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

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.

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  Some applicants have refused and withdrawn their applications.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?

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.

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.

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.

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?

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.

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.