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This week's topics ...

(1) EEOC Plans to Expand Wellness Program Incentives

The U.S. Equal Employment Opportunity Commission (EEOC) issued a proposed rule that would allow employers that offer wellness programs to provide limited incentives in exchange for an employee's spouse providing information about his or her health status. The proposed rule would amend the regulations related to Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). However, the proposed rule would not alter GINA’s absolute and general prohibition against the use of genetic information in making employment decisions. We interview Frank C. Morris, Jr., a Member of the Firm at Epstein Becker Green, based in Washington, DC.

(2) New Jersey Applies Atalese Arbitration Standards to Employer-Employee Agreements 

In the case Barr v. Bishop Rosen & Co., the New Jersey Appellate Division issued its first published decision applying the New Jersey Supreme Court’s decision in Atalese v. U.S. Legal Services Group LP to agreements between an employer and employee. The court ruled that, due to a lengthy time gap between the signing of the Financial Industry Regulatory Authority’s (FINRA’s) Form U-4, which encompassed disputes between the plaintiff and his employer, and the signing of the “arbitration disclosure statement” that FINRA requires its members to provide in conjunction with the Form U-4, the documents could not be fairly read together. Therefore, the arbitration disclosure statement did not render the arbitration provisions enforceable.

(3) Class Action Waivers Under Scrutiny

The U.S. Court of Appeals for the Fifth Circuit reversed a National Labor Relations Board ruling finding that arbitration agreements from Murphy Oil barring the pursuit of class actions violated the National Labor Relations Act (Murphy Oil USA v. NLRB). Also, a California appellate court ruled that a class action brought by an Air Liquide truck driver can move forward, despite the arbitration agreement he signed, because the Federal Arbitration Act (FAA) exempts transportation workers involved in interstate commerce from its scope (Garrido v. Air Liquide Industrial U.S. LP).

(4) Fifth Circuit Sides with Oklahoma on Non-Competes in State Law Clash

The Fifth Circuit ruled that a Texas bank cannot enforce non-compete agreements signed by four former employees based in Oklahoma, where courts do not recognize the pacts, because the agreements would violate Oklahoma's strong public policy favoring worker mobility. The fundamental law of the state trumped the choice of law.

(5) In-House Counsel Tip of the Week

Tess Leopold, General Counsel for Nippon Life Benefits, gives some advice on performance appraisals. Whether your company has conventional performance management or a cutting edge approach, feedback has a role. Constructive criticism, diplomatically delivered, can achieve three important results ...