Archive for the 'Employment Law' Category

Entrepreneur Magazine: “What to Do If Your Business Gets Hacked”

Todd Ruback December 5th, 2011

Privacy attorney Todd B. Ruback was quoted in an article found in today’s Entrepreneur Magazine entitled “What to Do If Your Business Gets Hacked” by Riva Richmond.  The article can be found at http://www.entrepreneur.com/article/220807.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

U.S. Supreme Court adopts the “cat’s paw” theory of liability in an employment case.

SteveK September 21st, 2011

In a decision that may have wide ranging impact on New Jersey employment practice the U.S. Supreme Court adopted the “cat’s paw” theory of liability under the Uniformed Services Employment and Reemployment Rights Act (USERRA), a statute designed to protect those in the military from discrimination. USERRA, is similar to Title VII; therefore, the opinion is likely to be applied to Title VII matters, and potentially to matters arising under the New Jersey Law Against Discrimination (NJLAD). The cat’s paw theory of liability is defined as a situation where one person is used by another to accomplish their purpose. Thus, where the employer (the cat) is influenced by an employee’s discriminatory animus toward another (the cat’s paw) resulting in an adverse employment action, the employer may be liable to the adversely affected employee.
In Staub v Proctor Hospital, the Supreme Court reversed a decision by the Seventh Circuit absolving an employer of liability where the decision maker relied on the report of a supervisor to terminate an employee. The Supreme Court ruled that where the decision maker was influenced by the supervisor’s anti-discriminatory motives (in this case based on the employee’s service in the military), the employer is liable to the terminated employee for damages where a causal connection exists between the employers’ action and the discriminatory motives of the supervisor.
Given the dearth of New Jersey case law on this subject, Courts will need to answer the question whether the decision maker was influenced by the alleged discriminatory motives of a supervisor; an inherently fact specific inquiry. This may cause more cases to survive motions for dismissal or summary judgment in employment cases prior to trial.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

 

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US SUPREME COURT INSULATES MUNICIPALITIES FROM FIRST AMENDMENT SUITS

SteveK July 21st, 2011

In a decision unifying the approach to what are referred to as “petition clause” cases, The United States Supreme Court reversed a Third Circuit decision upholding a jury verdict in favor of a public employee. In Borough of Duryea v. Guarnieri the plaintiff, a municipal employee, claimed the municipality retaliated against him after he filed a lawsuit. The employee claimed his lawsuit was a protected activity under the First Amendment because he was “petitioning” the government with his grievances. Under the existing Third Circuit jurisprudence, the trial court agreed and submitted the matter to the jury. The jury returned a verdict against the municipality. The Supreme Court reversed indicating that there is a requirement that in order for an activity to be protected pursuant to the Petition Clause of the First Amendment, the “petition” or grievance, or lawsuit, must involve a matter of public concern. AS a result, the municipality was therefore absolved of liability.  Therefore, if a grievance or complaint by an employee involves an internal matter, the municipality cannot be held liable under the petition clause of the First Amendment.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

 

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A Year After Stengart: What’s Changed?

SteveK March 28th, 2011

It’s been a year since the New Jersey Supreme Court decision in Stengart v. Loving Care Agency. 990 A2d 650 (2010) and what has changed?  The Stengart case shook the world of employment law because it is one of the first cases to provide that an employee has an expectation of privacy in personal, password protected, web-based emails sent on a company computer through a company server, irrespective of the fact that the employer had a computer use policy in effect at the time.  The Court held that the Plaintiff had a subjective expectation of privacy in her emails because they were password protected and she did not save them on the company computer, as well as the fact that the emails were between her and her attorney, which is a fiduciary personal relationship.  When the company captured the emails from her computer after she left employment and shared those emails with their defense attorneys, the defense attorneys had an obligation to not read them because the emails were privileged and to promptly return them to the Plaintiff’s attorneys.

 Will Stengart mean that employees have an unfettered expectation of privacy in personal emails at work so long as they are sent and received on a web-based platform and are password protected?  Probably not.  That would be a broad end-run around a company’s computer use policy and that isn’t the message from the Court in Stengart.  Rather, Stengart may end up meaning that employers have to be more precise in giving adequate warning to their employees that the contents of emails from a personal account may be monitored.  Employers will have to drill into specifics in their computer use and internet use policies, so that any argument that the policy or policies are ambiguous is obviated.  As the Court in Stengart held, “Our conclusion that Stengart had an expectation of privacy in e-mails with her lawyer does not mean that employers cannot monitor or regulate the use of workplace computers.”  The Court went on to say that ”Companies can adopt and enforce lawful polices relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies….But employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy. 

 Will Stengart mean that there is a narrow expectation of privacy in personal emails at work when the emails are with an attorney and fall under the attorney-client privilege?  Probably not.  If that were the case, the Court would not have gone through its detailed logic in arriving at its holding.  Instead, it could have simply said personal emails at work with an attorney are privileged and are not discoverable.  But it did not say that.  In fact, the Court went to great lengths to discuss a concept called a “subjective expectation of privacy” and also to discuss computer use policy ambiguity. 

 The Stengart message is that an employer would be wise to not construe Stengart too narrowly in thinking its application is only for attorney-client communication; nor should an employer construe Stengart too broadly in thinking that an employee now has an unfettered expectation of privacy in his emails so long as the emails meet certain criteria, namely that they are password protected and are sent on a web-based platform.  Rather, a cogent course for an employer to take is the middle ground.  There may well be an employee expectation of privacy in emails that are sent on a password protected web-based platform, regardless of whether it is with the employee’s attorney, unless there are pro-active steps taken by the employer to obviate a subjective expectation of privacy and to clarify any computer use or internet use policy ambiguities.  Employers should consider not only revising their computer use and internet use policies to be more precise as to this point, but also should consider the design and implementation of a rigorous and consistent employee training programs that include employee acknowledgements. 

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in  technology and privacy matters. For additional information about the matters in this bulletin or in the firm’s insurance practice, please contact Todd. R. Ruback, Esq. who heads our Technology and Privacy Law Department

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Court Rules Reinstatement to Former Position Necessary to Avoid Irreparable Harm

SteveK September 27th, 2010

In Ellis v. Ethicon, a New Jersey Federal District Court Judge ruled on September 21, 2010 that Ethicon was required to reinstate Plaintiff to her position from which she was removed several years earlier. Following a trial in which the jury determined that Ethicon acted in bad faith in failing to provide plaintiff an accommodation for her disability, Judge Freda Wolfson denied defendant’s motion to stay that portion of the Judgment requiring Ethicon to reinstate the plaintiff to an available position in her job category as equitable relief for their discriminatory conduct.  Reinstatement, while an available remedy pursuant to the Americans with Disabilities Act and the New Jersey Law Against Discrimination, must affirmatively demanded by a plaintiff, but is often not granted.  Reinstatement is a remedy that is court ordered rather than decided by the jury.

Plaintiff, Ellis, initiated this action against her employer, Ethicon, for its failure to accommodate her disability in the workplace. After approximately two weeks of trial, the jury found, with respect to Plaintiff’s Americans with Disabilities Act of 1990 (“ADA”) claim, that Plaintiff proved she was substantially limited in cognitive function as of October 2001, and consequently was disabled under the ADA; that Ellis was qualified to perform the integral function of her position as a quality engineer, with or without accommodations; that Ethicon unreasonably failed to provide the accommodations requested by Ellis, or provide any other reasonable accommodations; and that accommodating Ellis in her job would not have been an undue hardship.

In deciding that Reinstatement was warranted,  Judge Wolfson relied on several  Third Circuit decisions dating from 1985 holding that  that reinstatement is the preferred remedy to avoid future lost earnings. Judge Wolfson said:

“It is an obvious form of relief to make the plaintiff whole and to relieve the plaintiff of the effects of discrimination. Ellis v. Ringgold School Dist., 832 F.2d 27, 30 (3d Cir. 1987). Courts recognize that reinstatement may not be feasible in all cases. Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1438-49 (3d Cir. 1985). For example, there may be no position available at the time of judgment or the relationship between the parties may have been so damaged by animosity that reinstatement is impracticable.   In such circumstances, “the remedial purpose of the statute would be thwarted and plaintiff would suffer irreparable harm if front pay were not available as an alternate remedy to reinstatement.”" Judge Wolfson found here that no such circumstances existed.

Judge Wolfson rejected defendant’s argument that they would suffer irreparable harm if plaintiff was reinstated, instead finding that the plaintiff was the one who would suffer the harm. The Judge stated, ” Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a   stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date . . . weighs heavily against a claim of irreparable harm. . . . Recoverable monetary loss may constitute irreparable harm only where the loss threatens the very existence of the movant’s business.  A stay would only serve to continue Plaintiff’s deprivation of the wages and benefits   she would have as an Ethicon employee. Further, Plaintiff’s means are minuscule in comparison to the resources and capital Defendant has at its disposal to fund this litigation – a grant of a stay would only serve to amplify this inequality of the parties. Finally, the grant of a stay would force Ellis to suffer further anguish and economic hardships. This protracted litigation has persisted for many years. Under such circumstances, to further delay Plaintiff from returning to work, to which a jury concluded she was entitled, is manifestly unfair and may in fact rise to the level of a “substantial injury.”

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

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District Court Punishes Lucent for Ambiguous Language in Separation Agreement

SteveK November 11th, 2009

In Kanafani v. Lucent Technologies, plaintiff, a former employee of a subsidiary of Lucent Technologies, asserted violations of the New Jersey Conscientious Employee Protection Act (CEPA), in addition to claims pursuant to the New Jersey Wage and Hour Law. Plaintiff’s whistleblower claims were based on both his initial June 2006 termination and the decision of defendant not to rehire him in September 2006. Two months prior to his termination, plaintiff sent an email to Lucent executive outlining what he saw as an improper inflation of reported revenues and violations of the Foreign Corrupt Practices Act in connection with sales efforts in the United Arab Emirates. After  the close of discovery, Defendants sought dismissal of all claims. The District Court dismissed plaintiff’s the Wage and Hour Law violation clams, as well as all claims related to the September 2006 refusal to rehire; the did not dismiss the claims related to the June 2006 termination.

One of the primary arguments presented by Lucent related to a release that was entered into by the plaintiff upon termination, which defendant argued barred the claims.

The Court rejected defendant’s argument regarding the absence of a causal nexus between the activity and the termination, finding questions of fact required a trial.  In addition, the Court noted that the language in the release that plaintiff had “no further rights or claims to any past or future payments or reimbursements from the Company” was not an unambiguous waiver of his rights under CEPA, and that this ambiguity should be read against the Defendants and would be subject to further consideration at trial. The ruling is consistent with other decisions in New Jersey that requires any release of certain forms of claims should be specified.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

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Release of Unfavorable Information on Former Employee to Prospective Employer Is Not Inherently Discriminatory

SteveK November 11th, 2009

On November 4, 2009, in Taylor v. Amcor Flexibles, Inc., the United States District Court, dismissed the claim of a plaintiff asserting that the disclosure of negative employment evaluations to a prospective employer is not inherently discriminatory.

Plaintiff Alonzo Taylor, an African American, began his employment with defendant Amcor Flexibles in early 2005. By November of that year, defendant became displeased with plaintiff’s performance and placed him on a Performance Improvement Plan. After his performance failed to improve, plaintiff was terminated. Over a year later, defendants responded to an inquiry from a prospective employer for the plaintiff indicating that he was released for performance issues. Plaintiff thereafter filed suit for racial discrimination pursuant to Title VII, the New Jersey Law Against Discrimination (NJLAD) and for retaliation under the Conscientious Employee Protection Act (CEPA), as well as common law defamation. The Court employed the McDonnell-Douglas test and concluded  that although plaintiff made out a prima facie case of discrimination, defendant was able to articulate a nondiscriminatory reason for dismissal. The Court stated that it did not wish to second guess that criteria used to evaluate employees, absent a showing that the criteria utilized was inherently discriminatory. The Court, therefore, granted Summary Judgment to the defendant.

 Finally, although defendants did release unfavorable information regarding plaintiff to a possible subsequent employer, the Court found that since plaintiff signed an authorization for the release of the information, the qualified privilege of course of legitimate business functions attached. The Court therefore dismissed plaintiff’s defamation claims.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

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NJ Supreme Court Rejects Award of Counsel Fees to Employer in CEPA Case

SteveK October 19th, 2009

On October 15, 2009, the New Jersey Supreme Court broke new ground in Best v. C&M Door Controls, Inc. holding that a Defendant, employer is never entitled to an award of counsel fees pursuant to the “offer of judgment rules” in a case involving either the Conscientious Employer Protection Act (CEPA) or the Prevailing Wage Act (PWA), two New Jersey statutes protecting employees from retaliation if they engage in certain defined protected activity.

 

Plaintiff, Thomas Best sued his former employer, C&M Door Controls, for violations of the PWA and CEPA, claiming that he was underpaid for certain work covered by the PWA and  that when he complained his employer retaliated.  At some time prior to trial Best made an offer of Judgment, which included fees and costs, in the amount of $100,000; the defendants made counter offers of judgment in the amounts of $15,000 and $25,000 for the respective claims. All offers were rejected. The trial resulted in a defense verdict on the CEPA claim and a jury award of $2600 on the PWA claim.  Plaintiff applied to recover fees pursuant to the fee shifting provisions of the PWA in the amount of $122,000.

 

 The trial court granted plaintiff fees, but reduced the fee award by 40% based on plaintiff’s “limited success” and also awarded fees to the employer on the failed CEPA claim in accordance with the offer of Judgment rule. The Appellate Division affirmed the fees awarded to the defendants; however, the Supreme Court reversed. The Supreme Court held that a trial judge might consider the offer of judgment made by the employer and unjustifiably rejected by the plaintiff in determining the amount of fees to be awarded to a prevailing plaintiff, if “under all the circumstances” the offer of judgment was reasonable.  The Court ruled, however, that there is no basis to shift the fees to a defendant in such a case.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

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