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.

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.

Since this is an employment law blog, I suppose that I ought to try to draw a relevant lesson on how management should handle such things.  Well, in my view the best approach is that you can't really stop it, so accept the good-natured ones with a smile, and ignore the angry ones --- it will blow over quickly.

For the past 17 years, under a case called Rendine, attorneys who represent plainitffs under contingency fee agreements in fee-shifting cases under NJ law have been permitted to seek enhancements of their fees under certain circumstances.  For instance, if the base fee is $100,000, and the court decides that a Rendine enhancement of 25% is appropriate, the attorney's fee becomes $125,000.  The theory is that allowing fee enhancements incentivizes attorneys to take on difficult cases, or ones that seek to vindicate important policies, where there is a significant risk of non-payment.

The law in NJ seemed settled.  Then enter the US Supreme Court, with its 2010 decision in Perdue v. Kenny A, a civil rights case.  The Court there held that fee ehancements are only appropriate to award superior attorney performance in extraordinary cases.  That standard is far more restrictive than the Rendine standard, and it is undeniably the law of the land in cases that are decided under federal law. 

The Perdue standard then seeped down into a couple of cases decided under NJ state law.  In the Walker and Humphries cases, panels of the NJ Appellate Division adopted the Perdue "extraordinary circumstances" test to deny fee enhancements to successful plaintiffs, who appealed.

In no uncertain terms the NJ Supreme Court reversed the Appellate Division, holding that

the mechanisms for awarding fees, including contingency enhancements, that we adopted in Rendine shall remain in full force and effect as the governing
principles for attorneys’ fee awards made pursuant to fee-shifting
provisions in our state statutes and rules.

Take that, US Supremes!

The opinion is long, but it is required reading for attorneys who handle contingency cases.  It clarifies all of the standards that are used to award fees in contingency fee cases, not just fee enhancements. Among other things, folks, there is going to be little excuse for not keeping detailed, contemporaneous time records --- if you want to get paid.

There's a good chance that we're all going to be citing to Walker and Humphries from now on.  Rendine will still be cited, but we'll be arguing the cases decided on January 25, 2012.

If you have any doubt at all, it's best to get help.

(H/T Accountant Gail Rosen of Martinsville, NJ)

The facts that the plaintiff presented in Ingraham were sympathetic.  The plaintiff's teenage daughter, a talented, accomplished, and popular girl, died tragically while still in high school.  Her mother, of course, was distraught.  She kept reminders of her daughter in her cubicle at work, including pictures and a pair of ballet slippers.  She talked frequently with co-workers about her daughter, so much so that a year and a half after the fact her colleagues complained to management.  While sympathetic to her situation, they felt that they had said all that they could.  The situation was affecting workplace performance.

A supervisor spoke with plaintiff.  Among other things, he instructed her to remove the pictures and ballet slippers, and (in response to plaintiff's question) to "act [as] if [her daughter] did not exist."

Plaintiff became extremely upset, went to a cardiologist for an angioplasty, and eventually quit.  After filing suit, her claim for IIED was the only one of three counts that came before the court for decision.

Among other things, the plaintiff argued that the "power dynamics of the workplace" should lessen her burden of demonstrating that plaintiff's conduct was extreme and outrageous.  The court rejected that argument.

The law provides no different standard of proof that applies in the workplace from other places where emotional distress might result. The employer-employee relationship is no more special and conducive to emotional distress than, for example, a doctor-patient relationship, the relationship of a decedent's family to a funeral home, the tense relationship of a precarious tenancy where homes might be lost, or the relationship of a husband and wife in a hostile divorce.  Indeed, the workplace has too many personal conflicts and too much behavior that might be perceived as uncivil for the courts to be used as the umpire for all but the most extreme workplace disputes. We have previously said that conduct in the workplace will rarely be so egregious as to give rise to a claim of intentional infliction of emotional distress. In Griffin, supra, we stated: "Except for the kind of aggravated discriminatory conduct involved in Taylor, 'it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress.'

And so, as far as IIED cases are concerned, the status is quo.  The court declined to lower the plaintiff's burden of proof to account for the "power dynamics of the workplace."  This seems to have been an attempt by plaintiff to import a similar comment from sexual harassment law. 

While the risk to employers from IIED claims has not been increased, neither has it been reduced.  While rare, it is possible for an employer to lose an IIED case.  For this reason, employers are well-advised to continue to investigate complaints, document problems, and establish and follow sound HR procedures.

Given the highly regulated state of things in the great Garden State, visits from representatives of New Jersey government historically have struck terror into the hearts of those of us who are trying to run businesses.  At long last, however, state government in NJ is helping businesses cut through the bureaucracy and red tape so they can actually get things done.  No, seriously, they are.

If you have a problem with permitting, site location, financing, and the like, call the New Jersey Business Action Center.  They will do their best to help.  I have spoken with representatives of the Administration, and they are completely serious about this.  The Center is under the supervision of the Lt. Governor and provides a "one stop shop" to assist businesses with all kinds of business related applications and approvals.

It makes sense, and it's about time.  Spend a couple of minutes looking over their web site, NewJerseyBusiness.gov.

Or call them at 866-534-7789.  Heck, it's even toll-free. 

While they can't replaxce your team of business professionals, they can smooth the way for a more productive and efficient business experience.

Jim Burke from J. Burke Advisors and yours truly will be the presenters.  Jim will approach the subject of hiring good employees (and when necessary, firing them) from an HR perspective, while I will cover the legal points.

Personnel issues are a fact of life for every business.  This seminar will teach you how to make sound evaluations of job candidates, hire them properly, and, when necessary, reverse the procedure.  Even if you have been in business for a while, this seminar will be a good refresher and help you to use the hiring/firing process to move your business forward while minimizing risk.

The event is free to Partnership members and is open to non-members for a small fee.  Register at this link or contact the Partnership at (908)218-4300.

Here in NJ employment lawyers probably deal with EEOC less than in other states, because, with a few exceptions, the NJ Law Against Discrimination does everything for plaintiffs that Title VII, the ADA, the ADEA, and the like do for plaintiffs, and often more.  The LAD does not require recourse to an administrative process like the federal laws.  As a result, most plaintiff lawyers skip the agency process and go straight to court. Nonetheless, sometimes it is necessary for companies to defend cases before the EEOC.  This post from the Employment & Labor Law Insider details the "notorious nine" mistakes that defense counsel make when dealing with an EEOC investigation.  It's worth the read, and employees will benefit from it, too.

The ongoing horror of disaster in Japan should impel all businesses to consider whether they are prepared to meet possible disasters in NJ.  I've spent a good part of the last couple of weeks navigating around flood-closed roads, so there's no doubt that it can happen here.  Here's a resource to get you started thinking about these issues.

NJ businesses that want to upgrade employees' technical, communications and language skills, for free, can take advantage of the Basic Skills Workforce Training Program, which is administered through community colleges.  The program for Somerset and Hunterdon counties is offered through Raritan Valley Community College.

That's it for this week!

The Yankees finished their weekend on a good note, beating the Astro's. As a result, my week is off to a good start.

Here, however, I have to confess that the time crunch last week in getting our blog and website redesigns up and running cut mightily into my time for research for "pepper" items.  Here's a quick roundup.

The "cat's paw" decision from the Supreme Court --- Staub v. Proctor Hospital --- has been the subject of extensive comment already.  The plaintiff's bar mostly thinks the decision will make proving discrimination cases much easier.  The defense bar, if I read the initial reaction correctly, is afraid that the plaintiff's bar is right.  As with most such things, however, time will tell.

For a compilation of documents important to the Staub decision, see the ScotusBlog, here.

Most plainitff lawyers usually prefer trial by jury to trial by judge.  Here's a situation in a disability case where the a judge did just fine by a plaintiff, to the tune of $583,000.

And to finish with a baseball analogy, from the 9th Circuit Court of Appeals comes an answer to the question of how many drug testing strikes a recovering drug addict gets without violating the ADA.  Answer, one strike and you're out.

Let's get the important stuff done first.  Not that it counts for much, but the Yankees' first Spring training game was played against the Phillies on Saturday.  Since this is being written on Saturday before game time, all we can do is hope for the best.

I have an irreverent streak, and this blog by Donna Ballman, a plaintiffs' employment attorney from Florida, appeals to me.

Dan Schwartz of the Connecticut Employment Law Blog reviews the --- well, the fact that nothing much has changed about a tort theory that we still see occasionally in employment law cases, the "negligent infliction of emotional distress."  Dan suggests that if you're an employer confronted with such a claim, an early motion to dismiss should be considered.  New Jersey's law is a little more favorable to employees than Connecticut's, but in general I agree with Dan.  The standard to proof that a plaintiff has to meet to sustain an intentional infliction claim is not quite impossible to meet, but is very tough, and that means that courts often can be persuaded to dismiss them early.

 Wage and hour law brings us two quick hits today --- perfect for a game of pepper.  The Wage and Hour Developments suggests considering an Offer of Judgment i certain FLSA cases.  The Offer of Judgment is an under-utilized device that sometimes help to get cases over with quickly.

The FLSA and related state laws affect all kinds of employer behavior.  And that same Wage & Hour Developments notes a common employer error: unlawfully docking employees' pay for lost or broken equipment or merchandise.  The consequences of a mistake can be severe. 

In a post that's not directly about employment law, Max Kennerly notes Justice Scalia's recent approval of the theory behind the contingency fee: opening the doors of justice to injured citizens who otherwise would not be able to afford access to the legal system.  New Jersey considers the policy of equal access to the courts so important that it allows plaintiff attorneys to apply for enhanced (read, "increased") contingency fees in particularly difficult or risky cases.  And speaking as one who represents both plaintiffs and defendants in employment cases, on balance that's a good thing.  Everyone seems to love the idea of reining in the contingency fees of those pesky trial lawyers --- at least until the day they need access to the justice system and find that they can't afford to pay for it.  Then they tend to change their tune in a hurry.

That's our game of pepper for this week.  With our reflexes sharpened, let's get to work!

Here's the full story.  In short, though, a Los Angeles community college baseball coach complained about academic fraud and misuse of public funds, including financial aid.

The college's stated reason for the firing was an "out-of-protocol check request" and unapproved building of a batting cage.

The jury didn't buy the college's reason and awarded $1.2 million.

The basketball coach is also suing the school for age discrimination.  Sounds like a great place to work.

Speaking of Presidents Day, is it "Presidents" Day, "President's" Day, or "Presidents'" Day?  The answer, apparently, is none of the above.  It's still officially "Washington's Birthday."  Washington, however, was born on February 22.  Because the Uniform Holiday Act of 1968 bestowed upon us a three day holiday weekend, the latest that Washington's Birthday can ever be celebrated is February 21.  Who knew?

A more pertinent question for our purposes is why fewer businesses seem to be closing for the holiday.  It seems to me that the Father of Our Country and co-honoree Abe Lincoln deserve our undivided attention for one day each year.

The Bankruptcy Code prohibits private employers from discriminating against employees who have filed for bankruptcy, but does not prohibit those employers from refusing to hire job applicants because they have previously filed for bankruptcy.  Here's the Third Circuit's decision in Rea v. Federated Investors.

A new clarifying rule is under to consideration to make life more settled when confronting the perpetual question of "exempt or non-exempt?" under the FLSA.  Thanks to Molly DiBianca of the Delaware Employment Law Blog.

That's it for this week.  By next Monday games will have been played!

Another sign of spring is upon us: pitchers and catchers have reported to Major League Baseball training camps, or will within the next few days.  Things will be in full swing in the Grapefruit League within the next week.

For those of us who played baseball growing up, the beginning of the season calls to mind "pepper," a wonderful little training game in which a batter gently hits balls to a group of fielders who stand a short distance away from him.  They fielders catch the ball and immediately pitch it back to the batter, who hits it again.  The game moves fast and helps to develop reflexes and hand-eye coordination.  It is, more importantly, a lot of fun.

So at least for the duration of spring training, the NJ Employment Law Blog will play its own version of pepper on Monday mornings.  We'll catch some of the interesting and important hits from the world of employment law, and hit them to you in rapid-fire fashion.

First up is Bar-Tur v. Arience Capital, a disability discrimination case in which a New York federal court threw out the plaintiff's complaint.  While there was no dispute that Bar-Tur had common variable immunodeficiency, the court found that she did not show that the condition substantially affected a major life activity.   Strike 3, unless an appellate court intervenes.  Details here.

Second is the news --- which shouldn't be news to anyone --- that office romance is both personally difficult and potentially dangerous to your employment.  It is regrettable that I must remind you of this on Valentine's Day, but that can't be helped.  The sad story from George's Employment Law Blog.

Third, some news about us.  We are coming down the home stretch on a long-delayed revamping of this blog and our firm's web site.  We can't tell you quite yet when the changes will go live, but we think that you'll like them, and we plan to keep improving things over time.  We will keep you informed about this.

So that's today's game of pepper.  Just an easy warmup for all concerned.  Check back next Monday for more, when the pitches will be a little faster and the grounders a little hotter.  Now if I can only find my mitt . . . ..

Training grants are available through the NJ Department of Labor and Workforce Development.  As an example, here's a recent press release.

Individual businesses or a business consortium led by educational institutions, non-profit organizations, trade associations, and labor unions are eligible to apply for grants on an on-going basis. The Department of Labor and Workforce Development will match interested applicants with a Business Representative who will provide assistance throughout the application process.

The Greater Raritan Workforce Investment Board [GRWIB, or just WIB, for short], "make[s] available a wide array of employment-related programs and services that facilitate the potential of all job seekers for self-sustaining employment at a level consistent with the standards of the community’s rapidly growing corporate sector."

The WIB is a public-private partnership that serves Somerset and Hunterdon counties.

The WIB also partners with the Somerset County Business Partnership.

So help is available.  If you're unsure where to start, give a call to the Business Partnership, which will be happy to get you pointed in the right direction.

See what I mean?  You have to admire the guy's courage, if not his good sense.

This is a good example of what it means to be an employee "at will."  You can be fired for any reason or no reason.

I wonder if any Giants fans met a similar fate by wearing Big Blue gear into a Jets-loving workplace after Gang Green met the same fate as the Bears in the AFC championship?

Today the US Supreme Court, through Justice Scalia, ruled on a retaliation and Title VII case, Thompson v. North American Stainless, LP.  The facts were simple.

Thompson and his fiance, Miriam Regalado, worked for NAS.  Regalado filed a charge of discrimination with the EEOC, and three weeks later NAS fired Thompson.  Thompson then sued NAS under Title VII, claiming that he was fired in retaliation for Regalado's filing of her complaint.

The trial court threw out Thompson's case, and the Sixth Circuit Court of Appeals affirmed on the theory that Title VII did not apply to Thompson since he engaged in no protected activity.  In essence, the lower courts held that a retaliation claim is not available to someone who suffers an adverse employment action because of protected activity engaged in by someone else.

The Supreme Court made short work of that argument, holding that "Title VII's antiretaliation provision must be construed to cover a broad range of employer conduct."  The Court  acknowledged that lines will have to be drawn in future cases, but that Thompson's status as Regalado's fiance was close enough to raise an inference that NAS acted against him because Regalado had complained about NAS.  The rule has limits, according to the Court.  Retaliation against a fiance triggers liability, while retaliation for action taken by a mere acquaintance of the plaintiff would not.  And there's a lot of gray area in between.  But the Court chose to remain flexible (hence the title!) and let the trial courts decide the issue on the facts of each case. 

While employers will not be happy with this decision, it is a sensible and straightforward case of statutory construction --- the Court doing what a court is supposed to do.  Employers should be able to deal with the ramifications of Thompson v. NAS with reasonable predictability if they make their personnel decisions in a similarly sensible way.

Race no longer accounts for the most claims of discrimination.  From the EEOC's January 11 press release:

Last year, for the first time ever, retaliation under all statutes (36,258) surpassed race (35,890) as the most frequently filed charge, while allegations based on religion (3,790), disability (25,165) and age (23,264) increased.

The brand new Genetic Information Nondiscrimination Act (GINA) accounted for 201 charges.

EEOC charge statistics have limited utility for New Jerseyans.  Because NJ's Law Against Discrimination (LAD) is usually more favorable to plaintiffs than similar federal statutes, most plaintiff attorneys in NJ do not bother with the federal laws.  As a result, they usually do not have their clients file with the EEOC before going to court.

Nonetheless, the EEOC stats may have some limited utility for New Jersey business people and their attorneys in identifying broad trends in workplace discrimination claims.

In light of the economy, I suppose that it should come as no surprise that benefits have decreased for the first time in 40 years.  Surprising or not, it's still a bit of a shock.  The maximum weekly unemployment benefit, for instance, has been reduced from $600 to $598. 

And since it's Monday, how about a mini-rant just to get the week off to a good start?  Why does LDW's name have to be so darned long?  Really, folks, we knew who you were and what you did when you were just the plain old Department of Labor.