The Employer Handbook Blog

Well, that didn't take long.

Late last month, I reported on a bill that had been introduced in the U.S. House of Representatives, known as the Social Networking Online Protection Act (SNOPA), that would prohibit employers, schools, and universities from requiring someone to provide a username, password or other access to online content.

Now, it's the U.S. Senate's turn to get in on the act with its own password bill. Plus, after the jump, I'll have an update on similar legislation winding its way to Governor Christie in New Jersey...

Continue reading "U.S. Senate now has its own FB password bill; NJ nears similar ban " »

The Americans with Disabilities Act explicitly forbids discrimination against those who are actually disabled or "regarded as" disabled. As a NJ court once recognized, "Distinguishing between actual handicaps and perceived handicaps makes no sense." Indeed, "prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be . . . non-existent."

Does the same maxim apply to workplace discrimination -- a barrage of anti-semitic comments -- directed at employee whom the harassers believe is Jewish, but really isn't?

The answer from a NJ court after the jump...

Continue reading "Court holds mistaken discrimination is unmistakably illegal" »

Unfair treatment because of one's language may be related to race or national origin discrimination. Indeed, language may be used as a covert basis for discrimination.

But that's not always so. A recent case and some helpful nuggets on English-only rules after the jump...

Continue reading "Is a workplace "English-only" rule legal? " »

It was just last month that I blogged about arbitration agreement tips for PA employers from the 3rd Circuit. I hate to leave NJ employers out of the loop, so today's post is for you.

Last week, the NJ Superior Court, Appellate Division, in Cole v. Jersey City Medical Center denied a company's attempt to enforce an arbitration provision in its employee contract because it waited too long to do so after being sued:

As a matter of litigation strategy, Liberty opted to participate in the suit brought in the Superior Court for a period of twenty months and did not raise the issue of arbitration until three days before the case was scheduled for trial. During this time, the parties completed their reciprocal discovery obligations and the case was ready for trial. This indicates a knowing and deliberate decision by Liberty to forgo raising arbitration as a forum to adjudicate plaintiff's claims. Under these circumstances, Liberty is equitably estopped from compelling plaintiff to submit her claims to arbitration.

NJ employers (and others too) must remember that if they get sued by an employee and they have arbitration agreements, whether in employee handbooks, employment agreements, or otherwise, don't delay in moving to compel arbitration. Otherwise, your fate may end up in the hands of the jury.

That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post" d/b/a (just for today) "Eric's 36th-Birthday Post". 

*** Sigh ***

Ahh...let's get to today's question:

May an employee raise claims in federal court against an employer under both the Fair Labor Standards Act (federal) and a state wage and hour law? Or is the latter preempted by the former, such that an employee may only pursue FLSA claims?

The answer to today's question -- at least in the Third Circuit Court of Appeals -- comes to us from a decision rendered Tuesday in Knepper v. Rite Aid Corp. There, the court recognized that the FLSA "evinces a clear intent to preserve rather than supplant state law." Consequently, it held that state wage and hour laws such as the Maryland Wage and Hour Law and the Ohio Minimum Fair Wage Standards Act -- two laws that track the federal overtime requirements -- are not preempted by the FLSA.

The answer to today's QATQQ is FICTION.

Let's say you operate a business in NJ. Your disabled employee comes to you requesting an accommodation for his disability. Does the mere failure to provide that accommodation trigger a claim under the New Jersey Law Against Discrimination (NJLAD)? What about under the Americans with Disabilities Act (ADA)?

I have two recent cases and two different answers -- depending on whether you are in state or federal court, plus some general accomodation tips for employers after the jump...

Continue reading "Distinguishing state & federal disability-accommodation claims" »

Humblebrag alert.

Reporters call me all the time. It's a wonder that I can get any work done.

Why, just last week, I was speaking to a reporter about an action recently initiated by current and former employees of the FDA, alleging that the agency unlawfully monitored their private emails. During our discussion, I mentioned another case -- this one called Stengart v. Loving Care Agency -- in which the NJ Supreme Court held that an employee who emails her attorney from a company computer may have a reasonable expectation of privacy in those emails provided that the employee uses a password-protected web-based email account.

Ah, serendipity! The following day, I read about another case decided last week in which the NJ Superior Court reaffirmed that many employee emails are not private. More on this case and a best practice for employers after the jump...

Continue reading "The so-called "privacy" of employee emails" »

As reported here in September, the State of New Jersey was recommending passage of the New Jersey Trade Secrets Act.

Well, welcome to the party, pal. (Or is it Powell?). Last week, NJ became the 47th state to adopt a version of the uniform trade secrets act as Governor Christie signed the NJTSA into law. The new law provides for both legal relief (damages for actual loss an unjust enrichment, punitive damages, attorney's fees) in the event of an actual misappropriation of trade secrets, and injunctive relief should there be an actual or threatened misappropriation.

That is the question that a former Starbucks employee is asking the NJ Supreme Court to answer. More on this case and what it could mean for actions asserted under NJ's Conscientious Employee Protection Act (CEPA) after the jump...

Continue reading "Is it whistleblowing when your job is to report violations of the law?" »

But before I get to that, did you know that The Employer Handbook turns one today? It's true. Help me blow out the candle -- hey, kid! Save some for the rest of us.

Whatevs.

Just click through because I've got a crazazy one for you. It's a true story about a police officer - slash - ambulance driver who started a high-speed ambulance chase to serve a restraining order on a co-worker's ex-boyfriend and then...

Yeah, just hit the jump...

Continue reading "The curious case of a high-speed ambulance-chasing whistleblower" »

A NJ court recently held that a business can force an employee to arbitrate FMLA claims -- even if the arbitration agreement that the employee signs does not contain a specific FMLA waiver.

How does this all work?

Well, according to the NJ Superior Court in Flores-Galan v. J.P. Morgan Chase & Co., N.A., "an agreement to arbitrate statutory anti-discrimination claims must be specific enough to put the employee on notice of the claims encompassed." However, "an arbitration clause need not specify every conceivable statute that it covers."

Ultimately, according to the court, an arbitration agreement that forces an employee to forgo litigation of certain employment claims must satisfy two criteria:

1. It should contain a waiver of rights provision that, at the very least, "provide[s] that the employee agrees to arbitrate all statutory claims arising out of the employment relationship or its termination.


2. The agreement should also reflect that the employee understands the type of claims included in the waiver, e.g., workplace discrimination claims.

Keep in mind that laws may vary from state to state. Best to contact an employment attorney before having an employee sign any arbitration agreement.

That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post". So, let's get right to today's question:

Let's say I have a former employee who files a charge of discrimination with the EEOC. If a potential new employer comes calling from a job reference and I...

1. give my former employee a bad reference;
2. to get back at the employee for filing the charge; and,
3. because of my bad reference, the former employee is not hired...

Have I engaged in actionable post-employment retaliation?

You bet I have! So, the answer to today's QATQQ is "FACT".

Consistent with the U.S. Supreme Court's decision in Robinson v. Shell Oil Co., here in the Third Circuit (PA, NJ, DE, USVI) post-employment retaliation is bad, bad, bad. In this Third Circuit decision, the court held that "an ex-employee may file a retaliation action against a previous employer for retaliatory conduct occurring after the end of the employment relationship when the retaliatory act is in reprisal for a protected act and arises out of or is related to the employment relationship."  Many state courts are on boards with this too (For example, check out this case from the NJ Supreme Court). A former employer engages in retaliation where its action results in discharge from a later job, a refusal to hire the plaintiff, or other professional or occupational harm. In essence, post-employment retaliation must involve some harm to an employee's employment opportunities.

Raise your hand if your state has adopted a Uniform Trade Secrets Act -- a law that affords companies an additional layer of protection by providing for civil remedies in cases of trade-secret theft by employees and others.

Not so fast, New Jersey.

Continue reading "Your [trade] secrets are safe with NJ...almost." »

Look what arrived in my inbox from the good folks at the Chamber of Commerce Southern New Jersey:

On September 6, 2011 the New Jersey Department of Labor and Workforce Development adopted new regulations on overtime payments to employees. The new regulations will make New Jersey's overtime standards consistent with federal regulations. The Chamber supports this regulatory change, as it clarifies the rules governing overtime pay for employees, making it easier for businesses to comply and avoiding confusion in the compensation of employees. This rule change also makes it easier for companies that do business in multiple states by creating consistency in the treatment of overtime requirements. The new regulations are effective as of September 6, 2011.

Click here to view a copy of the rule change.

For more information on the federal rules governing minimum wage and overtime pay, check out my "15 Handy-Dandy, Hella-Good Wage and Hour Resources for Employers"

With so many employment laws out there, it's not easy to keep track of what those laws say -- let alone under which of them your business may be covered. 

Well, who loves ya! After the jump, it's employment laws by the numbers -- number of employees that is -- that your business must employ to be covered under certain specific federal employment laws. (I'll even throw in a few extra state statutes for my PA/NJ/DE readers).

GREAT BIG DISCLAIMER: What you'll find after the jump are the numerosity requirements for various federal laws. There are a slew of other legal hoops through which your business may need to jump. Be smart. Discuss them with an attorney. 

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Continue reading "By The Numbers: Employment laws by total employees" »