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On Monday December 21, 2009, President Obama signed legislation extending the government’s subsidy of COBRA benefits. The subsidies were due to expire on December 31, 2009.

Under the new law, the maximum subsidy period is increased from 9 months to 15 months and includes individuals currently receiving the subsidy, which was set to expire at the end of this calendar year.  Moreover, the COBRA subsidy, originally available only to those employees who lost their jobs as a result of a termination/lay-off through December 31, 2009, has been extended to employees who have been laid-off prior to February 28, 2010. 

On November 23, 2009, the New Jersey Legislature introduced identical bills (A4198/S12) that would prohibit employers from discriminating (denying employment) against persons who have been convicted of a criminal offense or because the applicant lacks “good moral character” based upon a prior conviction.  Employers would be exempt from the proposed prohibition if (i) there is a direct relationship between a previous criminal offense and the specific employment sought; or (ii) hiring the individual would pose an unreasonable risk to property or to the safety/welfare of specific persons or the general public.  The proposed legislation would require employers to assess the following factors to determine if the exceptions apply: (1) public policy of encouraging employment of persons who have been convicted of crimes; (2) duties and responsibilities directly related to the position; (3) the individual’s fitness and ability to perform the job duties given the prior criminal offense; (4) the amount of time that has elapsed since the offense was committed; (5) the individual’s age when the crime/offense was committed; (6) the seriousness of the offense; (7) evidence of rehabilitation and good conduct; and (8) the legitimate interest of the employer in protecting property and the safety/welfare of specific individuals or the general public.  Similar laws in other states have created much litigation for employers.

The proposed litigation also seeks to preclude employers from asking applicants whether they have ever been arrested, charged with a crime, convicted of a sealed non-criminal offense, or offenses committed as a juvenile.

Employers who perform background checks would be required to (i) advise applicants a background check may be required with the application; (ii) within 30 days of requesting a background report, advise the applicant of same and the name and address of the reporting agency; and (iii) advise applicants they may review the background report.  The employer would also be required to provide the applicant with a copy of the law.  Under the proposed legislation, employers would also be required to provide any applicant who has been denied employment with a written statement as to the basis for denying employment within 30 days of the applicant’s request for the statement.

In July 2009, the United States Immigration and Customs Enforcement agency (“ICE”) announced that approximately 650 businesses nationwide were targeted for in-person audits of I-9 employment eligibility verification forms.

In November 2009, ICE announced that it issued I-9 audit notices to an additional 1,000 businesses relating to the “critical infrastructure” and “public safety and national security” industries. 

These sudden announcements were the result of leads and information obtained by the ICE relating to violations of the law.  Businesses in various industries including restaurants, construction and trucking, and manufacturing have already been affected by the audits.

Employers are required to complete and retain a proper Form I-9 for each and every employee hired after November 6, 1986 to show that the employee is authorized to work in the United States.  The employer must continue to ensure employees are eligible to work as authorization documents expire.  Additionally, employers are requested to submit Form I-9s, payroll records, payroll tax filings, W-2s and 1099s, Social Security “no-match” letters and other documentation in order for ICE to determine whether an employer is in compliance with employment eligibility laws. A finding of noncompliance may lead to fines and/or criminal penalties if ICE determines there is a “pattern and practice” of violations.

Upon notification, businesses are given limited time to prepare for the audit by federal representatives.  For more information on an employer’s requirements contact Robert A. Tandy, Esq. at (201) 474-7103.

Employers may be liable for sexual harassment committed by non-supervisory employees against co-workers even where the employer is unaware of the alleged conduct.

In Cerdeira v. Martindale-Hubbell, Docket No. A-5855-06T1, the New Jersey Appellate Division held an employer may be liable under the New Jersey Law Against Discrimination (“NJLAD”) for the harassing conduct committed by a non-supervisory employee against another rank-and-file employee if the employer fails to establish and enforce effective policies against sexual harassment in the workplace.

In early 2001, Ms. Cerdeira, an employee of Martindale-Hubbell, began experiencing sexual harassment by a non-supervisory co-worker in the form of sexually explicit photographs; inappropriate, offensive and sexually charged language; and was the recipient of offensive items including a bra and thong underwear. Although she advised another co-worker of the incidents, Ms. Cerdeira did not complain to a supervisor until 2003, approximately 2 years after the harassment began.

Although the Company’s Human Resources Department immediately investigated the complaints and the harasser was subsequently terminated, Ms. Cerdeira filed an action for hostile work environment sexual harassment in violation of the “NJLAD.” The trial court granted summary judgment to Martindale-Hubbell and Ms. Cerdeira appealed contending Martindale-Hubbell demonstrated it negligence in failing to have an effective sexual harassment policy in place.

The Appellate Division held the trial court should have determined whether Martindale-Hubbell’s policy provided a ‘reasonable avenue’ through which plaintiff could have complained. If the Company did not have such ‘reasonable avenues,’ the Appellate Division opined the trial court should determine whether the absence of a reasonable policy was causally related to any harm alleged by the plaintiff. The Appellate Division held the trial court erred in its decision by deciding plaintiff’s claims lacked legal merit.

To permit offending co-workers to engage in this conduct, the Appellate Division cautioned could “discourage employers from adopting proactive sexual harassment policies that are well-publicized and directed to all employees.”

Because of the widespread impact of this decision, employers are urged to revisit their own policies and provide mandatory training for all employees, not just supervisors and managers so that all employees are aware of the procedure for filing a complaint and supervisors are aware of their obligations if a complaint is filed.

For more information or to inquire about providing training to your Company’s employees contact Robert A. Tandy, Esq. at (201) 474-7103.

SEXUAL HARASSMENT

The New Jersey Law Against Discrimination (“LAD”) prohibits harassment based on one’s sex. All employees have the right to a work environment free of discrimination and harassment.

What Is Sexual Harassment?

Generally, there are two types of sexual harassment. “Quid pro quo” sexual harassment occurs when an employee’s submission to (or rejection of) sexual conduct is, implicitly or explicitly, the basis for employment decisions. “Hostile work environment” sexual harassment occurs when an employee is subjected to unwelcome sexual, abusive, intimidating or offensive conduct specifically based on an individual’s gender that is severe or pervasive to make a reasonable woman believe that the conditions of employment have been altered creating a hostile or abusive workplace.

Both types of sexual harassment are illegal and may be committed by men and women, and the victims of sexual harassment may be male and female. Sexual harassment may occur between individuals of the same sex: a man may sexually harass a man and a woman may sexually harass a woman.

What Types of Conduct Constitute Sexual Harassment?

Types of sexual harassment typically include, but are not limited to, unwelcome touching, rubbing, hugging, patting, pinching or other unwelcome touching; verbal abuse; jokes; insults; threats; graffiti; conversations about sex; sexually explicit or degrading materials (posters, magazines, calendars, etc.); leering, whistling or gestures; demanding sexual favors; assault; sexual innuendo; sexual propositions; sexually charged e-mails; comments about one’s physical characteristics.

What Can You Do If You Are Sexually Harassed?

• Complain immediately (verbal and written) to Human Resources, your supervisor or another supervisor if your direct supervisor is the individual engaged in the harassment, or to the individual responsible for handling complaints of harassment and discrimination in the workplace. You have an obligation to put your employer on notice and allow your employer an opportunity to remedy the unlawful conduct.

• Keep a detailed written record of each incident of harassment and/or discrimination including, but not limited to, what was said or done, the date it occurred, where it occurred, who was present, and your thoughts and feelings during and immediately after the incident.

• Keep a detailed written record of each incident of retaliation you believe you were subjected to as a result of filing a complaint of harassment or discrimination.

• Seek advice from professional legal counsel.

Once a complaint for sexual harassment is made, the employer has an affirmative obligation to act. Generally, an employer should immediately investigate or take steps to investigate your complaint. The LAD prohibits retaliation for filing a complaint of sexual harassment and/or discrimination.

Can A Single Incident Constitute Sexual Harassment?

In quid pro quo cases, a single sexual advancement may constitute sexual harassment if the submission to or rejection of the advancement is directly linked to the employment action. Generally, a single act or comment is not enough to constitute hostile work environment sexual harassment. An employee needs to establish severe or pervasive conduct.

When Will An Employer Be Held Liable?

An employer may be held liable for sexual harassment for the actions committed by supervisors, non-supervisory employees, and third parties if the employers knew of or should have known about the conduct and failed to take appropriate remedial action.

What Damages Can You Recover In A Sexual Harassment Case?

In the event you are successful in your action, you may be entitled to recover back pay, front pay, promotion or reinstatement to your position, compensatory damages for physical manifestations of pain and suffering, emotional distress damages; punitive damages; attorneys’ fees, and costs of suit.

The Law Office of Robert A. Tandy, LLC has successfully represented employees who were the victims of sexual harassment and discrimination in the workplace. If you believe you have been the victim of sexual harassment or sex discrimination, contact Robert A. Tandy, Esq. at (201) 474-7103 for a free initial consultation.

The Office Holiday Party is an HR manager’s nightmare and a Plaintiff’s lawyer’s dream. Despite the risks involved, companies hold holiday parties each December and receive demand letters from their employees’ attorneys each January.  Here are some helpful hints to reduce your Company’s liability this season:

• Have policies in place relating to harassment, discrimination and retaliation and conduct training (if it was not already conducted) about discrimination and harassment in the workplace. Advise employees that the holiday party is a work event (an extension of the work environment) and they should behave accordingly.

• If at all possible, don’t serve alcohol.  If you do serve alcohol, make non-alcoholic beverages readily available. Additionally, try to keep the free booze to a minimum and only serve beer and wine.  Alcohol lowers inhibitions and impairs judgment.  Consider a taxi service for employees in attendance.

• Invite spouses and/or partners (opposite and same sex).  Your employees are less likely to engage in inappropriate behavior with their spouse/partner present.

• Do not organize after-party outings or suggest going to another location to “keep the party going.”

• If you have a band/DJ, do not encourage dancing, especially where spouses/partners are not invited. 

• Do not allow for “Secret Santa” or “Grab Bag Gift Exchanges”

• Consider purchasing Employment Practices Liability Insurance.

If you have any questions or seek additional information on how to limit your Company’s liability this holiday season contact Robert Tandy at (201) 474-7103.

On November 17, 2008, the US Department of Labor published its final revised regulations for the Family and Medical Leave Act.  The new regulations provide, among other things, much needed clarification relating to “qualifying exigency” and “servicemember” leaves which were added to the FMLA in January 2008. The new regulations take effect January 16, 2009, which requires employers to act quickly in revising policies, training managers and implementing the new requirements.

“Qualifying Exigency” Leave: This allows eligible employees to take FMLA leave to handle affairs involving the employee’s spouse, parent or child who is on active duty or called to active duty status.  “Qualifying exigencies” include short-notice deployment, attendance at military events and related activities, child care and school activities, financial and legal arrangements, attending counseling, rest and recuperation and attending post-deployment activities.

Qualifying exigency leave counts against the eligible employee’s 12 week allotment.  Additionally, intermittent and reduced schedule leave are available for qualifying exigencies.

“Servicemember” Leave:  Eligible employees may take leave to care for a covered relative with a serious injury or illness incurred in the line of duty “while on active duty” that “may render the servicemember medically unfit to perform the duties of his or her office, grade, rank, or rating.”  An eligible employee is entitled to up to 26 weeks “in a single 12-month period.”  Simply, this leave is available in subsequent 12-month periods for different covered servicemembers, or for the same covered servicemember if he or she contracts a new qualifying injury or illness.  The 12-month period begins on the first day of the leave and ends 12 months from that date, regardless of the normal method used by the employer to calculate FMLA leave.

“Eligible Employees”:  An employee is eligible for FMLA leave if he or she (i) has been employed by the entity for at least 12 months; (ii) has had at least 1250 hours of service in the 12-month period immediately preceding the start of leave; and (iii) is employed at a work site that has 50 or more employees within a 75 mile radius.  The new regulations provide that if an employee has a break in service lasting seven years or less, the employee’s service prior to the break must be counted when determining if the employee has been employed for at least 12 months.

“Serious Health Condition”: As to serious health conditions involving more than 3 consecutive, full calendar days of incapacity plus 2 or more days of treatment to a healthcare provider, the new regulations require the 2 visits must occur within 30 days of the first day of incapacity and the first in-person visit must occur within 7 days of incapacity.

As to serious health conditions involving more than 3 consecutive, full calendar days of incapacity plus a regimen of continuing treatment, the new regulations require the first in-person visit to occur within 7 days of the first day of incapacity.

As to serious health conditions involving “chronic conditions”, the new regulations require at least 2 visits for treatment per year.

This is only a summary of the new FMLA regulations.  For more information, please contact Robert Tandy at (201) 474-7103.

On July 1, 2009, United States Immigration and Customs Enforcement (“ICE”) announced that approximately 650 businesses nationwide have been targeted for in-person audits of I-9 employment eligibility verification forms.  Upon notification, businesses are given limited time to prepare for the audit by federal representatives.

This sudden announcement was the result of leads and information obtained by the ICE relating to violations of the law.  Businesses in various industries including restaurants, construction and trucking, and manufacturing have already been affected by the audits.

Employers are required to complete and retain a proper Form I-9 for each and every employee hired after November 6, 1986 to show that the employee is authorized to work in the United States.  The employer must continue to ensure employees are eligible to work as authorization documents expire.

For more information on an employer’s requirements contact Robert A. Tandy, Esq. at (201) 474-7103.

On June 18, 2009, the United States Supreme Court, in Gross v. FBL Financial Services, Inc., held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must prove by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision; and, more significantly, an employer need not demonstrate it would have made the same decision regardless of the employee’s age, even if the employee produces some evidence that age may have been a contributing factor in the decision. As such, the burden-shifting standard utilized in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.  Essentially, the Supreme Court just made it harder for a Plaintiff to prove a case under the ADEA than under Title VII.

Despite the recent trend of pro-employee sexual harassment hostile work environment decisions, the NJ Supreme Court held, in Godfrey v. Princeton Theological Seminary, 2008 WL 2951891, two female seminary students were not subjected to sexual harassment hostile work environment where a 60 year old resident made repeated requests to both women for a date. Importantly, the alleged harasser’s conduct involved no sexual language, no touching, no inappropriate or offensive comments, and no lewd suggestions.

In its ruling, the Court held “Persons who are socially tone deaf are not, by that characteristic, necessarily the equivalent of sexual harassers. It is important in that regard that neither of these women used her own authority to tell Miller [the alleged harasser] to ‘go away.’ They cannot rely on the prospect of a money damages award from the Seminary to replace their own obligation to simply tell Miller that they had no interest in him romantically or even as a casual acquaintance.”

This case marks a significant victory for employers and re-establishes the factors necessary to prove a claim of sexual harassment under the New Jersey Law Against Discrimination. It also reaffirms an employee’s obligations to report the alleged harassment and allow the employer an opportunity to remedy the alleged claims.