New Jersey Employment Law Blog - Current Information on Employment Law and Business/Civil Litigation

On April 7, 2011 I will be speaking at a seminar entitled "How to Hire and Fire Without Getting Burned."  The seminar is sponsored by the Somerset County Business Partnership and will run from 8 - 9:30 a.m. in the Partnership's main conference room.

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.

They say that no good deed goes unpunished, and so it seems in this case.

A Wal-Mart guard saw a man in the act of stealing golf balls.  He chased the suspect, who pulled a knife and was later arrested, across the parking lot.  In doing so, the guard violated Wal-Mart's policy against chases.   He was fired the next day.

What do you think about this?   Should Wal-Mart have treated the guard so harshly?

I'll leave the answer to the moral part of the question to you.  The answer to the legal part of the question is that Wal-Mart was clearly within its rights to set a policy on how shoplifting incidents were to be handled and to decide that the guard's violation of that policy warranted termination.

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.

Our August 17, 2006 post discussed the decision of the Ninth Circuit Court of Appeals in United States v. Ziegler.  The case concerns the criminal prosecution of a private company's employee for child pornography using an office computer owned by the employer.  On January 30, 2007 the original panel withdrew its earlier opinion and filed a superseding opinion.  The result stayed the same, but the court explained its reasoning differently.  Here's the link to the new opinion.

The issue as framed by the court:

We must determine whether an employee has an expectation of privacy in his workplace computer sufficient to suppress images of child pornography sought to be admitted into evidence in a criminal prosecution. If there is such an expectation, we must determine whether the search in this case was reasonable under the narrow exceptions to the Fourth Amendment warrant requirement.

The basic facts were rather simple.  When the employer became concerned that Ziegler was using company computers to access child pornography, it notified the FBI.  The FBI agent who investigated enlisted the employer to search Ziegler's computer, but did not obtain a search warrant.   Ziegler had a private office which was kept locked.

The court found that a "search" had occurred.  It focused on whether the search was reasonable in the circumstances.  The court found that even though Ziegler had a subjective expectation of privacy in his physical office, the employer could consent to a search of premises that it owned.  The court found another reason:

"We are also convinced that Frontline could give valid consent to a search of the contents of the hard drive of Ziegler's workplace computer because the computer is the type of workplace property that remains within the control of the employer even if the employee has placed personal items in [it]."

The court summarized its holding this way:

In this context, Ziegler could not reasonably have expected that the computer was his personal property, free from any type of control by his employer. The contents of his hard drive . . . were work-related items that contained business information and which were provided to, or created by, the employee in the context of the business relationship.  Ziegler's downloading of personal items to the computer did not destroy the employer's common authority. Thus, Frontline, as the employer, could consent to a search of the office and the computer that it provided to Ziegler for his work.

Accordingly, the court affirmed the trial court's denial of Ziegler's motion to suppress the results of the search.

While most employers hopefully will not have to contend with this kind of problem, the best protection is to have a well thought out policy on employee internet use.  On that issue, we close with our usual caution.  In New Jersey, policies and employee manuals are not a do-it-yourself activity.  Mistakes are easy to make and the legal risks are simply too great.  If you need a handbook, or have one that needs to be updated, get help from an experienced employment attorney.