have expressed concern about employees' overuse of social medial during the work day. The challenges also extend beyond the workplace walls. For example, employees who are non-exempt under wage and hour laws can bring lawsuits for minimum wage or overtime compensation if not properly paid for work done outside of the ...
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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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Effective August 1, Minnesota employers with 21 or more employees may have to change their sick leave policies. A change to Minnesota law, enacted during the 2013 legislative session, requires employers that offer paid sick leave benefits to allow the use of those benefits for absenses related to illness or injury of an adult child, spouse, sibling, parent, grandparent, or stepparent. Previously, the law had required employers to allow use of paid sick leave only for absences due to the employee's own illness or the illness or injury of a child. The new legislation, which amends 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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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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Election Day is almost upon us. The good news is that election ads and calls will soon be over.  For employers, however, one last challenge remains as they figure out how to deal with the many workplace issues surrounding elections.  For an overview of the potential free speech, labor law, social media, and voting leave implications for the workplace, please read my colleague Angela Ruds post from last month.
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As Election Day approaches, politics and political opinions are likely to be a hot topic of conversation in the workplace. In some cases, this can become a source of tension and conflict among co-workers. This may be especially true this year given the deep political divide that seems to have developed in our country over the past few years. As most human resource professionals know, workplace conflicts can have a detrimental effect on productivity and create legal risk. The best approach to manage this issue is setting the tone at the top as one of respect for different opinions ...
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This week we have six articles involving social media.  Fittingly, one of them asks whether we are all making too much of social media's impact on the workplace.  Serving as an example of social media's impact, a recent survey shows that nearly half of employers conduct social media background checks.  And a New York Times article provides an interesting look at the unique considerations on Wall Street concerning employees' use of social media.
Technology and the Workplace
Is Too Much Being Made of Social Media's Impact on the Workplace? (Conn.EmploymentLawBlog)
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This week was nothing short of historic in the context of technology and the law. Wikipedia, Google, and others blacked out or censored their sites in protest of anti-piracy bills in the House and Senate.  Apple unveiled technology that could change the world of education.  Facebook introduced new apps that help users share even more information about themselves - yes, apparently it is possible. 
Technology and the Law
Internet Blackout Causes 18 Senators to Flee from PIPA (Forbes) (NYTimes) (FastCo)
U.S. Shuts Down MegaUpload, Charges Kim Dotcom, 6 Others with Piracy ...
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Last week, the Eleventh Circuit Court of Appeals held that a former employee can pursue her FMLA claims against her former employer even though she failed to meet eligibility requirements under the FMLA at the time she was terminated.  In Pereda v. Brookdale Senior Living Communities, Inc., an employee gave advance notice that she would need FMLA leave because of her pregnancy.  Shortly thereafter, the employee was put on a performance improvement plan and then terminated.  The employee brought suit, claiming that her former employer had interfered with her FMLA rights and retaliated ...
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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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Posted in Health Care, Leave

One can hardly turn on the news without seeing coverage of the stand-off in Madison, Wisconsin between Governor Walker and union protesters over the Governors proposal to require government workers to contribute more to their health care and pension costs and to largely eliminate their collective bargaining rights. Many protesters who called in sick to attend the protest rallies were allegedly able to obtain sick notes from doctors who were providing sick notes at the protest rallies without any medical examination. This raises an interesting questionwhat is an employer to do when ...

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