The Final Regulations “make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”  The ADAAA expanded the definition of who is “disabled” and emphasized an employer should focus on whether employers complied with their obligations under the law and whether discrimination, in fact, occurred, not whether individuals are disabled under the law.  The Final Regulations provide rules of construction for employers to employ in determining if an individual is substantially limited, including:

·         An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting,” but noting that not every impairment will constitute a disability;

·         Construing “substantially limits” broadly and in favor of coverage;

·         Determining whether an individual suffers from a disability does not require an extensive analysis, but it requires an individualized assessment;

·         Determining whether an impairment substantially limits a major life activity is made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids, but employers can consider the effects of ordinary eyeglasses or contact lenses on vision impairments;

·         Determining whether an impairment substantially limits a major life activity will not usually require scientific, medical, or statistical evidence;

·         Finding that an impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active; and

·         Finding that impairments lasting fewer than six months can be substantially limiting.

Employers should train supervisors and managers on the employer’s obligations pursuant to the ADAAA and the Final Regulations and provide clear guidelines for interacting with employees and prospective employees.

With the signing of S-1813, Chapter 37 of the Public Laws of 2010 on June 30, 2010, New Jersey employers received a much needed break in the form of a reduction in unemployment taxes.  The new law prevents an automatic tax increase that was scheduled to take effect on July 1, 2010, which would have increased an employer’s unemployment insurance taxes by approximately 52% – - to an average of $400 per employee, with some employers paying as much as $1,000 per employee.  New Jersey Unemployment Insurance fund is insolvent and has been borrowing funds from the federal government since March 2009.

Additionally, new rules for terminations for “misconduct” were adopted making it more difficult for individuals to qualify for unemployment benefits.  Specifically, a new category identified as “severe misconduct,” i.e., repeated violations of an employer’s policy, was created barring individuals from unemployment until they become re-employed, work for at least four weeks, and earn at least six times their weekly benefit rate.  Employees who are discharged for lesser forms of misconduct are barred from receiving benefits for seven weeks after discharge, up from five weeks under the prior law.

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.

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.

An employer is not required to compensate the employee for such breaks.  Employers with fewer than 50 employees are exempt from this requirement provided the employer can demonstrate allowing such breaks would impose an undue hardship.

Employers are urged to review their nursing break policies to ensure compliance with federal and state laws.

If you have any questions about the new law relating to breaks for nursing mothers contact Robert A. Tandy 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.

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.

While the issue has stirred great debate in the employment environment and despite having regulations allowing such activities, OSHA declared an employer is within its authority to require employees take vaccines.

OSHA did, however, caution that an employee who refuses to receive the vaccines because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death may be protected from job retaliation under Section 11 (c) of the Occupational Safety and Health Act, which prohibits discrimination and retaliation for engaging in protected activity.

Employers should proceed with caution prior to implementing mandatory vaccination policies as other laws and regulations may be applicable.

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”

• New Jersey Employment Laws
• What Constitutes Discrimination, Sexual Harassment, Hostile Work Environment and Retaliation
• Employer Liability
• Common Management Pitfalls
• Proper Documentation in the Workplace
• Procedure for Dealing with Employee Complaints

“Effective New Employee Orientation”

• Offer of Employment
• Core Purposes and Objectives of New Employee Orientation
• Policies, Personnel Forms and Employee Handbooks

Complimentary coffee and bagels will be served.

Contact us at (201) 474-7103 to reserve your spot

Current H-1B visa holders will not be affected by the statutory cap and the USCIS will continue processing petitions to: extend stays of current H-1B holders;  modify and/or change the terms of employment of current H-1B holders; allow current H-1B holders to change employers unless the change involves a switch from a cap-exempt to a non-exempt employer; allow current H-1B holders to obtain concurrent employment authorization with another employer; and work at exempt entities such as institutions of higher education and related/affiliated organizations.