Employment Law This Week: Discrimination Claims, Employee Wellness Notice, Persuader Rule, Pin Ban

Episode 32: Week of June 27, 2016

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We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) NJ Supreme Court Voids Filing Deadline

Our top story: The New Jersey Supreme Court voids a time limit on discrimination claims. A furniture store employee filed a discrimination claim nine months after he was fired, alleging he was terminated in retaliation for filing a worker’s comp claim. While the state of New Jersey has a two-year time limit for filing claims under the Law Against Discrimination, the worker had signed a job application with the company that imposed a six-month time limit. In a landmark decision, the New Jersey Supreme Court reversed appellate and trial decisions in this case, ruling that the contract violates public policy. Carmine Iannaccone, from Epstein Becker Green, tells us how this ruling could impact the way that employers use their job applications:

"Employers really use employment applications for a lot of reasons, in addition to finding out background and experience and making employment decisions. They do use the application to remind the employee about the at-will employment status. They use it to obtain commitments to arbitrate, and if, as the court said, employment applications are, by definition, contracts of adhesion, it may be that employers are going to have to look carefully at their employment applications and maybe separate out arbitration commitments and other agreements that the employee makes in signing the employment application, because the court believes that there isn’t meaningful bargaining and the employee really isn’t in a position to agree to things in the employment application process."

See also our extended interview with Carmine Iannaccone.

(2) EEOC Releases Sample Employee Wellness Notice

As part of its final rule on wellness programs, the U.S. Equal Employment Opportunity Commission (EEOC) stipulated that employers that ask employees medical questions as part of a wellness program must post a notice to participants. The agency recently issued a sample notice for employers to use as a guide, providing much-needed clarification on the issue. According to the sample, the notice must clearly explain what information will be collected, how it will be used, who will have access to the information, and how it will be kept confidential.

(3) DOL Clarifies Timeline of “Persuader Rule” Enforcement

The Department of Labor (DOL) spells out the timeline for its amended “Persuader Rule.” The Office of Labor Management Services indicated that indirect persuader activities do not need to be reported if they arise from agreements entered into before July 1, 2016. Indirect activities occur when a persuader does not directly communicate with employees. Under the amended Persuader Rule, employers and labor relations consultants, including law firms, will be required to report indirect activities. Activities arising from arrangements made by this Thursday will not need to be reported.

In related news, an injunction against this amended rule was denied last week, though a U.S. district court judge in Minnesota found that the DOL likely exceeded its authority in changing the advice exception. There are two other challenges to this amended rule currently in the courts. For more on this story, click here. Find more on the district court case here.

(4) First Circuit Upholds Reversal of Pin Ban

A Honda dealer's dress code banning pins violates the rights of employees under the National Labor Relations Act to wear union insignia. That’s according to the U.S. Court of Appeals for the First Circuit, which recently upheld a decision by the National Labor Relations Board (NLRB) on the matter. The Honda dealer significantly revised its handbook in 2013 after challenges from employees, but it failed to get rid of its ban on pins. The NLRB rejected the ban, and the company appealed to the First Circuit. In a split decision, the First Circuit backed the NLRB, granting its petition for enforcement. The dissenting judge argued that the majority’s decision makes it difficult for businesses to enforce dress code policies, allowing the NLRB to play “fashion police.”

(5) Tip of the Week

Vera Sullivan, Founder and President of Diversityforce LLC, shares some advice on building partnerships to achieve organizational goals:

"It is very important for the in-house lawyer to build a successful relationship internally with the business professionals across all business lines of the company, so that the in-house lawyer understands the day-to-day challenges and the opportunities of the business people. . . . When you appreciate and value your business person, your business person will appreciate and value you. . . . Building that relationship is like building a very successful sustained marriage partnership. And when it is successful, it reaps tremendous outcomes for everyone and great rewards for everyone as well."

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