While growing in popularity, mediation still remains underutilized in employment disputes. Steven Adler, Chair of the Employment Law Department of Cole Schotz, recently had an article on the subject published in the August 25, 2010 issue of Law360. Click here to read the article.
In City of Ontario v. Quon, decided on June 17, 2010, the United States Supreme Court held, for the first time, that the City of Ontario’s review of a police officer’s text messages was reasonable and, therefore, did not violate the Fourth Amendment. In Quon, Jeff Quon repeatedly exceeded the character limit on his work-issued pager. The City therefore audited his text messages, and uncovered hundreds of personal messages, some of which were sexual in nature. Although the Court declined to address whether Quon had a reasonable expectation of privacy in his text messages, the Court held that, even if he did, a public employer may reasonably search an employee’s property at work where the search is non-investigatory, work-related or incident to an investigation of work-related misconduct, without violating the Fourth Amendment.
Here, the Court found that the search was reasonable and “justified at its inception,” as the City’s review stemmed from an investigation as to whether the character limit was sufficient to meet the City’s needs. In addition, the City’s review of Quon’s text messages was reasonable as an “efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.” Finally, the Court found that the review was not “excessively intrusive” because the City only reviewed two (2) months of messages, although more were available.
As with cases arising in the private sector and impacting issues of technology in the workplace, Quon also provides several instructive lessons for employers. First, employers must be reminded that it is crucial to develop and distribute comprehensive workplace communications policies, which make clear that employees’ communications through technology are not private. In addition, employers are well advised to only review such employee communications where there is a legitimate, work-related reason to do so.
New York City employers should take note of a recent decision that will make it easier for employees to hold employers liable for harassment in the workplace. Since the late 1990s, many employers have relied upon what is commonly termed the “Faragher-Ellerth Defense” to defend against claims of unlawful harassment. On May 6, 2010, in Zakrzewska v. The New School, 2010 WL 1791091 (2010), the New York Court of Appeals (New York’s highest Court) held that the Faragher-Ellerth Defense is not available to claims brought under New York City’s Human Rights Law (“NYCHRL”).
Under Supreme Court decisions, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), an employer is entitled to an affirmative defense against a harassment claim where: (i) there is no tangible employment action (i.e., the employee is not terminated, demoted, subject to reassignment), (ii) “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (iii) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Zakrzewska v. The New School, 598 F.Supp.2d 426 (S.D.N.Y. 2009). In other words, where the employer has taken all appropriate action and the employee declines to avail him/herself of the policies and opportunity for correction, the employer may avoid liability for harassment. This defense has proven quite valuable to diligent employers.
The Zakrzewska Court based its decision to reject this defense on the specific language of the NYCHRL, as well as its legislative history. The Court noted the law’s language, which provides that anti-discrimination policies and procedures may be considered “in mitigation” of the amount of penalties and punitive damages awarded. However, the Court held that under the NYCHRL such policies do not provide an absolute defense to such claims.
The impact of this decision is that it will now be easier for employees to bring harassment claims under the NYCHRL and to hold employers liable for their supervisor’s actual harassment and/or failure to properly respond to claims of harassment in the workplace. Given Zakrzewska, it is even more important for New York City employers to establish suitable anti harassment workplace policies and train supervisors regarding appropriate workplace conduct.
On January 15, 2010, Governor Christie signed into law a bill clarifying the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1, et seq., as it applies to persons with a developmental disability. This law amends the definition of “disability” in the NJLAD to expressly include “autism spectrum disorders.” N.J.S.A. 10:5-5(q).
In light of the amendment, employers should review their equal opportunity and anti-discrimination policies to ensure those policies comply with the amended law.
Under the New Jersey Law Against Discrimination an employee's supervisor may not be held individually liable for sexual harassment of an employee, even if the supervisor is aware of the harassment, unless the supervisor has "aided and abetted" the sexual harassment. A recent New Jersey Federal Court decision provides important guidance regarding the conduct which renders a supervisor individually liable for aiding and abetting sexual harassment in the workplace. In certain circumstances, supervisors will be found individually liable for aiding and abetting the sexual harassment even where they have no direct supervision of the alleged victim of the sexual harassment and are not directly involved in the employer's decision on how to address it. A Court may also find supervisors personally liable if it views their conduct as aiding and abetting their own alleged sexual harassment of the employee. On the other hand, under certain circumstances, supervisors may not be held personally liable even where sexual harassment is rampant within their department, where there is a proliferation of pornographic material in the workplace or where the supervisor was aware of the sexual harassment and failed to take effective action to stop it. For a full analysis of this recent case, click here.
In a ruling applauded by employers, the United States Supreme Court ruled in Gross v. FBL Financial Services Inc., No. 08-441 (June 18, 2009), that an employee must demonstrate that age is the decisive, “but-for” cause of the employer’s adverse employment decision in order to prevail in age discrimination claims brought under the federal Age Discrimination in Employment Act (“ADEA”). Prior Court holdings required employees to establish that age was only a “motivating factor” in the employer’s decision and gave the employer the opportunity to show that it would have taken the same action regardless of age.
In Gross, Gross claimed that FBL discriminated against him because of his age when it reassigned him, at age 54, to a different position and transferred many of his responsibilities to a new position created for a woman in her early forties. During trial, he presented evidence that FBL was motivated in carrying out its action, at least in part, by his age. The company denied this claim and maintained that his demotion was part of a larger corporate restructuring. Relying on the burden-shifting framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the trial court held that Gross had to prove by a preponderance of the evidence that his age was a “motivating factor” in the Company’s decision to demote him. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (addressing burden of proof in “mixed motive” cases where employer is motivated by both illicit and lawful reasons). The jury then returned a verdict for Gross. On appeal, the U.S. Court of Appeals for the Eighth Circuit held that the trial court failed to properly instruct the jury about the Price Waterhouse burden-shifting framework, and sent the case back to the trial court.
In reviewing this case, the Supreme Court surprised employers and employees alike in vacating application of the Price Waterhouse framework for ADEA cases, although lower federal courts had applied this framework to such cases for years. The Court found a distinction between Title VII cases, to which the Price Waterhouse framework clearly applies, and ADEA cases. Reading the text of each statute, Justice Clarence Thomas noted that Title VII itself provides that an unlawful employment practice is established where an employee proves that an unlawful criterion was a “motivating factor” in the employer’s decision. Dissimilarly, the ADEA does not have any such “motivating factor” language. Based on the ADEA’s clear terms, the Court held that application of the Price Waterhouse framework is not appropriate in ADEA cases.
Practically, and because typically plaintiffs lack any direct evidence of age discrimination, the Gross decision will make it increasingly difficult for employees to prevail in ADEA claims. It remains to be seen whether Congress will amend the ADEA to address Gross, as it did in response to the Lilly Ledbetter case.
The American Recovery and Reinvestment Act of 2009 (the “Recovery Act”) is an economic stimulus package enacted by Congress and signed into law by President Obama on February 17, 2009. The Recovery Act is based largely on proposals made by President Obama and is intended to provide a stimulus to the country’s economy in the wake of the recent economic downtown. The Recovery Act includes federal tax relief; expansion of unemployment compensation benefits and other social welfare provisions; and domestic spending in education, health care and infrastructure. Often overlooked, but of particular importance to employers and employees, are the powerful “whistleblower” protections created by the Recovery Act. The Act’s whistleblower provisions apply to employers that receive a contract, subcontract, grant or other payment funded in whole or in part by the federal stimulus package.
The Recovery Act protects both traditional whistleblowers who report fraud or illegal activity as well as employees who complain about mismanagement, waste, dangers to public health or safety, or an abuse of authority. The terms of the Recovery Act’s protections are broader in scope than other whistleblower statutes such as the New Jersey Conscientious Employee Protections Act (“CEPA”) or Sarbanes Oxley. For example, the Recovery Act protects employees who informally complain to their direct supervisor or to any other employer representative with the authority to investigate, discover or remedy misconduct. Specifically, it protects complaints made by employees in the ordinary course of their job duties.
Not only does the Recovery Act expand the scope of protected employee activity, but it also sets forth a relatively easy burden for employees to satisfy to establish they were the subject of retaliation. The Recovery Act provides that employees need only demonstrate that their protected activity was a “contributing factor” in the adverse action taken against them. Employees can meet this burden through the use of “circumstantial evidence.” On the other hand, employers have quite a difficult burden to defeat a whisteblower claim, since under the Recovery Act they must prove by “clear and convincing evidence” that they acted for a legitimate purpose unrelated to any protected whisteblower activity. Due to the scope of the protections provided to employees under the Recovery Act as well as the respective burdens of both employers and employees, employers must be aware of their potential liability.
The New York Legislature recently signed three pieces of legislation aimed at enhancing employment opportunities for individuals with prior criminal convictions. The new laws relate to Article 23-A of New York’s Correction Law, which provides that employers are prohibited from discriminating against an applicant based on a prior criminal conviction unless (a) there is a “direct relationship” between one or more of the criminal convictions and the specific employment sought or held by the individual; or (b) granting or continuing employment would involve an “unreasonable risk” to property or to the safety or welfare of specific individuals or the general public. Article 23-A of the Corrections Law indentifies a list of factors that an employer must consider before making an employment decision on the basis of an individual’s criminal background. Some of these factors include: the relationship between the prior offense and the individual’s ability to perform specific duties of the job; the length of time elapsed since the offense; the individual’s age at the time of the offense; the seriousness of the offense; and information produced in regard to the individual’s rehabilitation and good conduct.
The first piece of legislation, effective September 2008, amends the New York Human Rights Law to protect New York employers from negligent hiring claims brought by third parties alleging an employee with a criminal conviction caused harm in the workplace. Under the amendment, if an employer has evaluated an applicant’s criminal history in accordance with the factors outlined in Article 23-A and decided in good faith to hire the individual, then the employer is afforded a rebuttable presumption that information regarding the individual’s criminal background should be excluded from evidence. The second piece of legislation, effective February 2009, requires all New York employers to post a copy of the Article and related regulations conspicuously in the workplace. The third piece of legislation, also effective February 2009, requires all New York employers to provide a copy of Article 23-A to (1) prospective employees subject to background checks and (2) any employee whose background check uncovers a prior criminal conviction, regardless of whether the employer takes adverse employment action against that individual.
Employers operating in New York should be mindful of these regulations and review and revise their employment policies and practices to ensure compliance with both the anti-discrimination and posting provisions of the new laws.
On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 (the “Act”) into law. The Act overrules a 2007 United States Supreme Court decision (Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 2007)), which held an employee must file a claim alleging wage discrimination within 180 days of the employer’s initial decision regarding wages or lose the right to file the claim forever. Essentially the Ledbetter Court had held that a new cause of action does not occur with each allegedly discriminatory payment of wages.
Under the Act, however, a discriminatory compensation decision occurs with each paycheck and permits an employee to recover back pay for up to two years from his/her filing of the charge or complaint of discrimination.
Significantly important to employers is that the Act is retroactive to May 28, 2007. Accordingly, employers should immediately review their pay policies through 2007 to ensure that no protected class is paid disproportionately to another for the same or comparable work.
The Americans with Disabilities Act (“ADA”) was recently expanded with the enactment of the ADA Amendments Act of 2008 (the “Amendments Act”), which brings the ADA more in line with the already broad New Jersey Law Against Discrimination (“NJLAD”). The Amendments Act modifies the ADA in many significant areas. First, the Amendments Act significantly expands the previous requirement that to qualify as a covered disability, a condition must be an impairment that “substantially limits one or more major life activities.’ By expanding the interpretation of “substantially limits” in favor of finding disability coverage, the Amendments Act will lead to more conditions qualifying as disabilities. Similarly, the Amendments Act expands those “major life activities” that are subject to the disability definition. The Amendments Act also requires that when considering whether or not an individual is disabled, employers and courts may not take account of “the ameliorative effects of remediating measures.” Under previous law, an employer was to consider whether an employee was subject to medication, equipment or other intervention that improved his or her limitation in assessing a disability. The Amendments Act prohibits consideration of such mitigating measures, which again will favor findings of disability coverage.
Along the same lines, the Amendments Act expands the “regarded as” disabled language by providing that an individual will be “regarded as” having a disability if he/she “establishes that [he] has been subject to action prohibited under this act because of an actual physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Accordingly, it will no longer matter whether an employee who is “regarded as” having an impairment actually has the limitation. Finally, the Amendments Act will expand coverage for impairments that are “episodic or in remission” as they are now covered conditions if they would “substantially limit” a “major life activity.” Although the Amendments Act may have little practical effect on New Jersey employers who were already subject to the NJLAD’s broad interpretation of “disability”, employers should take this opportunity to ensure that their policies and practices are in line with both of these laws and that supervisors and managers are trained to recognize employees who may be protected under these important laws.
In Cerdeira v. Martindale-Hubbell, 402 N.J. Super. 486 (App. Div. 2008), decided on September 18, 2008, the Appellate Division held that an employer can be liable for sexual harassment committed by Defendant’s a co-worker, even if the employer did not know that the harassment was occurring.
It is well established that an employer can be held liable under a negligence theory for the sexual or other harassment committed by a supervisor if the employer does not have an effective anti-harassment policy in place. In Cerdeira, the Appellate Division confirmed that liability under a negligence theory is not limited to harassment committed by supervisors, but also applies to harassment committed by co-workers. Arguably, this is an expansion of an employer’s potential liability under New Jersey law, which had not previously ruled on the issue of employer liability for co-worker harassment.
The Cerdeira decision highlights the importance for employers to implement effective anti-harassment policies and to make employees aware of those policies through publications and training.
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