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January 2013 Archives

Is a Clawback of a Cash Bonus for Regulated Employees a Restraint of Trade or Denial of Wages Under N.Y. Law?

Over recent weeks, several banks that we are aware of have handed to thousands of their FINRA-regulated employees onerous new clawback agreements with the condition that if they do not sign them they will not receive their 2012 bonuses. This only the beginning of the bad news. These new clawback agreements contain provisions that allow the bank to clawback part of an employee's earned and paid cash bonus merely because the employee resigns during the ensuing two or three years. Thus, for example, a bank can clawback part of the 2012 bonus (already paid and taxed in 2013) if the employee leaves during 2015.

Tabor v. Hilti, Inc., No. 11-5131 (10th Cir. Jan. 15, 2013)

Two women sales representatives who were denied promotions by hardware giant Hilti get a renewed opportunity to prove at trial that they were denied promotions because of sex, thanks to a Tenth Circuit decision on Tuesday. Among other evidence in the record: the male manager evaluating one plaintiff allegedly told her that tools "are like guns for men" and using them is "almost like second nature."

Mandel v. M&Q Packaging Corp., No. 11-3193 (3d Cir. Jan. 14, 2013)

The Third Circuit overrules its prior, restrictive case law interpreting the limitations period under Title VII for a claim of hostile work environment, holding that - in light of Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) - the employee need not present evidence on the "permanence" of harassing conduct to prove a continuing violation. The panel reverses and remands a claim of sex harassment to be evaluated under the new, more forgiving standard.

Keith v. County of Oakland, No. 11-2276 (6th Cir. Jan. 10, 2013)

Here's a case that might make even stalwart advocates of civil rights re-examine their prejudices. The Sixth Circuit reverses summary judgment in case claiming that a village violated its duties under the ADA and Rehabilitation Act when it rejected a candidate for a lifeguard position on the ground that he is deaf. The panel finds that it will be up to a jury to determine whether the candidate could have performed the essential duties of lifesaving with accommodations. It turns out that there is a long and distinguished history of deaf lifeguards in the US.

MacDermid, Inc. v. Deiter, No. 11-5388 (2d Cir. Dec. 26, 2012)

Between the holidays, the Second Circuit published a decision that might serve as a warning to employees to keep abreast of their companies' data-use policies. Depending on the jurisdiction, violation of company policies may also violate state law that protect data privacy - and such violations can get you in trouble, even remotely. The court holds that the U.S. District Court for the District of Connecticut had long-arm jurisdiction over the plaintiff's former employee in Canada, because she e-mailed herself data from servers located in Waterbury, Connecticut.

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