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.

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.

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.

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.

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).)

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?