Valore & Gordillo, LLP.

On November 21, 2009, the Genetic Information Nondiscrimination Act (GINA) became effective. This federal law applies to all employers with 15 or more employees. GINA prohibits discrimination against employees based upon their genetic information. Genetic information includes family medical history. Here are the 7 most common mistakes employers are likely to be making right now under GINA:

 

• Failing to Notify Employees About GINA: Notices to employees regarding their rights under the equal employment opportunity laws must be updated to include notice regarding rights under GINA (and the Americans with Disabilities Amendment Act of 2009). Employers can obtain free posters at the EEOC website, here.

 

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Signing a non-compete agreement may be one of the most important decisions in an employment relationship.  Scott Gibson of Gibson, Ferrin and Riggs, P.L.C. in Arizona has written an excellent blog entry on the subject at biziboom.com.  For those who did not see it, here are two key points.

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Implementing Progressive Discipline to Improve Performance was the topic of my presenation yesterday at the 2009 HR Star Conference in Cleveland, Ohio.  The Conference drew approximately 600 attendees.  The room in which I was presenting was full.  A responsive and active audience made giving this presenation a real pleasure.

Here is the power point presentation I used.

Today is a good day to read the Declaration of Independence that we celebrate on July 4.  The Declaration reminds us why the United States exist:  Because we believe that all people "are created equal."  For 233 years, United States citizens have fought, died, and lived to make certain that equal opportunity would be available to all Americans.

So is there any greater principle upon which the success of America depends?  On July 4, we celebrate our freedom.  We only have freedom, however, as long as we continue to believe in and protect equal opportunity.  Without equal opportunity, America's bedrock would crumble.

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Most employers have realized they should have internet use policies for their employees, but those policies should now be updated to address the Web 2.0 and social media. The internet is rapidly being changed by the proliferation of interactive communication tools and websites. When employees use internet social media, the line between workplace conduct and personal conduct can be blurred. Wise employers should give their employees guidance about using these methods of communication.

A sound policy should include the following:

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A grievance procedure that requires union members to pursue age discrimination claims through arbitration can result in preventing the union member from filing the age discrimination claim in court. That is the result of the recent United States Supreme Court decision, 14 Penn Plaza LLC v. Pyett. More specifically, the Court addressed whether a provision in a collective-bargaining agreement that requires union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 (ADEA) is enforceable. The Court held that the employer could enforce the provision and prevent union members from going to court.

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Sexual harassment law now has a wider opportunity for employees trying to take their case to a jury.  That is the result of Gallagher v. C.H. Robinson Worldwide, Inc., a decision by the United States Court of Appeals for the Sixth Circuit.  The court ruled in favor of Julie Gallagher and reversed a trial court's decision that had entered summary judgment and dismissed her sexual harassment claims against C.H. Robinson Worldwide, Inc.

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"Americans clearly believe in equal opportunity even as they reject programs that mandate equal outcomes."  So writes pollster Frank Luntz in his book, Words That Work: It's Not What You Say, It's What People Hear. The observation is a remarkably valuable insight for anyone preparing an employment discrimination lawsuit trial.

Whether representing the employee or the employer, the challenge that Luntz's insight presents during an employment discrimination trial is to remain focused on the right side of the Luntz equation.  Employment discrimination disputes almost always concern both halves of the opportunity-outcome equation.  An employee denied an equal employment opportunity will persuade a jury to the employee's point of view.  An employee seeking compensation because the employee did not get an equal employment result will likely fail to persuade a jury.

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The False Claims Act that prohibits false claims made for government money has been expanded.  Civil claims brought to enforce the law are known as qui tam actions.  On May 20, 2009, President Obama signed into law the Fraud Enforcement and Recovery Act of 2009 ("FERA").  Two of the changes to the law are likely to have great impact on future whistleblower claims.

The two key changes to qui tam law are that:

• A whistleblower no longer has to prove an intent to obtain payment using a false claim; and
• A whistlblower can now recover for claims made indirectly to the government.

The Act addresses more than qui tam actions.  As the White House described the law last week:

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How to approach mediation was the subject of an interesting blog entry by Michael Maslanka, the managing partner of the labor & employment law firm, Harrison & Ford in Dallas.  I don't agree with everything he writes, but his thoughts are a helpful contribution to lawyers and clients trying to resolve disputes.  Many of his thoughts hit the bulls eye, and all of his thoughts ought to be considered when preparing for mediation. 

Maslanka, an employer side lawyer, calls mediation "such a frustrating experience for employers often untethered from reality."  Mediation should never be frustrating.  Sadly, however, mediation often frustrates more than it accelerates resolution.  But the frustration with mediation that Maslanka cites is not limited to employers.  It is shared just as much by employees. 

An implicit point made by Maslanka is that preparation improves mediation.  Preparing for mediation is perhaps one of the least understood parts of an employment lawyer's practice.  No two mediations are the same, and their fluid nature makes formula preparation difficult to identify for lawyers.  Nevertheless, Maslanka offers five worthy points.  They also prompt me to expand them and offer my own points of clarification and sometimes, disagreement.

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