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Employment Law - July 2014 #2

High Court’s Fall Docket Includes Major Employment Issues - Why it matters: While the 2013-2014 U.S. Supreme Court term may be over, the justices have granted certiorari in two major employment cases slated for the...more

Arbitrator may order change to hours, location of doctor who sexually-harassed hospital nurse

Where a doctor has sexually harassed a nurse, a labour arbitrator has authority to decide how close the doctor should be able to work with the nurse, and under what conditions, an Ontario arbitrator has decided....more

New regulations give tribunals the power to order equal pay audits

Sandra Wallace, UK Employment Group Head, comments: In 2012, the Government first proposed the introduction of compulsory equal pay audits for employers who are found by an employment tribunal to have committed an equal pay...more

Air Marshal Whistleblower v. TSA: Supreme Court to Blow Final Whistle

On July 25, 2014, the U.S. Government will submit its opening brief to the Supreme Court in the decade-long battle that began when the Transportation Security Administration (“TSA”) terminated former air marshal-turned...more

Now I Have to Allow Insubordination and Verbal Abuse Too?

Several weeks ago, in both a tongue-in-cheek and concerned fashioned, we wrote about a federal court decision that concluded an employer had to tolerate an employee’s admitted theft as a reasonable accommodation for her...more

OSHA and the NLRB Offer Safety Whistleblower Plaintiffs a Second Bite of the Apple by Resurrecting Untimely Whistleblower Claims

In our last Workplace Safety & Health blog post, we discussed proactive steps employers can take should the Occupational Safety and Health Administration (OSHA) arrive with a union representative or community activist to...more

Employers Defending Against SOX Whistleblower Actions Should Prepare for a Long Ride

Employers defending against Sarbanes-Oxley Act (SOX) whistleblower retaliation claims should be prepared for a long and potentially onerous litigation process, even if the claims lack merit. A recent district court decision...more

Anti-Discrimination Laws Going “Intern”-ational? New York City Extends Its Human Rights Law to Unpaid Interns

As we reported last October, a federal court in New York found that an unpaid intern could not bring a hostile work environment sexual harassment claim pursuant to the New York City Human Rights Law (“NYCHRL”). (Wang v....more

CFPB employee testifies at House hearing on alleged CFPB employee discrimination

At yesterday’s hearing on alleged CFPB employee discrimination conducted by the House Financial Services Committee’s Subcommittee on Oversight and Investigations, a CFPB employee is reported to have testified that the agency...more

Ventress III Provides Another Tool for Airlines: Ninth Circuit Says Federal Aviation Act Preempts Pilot’s State Law Employment...

On March 28, 2014, the Ninth Circuit strengthened its Federal Aviation Act (the “Act”) preemption jurisprudence, holding that state law claims for retaliation and constructive termination are preempted under the Act when they...more

California Supreme Court Allows Whistleblowing Doctor To Sue Before Exhausting Judicial Remedies

Fahlen v. Sutter Central Valley Hospitals, S205568 (February 20, 2014): The California Supreme Court recently held that a physician, who claimed that a hospital terminated his staff privileges in retaliation for raising...more

District Court Rejects Challenge to Section 503 Final Rule

On Friday, March 21, 2014, Federal District Judge Emmet Sullivan ruled in favor of the Office of Federal Contractor Compliance Programs’ (“OFCCP”) recent rule implementing Section 503 of the Rehabilitation Act, denying a...more

Workplace Bullying – Past Behaviour Relevant In Fair Work Commission's New Jurisdiction Update

The Fair Work Commission's anti-bullying powers came into force on 1 January 2014 (see our previous update here). In a recent decision (Application by Kathleen McInnes [2014] FWCFB 1440), the Full Bench of the Commission has...more

Second Circuit Weighs In On Tort Litigation During Pending EEOC Proceeding

Last week, the Second Circuit Court of Appeals ruled that a plaintiff’s filing of a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) does not toll the statute of limitations for...more

Second Circuit Holds That New York City Commission On Human Rights’ Procedures Satisfy Constitutional Due Process

Rosu v. City of New York, No. 13-cv-243 (2d Cir. Feb. 7, 2014): Underlying this case, Mircea Rosu filed a complaint with the New York City Commission on Human Rights alleging that his manager and coworkers discriminated...more

San Francisco Employers – Heads Up, New Rules Governing The Use of Criminal Records

It’s already hard enough for California employers to keep track of and comply with the myriad federal and state background check laws. There’s California’s Investigative Consumer Reporting Agencies Act (ICRAA), California...more

Maine Human Rights Commission Changes Process to Weed Out Weak Cases

In response to significant concerns about the timeliness of handling claims and the often unnecessary drain of going through the full process of responding to meritless Human Rights Commission claims, the Commission has...more

Can SOX Go Overseas? The Debate Continues

The continuing controversy over whether retaliation claims under the Sarbanes-Oxley Act ("SOX") cover activities outside the United States continues to play out in the courts and administrative bodies. The two leading cases...more

Illegal For Harassment Program To Allow For “Preliminary Assessment”, Early Dismissal, Employee Arguing At OLRB

A provision in a harassment program allowing for a preliminary assessment of complaints, rather than an investigation, and for early dismissal, violates the Occupational Health and Safety Act, an employee is arguing before...more

On a “Clear and Convincing Day”: The Administrative Review Board Gives Employers Some Helpful Guidance

As we have discussed in earlier posts, the Administrative Review Board (ARB) has, over the last couple of years, issued a number of opinions signaling a decidedly employee-friendly interpretation of the whistleblower statutes...more

Court Rules No Violation of Public Safety Officers Bill of Rights During Internal Affairs Administrative Interviews

Officers Not Entitled to an Attorney During an Administrative Investigation Under POBRA - Overview: Police officers sued the City of Los Angeles for violations of their civil rights and under the Public Safety Officers...more

“Failure To Conciliate” Not A Defense To EEOC Lawsuits, Seventh Circuit Holds

Breaking ranks with every other federal appellate court to address the issue, the Federal Court of Appeals for the Seventh Circuit has ruled that an employer cannot defend a lawsuit brought by the EEOC by contending that the...more

Seventh Circuit Holds Failure to Conciliate is Not a Defense Available to Employers in Litigation with the EEOC

In EEOC v. Mach Mining, LLC, the Seventh Circuit became the first federal circuit to foreclose an employer's ability to use the implied affirmative defense that the Equal Employment Opportunity Commission (EEOC) failed to...more

Is Conciliation Just Another Hoop or Must the EEOC Make a Meaningful Attempt at Settlement Before Commencing Litigation?

Voluntary compliance is a core component of federal anti-discrimination law. The drafters of Title VII and other anti-discrimination statutes never envisioned a regulatory system where the government would use the courts to...more

Indiana Court Finds Employee’s Attempt At Humor Was Not Protected Religious Expression

Ronald Ogle worked as a Community Employment Specialist for the Indiana Department of Workforce Development (IDWD). On November 10, 2012, he forwarded to his coworkers an email that included a picture of a barbeque restaurant...more

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