New Jersey Employment Law Blog

For those newly unemployed who are getting on in years, remember that the business world remains full of possibilities for you.  Here's a helpful article from the Wall Street Journal geared to the older job seeker.

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Here's a good post from the left coast, specifically the California Labor & Employment Law Blog, on how employers should respond to Social Security mis-match letters.  There have been some changes in the law, and it's worth reading, especially by employers, who have an obligation to resolve discrepancies or face liability.

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Here's an interesting story about a "perfect hire" that quickly went very, very wrong.  It has some intriguing twists, including a serendipitous sighting of the bad guy by an FBI agent, proving, I suppose, that such things don't just happen in the movies.

Would you have fallen for the scam of this embezzler?  Many, perhaps most employers, don't check references, or at least don't check them carefully.  You always should, especially where the new hire is going to be handling your money.  This scammer was good, but there were warning flags which, if heeded, might have avoided a lot of trouble.

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College coaching is big business.  At many major state universities the highest paid employee is not the president, but the football coach.  With big bucks involved, the Chronicle of Higher Education asks why universities often settle for hastily drafted contracts, or worse, informal writings that may or may not even be contracts.  (If the terms "memorandum of understanding" or "letter of intent" ring a bell for you, you may understand what we're talking about here.  And lawyers love them.  As a lawyer who goes to court, I can tell you that one good "letter of intent" case can pay a lot of college tuition!)

Oddly enough, authorities quoted in the article think that the universities often get "out-gunned" by the coaches and their agents.  And yet that point of view is plausible.  Coaching contracts often get put together in a hurry.  The employers usually rely upon their in-house legal staffs, who may or may not have the requisite expertise, and who always have many other things to think about.  The coaches, on the other hand, have a singular focus: to get the deal done as quickly as possible, on the most favorable financial terms.  And usually with the help of agents and lawyers who do have the requisite expertise.  Viewed that way, one can see that it is not always a fair fight.

How to level the playing field?  For one thing, college administrators can try to anticipate their coaching needs --- and coaching changes --- and prepare for the negotiation in advance.  One way to prepare is to line up some "outside talent," such as consultants and outside attorneys, to work with in-house lawyers as an integrated team.

We can tell you from experience that a poorly drafted contract can cause many problems down the road.  Especially when you're playing in the high stakes world of major college coaching, get it right from the start to avoid big problems later.

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As job losses mount, the search for replacement employment becomes increasingly competitive.   Finding a way to stand out from other candidates for the position that you covet just gets harder as the number of job-seekers grows.  "How-to" articles abound, but  I leave it to you, good reader, to decide how useful many of those articles are.

Sometimes, however, you find golden nuggets in unexpected places.  Outside Magazine, which is devoted to fresh air, exercise and adventure, has a good "best places to work" article in its May 2009 issue.  The focus is on companies that involve the adventure travel industry or promote a healthy lifestyle for employees.

But what really caught my eye was a graphic box entitled "Please Log Off Monster.com."  And other online job-search sites.  The point?  There are more effective ways to spend your job-hunting time than bouncing electrons around the internet.  Here's their suggested allocation of your time and effort.

1. Case your field: 25%.  Translation: research your chosen field.  Really research.
2. Talk to people:  20%.  Always respecting their time.  For my money the single most important step.
3. Act the part:  20%.  Do trade shows.  Buy people drinks.  Schmooze. 
4. Research qualifications: 15%.   Learn what background the position requires.  Do you have life experience that could substitute for the masters degree they say they want?
5. Search job listings: 10%.  OK, Monster et al. get their due.  But only 10%!
6. Blow off steam: 10%.  Surf, ski, run , etc.  It's Outside Magazine , for crying out loud.  But there's wisdom happening when they say that "this is where you'll really figure out what to do with your life."

If my Dad were here to give us job-hunting advice, it would look a lot like this.  And his advice was usually pretty good.

The May issue is not yet posted on Outside's website, so you'll have to spring for the paper edition or wait until the June issue is published and May gets archived.

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Here's an interesting proposition, although it comes to us not from New Jersey, nor even the good old USA, but from Austria. 

According to this article, a Salzburg insurance company recently advertised for sales and management positions.  Nothing unusual there.  So what was the catch?  Only those born under the signs of Capricorn, Taurus, Aquarius, Aries and Leo were asked to apply.

The company's position was not irrational.    "A statistical study indicated that almost all of our best employees across Austria have one of the five star signs.  We only decided to continue with that  system and hire the best workers."

The NJ Law Against Discrimination is loaded with protected classifications, but being Zodiacally challeneged isn't one of them.  If this were happening in NJ rather than Austria, would disgruntled employees (or would-be employees) have a legal claim against the company?  I've never heard of anything like this before, but I doubt that the company's hiring practice would be unlawful under NJ or federal law.  It's certainly unorthodox, but if it reflects the company's business judgment and doesn't discriminate against members of recognized protected classes, why shouldn't they be allowed to do business as they see fit?

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The EEOC is trying to be helpful.

I know.  I know.  "They're the government and they're here to help us."  But this time they actually are being helpful to business.  What on earth about, you ask?  Hiring and promoting, and how to do it without running afoul of the legal web that waits to ensnare the unwary. 

The EEOC has just published a revised Fact Sheet entitled "Employment Tests and Selection Procedures."  It's a helpful discussion of how tests can be used lawfully to help screen employees for hiring and promotion. 

Among the tests discussed:

• Cognitive tests.
• Personality tests.
• Medical examinations.
• Credit checks.
• Criminal background checks.

They're discussed in the context of the commonly applicable laws:

• Title VII of the Civil Rights Act
• The Americans with Disabilities Act [ADA].
• The Age Discrimination in Employment Act [ADEA].

There are helpful (if basic) explanations of the disparate treatment and disparate impact theories of discrimination, and a list of Employer Best Practices.

Bear in mind that the EEOC Fact Sheet is not legal advice.  It should not be relied upon to provide specific answers to particular problems.  Look at it as a guide to where the pitfalls are located, not as advice on what testing you can safely perform for what position. 

In fact, reading the Fact Sheet can be sobering.  It reminds us of just how complicated the law in this area can be, and of the financial risk if you make a mistake.

So yes, the government is doing it's best to be helpful.  But in doing so it reminds us of the risks of forging ahead into a testing program without thinking through the consequences.  Which in turn brings to mind another familiar saying: "Use only under adult supervision."

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A federal judge in California has sentenced two corporate executives to significant criminal penalties for knowingly hiring illegal aliens to work at their company, after they pled guilty.   The AP reports that Judge Barry Ted Moskowitz sentenced the founder and chairman, and a manager, of Golden State Fence Co. to a combination of house arrest and community service.  He also imposed six-figure fines.

The charges against the two carried a maximum penalty of five years in jail, and prosecutors had pressed for incarceration.

Judge Moskowitz refused to impose jail time, apparently because the defendants would have been the first ever to be incarcerated for knowingly hiring illegals.  But the judge made his thinking clear:

"Prosecution is long overdue in this area," Moskowitz said. "Honestly, the government's efforts have been at the border, not with the employer. Obviously, the government has signaled a change with this case."

In other words, the next employer prosecuted might not get off so easily.

Here's what is sobering about this case for business owners and managers.  If you didn't follow the link above to Golden State Fence Co., do it now.  It's worth your time.  Two things stand out.  First, Golden State Fence is not the size of General Electric.  It's obviously not much different than tens of thousands of other small businesses in New Jersey and elsewhere around the country.  Second, read the notice at the bottom of the home page about how Golden State Fence "encourages" others in its industry to work to hire only properly documented workers.  That's a warning, possibly placed there at the request of the government as part of the plea bargain. 

In short, this could happen to anyone, and the government's enforcement policy has gone beyond the stage of a gentle slap on the wrist.  They've gotten serious.  Forewarned is forearmed.

Finally, although this case arose in the Southern District of California, it has a New Jersey connection.  Although Judge Moskowitz has been on the bench in California for many years, he is a Jersey boy and Rutgers grad.

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A few weeks ago we posted on the danger to professional service firms from failing to confirm the licensure of applicants for professional positions before hiring them.  Now comes a similar tale that reaches into the federal government and the office of the Air Force Judge Advocate general.  Stars & Stripes reports on the long-running lie lived by Col. Michael D. Murphy, "one of the Air Force's top legal eagles" and commander of the Air Force Legal Operations Agency in Washington.  He was even Commandant of the Air Force JAG School in 2005.  More background  here and here.

Col. Murphy came to the Air Force from a civilian law practice 23 years ago.  The Air Force failed to check his credentials.  If they had, they would have discovered that Col. --- then Mr. --- Murphy had been suspended for seven years from the practice of law and was later disbarred. 

In the past the Air Force has operated on a honor system regarding licensure when hiring attorneys.  Now all Air Force lawyers have until December 31 to provide "visual proof" of their good standing to practice law. 

The Air Force learned a lesson the hard way, but it also --- pardon the expression --- dodged a bullet because Col. Murphy did not represent criminal defendants.  If he had, the conviction of anyone he represented might be subject to challenge.

In New Jersey many professions require special licensure.  How many employers actually check the professional credentials of job applicants before hiring them?  Our two recent examples involve lawyers, but no profession would be immune.  How many medical practices would want to defend against a malpractice claim based upon the actions of an unlicensed physician?  How many accounting firms based upon the conduct of someone not a CPA?

It may be time to start requiring proof if you don't already.

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A large, well-respected law firm recently learned the hard way that you cannot always accept at face value the qualifications of those who apply for employment as attorneys. 

Law.com reports that Brian Valery passed himself off as a Fordham Law School graduate and an attorney admitted to practice law in New York.  He had worked for Anderson, Kill & Olick, PA since 1996.  The problem?  He never attended law school and was not admitted to the bar of any state. 

Only a telephone call to Anderson Kill from one of Valery's college friends tipped the New York firm off to Valery's deceit, according to an investigation conducted by Connecticut Chief Disciplinary Counsel Mark A. Dubois. The friend apparently couldn't find Valery's name among registered New York lawyers, but found him listed as an Anderson Kill attorney. The call raised red flags at Anderson Kill.

 The incident has caused problems for Anderson, Kill, which has engaged special ethics counsel to help it deal with the situation.

The lesson here applies to all professional service firms.  How many law firms, accounting firms, engineers, architects, and medical practices actually take the the trouble to confirm the training and licensure of those who apply for jobs as professionals?  Stories like this one come up occasionally, so while the problem is rare, it would be unwise to dismiss it as a complete aberration.  The legal ramifications of hiring someone who is not appropriately licensed can be extreme.  And the public relations issues that arise can be just as damaging to a firm's reputation.

Asking applicants for proof of their professional training and licensure is the smart thing to do. 

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