In Nini v. Mercer Community College, No. A-13/14-09 (N.J. June 1, 2010), the New Jersey Supreme Court upheld the Appellate Division’s 2009 decision holding that a contract renewal is equivalent to a termination; and does not, therefore, fall within the “over 70 exception” in the New Jersey Law Against Discrimination (“NJLAD”). Under the NJLAD “over 70 exception”, an employer is not engaged in an unlawful discriminatory practice if it refuses to accept for employment or [promotion] any applicant/employee over 70 years of age.
If you have any questions relating to the Nini decision or the current status of the NJLAD please do not hesitate to contact Robert A. Tandy, Esq. at (201) 474-7103.
On April 8, 2010, the Court of Appeals for the Third Circuit held that employers must provide “reasonable accommodations” to disabled employees in establishing work schedules, even when the sole disability-related issue involves an employee’s commute to work. In Colwell v. Rite Aid Corp., No. 08-4675 (3d Cir. Apr. 8, 2010), Jeanette Colwell, a part time retail clerk, who was diagnosed with retinal vein occlusion in her left eye, later became blind in that eye. Although she was able to perform the essential functions of her job once she arrived at work, her handicap made it difficult to drive at night. She requested a shift change whereby she would only work during day shifts. There were no taxis available and public transportation ended at 6 p.m.
Rite Aid’s supervisor refused her shift change request advising it would be unfair to the other employees and would be violative of the collective bargaining agreement as shift assignments were based on seniority.
After repeated requests for shift changes were rejected and/or left unaddressed, Colwell resigned her employment and filed suit alleging, among other claims, Rite Aid failed to accommodate her disability, constructive discharge and retaliation. The district court dismissed her complaint.
The Third Circuit affirmed the dismissal of her constructive discharge and retaliation claims but reversed on the failure to accommodate claim holding there was an issue of fact as to whether Rite Aid tried to accommodate her disability.
In rejecting Rite Aid’s argument that Colwell was seeking a non-workplace related accommodation, i.e., commuting to work, the Court held the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work. Rite Aid failed to argue that the requested accommodation created an undue hardship on its business.
Employers are reminded there is an affirmative obligation for employers to engage in the interactive process.
If you have any questions relating to an employer’s obligations to engage in the interactive process contact Robert A. Tandy, Esq at (201) 474-7103.
Most New Jersey employers have long operated under the belief that employees have no expectation of privacy in the workplace when using company computers; and, in fact, the employer has the right to review any electronic information contained and/or maintained on work computers. Recently, however, in Stengart v. Loving Care Agency, Inc., the New Jersey Supreme Court created an exception to the “no expectation of privacy” rule holding an employee who exchanges email communication with her attorney through a personal internet based email account using a work computer is privileged attorney–client communication and may not be monitored and/or retrieved.
The Stengart decision stresses the importance of an employer’s need to review and update its policies periodically. The Supreme Court found the company’s policy did not warn employees that personal emails from personal accounts having personal passwords may be stored on a hard drive and reviewed by the company. Although this case involved attorney-client communications, the Court may have opened the door for further litigation in holding: 1) the employee had a subjective expectation of privacy because she used a personal password protected email account (not the Company’s account); 2) the employee had an objectively reasonable expectation of privacy because the Handbook did not address the use of personal email accounts and allowed personal use; and 3) the emails were not illegal or inappropriate such as to potentially cause harm to the company.
If you have any questions relating to your Company’s electronic communication policy, please contact Robert A. Tandy, Esq. at (201) 474-7103.
The Federal Trade Commission recently enacted new guidelines for employers, which opens the door for employer liability for the online comments and/or activities of employees. The FTC’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” subjects employers to potential liability for employees’ use of social media sites to post comments about company products and services, even if the employer did not authorize and/or direct the employee to post such comments.
What does this mean? Employers could face enforcement proceedings and potential consumer fraud claims for comments posted about company products or services on blogs, LinkedIn, Twitter, MySpace and Facebook even during non-working hours. For example, your company sells “widgets” and one of your employees submits an online post about the widget’s uses and benefits without revealing he/she is an employee of the company, whereby enticing another individual to purchase the product or service in reliance upon the comment. The company may be liable if another individual can establish he/she was enticed to purchase the product and the product was defective or did not perform as “advertised” by the company’s employee.
Employers are urged to update or create a social networking policy to address these recent guidelines.
As part of our firm’s continuing commitment to serve the local business community, we are hosting a series of free breakfast legal briefings throughout 2010 to help business owners and employers contend with the legal issues facing them each day.
Each lively and interactive briefing will cover a specific legal topic, explaining the key legal issues, how small and family-owned businesses can address these issues in the most economically viable way; and how businesses can use the protection afforded them by law to their advantage.
All breakfast briefings will be held at the law office of Robert A. Tandy, LLC, One Paragon Drive, Suite 159, Montvale, New Jersey. Please feel free to invite clients and colleagues to attend the briefing with you. Our next briefing will take place on:
SESSION ONE: Wednesday, January 20, 2010 (7:30 a.m. to 8:30 a.m.)
“Employment Law for Employers”
“Effective New Employee Orientation”
Complimentary coffee and bagels will be served.
Contact us at (201) 474-7103 to reserve your spot
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.