In Thompson, the Plaintiff’s fiancée filed a sex discrimination charge with the Equal Employment Opportunity Commission against her employer North American Stainless who happened to also be the Plaintiff’s employer. Three weeks later, the Plaintiff was terminated. Plaintiff brought a third-party retaliation claim against the employer. Plaintiff asserted that a reasonable employee would be dissuaded from engaging in protected activity if the employee knew that his/her fiancée would be fired.
The employer expressed that applying the broad standard set forth in Burlington would place the employer at risk any time it fires any employee who happened to have any a connection to another employee who filed a charge of discrimination.
Despite the Defendant’s legitimate concerns, the Court maintained that Title VII’s anti-retaliation provision is broadly written and, therefore, includes third party reprisals. The Court recognized the challenges this broad interpretation creates for employers but refused to draw a line in the sand and set forth what relationships shall be entitled to protection. However, the Court was willing to say “that firing a close family member will almost always meet the broad standard set forth in Burlington.” The Court reiterated particular circumstances in each matter will determine whether an employer’s actions constitute retaliation. In the end, the Court had “little difficulty concluding” that if the facts alleged by the Plaintiff are true, then his termination was a violation of Title VII.
The Court faced a more difficult question, did Thompson, in his own right, have a Title VII retaliation claim. The statute states that a “civil action may be brought . . . by the person claiming to be aggrieved.” 42 U.S.C. 2000e-5(f)(1). The Court held that the term “aggrieved” in Title VII incorporates the “zone of interest” which allows suit by any Plaintiff with an interest who seeks protections by the statute. The purpose to Title VII is to protect employees from their employers’ unlawful actions.
The Supreme Court concluded that the Plaintiff fell within the “zone of interest” protected by Title VII. More specifically, the Plaintiff was an employee of North American Stainless, and he was injured by North American Stainless unlawful actions when the company terminated him as means of harming his fiancée who had brought sex discrimination charges against the employer. The Company’s actions towards the Plaintiff constituted retaliation under the broad standard set forth in Burlington. Thus, the Court concluded that the Plaintiff had standing in his own right to bring a Title VII claim against the employer.
Whether you are an employer or an employee, this decision concerns you. To minimize the risk of a retaliation claim, an employer must be more vigilant as to its own and its managers’ actions after an employee makes or supports a claim of discrimination or sexual harassment to avoid a possible claim of retaliation. It is important that an employer is cognizant of the fact that its actions towards a third-party employee with a relationship with the employee exercising his/her rights under Title VII can create a separate cause of action.
Despite the added challenges created by this recent decision, one must keep in mind that the objective of Title VII is to create a workplace where an employee is not only free of unlawful discrimination, but also one in which employees feel free to “secure or advance” their right not to be discriminated against. In order to achieve this objective, third-party retaliation claims are necessary. The Court recognized the necessity to adopt a broad standard for Title VII retaliation claims.
Wage and hour matters are prominent in employment law news these days as a result of the new Federal health care laws - the Patient Protection and Affordable Care Act of 2010, Pub. L. 111-148 and the Health Care and Education Reconciliation Act of 2010, Pub. L. 111-152 (collectively, the “Health Care Laws”). These laws not only will change the availability of health insurance, but also how health care is delivered in America, specifically with respect to direct-care staff.
Direct-care staff are individuals who provide domestic services such as nursing aides, companionship and home heath assistants. As the population ages and people shy away from institutional health care, direct-care workers comprise one of the nation’s fastest growing occupations.
A primary focus of the Health Care Laws is the wages of direct-care staff . According to the U.S. Department of Health and Human Services (“HHS”), the real wages for these workers, which are far below the median for all occupations, have remained flat over the last decade. As a result, the Health Care Laws required HHS to establish a workforce advisory panel for direct-care workers. Beginning in 2011, this panel will be responsible for tackling the challenge of improving wages for these workers.
The Fair Labor Standards Act (FLSA) was enacted to ensure a minimum standard of living for workers by establishing a minimum wage, overtime pay and other protections. The FLSA traditionally has excluded direct-care workers from its umbrella of protection. In a landmark 2007 decision, the U.S. Supreme Court upheld HHS’s authority to define exceptions to the FLSA (see Long Island Care at Home, Ltd. v. Coke). Current law, however, still excludes direct-care workers.
Pending Legislation
In response to Long Island Care at Home, Ltd. and the Health Care Laws, on July 30, 2010, Representative Linda Sánchez (D-CA) introduced the Direct Care Workforce Empowerment Act (H.R. 5902) to limit the FLSA exclusion of direct-care workers to those who work 20 hours or less per week. On August 3, 2010, Senator Robert Casey (D-PA) introduced a companion bill (S. 3696) in the Senate. The proposed bills’ Findings state that in the direct-care industry “working conditions are often difficult and turnover is high because of low pay, access to health insurance and other benefits, strenuous conditions…”
The Findings also report that 13 million Americans currently are receiving such services and that “two-thirds of older adults will need some form of long-term care at some point in their lives.” Although both bills are languishing in their respective committees (the House bill was referred to the Committee on Education and Labor and to the Committee on Energy and Commerce, and the Senate bill was referred to the Committee on Health, Education, Labor and Pensions), strong support from HHS and the White House likely will keep this issue in the forefront in the 112th Congress, regardless of which party is in the Congressional majority.
Record keeping and timekeeping issues are an inevitable consequence if the proposed amendment is enacted, because direct-care workers generally have significant “down time” when they are able to pursue their own activities. Such gaps in active work time will raise issues as to whether the worker is “engaged to be waiting” or “waiting to be engaged” and thus, “on the clock.” The key is to be proactive and not get caught unaware in a wage and hour dispute.
Confronted With a Clear Wage and Hour Violation - Make An Offer
A recent U.S. District Court case provides a good example of an employer turning a bad situation into a win simply by making an offer. See Simmons v. United Mortgage and Loan Investment, LLC . In Simmons, the defendant mortgage company misclassified a group of “junior asset managers” as salaried “exempt” employees. The employees sued in an opt-in class action.
In an effort to stave off years of class action litigation and recognizing that a likely violation of the Fair Labor Standards Act occurred, the employer confronted the situation head-on by making an offer of judgment under Federal Rule of Civil Procedure 68. The offer provided for “full relief for all parties,” including those that would be opt-in plaintiffs. In sum, the employer offered full relief to which the plaintiffs could have been legally entitled.
For unidentified reasons, the plaintiffs rejected the offer, pounding the death knell into their case. The court held that the defendants’ offer mooted the action by depriving the court of subject matter jurisdiction – no justiciable case or controversy - resulting in the dismissal of the case.
Employers are turning to social networking sites such as MySpace and Facebook to conduct background checks of job applicants and employees. Social networking profiles allow employers to get a sense of what a potential applicant is like and to check up on activities of current employees. Profiles provide employers the opportunity to search out information about applicants and employees that would otherwise be unattainable.
]]> Personal information including, race, gender, age, sexual orientation and political affiliation that have previously been off-limits to employers is now readily available and can be taken under consideration in the hiring and firing process. For example: an employer is not permitted to ask an applicant about his or her age, however, many profiles contain the individual’s birthday. However, employers should be forewarned as this practice can make them vulnerable to potential liability if it can be established that an employer used this information to unlawfully discriminate against protected groups.Employers are permitted to hire and fire whomever they want even if it is based on false information as long as they do not violate federal, state and local laws. If am employer decides to view applicant and employee profiles they need to take the time to educate themselves on federal, state and local discrimination laws. In Philadelphia, for example, local laws make it unlawful for employers to discriminate based on sexual orientation, however, sexual orientation has not been deemed a protected class under federal and state law. Should an employer in Philadelphia view an applicant profile and discover the applicant is homosexual, and then decide not to extend the applicant an offer because of the individual’s sexual orientation, the employer would be liable for employment discrimination.
Employers that review job applicants and employee profiles however, cannot use the information obtained to make adverse employment decisions that unlawfully discriminate against protected groups. For example, an employer could be potentially liable for age discrimination if the employer decided not to hire the applicant only after reviewing the applicant’s profile and discovering the applicant is over 40 years old.
It may be viewed as evidence of discrimination if an employer reviews only profiles of applicants or employees that are members of protected classes such as women, African Americans or Hispanic. Employers, however, that review all applicant and employee profiles can still commit unlawful discrimination. An employer could be found to have committed employment discrimination if discriminatory bias affects the employer’s evaluation of the information obtained on all applicants or employees. For example, an employer may view more negative photos of a African American male consuming alcohol in an oversized white t-shirt at a bar than photos of an white male consuming alcohol in a frat t-shirt at a bar. The argument could be made that it was not the public drinking that disqualified the black male applicant, but stereotypes perceived by what the employer observed in photos.
As long as an employer’s adverse employment decision does not discriminate against a member of a protected class, the employer can lawfully use information obtained from a profile as a basis for its decision. For example, the Philadelphia Eagles fired an employee after discovering the employee posted on his profile his dissatisfaction with the teams’ decision not to sign player, Brian Dawson. Whether the Eagles decision to terminate the employee was based on the employee’s actual opinion of the team’s decision or whether it was based on the fact that the employee posted his opinion on a social networking site is immaterial. In either case, the Eagles did not violate any federal or state discrimination laws because its decision to terminate the employee was based on non-discriminatory reason.
To avoid potential exposure employers should resist the practice of viewing profiles and focus on conducting better interviews. Employers that are determined to view applicant’s social networking profiles should make sure that they document a legitimate business rationale for rejecting each applicant and put safeguards in place to assure hiring decisions are not motivated by the information found on an applicant’s profile(s). Employers that decide to review applicant profiles should review every applicant’s profile However, none of these steps eliminate risk of liability. Additionally, employers must understand viewing social networking profiles leaves them vulnerable to employment discrimination claims and will make it more challenging to defend against such claims.
A federal district court ruled earlier this year that a township did not violate the First Amendment Rights of a non-tenured manager, who had claimed he was terminated in retaliation for his involvement in an organized bargaining unit.
]]> On February 3, 2010, the United States District Court for the 3rd Circuit District found in David Beresford v. Wall Township Board of Education, et al, Civil Action No. 08-2236, that the Wall Township Board of Education’s (School Board) elimination of Mr. Beresford’s (Petitioner) non-tenured position as manager of information services for budgetary reasons was not in violation of the First Amendments protection of free speech. =The petitioner claimed that the school board violated his first amendment rights by terminating him in retaliation to his involvement in organizing a bargaining unit.Though employees have the right to speak on matters of public concern without the fear of retaliation, the District Court held that petitioner’s speech was not made in his capacity as a private citizen because it was spoken in his official capacity as lead negotiator for the union. The court further held that his speech was not made on matters of public concern because it did not relate to “political, social, or other concern[s] to the community.”
In addition to failing to meet the public concern test, Petitioner also failed to rebut the school board’s justification that the termination was the result of budgetary constraints as the school board offered evidence that some eighty other positions were eliminated.
Though the School Board prevailed in this case, school boards should remain wary concerning how they handle budget cuts and the elimination of employment positions. In this economic climate employees and their unions are likely to make every attempt to hold onto their positions.
A decision issued earlier this year may cause school boards to think twice about offering to settle employment disputes. The Commissioner of Education upheld an Administrative Law decision enforcing a settlement though is was never formally executed by the parties. See Renee Pollack v. The Board of Educaton of the South Orange/Maplewook School District, Essex County, Agency DKT. NO. 354-11/07.
Ms. Pollack argued that South Orange’s August 29, 2006, letter was a counteroffer and therefore a rejection to her August 18 offer. The formal settlement agreement that was sent to Ms. Pollack was never executed.
Nonetheless, the Administrative Law Judge (ALJ) held that the August 29 letter was an acceptance seeking “clarification for what ultimately were minor aspects of the agreement.” Relying on Kupper v. Barger, 33 N.J. 491 (App. Div. 1955) the ALJ held that “Although a settlement agreement should not be enforced in the absence of a mutuality of accord between the parties or their attorney, if the disagreement involves matters not material to the more substantial issues that could be resolved, the agreement should be enforced.”
Following this decision, both employees and management should think very carefully before offering to resolve matters by way of settlement lest they be trapped by unwanted obligations.
A recent decision by the Supreme Court of New Jersey may strengthen the judicial preference for both resolution by arbitration and confirmation of arbitration awards.
In the recent case of Linden Board of Education v. Linden Education Association o/b/o Mizichko, decided by the State’s Highest Court on June 8, 2010, the parties entered into binding arbitration as per the collective bargaining agreement between the labor association and board. The arbitrator found no just cause for the employee’s termination and instead imposed the lesser penalty of a suspension. He found that a type of progressive and corrective discipline should be imposed to satisfy just cause, and that the employee’s misconduct was not so egregious to support just cause to terminate him.
The board sought to vacate the award in the Superior Court, Law Division and the award was confirmed. On appeal, the Appellate Division reversed, finding that there was just cause to terminate the employee and that the arbitrator had exceeded his authority by considering other remedies. Because there was a dissenting judge at the appellate level, the labor association was able to appeal to the Supreme Court as of right.
Writing for the majority of the Court, Justice Wallace held that the fair and reasonable interpretation of the arbitrator’s decision is that he found no just cause to terminate the employee and that he imposed an appropriate, lesser sanction, which satisfied the reasonably debatable standard of review and did not exceed the limits of his authority.
Employers, labor associations and employees should take note that the court favored both the use of arbitration to resolve labor disputes and the preference for judicial confirmation of arbitration awards. Courts also have limited review of arbitration awards, especially in the public sector where such awards will be confirmed so long as they are reasonably debatable. With this in mind, all parties should focus on the importance of the arbitration proceeding, which is likely to be binding absent a showing of fraud, undue procurement or other misconduct.
When entering into collective bargaining agreements that include arbitration provisions, boards of education and labor associations should remember the court’s explanation of what arbitration really is – a vehicle by which meaning and content are given to a collective bargaining agreement. Hence, the arbitrator’s construction of the agreement becomes the actual bargain between the parties.
In the Mizichko case, the court was persuaded that the issue for arbitration was framed such that the arbitrator was within his purview to determine the appropriate remedy if termination was not found to be the proper remedy. The collective bargaining agreement at issue did not define just cause, which according to the court gave the arbitrator the authority to properly fill in the gap and give meaning to the term.
While every case is determined by its own the specific facts and circumstances, the Mizichko decision also provides a general word of caution: parties that engage in arbitration will face an uphill battle if they attempt to vacate an arbitration award. Hence, parties should be mindful of the importance of zealous advocacy at the arbitration level. This case may strengthen the judicial preference for both resolution by arbitration and confirmation of arbitration awards in the future.
The Supreme Court of New Jersey has ruled that under certain circumstances, an employee can reasonably expect email communication with the employee’s attorney through his or her personal account to remain private. In a case of first impression, the court concluded that sending and receiving e-mails via a company laptop did not eliminate the attorney-client privileged that protected the correspondence at issue. (See Stengart v. Loving Care Agency, Inc. 201 N.J. 300 (2010).)
]]> Stengart brought claims against her employer pursuant to New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to 49. She alleged constructive discharge because of a hostile work environment, retaliation, and harassment based on gender, religion, and national origin.Stengart’s employer provided her with a company laptop to conduct company business. Stengart also could use her laptop to access the Internet via the company’s server. Unbeknownst to Stengart, the laptop contained software that copied each web page she viewed and saved this information on the computer’s hard drive in a “cache” folder of temporary Internet files. The temporary files remained on the laptop’s hard drive, unless deleted and overwritten with new data. On several occasions, Stengart used her laptop to access her personal password-protected yahoo email account to communicate with her attorney.
The employer hired a computer forensic expert to recover all files stored on the laptop, including emails. Counsel for the employer proceeded to review Stengart’s emails to her attorney and use the information in the emails in the course of litigation.
The company’s written policy on electronic communications stated:
The company reserves and will exercise the right to review, audit, intercept, access and disclose all matters on the company’s media systems and services at any time with or without notice. …E-mail and voice mail messages, internet use and communication with computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee. The principal purpose of electronic mail (email) is for company business communications. Occasional personal use is permitted; however, the system should not be used to solicit for outside business ventures, charitable organizations, or for any political or religious purpose, unless authorized by the Director of Human Resources.
The New Jersey Supreme Court determined that the policy’s use of general language to refer to its “media systems and services” left unclear whether or not the use of personal, password protected, web-based e-mail accounts via company equipment were covered under the company’s policy. Additionally, the court noted that the company’s policy did not address personal accounts nor did it warn employees that the contents of their personal e-mail accounts are stored on a hard drive and can be retrieved by the company.
The court also found that the policy contained conflicting information. It stated e-mails “are not considered private or personal to any individual employee,” but then proceeds to state that “occasional personal use of e-mail is permitted”.
Under the circumstances, the Court found the policy “did not address the use of personal, web-based e-mail accounts accessed through company equipment” and, therefore, Stengart had a reasonable expectation of privacy in her e-mail exchange with her attorney on her company’s laptop via her password-protected yahoo e-mail account.
The New Jersey Supreme Court’s decision in this case is fact specific and suggests that under different circumstances, the outcome might be different. The court made specific note of the fact that Stengart never saved her Yahoo ID or password on the company laptop and acknowledged that courts might treat e-mails transmitted via an employer’s e-mail account differently. The court also acknowledged that a clear company policy banning personal e-mails may diminish the reasonableness of an employee’s claim to privacy.
Other Decisions
The Appellate Division previously has held that a defendant did not have a reasonable expectation of privacy in personal information stored on the employer’s computer under a separate password. The court also has held that there was no legitimate expectation of privacy where an employee used a company computer to access websites containing adult and child pornography.
Other jurisdictions have considered numerous factors that can impact the expectation of privacy. For example:
• An employee should have no reasonable expectation of privacy in unprofessional e-mails sent to a supervisor through internal corporate email.
• There is no expectation of privacy of confidentiality when company e-mail is used to send attorney-client messages.
• A company’s e-mail policy prohibiting personal use of computer eliminated any expectation of confidentiality.
• The location of the computer can determine expectation of privacy.
• E-mail messages that travel via the company’s server may be viewed differently by courts from e-mail messages that do not pass through a company’s server.
In light of the New Jersey Supreme Court decision, employers in New Jersey should proceed with caution, and would be wise to have their company computer use policy reviewed by counsel. Employees also should er on the side of caution, and avoid using an employer-provided computer to convey confidential information.
An employee who brings a Whistleblower action under New Jersey’s Conscientious Employee Protection Act (“CEPA”) may only collect lost pay by proving they were forced out of their job—they may not collect such damages if they leave voluntarily.
]]> The New Jersey Appellate Division held in Donelson v. DuPont Chambers Work, 412 N.J. Super. 17 (App. Div. 2010) that employees filing suit under CEPA seeking lost pay must establish that they were constructively discharged or actually terminated before they are entitled to an award for lost pay. This holding is consistent with the intent of CEPA and in accord with the law established for claims for economic damages arising under the state’s Law Against Discrimination.In Donelson, the employee was awarded $724,000 in economic damages by a jury. On appeal, however, the court vacated the award because the employee failed to prove that he had been constructively discharged or terminated. The employee voluntarily had taken a leave of absence, and then had retired. Thus, there was no proven constructive discharge or actual termination by the employer that entitled the employee to economic damages.
The employee’s $724,000 award of economic damages was reduced to $0.00 because he voluntarily left employment. This ruling means that in the context of CEPA actions, the circumstances under which an employee leaves his or her employment are particularly high.
A little-discussed but potentially important provision in the new health care reform bill, the Patient Protection and Affordable Care Act, provides immediate protections to mothers who return to work while breastfeeding.
]]> Section 4207 states employers must provide breastfeeding employees with “reasonable break time” and a private place other than a bathroom to express breast milk during the work day. Employers are required to extend this accommodation until an employee’s child turns the age of one. This new federal law is an amendment to the federal minimum wage and overtime laws and, therefore, applies to non-exempt (i.e., hourly) employees. The law does not apply to exempt (salaried) employees. Exempt employees already may receive similar accommodations through company policy.Employers are not required to pay their employee for the time spent expressing milk. If an employer, however, provides its non-exempt employees with a paid break, an employee shall be permitted to use this time to express milk. This new legislation applies to all employers. Employers with fewer than 50 employees do not have to comply if they can establish that complying with the law would cause “an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”
Stay tuned—the Department of Labor will issue its definitions of what constitutes “reasonable break time” and “significant difficult or expense,” and will establish rules for enforcement in the coming months. In the interim, this law is fully in effect, and employers need to take the necessary steps to comply, and accommodate breastfeeding moms.
NOTE: These new requirements do NOT preempt state law that provides greater protections to employees. Neither Pennsylvania nor New Jersey provide any type of protection to female employees who are breastfeeding.
Boards of education and private educational entities contend with a wide variety of challenging employment issues on a daily basis. Educational employers are exposed to employer liability through an array of occurrences between their employees, students, vendors, visitors and other community members.. To combat these potential liabilities, educational employers should focus on preventative and predictive measures rather than on reactive measures—a shift in thinking and policy making that can lead to significant cost savings.
]]> One area of concern is the occurrence of violence and crimes in schools. School boards may operate in reaction mode regarding crimes involving their students and staff and others on school grounds. However, the statistics suggest changing this mindset. Nearly 2.7 million crimes are committed in American schools each year, and teachers are the victims in more than 400,000 of those crimes. It stands to reason that educational employers should think preventatively about the commission of crime on their property.Here are a few tips for school board members and other educational administrators to help adopt a more proactive mindset to employment issues.
First, gain an accurate understanding of the safety issues present in your school buildings. Once this is achieved, try to predict the violent and criminal situations that may arise at your school.
Next, focus the management skills implemented at your school. There should be sufficient support, often in the form of data and statistics, for the pertinent decisions being made. When decisions and policies are well-supported, management is effective and liability is decreased.
You should also pay attention to school policies regarding truancy. Events leading to a school board’s potential legal liability frequently occur when students fail to report to class on time and when student skip class altogether. Therefore, the policies you develop and maintain in this area are crucial.
Finally, ensure that the plans your school implements for emergency situations are clear and well explained to all students and staff members. Liability can easily arise and escalate when an emergency situation is not properly handled, leading to tangential events that could have been prevented. When everyone knows what to do in an emergency, and you can demonstrate that the policy was well established and widely known, you take a major step toward limiting your liability.
These starting points will not only help you to become a more aware and effective employer regarding legal issues, they will also help you to engage in district-wide explorations and conversations that will put you on the path to a true shift in thinking from reaction to prediction and prevention.
Title II of the Genetic Information Nondiscrimination Act of 2008 a/k/a “GINA” makes genetic information off limits to employers and health insurers. Employers are prohibited from discriminating against employees or applicants based on genetic information. More specifically, GINA prohibits employers from considering genetic information when making employment decisions.
]]> GINA is modeled after the all so familiar Title VII of the 1964 Civil Rights Act. It forbids discrimination based on genetic information in all terms and conditions of employment including hiring, firing, compensation, job assignments, promotions, layoffs, training, and fringe benefits. Employers also need to educate their workforce that it is illegal to harass a person because of his/her genetic makeup. Similar to Title VII, harassment includes making offensive or derogatory remarks about genetic information. Additionally, harassment extends to comments made about a relative of an employee or applicant family member’s genetic information. GINA also makes it unlawful to retaliate against an applicant or employee that opposes genetic discrimination by filing a charge of discrimination, participates in an investigation or a lawsuit.•Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.
•Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
•Genetic information may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws), where an employee is asking for leave to care for a family member with a serious health condition.
•Acquisition through commercially and publicly available documents like newspapers is permitted, as long as the employer is not searching those sources with the intent of finding genetic information.
•Acquisition through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace is permitted where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
•Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
If genetic information is obtained under one of the above exceptions, an employer must take the necessary steps to contain this information so that it is not improperly considered in employment decisions or disseminated to co-workers.
Employers are required to keep genetic information confidential and maintain it in a separate medical file. The EEOC has approved genetic information be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.
Going forward employers must be sensitive to genetic information and take the necessary steps to protect their employees sensitive genetic information and comply with federal law.
http://www.eeoc.gov/laws/types/genetic.cfm
]]>http://www.nytimes.com/2009/10/13/opinion/13tue3.html?_r=1&ref=opinion
Current Democratic control of Congress may mean that H.R. 3721, which would overturn the FBL Financial decision, likely will be passed in the near future, a reality that impacts strategy for litigants on both sides of age discrimination claims.
Here's the link to the proposed house bill:
http://lawyersusaonline.com/wp-files/pdfs/protecting-older-workers-against-discrimination-act.pdf
]]>In Stankiewicz v. Cisco Systems, the court held that there was no enforceable arbitration agreement when it was not part of the initial employment package, but was appended by the employer to an Incentive Compensation Plan. The employer took the position that participation in the plan constituted “acceptance:” of the mandatory arbitration provision. When the plan was presented to the employee, the employee objected. His employer responded that the incentive plan was on a “take it or leave it” basis, and that if the employee did not accept he would receive only his base salary or be terminated. With no alternative to obtain his incentive bonus, the employee accepted the plan.
The court held that this was not a “voluntary” acceptance of the agreement to arbitrate, stating that the employer’s argument to the contrary was “nonsense.” The court therefore denied the defendant’s motion to compel arbitration.
This decision will be used by attorneys for employees to fight arbitration compelled by “fine print” arbitration agreements. An employer who wishes to minimize litigation expenses by requiring arbitration needs to ensure that the employee signs an agreement at the outset of employment. If the agreement to arbitrate is offered later, the employee should be offered some compensation for the changed arrangement, and the opportunity to freely negotiate. Otherwise, the provision may be unenforceable.
Last week’s decision in Erdman v. Nationwide Insurance Co., clarifies confusing and nonsensical language in an earlier Third Circuit decision (Conoshenti v. PSE&G) which stated that the first requirement of a retaliation claim is that the employee took an FMLA leave. Employers have used the Conoshenti decision to argue that there is no retaliation under the FMLA if an employee is fired before actually taking leave.
The Third Circuit recognized that “it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave began.” The court made clear that firing under these circumstances constitutes “retaliation” as well as “interference” with the FMLA.
On the question of “associational discrimination” under the Americans with Disabilities Act, the court in Erdman cut the baby in half, leaving both employers and employees dissatisfied.
Under the decision, an employer may not fire or fail to promote an employee because the employee has a disabled family member. However, the court declined to extend the protection of the ADA to an employee whose employer had known for years that the employee’s child was disabled. The court in Erdman distinguished between knowledge that employee had a disabled child and knowledge that the employee would need time off to care for that child. Because the employer knew about the child’s disability for years and did not retaliate sooner, the court held that a jury could nt find that the employer was motivated by the disability. Rather, the trigger for the discrimination was the employee's request for time off to care for the disabled child. This request provides protection to the employee under the FMLA, but not under the ADA.
]]>What does the FBL Financial decision say?
The Court’s decision turns on shifting burdens of proof in age discrimination cases, the kind of topic that makes non-lawyer eyes glaze over. To a large extent, it comes down to the difference between “a” and “the.” Under Title VII (which protects workers from discrimination on the basis of classifications such as race and gender), when there is a case of “mixed motives,” there is a shifting burden of proof, and employees must show that the protected class was a motivating factor. The FBL Financial decision basically takes away the option of arguing mixed motives in an age discrimination case – employees must argue that age was the motivating factor, not just a motivating factor.
What does FBL Financial mean in practice?
]]> At first glance, this is a dream come true opinion for employers. Justice Thomas gave employers far more than they had even asked for. Employers only asked the court to find that employees must show direct evidence of discrimination in mixed motives cases. Instead, the Court went much farther and banned the cases altogether.Because of game-changing nature of the decision, there is already buzz about a swift and forceful congressional override.
In the meantime, is it all over for plaintiffs? Not by a long shot. Employees can still bring federal age cases without a mixed motive instruction. In other words, plaintiffs will not argue that the employer was motivated by age plus some legitimate basis, but will just argue that age was the motivating factor, plain and simple. Many plaintiffs’ lawyers have already taken this approach, on the theory that it is less confusing to the jury. The Court made clear in a footnote that plaintiffs can still prove their case without “direct” evidence of discrimination – in other words the proofs do not need to include a smoking gun memorandum saying “Let’s fire Joe ‘cause he’s old.”
Second, plaintiffs will rely more on state laws. New Jersey and Pennsylvania both have state laws banning discrimination on the basis of age, and the courts of both states have demonstrated that they will not follow federal case law that is overly limiting.
While the lawyers fight out jury instructions under FBL Financial,it is likely that Congress will be hammering out amendments to the federal law banning discrimination on the basis of age. With the number of older workers who have lost jobs in the economic downturn, interest in this issue by the Democratic Congress may be high.
]]>