The recent turmoil, investigation and controversy surrounding President Donald Trump’s firing of former FBI Director James Comey has thrust the issue of wiretapping into the public and political spotlight. “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!,” President Trump tweeted on May 12, 2017, suggesting that “tapes” of his private conversations with Director Comey might exist. Most recently, the White House, responding to bipartisan criticism, has been pressed to divulge whether there really are any secret recordings of the president’s private conversations with the former FBI Director. Time will tell whether the Trump Administration comes clean and whether any recordings actually do exist (and, if so, what the implications might be).

All of this commotion prompted me to think about wiretapping in the workplace and, specifically, the issue of audio recordings or, as President Trump has expressed, “tapes” of conversations secretly recorded by an employer of its employees. What types of audio or tape recordings are legally permitted in the employment environment?

Continue Reading Wiretapping in the Workplace

To say that Facebook and social media have complicated the relationship between employer and employee and, specifically, what an employee can say or do with respect to his/her work, is an understatement. Social media has added a new dimension to analyzing the intersection between employee speech and protected activity under the National Labor Relations Act (the “NLRA”), and the level of protected activity has reached a new low.

A new line has been drawn in the sand, and the “outer-bounds of protected, union-related” activity has been reestablished by the United States Court of Appeals for the Second Circuit. In National Labor Relations Board v. Pier Sixty, LLC,  the Second Circuit was tasked with the challenge of determining to what extent the NLRA protects an employee’s comments on social media and the point at which an employee’s conduct is so “opprobrious” (i.e. abusive, pejorative, obscene, libelous) as to lose the NLRA’s protection.

In laymen’s terms, the question is: How badly can an employee behave and still keep his job if the employee’s behavior is at least loosely tethered to union-related activity? The answer, as explained below, is very badly.

Continue Reading Say What? The Second Circuit Establishes a New “Outer-Bounds” Limit to Protected Employee Speech

When was the last time you clicked a box indicating your agreement to terms of service without actually reading, let alone understanding, the terms and conditions of service? The use of “clickwrap” whereby users of web-based applications memorialize their acceptance of legal agreements by clicking something, like a check box, is commonplace in the digital world. In the employment arena, however, the use of such web-based platforms and click-to-accept legal agreements is relatively new. Still, courts have not hesitated to apply traditional principles of contract law to these agreements and enforce them against unsuspecting and often oblivious employees, so long as the clickwrap agreements are conspicuously displayed on the web-based platform and reasonably communicate the employer’s terms to its employees.

Continue Reading Read Before You Click: The Enforcement of Web-Based Restrictive Covenants and Arbitration Agreements Against Employees

Despite increased efforts to curb it, sexual harassment in the workplace hasn’t gone away. In fact, news reports of allegations of sexual harassment and lewd behavior lodged against media mogul Bill O’Reilly at Fox News and, separately, against transportation network company Uber, have shined a spotlight on the pervasiveness of sexual harassment in the workplace. As to O’Reilly, several complaints were raised and settled over several years by Fox News before the company asked O’Reilly to leave the network. With respect to Uber, the company allegedly swept “under the rug” several separate claims of sexual harassment made against a particular manager because the manager was a “high performer.” The sad truisms revealed by both the Uber and O’Reilly matters, clearly, are that money talks and rules can be bent (if not broken) for star performers. But there is a silver lining, as important lessons about the correction and prevention of sexual harassment in the workplace can be learned from these two publicly aired situations involving sex discrimination in the workplace.

Continue Reading Successful Strategies for Preventing and Defending Claims of Sexual Harassment in the Workplace

“We must consider what this country has become in deciding what [a statute] has reserved.” So wrote Judge Richard Posner, Circuit Judge of the 7th Circuit Court of Appeals, quoting Supreme Court Justice Oliver Wendell Holmes in Missouri v. Holland, 252 U.S. 416, 433-34 (1920), in his concurring opinion of the 7th Circuit’s landmark ruling that a person who alleges employment discrimination on the basis of sexual orientation has put forth a case of sex discrimination under Title VII. That’s right. It finally happened.

On April 4, 2017, in the matter of Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017), the 7th Circuit Court of Appeals, sitting en banc, held that Title VII of the Civil Rights Act of 1964, which protects employees from discrimination on the basis of their sex, extends the same protections to employees on the basis of their sexual orientation. The courthouse doors, once closed to homosexual or bisexual employees seeking relief from discrimination under Title VII, have opened. Some might call it judicial activism. Others might call it common sense. Either way, the Title VII landscape has shifted.

Continue Reading Sex Discrimination Includes Sexual Orientation Says the 7th Circuit

An individual who is out of work in New Jersey may qualify for unemployment insurance benefits through the state government. The State of New Jersey Department of Labor and Workforce Development Unemployment Compensation Office is responsible for processing benefit requests and determining whether a former employee is eligible to receive benefits.

Continue Reading Out-of-Work Employees Can Seek Unemployment Compensation Benefits in New Jersey

Several months ago, I blogged about the Rodriguez v. Raymours Furniture Co., 436 N.J. Super. 305 (Super. Ct. 2014)case. The case addressed an important issue – whether or not an employee’s could enter an agreement to shorten the statute of limitations period from 2 years to six months to assert an employment discrimination claim pursuant to New Jersey’s Law Against Discrimination (LAD). Yesterday, the New Jersey Supreme Court held that the statute of limitations period could not be reduced by agreement. Continue Reading NJ Supreme Court Says Employees Can’t Agree to Shorten Statute of Limitations

Last week, former University of Southern California Head Football Coach Steve Sarkisian filed a 31-page lawsuit in Los Angeles Superior Court against his former employer. The lawsuit alleges that Coach Sarkisian’s employment was unlawfully terminated. Furthermore, Coach Sakisian alleges that USC discriminated against him by not making a reasonable accommodation to address his disability – alcoholism. The former USC coach is seeking damages in excess of $30,000,000, plus the reinstatement of his employment.

Coach Sarkisian’s employment with USC was terminated on October 12, 2015, after taking an indefinite leave of absence. Coach Sarkisian took this leave of absence in order to seek treatment for alcoholism.

Alcoholism is a recognized disability under both California’s Fair Employment and Housing Act (FEHH) and the federal American’s with Disabilities Act (ADA). The law prohibits employers from discriminating against employees with disabilities that limit a major life activity. Employers are required to make “reasonable” accommodations in order to help the disabled employee overcome their recognized disability. Often Courts find that an accommodation is unreasonable if it substantially disrupts the employer’s business practice or requires an alteration to any essential job responsibilities.

Continue Reading Analyzing Coach Steve Sarkisian’s Employment Discrimination Lawsuit Against USC

Recently, the New Jersey Supreme Court decided an important case that further protects employers from disloyal or “faithless” employees. The central issue in Kaye v. Roseflelde is whether “a Court may order the equitable remedy of disgorgement of an employee’s compensation when the employee has breached their duty of loyalty to the employer, but the employer had not sustained any economic loss.” The Kaye decision is an extension of Cameco Inc. v. Gedicke, 157 N.J. 504(1999), which allowed Courts to disgorge (or give back) compensation earned if the employee caused their employer to suffer damages.

The facts of Kaye are fairly simple and straightforward. Kaye hired his former attorney, Mr. Roseflelde, to work directly for his timeshare companies. During the course of a twenty-plus day trial, Kaye was able to demonstrate that Mr. Roseflelde committed many serious acts of misconduct during working hours when he acted on his own behalf instead of his employer’s best interests.

Continue Reading New Jersey Supreme Court Holds That Trial Courts May Order the Disgorgement of “Faithless Employee’s” Compensation

Several months ago, I published a blog which discussed an important case that could affect employment discrimination litigation in New Jersey.

In summary, the New Jersey Appellate Court, in the case Rodriquez v. Raymours Furniture Company, Inc., 93 A.3d 760 (App. Div. 2014), permitted an employee to reduce the statute of limitations period for an alleged violation of New Jersey’s Law Against Discrimination from 2 years to 6 months. In that case, the Appellate Court held that the reduced statute of limitations period was set forth in conspicuous, highlighted language in the employment application.

On December 1, 2015, the New Jersey Supreme Court entertained oral argument regarding the important issue of whether or not New Jersey employers may use contractual language in order to significantly reduce the statute of limitations period. Clearly, the enforcement of a shortened statute of limitations period would eliminate some litigation. The central question for the Court is whether or not parties via contract could reduce the legislature’s enactment of a 2 year statute of limitations.

The ultimate decision of the New Jersey Supreme Court will certainly affect employment discrimination litigation in New Jersey. Moreover, if the Court upholds the reduced statute of limitations, it could possibly affect other statutes of limitations. For example, there is a 4 year statute of limitations for a goods contract and 6 year statute of limitations for a non-goods contract in New Jersey. Assuming the decision is affirmed, could parties agree to reduce the time period for which breach of contract claims could be filed?

I will continue to monitor this case and will provide updates as developments are made. Stay tuned, and continue to check out the New Jersey Law Blog for other important legal issues that may affect you, your business, and your family.