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How NOT to Produce Facebook Evidence

Young Conaway Stargatt & Taylor, LLP • July 23, 2014
Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.

Obama’s LGBT Executive Order raises more questions than it answers

Constangy, Brooks & Smith, LLP • July 23, 2014
ROBIN’S NOTE: Thanks very much to Cara Crotty, head of our Affirmative Action practice group, who allowed me to share her insights about the President’s Executive Order here on the blog. This will also be going out today via email as a Constangy Affirmative Action Alert.

Defense Appropriations "Wage Theft" Amendment May Bar Employers with FLSA Violations from Defense Contracts

Franczek Radelet P.C • July 23, 2014
Late last month, the Senate referred the Fiscal Year 2015 Defense Appropriations Act to the Senate Committee on Appropriations for consideration. The House of Representatives passed its version (H.R. 4870) on June 20 with substantial bipartisan support, 340-73, after considering 80 different amendments. Since this is a wage and hour blog, you can safely assume that I am not telling you about this just so I can link to the cool beta version of the bill tracker at Of course, you also read the headline, so you know the House version of the bill currently contains a scary provision for many federal contractors.

Executive Order Protects Federal Contractor LGBT Workers

Fisher & Phillips LLP • July 23, 2014
Yesterday President Obama issued an Executive Order extending antidiscrimination protection on the basis of sexual orientation and gender identity, as well as including these categories in affirmative action requirements. Regarding the federal contractor obligations, the Secretary of Labor will prepare regulations within 90 days, which will apply to contracts entered into on or after the effective date of the rules. Federal contractors or subcontractors holding contracts of $10,000 or more are subject to this Executive Order, a lower threshold than the $50,000 contract requirement for full affirmative action obligations. The additional antidiscrimination requirements are effective immediately for federal employees.

Federal Courts Issue Conflicting Decisions on Affordable Care Act Subsidies

FordHarrison LLP • July 23, 2014
Executive Summary: On July 22, 2014, two different federal appeals courts issued conflicting decisions on the availability of subsidies for health insurance purchased by individuals on Exchanges established by the federal government under the Affordable Care Act (ACA). A three-member panel of the D.C. Circuit Court of Appeals held that the subsidy is only available for insurance purchased on an Exchange established by one of the 50 states. Accordingly, that court invalidated an IRS regulation that authorizes the subsidy also for insurance purchased on a federal Exchange. Halbig v. Burwell, (D.C. Cir. July 22, 2014). However, Fourth Circuit Court of Appeals reached the opposite conclusion, finding the language of the ACA ambiguous and deferring to the IRS interpretation. Thus the Fourth Circuit upheld the IRS regulation. King v. Burwell (4th Cir. July 22, 2014).

Board Aggressively Seeking Injunctions Against Employers

Brody and Associates, LLC • July 23, 2014
Not surprisingly, the top attorney for the National Labor Relations Board (“Board”) appointed last November, Richard Griffin, recently declared the Board’s commitment to making it easier to take employers into federal court and temporarily stop alleged unfair labor practices.

Illinois Passes Ban-the-Box Legislation Limiting Employers’ Criminal Background Checks on Applicants

Jackson Lewis P.C. • July 23, 2014
The “Job Opportunities for Qualified Applicants Act” (House Bill 5701), signed by Governor Pat Quinn on July 19, 2014, prohibits employers, or any agent of an employer, from considering or inquiring into a job applicant’s criminal record or history until the individual has been determined qualified for the position and notified of an impending interview, or, if the applicant will not be interviewed, until after a conditional offer of employment is made. The Act explicitly excludes three categories of job applicants from this restriction. Applicants for all other positions will be entitled to the protections of the Act.

Court of Appeal: OK to Deduct from Exempt Employees' PTO/Vacation for Partial Day Absences of Any Length

Shaw Valenza LLP • July 23, 2014
Basic wage-hour principle: With some exceptions, an employee classified as "exempt" under the federal Fair Labor Standards Act is entitled to a full salary for any week in which she / he performs any work. There are some exceptions allowing for salary deductions. For example, an employer can deduct from an exempt employee's salary for full-day absences for personal pursuits, or full day absences for illness if the employer has a bona fide paid sick leave plan.
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