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.

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. 

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 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.

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.

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.

• 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.