Labor and Employment

Published on: July 17, 2013

Litigation Implications of Social Media

The impact of social media continues to grow in litigation. Social media is becoming increasingly more popular in society. Social media is important for companies to utilize for advertising and marketing to allow businesses to stay competitive. Various sites like Facebook, Google Plus, Twitter, Instagram, Flicker, LinkedIn, YouTube and the like provide companies the opportunity to connect with millions of people. However, they simultaneously create legal risks that can range from bad public relations to brand confusion. Social media is also used by many people during their free time to make various posting about all aspects of life.

In litigation, lawyers are using social media to screen jurors, jurors use social media to post about cases they are sitting in, judges are using social media to make sure jurors are not using it, people use social media in general to offer legal advice on matters in which they have no experience, and jury consultants are following social media to give advice on trial strategy. Social media is paving the way to new litigation strategy.

Social media implicates considerable privacy concerns, allowing people to learn the most intimate information about one another. Posted content may be available to family, potential employers, school admission officers, romantic contacts, and others. Even if the content is removed from the social media site it may still continue in cyberspace. Further, once litigation is pending or reasonably foreseeable, there is a duty to preserve evidence. The material can be taken down off the social media website, but must be preserved. This means that even if a post is removed, it still must be maintained and produced if requested in discovery.
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Published on: March 12, 2013

Individual Liability for Violations of the Conscientious Employee Protection Act

by Pauline M.K. Young

New Jersey’s Conscientious Employee Protection Act (“CEPA”) is one of New Jersey’s employment protection laws. The Act, enacted in 1986, is often referred to as the “whistleblower law.” In fact, it is one of the most liberally interpreted and expansive whistleblower laws in the country. It protects employees from being fired in retaliation for the employee’s disclosure of or objection to a wrongful practice of the business or one of the business’s employees.

In order for the statute’s protections to apply, the employee must disclose, object to, or refuse to participate in an act, policy, or practice of the employer which the employee reasonably believes violates a law, regulation, or public policy. Further, the employee must be fired, harassed, or otherwise retaliated against as a direct result of the disclosure, objection, or refusal. The employee does not even have to be right about her belief that the conduct is illegal or against public policy to be protected by the act. The employee merely has to have a reasonable belief of such.

CEPA includes in its definition of “employer” any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent.
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Published on: March 4, 2013

An Employee Should Choose His Court Well or He Might be Shut Out From Any At All

by Maurice W. McLaughlin

New Jersey has several “tracks” for a government employee who is in civil service to fight when he believes he was wrongfully fired. The first, is in the Civil Service Commission, which can order reinstatement and back-pay. However, this process goes through the Office of Administrative Law and does not provide for a jury trial. The other way is to challenge the firing in the Superior Court, with the constitutional right to have a jury decide the employee’s case. Some statutes, such as the New Jersey Law Against Discrimination and the Conscientious Employee Protection Acts, provide for the award of punitive damages and attorneys fees.

The Conscientious Employee Protection Act (“CEPA”) is New Jersey’s whistleblower law. It protects whistleblowing employees. Employers may not retaliate in any way, whether through firing, harassment, demotion, or in any other manner because the employee has disclosed, objected to, refused to participate in or threatened to disclose a violation of law or public policy regarding public safety, or fraudulent acts. N.J.S.A. 34:19-1.

The New Jersey law had been that an employee could challenge his termination in the Civil Service Commission on the fact that the employer did not have a basis to discharge him, but not be foreclosed from also filing a whistleblower lawsuit under CEPA in Superior Court if she did not raise the retaliatory action before the Civil Service Commission.

The New Jersey Supreme Court, generally is one of the most protective courts of employees rights in the country, was recently issued an opinion by his employer which should give civil servants concern.
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Published on: January 14, 2013

Due Process and “Stigma” Under the New Jersey Civil Rights Act

by Maurice W. McLaughlin

The Appellate Division recently issued an important decision on “stigma” due process claims under New Jersey’s Civil Rights Act. The case involved a gym teacher in the Newark Public School system. He did not have tenure.

Several accusations were made against the teacher, the first that he had disciplined students in gym class by allegedly kicking them and, in one instance, locking them in a “cage” made from a table flipped on its side which trapped the boys in the corner of the gym. He was also alleged to have demanded “that the boys fight like animals and kill each other in your make shift cage.” Allegations were also made of inappropriate physical contact by the teacher with students.

The Newark public school system’s investigation report indicated that the complaints were “unfounded.” However, a meeting was to be held regarding the allegations. The focus was the cage incident, at which the students confirmed the incident, contradicting their prior interview with the investigator, who recommended that defendant be transferred to a high school, rather than disciplined. Thereafter, the teacher was warned in writing, and thereafter terminated.

After the teacher was fired, he had difficulty finding a job. He hired a private investigator who called the school district pretending to be a prospective employer asking for a reference for the teacher. The principal and vice-principal, also named as defendants, indicated that “there was a DYFS situation” (DYFS was New Jersey’s child protection agency), but could not provide any information, and indicated that plaintiff had then been ” released.” Although she would not say why, the vice-principal said words to the effect that the school cared for its children who were the priority and should be safe and sound at all times, and then said “so I think you can be able to determine something from that.”
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Published on: November 30, 2012

New Jersey Employee Handbooks

by Boris Peyner

Businesses, regardless of size, can benefit from an employee handbook. Similarly, an employee handbook can provide benefits to people working in New Jersey.

Generally, an employee handbook (also an employee manual) is a written record of a company’s policies and procedures. A well written employee handbook can provide clear guidelines and procedures for all employees and can help avoid lawsuits and other legal actions for employers. However, handbooks can also create contracts of employment which can bind employers if they are not careful.

Business owners can save time and money by having an experienced employment attorney draft its employee handbook providing employees with answers, explaining business rules, and allow the employer to comply with state and federal laws. A handbook should be drafted both to help the employee and prevent litigation. A poorly written employment handbooks could contain provisions that violate New Jersey or federal law, opening an employer up to liability.

An experienced employment attorney should review all employee manuals. An employment manual can under some circumstances create a employment contract with an employer. This can be detrimental to a company that intends to hire employees on an “at-will” basis. New Jersey is an “employment-at-will” state. This means that an employer can generally terminate an employee at any time for virtually any reason. Having an employment handbook that creates an employment contract could change a company’s outlook on its operations, and ability to hire and fire in its business judgment.
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Published on: November 5, 2012

New Jersey’s Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act Adopts New Procedures for Fighting New Jersey Tenure Charges

by Maurice W. McLaughlin

The Teacher Effectiveness and Accountability for the Children of New Jersey (TEACNJ) Act was recently enacted by the New Jersey Legislature and signed by New Jersey Governor Chris Christie. The TEACHNJ Act creates drastic changes to the process for fighting tenure charges by New Jersey teachers and other public school “teaching staff members.” In short, the TEACHNJ Act eliminates the hearing process before the Commissioner of Education and places the decision in the hands of an arbitrator.

When a New Jersey “teaching staff member” achieves tenure, she receives protections that most other New Jersey employees do not. Tenured teaching staff members can be dismissed or reduced in compensation “during good behavior” only for “incapacity,” “inefficiency,” or “conduct unbecoming” a teaching staff member, or some other “just cause.” However, they can be laid off for budget reasons or enrollment losses at any time as long as their seniority is honored.

For the purposes of tenure, “teaching staff members” includes a wide range of employees, including: Assistant superintendents, teachers, principals (but not administrative principals), vice-principals, assistant principals, school nurses, athletic trainers, business administrators shared by more than one school district, and other employees requiring appropriate certificates.

Left unchanged are the initial procedures. Tenure charges are instituted by the local board of education. They are filed in writing with the board’s secretary together with a sworn statement of evidence. The employee is promptly given a copy and the opportunity to submit a written statement in response. The board will then consider the charges in closed session and decide by majority vote if the evidence supports probable cause for the charges, and whether the charges are sufficient to warrant dismissal or reduction in salary. If so, it then forwards the charges to the Commissioner of Education. If the board does not make a determination within 45 days, the charges are dismissed.
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Published on: September 25, 2012

New Jersey’s Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act Makes Significant Changes to Acquisition of Tenure

by Maurice W. McLaughlin

On August 6, 2012, New Jersey Governor Chris Christie signed the Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act, which had been passed by both houses of the New Jersey Legislature. The TEACHNJ Act significantly changes how New Jersey teachers and other New Jersey public school “teaching staff members” acquire tenure.

A “teaching staff member” who obtains tenure can only be dismissed or have their compensation reduced “during good behavior” for “inefficiency, incapacity, or conduct unbecoming [ ] such a teaching staff member or other just cause.” It also provides procedural safeguards before they can be fired. (However, tenure does not prevent the school district or board of education from instituting layoffs – including laying off tenured teaching staff members – for reasons of economy or reduced enrollment, provided seniority rules are followed.)

“Teaching staff members” who may receive tenure include New Jersey public school teachers, of course, but also include these positions:

principal, other than administrative principal, assistant principal, vice-principal, assistant superintendent, and all school nurses, including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, and any other nurse performing school nursing services, school athletic trainer and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners, serving in any school district or under any board of education, excepting those who are not the holders of proper certificates in full force and effect, and school business administrators shared by two or more school districts.

Published on: September 24, 2012

New Jersey Teacher Effectiveness and Accountability for the Children of New Jersey (TEACNJ) Act Requires Evaluations of “Effective” or “Highly Effective” For Acquisition of Tenure.

by Maurice W. McLaughlin

New Jersey recently enacted the Teacher Effectiveness and Accountability for the Children of New Jersey (TEACHNJ) Act. The TEACHNJ Act significantly changes the rules for the acquisition of tenure by New Jersey teachers and other New Jersey public school “teaching staff members.” The TEACHNJ Act changes the time period of service prior to acquiring tenure, sets up uniform evaluation requirements as a prerequisite to obtaining tenure, and drastically changes the process for challenging discipline against tenured teaching staff members.

Tenure for a “teaching staff member” means she can only be dismissed or reduced in compensation “during good behavior” for “inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause,” although tenured teaching staff members can still be laid off for economic reasons or declining enrollment provided that seniority is honored. It also provides tenured teaching staff members with procedural safeguards before they can have their compensation reduced or be fired.

“Teaching staff members” for tenure purposes include:

Teachers
Principals, other than administrative principal
Assistant principals
Vice-principals
Assistant superintendents
All school nurses, including school nurse supervisors, head school nurses, chief school nurses, school nurse coordinators, and any other nurse performing school nursing services
School athletic trainers
Such other employees as are in positions which require them to hold appropriate certificates
School business administrators shared by two or more school districts.

Schools are required to establish a school improvement panel and mentorship program for new teachers during their first year which the teacher must complete. The panel oversees the mentorship program. It must be “research-based” and enhance teacher knowledge and strategies in the core curriculum. It must pair first year teachers with effective, experienced teachers. The board must provide teaching staff members with ongoing professional development opportunities.
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Published on: September 4, 2012

New Jersey’s Construction Industry Independent Contractor Act Imposes Severe Penalties on Misclassification of Employees

by Maurice W. McLaughlin

There are severe civil and administrative penalties for misclassification of workers who should actually be employees as independent contractors. If a worker is classified as an employee, the employer must pay approximately an additional 7.5 percent of her salary in payroll taxes, as well as workers compensation insurance, and the benefits which other employees get. This gives businesses a strong incentive to classify workers as independent contractors. However, this has long been illegal under both federal and New Jersey Employment law.

New Jersey has found this practice to be widespread in the construction industry, depriving workers of benefits, social security taxes, and forcing the employer to pay self-employment tax, or the employer’s portion of the payroll taxes. Additionally, the New Jersey Legislature has found that this puts businesses currently classifying workers as employees at a competitive disadvantage with those whose do not because of the higher costs they bear. New Jersey therefore enacted the New Jersey Construction Industry Independent Contractor Act.
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Published on: August 27, 2012

Landlord-Tenant Issues: Illegal Apartments

by Pauline M.K. Young

Virtually all residential landlords in New Jersey are required by law to register their apartments with the town in which the property is located. The only exception is when the owner of the apartment building lives in the building and there are less than three rental units in the building.

Further, all apartments must meet local zoning ordinances. While local zoning ordinances vary from town to town, illegal apartment zoning issues typically come up when a landlord rents out an attic, basement, or garage unit. Town ordinances are designed to maintain the health and welfare of the citizens and, as a result, illegal apartments typically also pose some significant health or safety risk. For instance, an attic unit may create a dangerous fire hazard if it does not have an accessible fire escape, while basement and garage units may fail to have the proper light or ventilation causing significant health concerns.

How do you know if you are in an illegal apartment? Many times tenants do not discover that their apartment is illegal until a town official tells them. However, in most cases a tenant suspicious of an illegal apartment can inquire with the local municipality’s zoning board. Some towns where illegal apartments are prevalent, such as Jersey City, even have websites where citizens can report suspected illegal apartments online.
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