New Jersey Employment Law Blog

A federal jury in Newark reminds us that the answer is yes --- to the tune of $10.5 million --- as this report by the AP shows.

The moral of the story: if you're going to sign something, have it reviewed first by your friendly neighborhood lawyer or be prepared to live with the consequences.

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We've posted before on a burgeoning issue of employment law --- so-called independent contractor litigation.  In essence, the cases claim that in some circumstances workers are treated by their employers as independent contractors are in fact employees of the company.  The issue is not just a matter of definition, but has important consequences in the real world of business.  Employees are entitled, for instance, to the overtime protections of the Fair Labor Standards Act and similar state laws.  Independent contractors are not. 

There is an obvious business reason for employers to want to classify as workers as contractors: it's cheaper and allows them to control their costs.   But it's not a low-risk strategy, as employers invite the scrutiny not only of the affected workers, but also of the IRS.

Here's a story from Lawyers USA involving such a claim against Federal Express.  We won't take your time with the facts.  They're well-explained in the story.  The important thing is that this kind of story is increasingly common, reminding employers --- all employers, large and small --- that they need to make their classification decisions carefully.  Failure to do so invites trouble. 

Posted In Employment Law News , Wage & Hour | Comments (0) | Permalink |

USA Today reports on the settlement by Xerox Corporation, for $12 million, of a race discrimination case brought by a class of its sales people.  The case was filed on behalf of a class of current and former black sales representatives. 

According to the story:

The workers said they were assigned to less profitable territories than white co-workers or were assigned to territories based on their race. They also contend they were passed over for more lucrative territories, promotions, and were denied commissions they had earned.

One plaintiff was assigned a territory in the Bronx, New York.  The position required a car.  The employee objected to the assignment on the basis of undue hardship since he did not have a car.  His manager allegedly told him he received the assignment because "blacks and the Bronx go hand in hand."

Assuming for the sake of argument that Xerox's reason for the assignment was as stated, and further assuming that assigning sales representatives to territories on the basis of perceived compatibility with the prospective customer base is a legitimate basis for a business decision, this case illustrates the danger to employers from  making decisions on the basis of the group identity of protected classes of employees.

We note that Xerox denied wrongdoing, and said that it settled the case to relieve itself of the burden of the continuation of a lengthy and expensive litigation.

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The Supreme Court has upheld an EEOC rule that allows employers to coordinate retiree health benefits with Medicare for those who turn 65.  The rule, in effect, allows employers to reduce retiree benefits when they hit 65.  AARP opposed the rule on the theory that it constituted unlawful age discrimination.

Here's an LA Times article with more detail, the Supreme Court's order denying certiorari, and the EEOC rule.  

Posted In Age Discrimination , Employment Law News | Comments (0) | Permalink |

Frank Steinberg was recently appointed General Counsel to the Somerset County Business Partnership for a one year term.  The SCBP is an affiliation of leaders of business, government, education and non-profits in Somerset County.  

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Yesterday the EEOC released a statement  indicating that reported job bias incidents rose 9% in 2007. 

Commenting on the increase in claims, EEOC Chair Naomi Earp warned that “[c]orporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effectively.”

The highest percentage increases were seen in retaliation (up 18%), age (15%), and disability (14%).

Race remains the most frequent source of complaints, but retaliation has moved into second place for the first time ever.  They are followed closely by sex, age, and disability, in that order.  Far fewer complaints charge national origin or religious discrimination.

Based upon the cases that we see in our practice in New Jersey, the most prevalent claims of discrimination involve retaliation, age, and disability.  Claims of race discrimination are relatively rare.  That, admittedly, is anecdotal evidence and may not reflect what other employment lawyers are seeing in their practices.  Does anyone else care to weigh in on this?

It remains to be seen whether the increase in filings presages a more aggressive enforcement approach by the EEOC. 

Posted In Employment Law News | Comments (1) | Permalink |

Recently we've been calling your attention to some helpful tools that the government has made available on the Internet.  Here's another one: the "Executive Pay Finder."  It can be found here on the SEC's website.

Just plug in the company whose executives you want to search, the program searches the company's filings, and in seconds you'll have the financial details of the compensation packages of the principal officers.

Or maybe you been offered the presidency of a smaller publicly traded company, but you don't know whether you've been offered a fair financial deal.  Go the to Finder, plug in your company's market capitalization or revenue (or both), and the program finds the compensation packages for all publicly traded companies that meet your search criteria.

It's interesting and it's helpful.  Try it.  (And once you do, you'll think a little harder about how you can get one of those jobs ...........)

Posted In Employment Law News | Comments (0) | Permalink |

Most employees know that their employers will become --- how can we put this delicately? --- "annoyed" if written customer  lists are used to woo away customers when the employment relationship ends.  But what happens when a former employee does not physically take a written list, but can recreate all or part of it from memory?

That's the question recently considered by the Supreme Court of Ohio in Al Minor & Associates, Inc. v. Martin.  The case was considered under both the Uniform Trade Secrets Act and another Ohio statute.  The short answer is that memorized information can be the basis of a claim that a trade secret has been violated.

It's worth noting that New Jersey is among a small minority of states that has not adopted the Uniform Trade Secrets Act.  New Jersey relies upon common law trade secret protection.  So what's a trade secret in NJ?  It's something that is (a) secret, (b) valuable, and (c) confers a competitive advantage in the marketplace.  There's nothing in NJ's definition of a trade secret that would exempt memorized information from trade secret protection.  One federal district judge recently assumed (without deciding the issue) that this would be the case.

It's also worth remembering that in NJ, customer lists of service businesses generally are protectable as trade secrets.  Customer lists of manufacturing and retail business, on the other hand, generally are not.  As with much of unfair competition law, however, the applicability of particular legal concepts is highly fact sensitive, and the wise business person will not rely upon broad "rules" for guidance in a specific situation.

Posted In Non-compete Agreements | Comments (0) | Permalink |

Oh, what a day this has been, what a rare mood I'm in.

Well, it's been more like a week than a day.  And it's nothing at all like being in love.  But it has given employment law bloggers new material that will carry us through a lot of posts.

What is "it"?   Why the U.S. Supreme Court, of course.  We've been telling you that the Supremes had a lot of employment law cases teed up this Term, and now the decisions have started to fly.  We'll post on these in detail in the coming weeks, but for now let's summarize what has happened to date.  (The links are to the Court's slip opinions.)

First up was LaRue v. DeWolff Boberg, decided on February 20, 2008.   There's good news and bad news about LaRue.   Here's the bad news: it's an ERISA case, which means that neither the statute nor any decision interpreting it can be understood by mere mortals.  The good news: we're going to explain it anyway.  The justices --- all 9 of them --- agree that an individual with a 401(k) account can sue her Plan's fiduciary for a loss to that account, if the fiduciary causes the loss.  That's all you need to know.  Take our word for it. 

The second decision came in Sprint/United Management Co. v. Mendelsohn, decided on February 26.  Mendelsohn is an age discrimination case.  The question for the Court was whether the plaintiff would be allowed to present testimony from former Sprint employees that would tend to establish discriminatory conduct by supervisors different than the supervisor who terminated Mendelsohn.  The Court of Appeals (10th Circuit) had disallowed the testimony.  The Supremes reversed and returned the case to the trial court for further action.  Based on the Court's decision, which centers on Federal Rules of Evidence 401 (relevance) and 403 (undue prejudice), this kind of "me too" evidence may be used in certain circumstances.  What those circumstances are will vary by case.  The Court's ruling definitively establishes that there will be no bright-line rule allowing or disallowing this kind of evidence. 

The third decision is Federal Express Corp. v. Holowecki, decided on February 27.  At first blush this appears to be a technical decision of interest only to employment lawyers and others who are similarly deranged.  Here's the nub of the decision: the Court refused to allow a bureaucratic foul-up by the EEOC to defeat the plaintiff's substantive rights under the Age Discrimination in Employment Act. 

We will post on these decisions separately in the coming weeks for those who have a specific interest in them.

Posted In Employment Law News | Comments (0) | Permalink |

Here's an interesting update from the Boston Globe on the age discrimination cases that are before the Supreme Court this term.

As the article aptly points out, the ADEA and coordinate state age discrimination laws are the only anti-discrimination statutes that will apply uniformly to all workers, so there's something in these cases for all of us.  And, as the population as a whole ages, there will be increasing numbers of older workers in the economy.

The five age cases that are before the Court will likely impact on older workers for many years to come. 

Posted In Age Discrimination | Comments (0) | Permalink |