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Keeping You Posted

Recent developments in employment and labor law
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hkastrinsky

Howard Kastrinsky

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Chris Barrett


Keeping You Posted provides you with the latest updates in employment and labor law. As a supplement to Employment Law Comment, Keeping You Posted supplies you with a review of current federal and state cases, as well as legislative and regulatory changes, from your perspective as an employer.

Some of the many topics we discuss in Keeping You Posted include federal discrimination laws, the National Labor Relations Act, the Fair Labor Standards Act, and the Occupation Safety and Health act. Other topics include immigration and workplace privacy, including emerging trends in social media in the workplace. Add the RSS feed above to your favorites, and stay up-to-date on the issues that affect your Company.
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Keeping Current on FLSA Classifications Key for Employers

Thursday, 03 October 2013 12:58


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The Fair Labor Standards Act (FLSA) requires employers to pay employees the federally mandated minimum wage and to pay time and a half for overtime hours worked in excess of a forty hour work week.  Employers may, however, be excused from these requirements if certain employees or groups of employees meet various standards for exemption proscribed by the FLSA.  These exemptions are often controversial, as a decade-long legal battle regarding whether pharmaceutical sales reps qualify for the “outside sales” exemption clearly shows.  The Fifth Circuit Court of Appeals has further clarified the “outside sales” exemption, drawing the line between salesperson and delivery driver.

   

Employee’s Non-Public Facebook Postings Protected by Law

Thursday, 03 October 2013 12:36


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An employer gaining unauthorized access to an employee’s Facebook account is a violation of the Federal Stored Communications Act (SCA), according to the U.S. District Court in New Jersey.

   

Text Messages from Employees’ Personal Phones May Not Be Discoverable in Litigation

Monday, 09 September 2013 09:58


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The U.S. District Court in Kansas has held text messages on an employee’s personal cell phone are not discoverable in a discrimination suit if the employer did not have “possession, custody or control” over the text messages.  In this case, the employer neither issued the cell phones to the employees nor did the employees use their personal cell phones for any work-related purpose.  As such, the suing employee could not require the employer to produce text messages from his co-workers’ cell phones.

   

Volunteers for Public Entity Not Employees for Purposes of Anti-discrimination Statute

Thursday, 05 September 2013 13:35


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First things first, no matter how the laws regarding workplace discrimination and harassment have developed over the years, one fundamental element must not be forgotten: The person who complains of discrimination must be an employee for an employer to incur liability. Everyone else is out of luck. The following case involving a volunteer police reserve officer illustrates this point.

   

Departure From Investigation Policy Can Prove Retaliation Claim

Wednesday, 04 September 2013 08:02


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A case from the Seventh Circuit Court of Appeals has highlighted the importance of creating company processes and procedures to investigate employee wrongdoing and strictly following those procedures when conducting such investigations.  According to the case, evidence showing company investigators failed to employ the established processes and procedures, or at least adhere to past practice where no procedures exist, can be considered evidence of a retaliatory motive in the investigation.  The impermissible retaliatory motive highlighted by this case was termination for aiding a co-worker in a lawsuit against the employer, an action specifically protected by Title VII.  Obviously, such a finding would be severely detrimental to employers and must be avoided by careful adherence to policy.

   

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