1. Welcome to Employment Law This Week! Subscribe to our channel for new episodes every Monday!

    (1) Seventh Circuit Revives Retaliation Claim - http://bit.ly/2afVQ49

    The U.S. Court of Appeals for the Seventh Circuit sets a low bar for Title VII retaliation claims. The Seventh Circuit partially reversed the dismissal of a university professor’s suit, finding that she had a “plausible” claim that she was denied tenure in retaliation for filing a charge with the Equal Employment Opportunity Commission. While her employers argued that the charge was filed after university officials had already made their decision on tenure, the Seventh Circuit said this was precisely the type of factual question that made the claim plausible and entitled the plaintiff’s lawsuit to survive a motion to dismiss. Christopher Farella, from Epstein Becker Green, has more on the challenges of getting a dismissal in a retaliation suit.

    “The standard that a Title VII retaliation pleading has to meet is three things. One is that the plaintiff engaged in a protected activity, two, that there was an adverse employment action, and three, that there was a nexus between the protected activity and the adverse employment action. . . . Dismissals are very difficult to get in retaliation cases, because the analysis is very fact-sensitive, and the courts usually defer to juries for those facts. So, in cases where you have to weigh the evidence or assess somebody’s credibility, that’s in the province of a jury; it’s not for a judge to decide.”

    (2) NLRB Requires Specific Waivers During Bargaining - http://bit.ly/29QLJ6o

    Employers must have specific waivers to make unilateral policy changes when bargaining with a union. That’s according to the National Labor Relations Board (NLRB), which once again clarified its “clear and unmistakable” waiver standard to restrict employers’ midterm changes. In this case, an employer relied on a broad management rights clause in its contract with a union to make unilateral changes to specific policies. The NLRB found that the union had not waived its right to bargain over those changes because the contract did not refer to the policies with sufficient clarity.

    For more on this story, click here: http://bit.ly/2ae2fvC -

    (3) NLRB Rules That Temporary Discharge Can Chill Concerted Activity - http://bit.ly/2aeD2Bb

    Termination can chill concerted activity even if the job loss is temporary, the NLRB rules. A manager for an Arizona paving company fired an employee who complained about management but hired him back shortly afterwards. The NLRB ruled that this temporary discharge violated federal labor law, noting that the action would be seen as a warning shot for employees who complain about working conditions or take action together.

    For more information, click here: http://bit.ly/29Z26iC

    (4) Connecticut “Bans the Box” on Job Applications - http://bit.ly/29ZD7vL

    The State of Connecticut joins eight other states in “banning the box.” The new legislation prevents employers from asking about an applicant’s criminal history on initial employment applications. Connecticut’s new legislation, which will take effect on January 1, does not go as far as some other “ban the box” laws that require an employer to wait for a criminal history check until after a conditional job offer is made.

    For more on Connecticut’s “ban the box” legislation, click here: http://bit.ly/2agNZ80

    (5) Tip of the Week - http://bit.ly/2afW8Ig

    Annette Guarisco Fildes, President and CEO of The ERISA Industry Committee, has some advice on state mandates for employee benefits.

    “Paid sick leave, parental leave, state retirement programs, vaccine mandates, and other measures are being proposed almost daily by states and localities across the country. This really complicates matters for employers that want to offer uniform benefits to their employees across the country and adds to the already complex burden of complying with federal rules and regulations. . . . Take the time to review the new rules and weigh in with trade groups, lobbyists, and others who can shape the rules on your behalf to make it easier to comply and lower costs. When advocating for your organization, keep the best solutions in mind. This may mean going beyond state approaches to a federal one that would support uniform benefits nationwide. And finally, recognize that you are not alone. Other employers face these challenges as well, and trusted counsel can keep you informed and compliant.”

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  2. The Equal Employment Opportunity Commission (EEOC) urges increased harassment prevention measures in the workplace. About one third of charges filed with the agency in 2015 involved claims of some form of harassment. The agency recommends that employers update their worker training to focus on bystander intervention and workplace civility. In addition, employers should increase their own awareness of risk factors. These include physical isolation of workers and significant power disparities. Bill Milani, from Epstein Becker Green, has more:

    "The report suggests employers should take a number of actions concerning harassment in the workplace. First, an audit of organizational risk factors as outlined by EEOC. ... Second, a review of your policies against discrimination and harassment to ensure that they are current, they reference all of the protected classes, not just sexual harassment, but harassment based on race, color, religion, ethnicity. Training. Training is vital. Training for all employees on anti-harassment. ... On top of the training that all employees received, managers trained to understand their heightened responsibilities as the employer, managers trained to understand their role in the complaint procedure. And finally, crucial that leadership embrace and be accountable for issues of workplace conduct."

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  3. NJ Supreme Court Voids Filing Deadline - http://bit.ly/295iWrd
    The New Jersey Supreme Court voids a time limit on discrimination claims. A furniture store employee filed a discrimination claim nine months after he was fired, alleging he was terminated in retaliation for filing a worker’s comp claim. While the state of New Jersey has a two-year time limit for filing claims under the Law Against Discrimination, the worker had signed a job application with the company that imposed a six-month time limit. In a landmark decision, the New Jersey Supreme Court reversed appellate and trial decisions in this case, ruling that the contract violates public policy. Carmine Iannaccone, from Epstein Becker Green, tells us how this ruling could impact the way that employers use their job applications.

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  4. Sharon Scrima, Human Resources Specialist at Nippon Life Global Investors Americas, is here with some advice on the importance of management training for new supervisors.

    "Regardless of how well an employee performs in a staff or production role, it requires an entirely different set of skills, knowledge, and abilities to be an effective supervisor, and this is especially true in today’s complex and ever-changing legal landscape. So here are a few tips for employers to help new supervisors transition into a supervisory position. First, not unlike new hires, create an orientation program for new supervisors that includes an overview of employment laws. Secondly, encourage them to consult with Human Resources to talk through issues and get advice on how to handle them. And finally, ask them to hold individual meetings with their team so that they can establish credibility as a leader, discuss individual and team goals, and create an environment of open communication and transparency."

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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  5. Welcome to Employment Law This Week® - subscribe to our channel for new episodes every Monday!

    This week's stories include . . .

    (1) Ninth Circuit Affirms Conviction for Unauthorized Password Sharing

    Our top story: The Ninth Circuit says unapproved use of a former co-worker’s password can be criminal. An ex-recruiting firm employee used a current worker's credentials to gain unauthorized access to a company database. The Ninth Circuit held that this act violated the "without authorization" prong of the Computer Fraud and Abuse Act, noting that permission for legal access must be given by a computer system’s owner. This decision could have wide-reaching implications in an area of law that has become increasingly criminalized over the past few years. Jim Flynn, from Epstein Becker Green, has more.

    "The Nosal case takes the criminalization trend forward in three important ways. First, it takes the statute out of a very technical hacking basis and applies it to a very common-sense situation. .The second way it brings it forward is to really couple what's going on in the Computer Fraud and Abuse Act with what's going on in the Economic Espionage Act. And that's an important development. The Nosal case deals with both of them and shows that enforcement can be very effective. The third way that it brings forward trade secret law is to show that there is the availability of criminal relief, but all of these developments also apply on the civil side, because the statutes have civil remedies as well. I, as an attorney representing private litigants, can bring forward claims very similar to what prosecutors do."

    (2) NLRB Changes Rules for Organizing Mixed Units

    Unions can now organize employees of two companies together without the permission of either employer. That’s according to the NLRB, which ruled this week in Miller & Anderson that it would recognize these mixed units when they find that the companies are joint employers and share a “community of interest.” The Board’s decision overrules their 2004 Oakwood Care Center decision, which held that these mixed units would only be ordered where both employers agreed. This decision will impact many employers and is likely to increase union efforts to represent leased and temporary workers along with an employer’s own workforce.

    For more on this case, click here: http://bit.ly/29VleLq

    (3) Seventh Circuit Appeal Clarifies Mental Health Accommodations in the Workplace

    In Felix v. Wisconsin Dept. of Transportation, the Seventh Circuit Appeals Court ruled in favor of an employer who terminated a longstanding worker with an anxiety disorder. After the employee was found in a public area rolling around on the floor, the company placed her on leave under the Family and Medical Leave Act and ordered an independent medical examination. She was ultimately fired. The worker then filed a lawsuit claiming that she was fired because of her disability. The appeals court found that an employer isn't required to ignore disruptive behavior even if it's the result of a disability, noting that the employer gave careful consideration to the incident before deciding to terminate.

    (4) EU Leaders Approve Privacy Shield Deal

    The “Privacy Shield” data transfer pact goes into effect: The European Commission has approved the Privacy Shield, which will allow personal data to be transferred from the EU to the United States. The previous Safe Harbor framework was ruled invalid in 2015 by the European Court of Justice, leaving US companies operating internationally in legal limbo. The new framework tightens restrictions and imposes stronger obligations on US companies to protect the data of Europeans.

    Visit EmploymentLawThisWeek.com.

    These materials have been provided for informational purposes only and are not intended and should not be construed to constitute legal advice. The content of these materials is copyrighted to Epstein Becker & Green, P.C. EMPLOYMENT LAW THIS WEEK® is a registered trademark of Epstein Becker & Green, P.C. ATTORNEY ADVERTISING.

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Employment Law This Week®

Epstein Becker Green PRO

Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – will deliver the most significant stories and developments in employment, labor, and workforce management…


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Welcome to Employment Law This Week®, presented by Epstein Becker Green. This online video program – among the first of its kind in the legal industry – will deliver the most significant stories and developments in employment, labor, and workforce management issues in about five minutes, each week.

Tune in each week for developments that may affect your business. Learn more at ebglaw.com/employment-law-this-week/

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