Chris Christie v. Corey Booker
This video has absolutely nothing to do with employment law, but everything to do with Jersey. Without editorial comment, take 3 minutes to savor this. You'll be glad you did.
Forced to "Resign": Eligible for Unemployment?
How many times have we heard it? "They told me that I had to resign or I'd be fired." As if they were doing you some big favor. So the employee submits a letter of resignation, presumably to avoid the stigma attached to being fired.
The comes the application for unemployment, and the frequent denial of benefits, since unemployment is not available to those who voluntarily quit a job.
The law in NJ has recently been clarified by the decision of the Appellate Division in Lord v. Board of Review. The facts were simple. Lord, the applicant for benefits, needed his car to do his job. One day his transmission broke, and he did not have the money needed to repair it or obtain other transportation. He notified his supervisor, saying that he would not be able to return to work on Monday. The supervisor then told him that he "had to resign . . . effective immediately."
Lord's application for unemployment benefits was denied, as the Division of Unemployment Compensation decided that he had left his employment voluntarily without good cause attributable to the work. The Appeal Tribunal upheld the initial decision.
The Appellate Division (NJ's second-highest court) reversed, finding that Lord's separation from employment was not voluntary. Rather, it found that the termination was initiated by the employer, not the employee, and there was involuntary.
As with most cases involving unemployment benefits, there are some factual nuances in the decision which make it impossible to say that Lord v. Board of Review establishes a sweeping rule that can be applied to every situation. Nonetheless, it is good news for employees. Employers need to be aware of this ruling as well, to ensure that "resignations" are just that, and not disguised firings.
NJ State Aviation Conference 2012 Is May 4 at EWR
The annual NJ State Aviation Conference will be held on Friday, May 4, at the historic North Terminal of Newark Liberty International Airport. Details here. This year's program focuses on "Navigating the Regulatory Maze" for pilots and general aviation airports.
The Conference is presented by the Mid-Atlantic Aviation Coalition. Frank Steinberg, a MAAC director and experienced aviation attorney, will be moderating a panel discussion on how pilots can deal with Temporary Flight Restrictions [TFR's, in pilot lingo] and other airspace issues where being in the wrong place at the wrong time can cause a heap of trouble with the FAA.
Other panels deal with upgrading older aircraft, and airport improvement issues.
There will be a keynote presentation by NJDOT Commissioner James Simpson, and a talk by Diane Crean of the FAA. The program closes with presentations by the Hindenburg Historical Society and representatives of McGuire Air Force Base, both of which promise to be fascinating.
This is truly the event to attend if you have an interest in aviation in NJ. The cost is a very reasonable $50, which buys you a very good lunch. Walk-in's are welcome. I hope to see you there.
Facebook Controversy Spawns Legislation
Well, that didn't take long.
Once the news broke that some employers are requiring Facebook log-ins, or other access, to personal information, politicians and the media waded into the fray. Our previous posts on the subject are here and here.
Now NJ Assemblyman John Burzichelli (D-3) has introduced legislation that would make it unlawful for employers to ask for such information, or to retaliate against a job applicant for refusing to provide it. Here is a summary of the bill. We have not yet seen a copy of the actual bill, but will post on it when we do.
The Courier News is already behind the bill editorially.
Obviously this bill is not yet law. However, every employer in the state needs to be aware of what is happening with this bill (and perhaps others that could be introduced on the same subject). The chances are that some limitation on an employer's right to seek personal information from social media is going to be enacted, and perhaps quite soon. If it happens, it will affect nearly every hiring decision in New Jersey for years to come. We say "nearly" because there will be exceptions, but chances are they will be limited in scope.
We will keep you informed as this matter develops.
Facebook Moves to Stop Employers from Demanding Access from Job Applicants
A few days ago we posted on the increasing practice of some employers to demand that job applicants give them access to the private portions of their Facebook pages. Media reports on the practice raised a firestorm of protests, with most commentators thinking it an egregious invasion of privacy.
Now Facebook itself has stepped in to quell the debate, amending its terms of service to make it a violation of its terms of service to request another's log-in information. Violators are subject to punishment, including having their Facebook accounts deleted. A more complete description is in this report from Fox News.
This is a step in the right direction. It remains to be seen whether other social media sites will follow the lead of Facebook.
Another Facebook Hazard for Job Seekers
We've long known that employers are searching social media sites as part of their background investigation of job applicants. So the applicants have taken to blocking the public at large from accessing portions of their Facebook (for example) pages. That keeps the pictures of the drunken college beer bashes away from prying eyes.
So some employers have taken to requiring applicants to turn over login credentials - or to log in in the presence of an interviewer - as this article from MyCentralJersey.com tells us. Some applicants have refused and withdrawn their applications. Others, needing a job, have agreed.
Fair background investigation or unsupportable invasion of privacy? What do you think?
Bad Behavior: If Reporting It Is Your Job, You May Not Be a Whistleblower
While cleaning out my briefcase this morning I ran across a printout of White v. Starbucks, an unpublished New Jersey Appellate Division opinion that addresses an interesting situation under CEPA, New Jersey's whistleblower statute. I meant to write about this case when it came out in December, 2011. It's not an earth-shattering decision, but the case apparently was considered to be important enough to draw amicus briefs from the NJ Employers' Association and the National Employment Lawyers Association/NJ (whose membership consists of attorneys who represent employees in employment law cases). Here's the short version.
The plaintiff, Kari White, was a new district manager for Starbucks, responsible for several stores. It seems that she did her job aggressively and ruffled some feathers among the store managers who reported to her. Among the things that she uncovered in stores, and reported, were unsanitary store conditions and regrigerator cases that were too warm to safely store food. There was more, but the details are not important for our purposes.
The store managers complained, and eventually White was was given a choice between resigning or being fired. She resigned. She subsequently reported some of what she considered to be unlawful activity at Starbucks to the local police.
White filed a CEPA claim against Starbucks. The trial court dismissed as a matter of law. The Appellate Division affirmed the dismissal on appeal, relying on an earlier opinion, Massarano v. New Jersey Transit. The rule of Massarano is that if the issues on which a CEPA plaintiff bases her claim fall within her job-related dutues, then she she is not engaged in activities that are protected by CEPA. That rule was held to invalidate White's claim.
If White held a different position within Starbucks and had reported the same conduct, would she have had a CEPA claim? She very well may have, as long as the reporting of such claims did not fall within the scope of her job function. So, in New Jersey, if two people report the same unlawful behavior, it's possible that one will have a CEPA claim and the other will not. It all depends on their jobs.
The Art of Interviewing: "It Ain't What You Say . . ."
"It's the way that you say it." So an old song reminds us.
This short article reminds us that there are wrong ways for employers to ask questions in job interviews. Smaller businesses, which often do not have professional HR staff or the time or budget to invest in HR training, are particularly susceptible to the legal trouble that can result from a poorly conducted interview.
But remember: "it's the way that you say it." There often are ways to get the information that you need without stumbling over the forbidden questions, simply by asking in a different way. The article contains some common examples.
And as with most things in life, if you're not sure how to get the information that you need, get some competent advice before you start the interview process.
Everyone Knows to Beware the Ides of March
But the Ides of February? Who knew that such a thing even exists? Apparently it does, as variously explained here and here and here.
Anyway, this is also budget season, and the president's proposed 2013 budget contains plenty of funding for the Department of Labor, EEOC and NLRB to do their work without much financial constraint. Of course, it remains to be seen whether the proposed finding levels survive consideration in Congress.
With headlines about the administration's full-bore conflict with the Catholic Church --- and other religious groups, for that matter --- dominating the news, religious discrimination issues are also prominent in the courts. The Supreme Court's unanimous smackdown of the administration in the Hosanna-Tabor case is just the most visible recent example. Martha Zackin provides other recent examples of courts confronting the question whether businesses are engaged in unlawful religious discrimination or just making legitimate business decisions. The line between the two can be a fine one.
Know someone who is messing around with his Facebook page to make things look better in a lawsuit? Not a good idea --- for either the client or his attorney --- as explained by Tom Crane on the San Antonio Employment Law Blog.
Things are seldom stagnant in employment law, but our mid-February look-around suggests that things are moving rapidly right now, and show no signs of slowing down. We will be here to try to help you make sense out of it all.
A Lesson for Business from Football
A Supermodel, or a Kicker? That's the question raised by Michael Lentz of Wagonheim Law. He could have titled it "Casting Blame or Taking Responsibility?" (I recognize that his title is way better, by the way.)
Here's your choice: Gisele Bundschen blaming hubby Tom Brady's receivers for New England's Super Bowl loss, or Billy Cundiff of the Ravens taking personal responsibility for missing a short field goal that would have sent the AFC championship game into overtime. It's obviously no choice at all, yet how many of us react like the supermodel when something goes wrong at work?
As Michael aptly notes, "the 'blame-somebody-else' culture is terribly destructive for a business" as well as a football team. That's an important lesson whether you run a business or work for one.
