New Jersey Employment Law Blog

Or is it the other way around?  You decide.

Wage and hour violations continue to pop up everywhere.  Yesterday it was law firm employees, today Hooters waitresses.

Whatever your business, if you think that similar problems can't happen to you, you're wrong.

Posted In Wage & Hour | Comments (0) | Permalink |

I don't single out law firms for items to post about, but I'm still struck by how many of my posts over the years have involved the employment law problems of law firms.  You'd think that we'd all know better, wouldn't you?

The fact that even members of the bar get themselves into trouble underscores just how arcane and complex employment law compliance can be.

Here's the latest lawsuit we've found.  It involves an Ohio firm that got caught failing to pay overtime to a secretary.  Their reason?  She was paid by "salary."  As we've said before, and doubtless will again, the fact that you call someone's compensation a salary doesn't make it so, and you may still be liable to pay time and a half for weekly hours worked over 40.

Here's the link to the Lawyer's Weekly article.

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One of the dangers of litigation for plaintiffs is that, once you start a fight, you can't necessarily stop it.  That could spell trouble for one former Crowell & Moring (a big law firm) employee, who sued her ex-employer for age discrimination.

This post from the Blog of Legal Times lays out the basics.  Plaintiff sued in state court; the employer removed the case to federal court and filed an answer.  Six months later the plaintiff decided that she wanted to dismiss the complaint voluntarily and filed a motion to do so.  The court denied the motion, on the procedurally correct ground that that once an answer is filed a case cannot be dismissed unilaterally by the plaintiff.  Thus, the order forced the action to continue. 

Here the story gets fuzzy.  It's not clear whether the court denied plaintiff's motion to dismiss for some deficiency in her application, or because the defendant objected to the dismissal.  If the latter, why would a defendant turn down a "get out of jail free card" in the form of a voluntary dismissal?  They might, I suppose, just be trying to make the plaintiff or her attorney sweat a bit.  But another possibility is that, because an age discrimination case is a fee-shifting case, the defendant may think that  it will prevail on the merits and can force the plaintiff to pay their attorney's fees.  It's rare for courts to award counsel fees in favor of defendants, but it does happen occasionally.  If that is what's in play (and I admit that I'm speculating), the litigation could be financially catastrophic for the plaintiff.  Few individuals --- and especially those who have lost their jobs --- have the financial resources to reimburse the hundreds of thousands of dollars that defendants routinely spend to defend discrimination cases.  Talk about shooting yourself in the foot.

So for plaintiffs and their lawyers, it's important not to start a fight precipitously.  Once you start the boulder of litigation rolling down the mountain, you may not be able to stop it without getting crushed.

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

My last post was a slightly irreverent look at the Supreme Court's recent corporate-nerve-center-as-principal-place-of-business decision in Hertz v. Friend.

Max Kennerly in his Litigation & Trial blog takes a more scholarly look at the implications of the Hertz decision.  He notes, correctly, that there was an element of "administrative simplicity" inherent in the court's decision.  And there is, I suppose, a virtue in that.  There's now undeniably one rule that should not be difficult to apply in practice.

If you believe that federal courts should have more power to decide cases, you'll look at that one way.  If you think that state courts are the preferred forum, you'll probably think differently. Whatever your belief, it's what all litigators now must deal with.  And note, too, that even though the Court's decision was made in the context of an employment litigation, it will govern all business-related cases that involve the question whether the court can assert diversity jurisdiction, directly or through removal, over a corporation.

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

Today the Supreme Court decided Hertz Corp. v. Friend, and thus put to rest the burning question of what constitutes a corporation's "principal place of business."  It actually is an important question for purposes of federal diversity jurisdiction.  Here's a link to the opinion, and here's one to our prior post which gives some background on the case.

The crux of the decision is that the principal place of business will usually be its "nerve center," the place where is executives and managerial functions are located.  In a word, headquarters.  Here's how Justice Breyer explained it for the unanimous Court:

We conclude that  “principal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).

There's more, but you get the idea.  So from now on, when you think about where a corporation's principal place of business, remember how "nervy" the Court was in making this decision.

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

They say that nothing is inevitable in life except for death and taxes.  To that list we now have to add nooks and crannies.  Yes, those things that make up the deliciously irregular innards of one of my favorite breakfast foods, Thomas' English Muffins.

Long story short, Chris Botticella was an employee of Bimbo Bakeries, which now owns Thomas', and one of a handful of people who know the secret formula for the nooks and crannies.  (I'm reminded of the crucial ingredient for the "secret rocket fuel" from Rocky and Bullwinkle, but that's just me.)  Botticella accepted an offer to work for rival baker Hostess.  I have some fond childhood memories involving their products, too.

Anyway, Bimbo sued for an injunction to stop Botticella from working for Hostess due to their concern that he would "inevitably disclose" to his new employer the recipe for the secret rocket fuel . . . er  . . . the nooks and crannies, and thus damage Bimbo's business. 

Inevitable disclosure is a doctrine of trade secret law that proceeds from the premise that an ex-employee of one company who knows trade secrets, and takes a job with a competitor, simply will not will not be able to keep his mouth shut in his new job.  It's not as easy to prove as it sounds, but in some cases it works.  Like this one.  The court granted a temporary restraining order and preliminary injunction.  Here's a copy of the order.

This is not my first legal exposure to the great nooks and crannies secret.  Although I've lost the details in the mists of time, I distinctly recall a nooks and crannies TRO application coming before the judge for whom I was clerking back in the late 1970's.

Well, all of this is fine, as long as no one starts stealing the recipe for Butterscotch Krimpets.  Of wait, they were made by Tastykake.  At least Bimbo and Hostess won't be at each other's throats over them.

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

As someone who has not yet ventured in any significant way into the world of social media (except for this blog, of course!), I missed the buzz about the recent launch of Google Buzz.  As explained in this post from Mark McCreary  at the Privacy Compliance & Data Security Blog, Buzz raises significant problems for employers in connection with their computer and electronic device policies and practices.  If you are a manager or HR professional, the post is well worth a few minutes of your time.

Posted In Policies & Handbooks | Comments (0) | Permalink |

US District Judge Joseph Greenaway,who has sat in Newark since 1996, has been elevated by the Senate to the United States Court of Appeals for the Third Circuit.  Judge Greenaway is an alumnus of  the US Attorney's office, and worked as a corporate lawyer for Johnson & Johnson in New Brunswick, before becoming a district judge.  Congratulations to Judge Greenaway.

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

Lurking under the snowbanks of Capitol Hill, hard by the Supreme Court building, are briefs in three yet-to-be-decided employment law cases.  We imagine that the Court will get to them around the time of the Spring thaw.  Here's a brief synopsis.  Links are to the merits briefs, to the extent that they are available online.

City of Ontario v. Quon looks to be the decision with the most blockbuster potential.  The question presented is whether employees have a reasonable expectation of privacy in personal text messages transmitted over employer-supplied devices, against a background of a formal no-privacy policy in conflict with a practice that sanctioned personal use.  Although this case involves public employees --- police officers --- it may have implications for all employers, both public and private.

New Process Steel v. NLRB raises an issue of considerable import to labor lawyers and their clients.  The National Labor Relations Board has an authorized strength of five members, and three is generally considered to be a quorum to decide cases.  For the past couple of years, however, the NLRB has had only two sitting members.  During that time they have decided around 400 cases.  The question before the court is whether those two-members decisions were valid.  It's not a clear cut question, and there are good arguments on both sides.  The three circuit courts to have considered the question have split.  If this one goes against the NLRB, it could be a logistical nightmare.

Lewis v. City of Chicago presents the Court with another firefighter qualification test case, like last year's Ricci v. DeStefano.  Lewis deals with the more abstract question of whether the 300 day limit to file a claim with the EEOC runs from the date the test results were announced or the date that hires were made based upon those test results.

Our guess is that right now the Justices are more concerned with staying warm than worrying about employment law cases.  When we have more information on their status, we will let you know.

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

An employee injured on a five mile drive to get coffee was found by a NJ comp court to be eligible for comp benefits.  Here's the story.

Actually, it's not that unusual a ruling.  I just couldn't resist the chance for the headline.

Posted In Workers Comp | Comments (0) | Permalink |