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.

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.

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.

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.

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.

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.

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.

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.

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?

While other states are raising the bar on equality and recognizing marriages of same-sex couples, Pennsylvania still fails to provide basic equal right to approximately a million Pennsylvanians.

Pennsylvania civil rights laws provide no protection to Lesbian, Gay, Bi-Sexual, and Transgender people (LGBT). The Pennsylvania Human Relations Act (PHRA), provides protection against discrimination in housing, employment, and public accommodations on the basis of race, color, religion, ancestry, age, national origin, handicap or disability, education and use of a guide dog, but completely fails to provide any protection for sexual orientation, gender identity, or gender expression.

In the past year the Equal Employment Opportunity Commission (EEOC) experienced a record number of pregnancy discrimination filings. Women with child bearing responsibilities have typically reported experiencing discrimination when they informed their employers that they were pregnant. The EEOC has also received a surge in claims from women who have experienced discrimination simply because they are mothers. Women report they are not being considered by prospective employers and not being awarded promotions because they have children. This type of discrimination has nothing to do with any perceived notion of a pregnant woman’s ability to work. Rather, women are being discriminated against based on stereotyped sex roles. Women are responsible for family care giving and therefore, are often seen as incapable of performing at the same level as their male peers in the workplace.

For employees: Am I eligible?
You are an “eligible individual” under the American Recovery and Reinvestment Act (“ARRA” or “Stimulus Package”) if:
• Your employment was involuntarily terminated between September 1, 2008 and December 2009
• You are otherwise eligible under COBRA
• You are not eligible for another group health coverage (such as Medicare or your spouse’s plan)
• Your adjusted gross income is less than $125,000. (If your income is between $125,000 and $145,000 you will be eligible for a partial subsidy.)

In 2007, the Equal Employment Opportunity Commission (“EEOC”) filed a record number of lawsuits over caregiver bias in the work place. See http://www.eeoc.gov/stats/pregnanc.html The EEOC also obtained 30 million dollars in monetary benefits, which is a significant increase from the prior year’s monetary recovery of 10.4 million dollars. (This monetary recovery also includes pregnancy discrimination claims.) (Note the 2008 EEOC statistics are not yet available.)

Caregiver discrimination claims have been successfully litigated in the recent years under the “sex-plus” theory. This theory prohibits employers from treating employees differently than other workers on the basis of their sex “plus” a facially neutral characteristic such as having young children.

One way employees have successfully challenged “sex-plus” discrimination is through the disparate impact theory. For example: A female asserted that her employer’s sick leave policy, which provided that sick leave could only be used when the employee was sick had a disparate impact on female employees because female employees were more likely to stay home with a sick child. Consequently, the policy forced women to resign more frequently than their male counterparts because of their caregiver role.