So Labor Day has passed, summer is unofficially over, the political season is in full swing, and we all ramp back up to top working speed.

Here's a gentle reminder as you gear back up.  Read those contracts!  Even if you can't read English.  That's the ruling of the Third Circuit Court of Appeals in a decision issued on August 28,  Morales v. Sun Constructors, Inc.

The court enforced an arbitration agreement written in English despite the fact that the affected employee did not read or speak English.  Applying traditional principles of contract analysis, the court found ruled that it was the obligation of the employee to do what was necessary to ensure that he understood the document that he was asked to sign.  So here's the lesson for employees: you will be held to the terms of the agreements that you sign, unless the employer is guilty of fraud in inducing you to sign.

The converse is true for employers.  If employees do not have the language skills and ask you to translate the agreement for them, do it thoroughly or you run the risk of having a court refuse to enforce your agreement.

Steinberg Law Offices, of Somerville, New Jersey represents debtors and creditors in New Jersey bankruptcy matters.   We help businesses and creditors to protect their rights, and also aid consumer debtors in obtaining the protection of Chapters 7 and 13 of the Bankruptcy Code.

Our attorneys are highly experienced.  Mary Ann Serino has represented scores of consumer debtors.  Frank Steinberg has extensive experience in bankruptcy litigation, including adversary proceedings, and has represented a panel trustee in complex litigation in bankruptcy court.

To find out how we can help you or your business when bankruptcy enters the discussion, contact Frank Steinberg or Mary Ann Serino at (908)685-0600.

~  Carly Simon, "You're So Vain"

Coffee was a nightmare, not a dream, for Tamara Klopfenstein, a short-tenured, part-time receptionist and clerk for National Sales & Supply, LLC. 

Klopfenstein took offense at being asked to bring the bosses coffee, claiming that it wasn't in her job description and was based on an outdated gender-specific stereotype.

By the fateful day on which Klopfenstein was terminated, the court noted that "the controversy was really  brewing."  (OK, so it's an obvious joke.  You still have to love a judge who has a sense of humor and doesn't mind showing it.) 

The court found that the plaintiff could not prove either hostile environment or quid pro quo sexual harassment and entered summary judgment for defendant, which appears to have been the right decision.  The standard for sexual harassment includes the requirement that the allegedly harassing conduct be offensive to a reasonable woman.  You can read the opinion here, and an article from Law.com here, and decide for yourself, but it seems to us that Klopfenstein worked herself into a froth over some pretty innocuous behavior.

The plaintiff is considering an appeal.  We wouldn't expect a different result there.

Now the NY Times reports that the restaurant has settled with the EEOC for $2.2 million.  Ouch.

Now there's a hint of a "sensitivity" --- it's not clear whether doctors will call it an allergy --- to electrical and radio waves.  For more information, here's a link to an electro-sensitivity advocacy group.

According to KOB.com, "a group in Santa Fe says the city is discriminating against them because they say that they're allergic to the wireless Internet signal. And now they want Wi-Fi banned from public buildings."  There's no word yet from Santa Fe's attorney of a recommendation on how to handle the complaint, but a City Councilor had a point when he noted that the city is already saturated with wireless signals.

Now, perfume in the workplace is one thing, desirable to some but certainly not essential to conducting  business.  However, American business runs on electronic devices: computers, cell phones, Blackberries, and the like.  They're everywhere.  Business cannot function without them.  Might a court be persuaded to rule that electro-sensitivity is a disability?  Perhaps.  Stranger things have happened.   If so, how could a business accommodate the disabled worker?  In most modern office settings there's no practical way to avoid exposure to electrical equipment and radio waves.

Asa result, it's unlikely that circumstances will allow a court to finesse the issue as the Third Circuit did with perfume sensitivity in Kaufman v. GMAC Mortgage.  In that case the court assumed, but did not decide, that perfume sensitivity was a disability.  It ruled against the plaintiff because it found that GMAC had reasonably accommodated the disability (if it was a disability).  Because of the pervasiveness of electrical and radio waves, with electro-sensitivity an accommodation would be immensely difficult. 

Of course, there's always the possibility of a legislative solution, but Congress has not demonstrated a willingness to scale back the scope of the ADA by amending  legislation.

In short, we are not aware of any large-scale movement by electro-sensitives to push this issue in the courts, but it may be coming.  Business advocacy groups may want to start thinking about how they will react if the issue comes to the fore.

See  President Bush's remarks from yesterday's signing ceremony, and an article from Business Insurance here. 

Also, here's our prior post from last year, when the the bill had passed the House and was awaiting action by the Senate.  

We'll have more when we see the bill as signed by the President.

Sometimes a business will bring us a "draft handbook" with the request that we review it quickly, "just to make sure it's OK."  Usually these come from small start-up businesses with a handful of employees, and run to hundreds of pages in length.  A little inquiry usually leads to a predictable conclusion.  In an attempt to save on legal fees, the prospective client has managed to get hold of a copy of an old handbook from a large company.  And if it's good enough for General Electric, or Verizon, or Johnson & Johnson, by golly it's good enough for my little start-up.  Right?

Well, invariably not.  And we have to tell them that we're sorry about the time they've invested in cobbling together their homemade handbook, but it's really not right for them.

Against this background, I ran across this post from the Business Litigation Blog published by Rogers & Tartaro.  It tells of the decision by Sam Zell (a billionaire) to create a "plain language" employee handbook for the LA Times newspaper.  The handbook apparently utilized humor and contained "mistakes." 

The point of the post is that the Sam Zell's of the world, where the employer's resources are almost unlimited, can make a business decision to take some liberties with the content of a handbook, without risking a catastrophic loss.  Smaller businesses generally cannot take the same approach without risking a legal catastrophe. 

Read the post.  It's well-written, sensible, and on the money.

The moral of the story: if you're going to sign something, have it reviewed first by your friendly neighborhood lawyer or be prepared to live with the consequences.

There is an obvious business reason for employers to want to classify as workers as contractors: it's cheaper and allows them to control their costs.   But it's not a low-risk strategy, as employers invite the scrutiny not only of the affected workers, but also of the IRS.

Here's a story from Lawyers USA involving such a claim against Federal Express.  We won't take your time with the facts.  They're well-explained in the story.  The important thing is that this kind of story is increasingly common, reminding employers --- all employers, large and small --- that they need to make their classification decisions carefully.  Failure to do so invites trouble. 

According to the story:

The workers said they were assigned to less profitable territories than white co-workers or were assigned to territories based on their race. They also contend they were passed over for more lucrative territories, promotions, and were denied commissions they had earned.

One plaintiff was assigned a territory in the Bronx, New York.  The position required a car.  The employee objected to the assignment on the basis of undue hardship since he did not have a car.  His manager allegedly told him he received the assignment because "blacks and the Bronx go hand in hand."

Assuming for the sake of argument that Xerox's reason for the assignment was as stated, and further assuming that assigning sales representatives to territories on the basis of perceived compatibility with the prospective customer base is a legitimate basis for a business decision, this case illustrates the danger to employers from  making decisions on the basis of the group identity of protected classes of employees.

We note that Xerox denied wrongdoing, and said that it settled the case to relieve itself of the burden of the continuation of a lengthy and expensive litigation.

Here's an LA Times article with more detail, the Supreme Court's order denying certiorari, and the EEOC rule.  

Commenting on the increase in claims, EEOC Chair Naomi Earp warned that “[c]orporate America needs to do a better job of proactively preventing discrimination and addressing complaints promptly and effectively.”

The highest percentage increases were seen in retaliation (up 18%), age (15%), and disability (14%).

Race remains the most frequent source of complaints, but retaliation has moved into second place for the first time ever.  They are followed closely by sex, age, and disability, in that order.  Far fewer complaints charge national origin or religious discrimination.

Based upon the cases that we see in our practice in New Jersey, the most prevalent claims of discrimination involve retaliation, age, and disability.  Claims of race discrimination are relatively rare.  That, admittedly, is anecdotal evidence and may not reflect what other employment lawyers are seeing in their practices.  Does anyone else care to weigh in on this?

It remains to be seen whether the increase in filings presages a more aggressive enforcement approach by the EEOC. 

Just plug in the company whose executives you want to search, the program searches the company's filings, and in seconds you'll have the financial details of the compensation packages of the principal officers.

Or maybe you been offered the presidency of a smaller publicly traded company, but you don't know whether you've been offered a fair financial deal.  Go the to Finder, plug in your company's market capitalization or revenue (or both), and the program finds the compensation packages for all publicly traded companies that meet your search criteria.

It's interesting and it's helpful.  Try it.  (And once you do, you'll think a little harder about how you can get one of those jobs ...........)

That's the question recently considered by the Supreme Court of Ohio in Al Minor & Associates, Inc. v. Martin.  The case was considered under both the Uniform Trade Secrets Act and another Ohio statute.  The short answer is that memorized information can be the basis of a claim that a trade secret has been violated.

It's worth noting that New Jersey is among a small minority of states that has not adopted the Uniform Trade Secrets Act.  New Jersey relies upon common law trade secret protection.  So what's a trade secret in NJ?  It's something that is (a) secret, (b) valuable, and (c) confers a competitive advantage in the marketplace.  There's nothing in NJ's definition of a trade secret that would exempt memorized information from trade secret protection.  One federal district judge recently assumed (without deciding the issue) that this would be the case.

It's also worth remembering that in NJ, customer lists of service businesses generally are protectable as trade secrets.  Customer lists of manufacturing and retail business, on the other hand, generally are not.  As with much of unfair competition law, however, the applicability of particular legal concepts is highly fact sensitive, and the wise business person will not rely upon broad "rules" for guidance in a specific situation.