In Georgia, a lawsuit is pending against a school district for giving a positive reference to a teacher who had been convicted of a sex crime and went on to teach in a district where he was later charged with raping a student.  In New Jersey a man is suing Best Buy Company, Inc. alleging that a human resources manager wrote a defamatory email about him to a prospective employer, thus costing him the job. 

Many employers believe that the potential liability in the employment arena ends when an employee terminates his or her employment with the company.  This clearly is not the case.  In fact, if an employee does not get a job, that employee will often times draw the conclusion that a negative reference was given by the former employer. 

As a result, many companies have adopted policies that specifically state to new hires that they will not give them any kind of reference when they leave.  Some employers will only give dates of employment, nothing else.  However, limiting reference information can also lead to trouble. Several lawsuits are currently pending against employers who said nothing when asked for an employee reference.  This creates a problem in that many employees do have issues that should be disclosed to the prospective employer.  For instance, does this employee have dangerous propensities?  Has this employee been charged with employment-related discrimination issues?  How this employee been dishonest?  If an employer hides behind a neutral-reference policy, that policy may reward the bad employee, and open the former employer up to liability.

Although many states have qualified immunity laws that allow employers to speak about employees’ job performance, the condition is that the statements must be made without malice.  Many plaintiffs will argue that there was malice, which will allow the employee to potentially move forward through the Court system.  Although there is no perfect answer for the employer, the typical rule of thumb is only to give “name, rank and serial number.”  By limiting the information given to dates of hire, salary and position, an objective reference is given, which should protect the employer as much as reasonably possible.  Although this may not completely protect the former employer from a potential lawsuit, it probably is the best and most protective policy to utilize.

After the trial court entered summary judgment, the Defendant moved for counsel fees and costs, relying on the Frivolous Lawsuit Statute and on the Law Against Discrimination.  The Law Against Discrimination provides that reasonable attorney fees may be awarded to the prevailing party where there is a determination that the complainant brought the charge in “bad faith”.

The Appellate Division held in Michael that the determination of the term “bad faith” must be viewed within the context of the particular matter being considered.  The Appellate Division equated “bad faith” with a reckless disregard or purposeful obliviousness of the known facts.
   

The Michael Appellate Court remanded the matter back to the trial court to determine if the complaint was filed in “bad faith” and if it was, what constituted a reasonable award of counsel fees taking into account the Plaintiff’s ability to pay and the extent to which the Plaintiff relied on the advice of counsel.
   

Conclusion
 

This case is instructive as reasonable counsel fees and costs may be awarded  to a successful Defendant who prevails in an action under the New Jersey Law Against Discrimination if it is found that Plaintiff’s complaint was brought in “bad faith” and that Plaintiff had the economic circumstances to pay an attorney fee award.  This decision permits a trial judge to consider the award of counsel fees to a prevailing Defendant if it is determined that the discrimination lawsuit was brought in “bad faith”.  Although the “bad faith” standard will be difficult for a Defendant to prove, it will give pause to the Plaintiff who files a frivolous lawsuit.

The facts of the case are as follows:  In 1997, Merritt Lane and David Middleton formed an accounting firm known as Lane, Middleton & Company, LLC.  In connection with his employment, Lane signed a restrictive covenant barring him from soliciting clients of the Company for a period of four years should he depart from the Company.  In 2001, Lane started his own accounting practice.  Lane sent solicitation packages to clients for whom he had previously performed services, including clients of Lane, Middleton & Company.  Numerous clients left to join Lane in his new accounting practice. 

During trial, several clients testified that they had a relationship with Lane and they were dissatisfied with the Company, and they would not have remained clients of the Company following Mr. Lane’s departure regardless of any solicitation.

The Trial Court found that Lane breached the non-solicitation agreement and calculated losses to the Plaintiff for loss of business following the first year after the departure of Lane.  The Trial Court then multiplied the first year’s losses by three to account for the remaining three years on the four-year restrictive covenant.  The majority of the Appellate Division affirmed the Trial Court’s Decision.

The New Jersey Supreme Court considered the appeal and reversed the judgment on the amount awarded.  The Supreme Court agreed that the Plaintiff’s loss of compliance work for the first year following Lane’s breach was a reasonable consequence of his action.  According to the Court, his breach of the agreement precipitated the clients’ departure. 

However, the Supreme Court disagreed with the Trial Court’s quantification attributable to the breach and reasoned that the damages must also reflect that Lane’s clients would have eventually left the Plaintiff.  The New Jersey Supreme Court found that the evidence did not support the Trial Court’s Decision to triple the damages to account for the three remaining years left on the restrictive covenant.

Conclusion.

If there is a breach of a non-solicitation covenant for a term in excess of one year, the Court will scrutinize the potential damages and may limit damages to a reasonable time period immediately following the employee’s departure. 

The case involved Edward Whelan, an employee of Teledyne Metalworking Products, who informed his employer that he had a degenerative eye disease.  As an accommodation for the eye disease, Mr. Whelan requested and received a transfer to an outside sales job.  Later, his vision worsened and he was no longer able to work in outside sales.  Therefore, Mr. Whelan notified the company that he was only able to work as a marketing coordinator out of his home.

Several years later, Teledyne consolidated its operations in Alabama.  Teledyne advised Mr. Whelan that he was required to transfer to Alabama and requested information about the accommodation Mr. Whelan would need to perform his essential job functions.  Mr. Whelan proposed only one accommodation–that Teledyne permit him to work out of his house in Pittsburgh.  Teledyne could not agree to have Mr. Whelan work out of his house in Pittsburgh and fired Mr. Whelan for not transferring to Alabama.

Mr. Whelan filed a lawsuit against Teledyne claiming it had violated the ADA by failing to provide him with a reasonable accommodation.  The 3rd Circuit supported and affirmed the jury’s finding that Teledyne had accommodated Mr. Whelan and would continue to accommodate him if he transferred to Alabama.  However, Mr. Whelan’s singular accommodation request to continue working from his home in Pittsburgh was unreasonable.  The 3rd Circuit further admonished Mr. Whelan as he requested a single, unreasonable accommodation and failed to provide appropriate information needed to devise an appropriate accommodation.

When an employee requests an accommodation, the employer must engage in the interactive process to determine what type of reasonable accommodation can be made for that employee.  However, an employer may not be required to provide the employee’s first choice of accommodation if that request is deemed to be unreasonable.  The employer must engage in good faith discussions and attempt to understand and work out whatever type of limitation or accommodation could be made for the employee.  However, the employee cannot hold the employer hostage with unreasonable requests.

The Burlington Northern Court is disconcerting to employers as it appears to further expand the law of retaliation available to an employee.  Exactly what kind of employer actions would be unrelated to an employee’s employment, but are nevertheless actionable under discrimination laws, is unclear.  However, it appears that the Court intended to broaden the scope of a potential retaliation case thereby giving the employee additional ammunition in an action against the employer.

Employers need to understand that the new scope of retaliation available to an employee has been broadened.  Managers and human resource professionals must be aware that the expanded Court view of retaliation may hold an employer liable for actions that in the past would not have been actionable.

The EEO-1 Report must be filed by employers with:
    1. federal government contracts in excess of $50,000 and 50 or more employees, and,
    2. by employers who do not have a federal government contract but have 100 or more employees.

The EEO-1 Report is filed annually. The EEOC uses the data contained on the EEo-1 to support civil rights enforcement as a tool to collect from private employer's annual workforce data. The EEOC also uses the data to analyze employment patterns, such as the representation of female and minority workers within companies and industries, and to review the sex, ethnicity and race of the employees.

Recently, the EEOC filed a federal lawsuit against 84 Lumber. The EEOC is attempting to compel 84 Lumber to complete EEO-1 Reports. Apparently, since 2005, 84 Lumber has not turned in its annual EEO-1 Report. Qualifying companies should beware of the EEOC monitoring of the EEO-1 for enforcement purposes and the ramifications if the EEOC believes that the company is hiring or firing employees in a discriminatory manner.

An employer who has discriminated against an employee because of his or her miliary service may be in violation of the Uniform Services Employment and Re-employment Rights Act of 1994 (USERRA).  Under the USERRA, an employee who is absent from work because of his or her activation for military service is entitled to reinstatement to his or her position upon return from military service if the employee is qualified.  

A qualified employee has:

1.    Provided oral or written notice of military activation to his or her employer;
2.    Has five years or less of cumulative military service with that particular employer;
3.    Has returned to work or applied for re-employment in a timely manner after conclusion of service;
4.    Has not left the military service with a disqualifying discharge.  

In a recent case decided in 2007 from the United States First Circuit Court of Appeals, entitled Velazques-Garcia v. Horizon Lines, the First Circuit held that an employee only needs to show that his or her military service was a substantial or motivating factor in an employer’s decision to impose an adverse employment action.  The burden will then shift to the employer to prove that it would have taken the adverse employment action regardless of the employee’s military service.

Employers need to ensure that employees who perform military service are treated in the same manner as other employees.  If a termination of employment does occur with an employee who served in the military, the employer must be certain that it can demonstrate a non-discriminatory reason for any adverse employment action taken against that employee.

Further, employers should make efforts to avoid subjecting returning military employees to criticism or harassment that has the potential to create a hostile workplace environment even if the criticism or harassment comes from non-supervisory personnel.

In a recent case argued before the United States Supreme Court, Burlington Northern Santa Fe Railway v. White, the issue of what constitutes a material adverse employment change was debated.

Justice Antonin Scalia was concerned that a jury may be able to award an employee damages for "every little thing" instead of the requirement of a material adverse change. Justice Scalia continued that an angry supervisor who stops saying "good morning" or taking to lunch an employee who alleged discrimination may give rise to an adverse employment change, thus subjecting the employer to liability.

In the Burlington Northern case, the railroad is seeking the United States Supreme Court to overturn a decision by the 6th Circuit Court of Appeals which found that suspending an employee for 37 days without pay and transferring her to a more physically demanding job was a material adverse change in her employment.

Businesses warn that the Court should not create a super protected class of employees who cannot be disciplined or transferred once they file a discrimination complaint. The employee alleges that any change in her employment duties, compensation, title or tasks would give rise to a material adverse employment change, thus holding the Company liable under retaliation-based claims.

The Burlington Northern decision is expected to be published in late 2006. With the recent conservatism of the Court, it is likely that the decision will permit an employer to escape liability and discipline an employee as long as the employer is exercising good faith and has a legitimate business purpose in the discipline.

Technorati Tags: New Jersey : Employment : Retaliation

On May 26, 2005 the Superior Court of New Jersey, Appellate Division in Julius Beasley v. Passiac County reviewed New Jersey's Conscientious Employee Protection Act (CEPA) and in particular what types of employee grievances fall under the protections of CEPA. The Court's decision illustrates that although CEPA protects employees who object to illegal behavior, it is not an absolute bar to termination or other negative employment actions against the employee.

The Court noted that there are no "magic words" which must be communicated by an employee for him or her to fall under the protections of CEPA. Rather, the employee's objection must only demonstrate the employee had a reasonable belief of illegal activity and that he or she was objecting to such activity. This "reasonable" standard is consistent with the remedial nature of the Act; the object of which is "not to make lawyers out of conscientious employees but rather to prevent retaliation against those who object to employer conduct that they reasonably believe to be unlawful." As such, an employee need not point to a specific law, rule, regulation or other mandate of public policy when voicing his complaint.

Although the Court's opinion focused on protections afforded to objecting employees by CEPA, the decision also emphasized that a CEPA complaint does not grant an employee a shield from all termination or other negative employment action. CEPA's protections are designed to protect an objecting employee from "discrimination" or "retaliation" for voicing his or her objection, but does not protect against employer actions that merely "result in a bruised ego or injured pride on the part of the employee."

In light of Beasley, employers should be mindful that employees making CEPA complaints are afforded a degree of protection from discharge, suspension, demotion or other "adverse employment action" effecting the terms and conditions of their employment. However, the Act does not insulate the employee from all such employment actions - only those which are the result of the employee's complaint. Employers who wish to learn more about CEPA, and its impact on their employees and their workplace are invited to contact Thomas B. Lewis.

Pennsylvania employers must be represented by an attorney at Unemployment Compensation hearings. On February 3, 2005, the Pennsylvania Commonwealth Court in Harkness v. Unemployment Compensation Board of Review, held that employers cannot have non-lawyers representing them at Unemployment Compensation proceedings. See 2005Pa. Commw. LEXIS 48 (Feb. 3, 2005). At the hearing, the employer was represented by a third-party company that provides "representation" to employers at Unemployment Compensation hearings.

This representative was a tax consultant rather than an attorney. At the hearing, the representative cross-examined the former employee, offered exhibits into evidence and gave a closing statement. The Commonwealth Court, however, found that this tax consultant improperly engaged in the practice of law. The Court rejected the argument that since an individual claimant may be represented by a non-attorney pursuant to the Pennsylvania Code, the employer should be afforded those same privileges.

The Pennsylvania Department of Labor and Industry announced that it was appealing the Harkness decision to the Pennsylvania Supreme Court.

In the meantime, employers cannot use non-lawyers to represent them in unemployment compensation hearings. As a result, employers must change its practices relating to such hearings and determine whether it makes financial sense to dispute unemployment claims.

Stark & Stark attorneys can advise and represent your Company regarding Pennsylvania unemployment issues. If you would like to obtain more information on this recent ruling, please contact Thomas Lewis, Chair of the Firm's Employment Group.

On February 1, 2005, the Appellate Division in Weisfeld v. Medical Society of New Jersey, et al. upheld the dismissal of an employee's Conscientious Employee Protection Act (CEPA) claims against his employer, the Medical Society of New Jersey (MSNJ). After eleven years of employment, Plaintiff alleged that his firing was retaliatory for his disclosure of an alleged conflict of interest of individual members who sat on the board of two organizations, including his employer.

In the 1970's, MSNJ formed MIIX Group, Inc. (MIIX), a private insurance exchange owned by its member physicians for the purpose of providing affordable medical malpractice insurance to qualified physicians. When MIIX elected to go public in 1999, MSNJ received a substantial stock interest in the company in exchange for the sale of its underwriting entity.

Plaintiff complained to his supervisor about the "pervasive" MIIX influence at MSNJ and his "reasonable belief" that actions taken by those with dual service on the boards conflicted with the interest of MSNJ and its "fiduciary obligation" to its physician members.

On April 1, 2002, Plaintiff drafted a memo seeking to prohibit dual board members to participate in any discussions or recommendations regarding the sale of MIIX stock. On April 10, 2002, the MSNJ Board of Trustees terminated his employment.

The Appellate Division upheld the trial court's dismissal of his CEPA claim since Plaintiff presented no law, rule or code of conduct that precludes dual membership of the boards. Furthermore, the Appellate Division noted that New Jersey statutes especially endorse dual board memberships. The Appellate Division concluded that the alleged violation "must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee."

New Jersey's Office of Administrative Courts has indicated that "whistle blower" suits have more than doubled since 2001. Despite the fact that the employer was successful in dismissing these claims, it still had to litigate this suit through appeal. New Jersey's employers must be vigilant in developing policies that satisfy CEPA statutory requirements.

These protected categories are: race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses. The LAD prohibits intentional discrimination based on any of these characteristics.

The LAD also prohibits harassment based on protected characteristics such as race, sex or nationality. Under the LAD, sexual harassment includes unwelcome sexual advances, requests for sexual relations or other verbal or physical conduct of a sexual nature. There are generally two types of sexual harassment. Quid pro quo harassment occurs when an employer attempts to make submission to sexual demands a condition of employment.

Hostile work environment sexual harassment occurs when an employee is subjected to sexual, abusive, or offensive conduct because of his or her gender. This conduct creates an unlawful work environment when it is severe or pervasive enough to make a reasonable person of the employee's gender believe that the conditions of employment have been altered and the working environment has become hostile or abusive. This analysis may also be applied to hostile work environments created because of an employee's race, nationality, creed, disability, or other characteristics enumerated by the LAD.

Stark & Stark attorneys can help your Company to develop employment policies that meets the statutory requirements pursuant to LAD.

On February 7, 2005, the Appellate Division in Comprehensive Psychology System, P.C. v. Prince upheld the trial court's refusal to enforce a restrictive covenant in an employment contract for professional services by a licensed psychologist. In the lower court, the trial judge refused to restrain Dr. Prince from contacting any patients or contacting referral sources because he deemed the enforceability of these restrictions barred by NJAC 13:42-10.16, a provision of the rules adopted by the Board of Psychological Examiners. The provision reads as follows:

A licensee shall not participate in offering or making a partnership or employment agreement that restricts the right of a licensed health care professional to practice the licensed profession after termination of the relationship, except an agreement concerning the benefits upon retirement.

On appeal, the employer contended that the regulation was amended on April 5, 2004 and this amendment allowed non-competition agreements:

The licensee shall not enter into any business agreement that interferes with or restricts the ability of a client to see or continue to see his or her therapist of choice.

The Appellate Division failed to apply the holding in Karlin v. Weinberg, 77 N.J. 408 (1978), which held that restrictive covenants ancillary to employment contracts between physicians are enforceable to the extent that they protect the legitimate interest of the employer, impose no undue hardship on the employee, and are not injurious to the public. Finding that the regulation was similar into that restrictive covenants between attorneys are per se unreasonable and unenforceable as injurious to the public interest, the Appellate Division ruled that the boards new language for the regulations did not allow the enforceability of a restrictive covenant against a psychologist.

Finally, the Appellate Division noted that a psychologist who changes his office locations, voluntarily or involuntarily, has a duty to inform patients of the change and the new location and phone number. If not, the court noted that this may be akin to patient abandonment.

New Jersey's employers must be careful in drafting restrictive covenants in employment agreements to ensure their enforceability in court.

On February 3, 2005, the Third Circuit in Gary v. The Air Group, Inc. reversed the District Court's dismissal of an employee's "whistle blowing" claims pursuant to New Jersey's Conscientious Employee Protection Act (CEPA). The District Court held that the employee's state law whistle blower claim was preempted by the federal Airline Deregulation Act (ADA) as amended by the Whistleblower Protection Program (WPP).

In this case, the employee was employed from March 15, 2001 through August 30, 2001 as a co-pilot. In July 2001, the employer hired a new pilot- in-command for the group. The plaintiff spent approximately four days assisting the pilot-in-command with preparations for a Federal Aviation Administration (FAA) required "route check." During this period, the plaintiff believed that the pilot-in-command was unqualified to pilot an aircraft because he: (1) did not have the requisite jet time mandated by the FAA; (2) was unfamiliar with FAA mandated basic flight procedures; (3) did not properly proceed with the FAA mandated "pre-flight check list" safety measure; (4) was unfamiliar with the air space into which he was planning to fly; and (5) was unfamiliar with how to obtain departure clearance at certain airports.

Based upon these observations, the plaintiff "reasonably believed" that if the employer permitted the pilot- in-command to fly, he would be endangering himself, the passengers, crew, the public and the aircraft. The plaintiff also believed that the pilot-in-command violated certain FAA regulations.

On August 30, 2001, the plaintiff called his supervisor to stress his concerns. Hours later, the employer terminated plaintiff's employment. The plaintiff alleges that the termination of his employment was in retaliation for the report of the pilot- in-command's lack of qualifications as well as potential FAA violations.

On April 29, 2002, the plaintiff filed a Complaint in the Superior Court of New Jersey alleging that his termination was in violation of CEPA. On May 29, 2002, the employer removed the case to the District of New Jersey and subsequently moved to dismiss plaintiff's Complaint on the grounds that his CEPA claim was preempted by federal law. The District Court granted the employer's motion to dismiss on August 8, 2002.

The Third Circuit analyzed the issue as to whether the ADA, as amended by the WPP, preempted the employer's CEPA claim. The Third Circuit reversed the dismissal of his CEPA claims and held that it was not preempted by the ADA. In support of its conclusion, the Third Circuit reasoned that language of the WPP was silent on the issue of preemption.

CEPA is one of the most powerful whistleblower statutes in the country. It is understandable that the employer would want to attempt to dismiss the CEPA claim in favor of litigating this action pursuant to the ADA, which is probably a less-settled cause of action against an employer. This decision highlights the importance of an employer to enact proper policies to handle whistleblower- type complaints by employees. Stark & Stark attorneys can help you to develop policies and provide training that satisfy CEPA statutory requirements.

More information regarding recent CEPA legislation and court decisions can be found here, here, here, and here.

In an unreported decision on December 16, 2004, the Appellate Division in Hancock, et al. v. Borough of Oaklyn, et al., A-2021-03T3, dismissed an employer's application for counsel fees after successfully dismissing an employees' Conscientious Employee Protection Act ("CEPA") suit even though the lower court determined that the litigation "was without basis and law or in fact." The CEPA statute allows for the successful litigant to make an application for counsel fees. Typically, this provision is relied upon by successful plaintiffs.

The Appellate Division, however, noted that a party's failure to prevail in a lawsuit does not render the suit one in which there is no basis in law or in fact. The Appellate Division cited earlier authority which defined frivolous as "a claim will be deemed frivolous or groundless when no rational argument can be advanced in its support, when it is not supported by any credible evidence, when a reasonable person could not have expected its success, or when it is completely untenable. The Appellate Division stressed that "when the plaintiff's conduct bespeaks an honest attempt to press a perceived, though ill-founded and perhaps misguided, claim, he or she should not be found to have acted in bad faith."

Here, the Appellate Division's reversal of the grant of counsel fees for this successful defendant/employer highlights the difficulty employers have in recouping litigation costs even when defending suits with little merit. It is unclear from the decision with the employer had the proper policies in place to handle whistleblower-type complaints by employees. Stark & Stark attorneys can help your Company to develop policies that satisfy CEPA's statutory requirements.

The Third Circuit ruled that Pennsylvania employment law, not New Jersey's, governs in diversity action brought in New Jersey. The plaintiff was employed in Pennsylvania, even though she performed some work in New Jersey, lived in New Jersey, and claimed wrongful discharge based on whistle-blowing about alleged fraud committed by a subcontractor in New Jersey.

The New Jersey Supreme Court will now consider whether the Karlin decision from 1978 needs to be addressed and potentially overturned. At issue is whether a covenant that barred a physician from practicing medicine for a period of two years within 12 miles of his employer is enforceable. Also, for consideration is whether restrictions preventing physicians from practicing at a specific hospital and relinquishing hospital privileges is enforceable.

In the case of Dwyer vs. Jung, 133 N.J. Super. 343, the Court held that a restrictive covenant in an attorney partnership agreement is void as against public policy. The question for the New Jersey Supreme Court to now decide is whether restrictive covenants in physicians' agreements are unenforceable as against public policy.

The New Jersey Senate has passed a bill last week (S-1886) that enhances the rights and remedies of employees who disclose or refuse to participate in fraudulent employer practices pursuant to the Conscientious Employee Protection Act (CEPA), New Jersey's "whistleblower" statute. Although the bill is awaiting action from the Assembly, a similar bill has been approved there in the previous legislative session.

The bill removes CEPA from New Jersey's Punitive Damages Act, which previously imposed a cap on punitive damages. In CEPA actions, the cap was calculated as the greater of $350,000 or five times compensatory damages. If the bill is passed in its present form, there is no statutory limit on punitive damages for CEPA actions pursuant to state law.

Furthermore, the bill now allows judges or juries to consider (in addition to compensatory damages) "the amount of damages caused to shareholders, investors, clients, patients, customers, employees, former employees, retirees or pensioners of the employer, or to the public or any governmental entity, by activities, policies or practices of the employer which the employee disclosed, threatened to disclose, provided testimony regarding, objected to, or refused to participate in."

The bill directs judges to order the following relief "where appropriate and to the fullest extent possible": (1) an injunction restraining employers against any violation of the act; (2) the reinstatement of the employee to the "same position held before the retaliatory action, or to an equivalent position"; (3) reinstatement of full fringe benefits and seniority rights; (4) compensation for "all" lost wages, benefits and other remuneration; and (5) reasonable costs and attorney's fees.

The bill allows judges or juries to assess greater civil fines against employers, up to $10,000 for the first violation and up to $20,000 for each subsequent violation, payable to the State Treasurer.

According to the New Jersey's Office of Administrative Courts, "whistleblower" suits had more than doubled since 2001. From June 30, 2003 through June 30, 2004, 275 CEPA claims have been filed which is a 102% increase from 2001. By contrast, Civil Part filings have increased only 24% over the same period. Stark & Stark attorneys can help your Company to develop notices that satisfy CEPA's new requirements.

A Third Circuit panel reversed the District Court's confirmation of a labor arbitrator's decision that CITGO's zero tolerance drug abuse policy was unreasonable because it did not offer a second chance or rehabilitation opportunities to an employee who tested positive on a random drug test. The district panel found that the arbitrator's decision did not draw its essence from the collective bargaining agreement, nor was the zero tolerance policy was reasonable or supported by the record.

The amendment requires companies employing ten or more people to distribute an annual notice to all New Jersey employees explaining the employees' "protections, obligations, rights and procedures" under CEPA. This notice can be distributed in an electronic or written format. The amendment requires that the notice be set forth in English, Spanish and any other language spoken by a majority of employees, the latter at the discretion of the employer.

According to the New Jersey Law Journal, whistleblower suits have more than doubled since 2001. From June 30, 2003 through June 30, 2004, 275 CEPA claims have been filed which is a 102% increase from 2001. By contrast, Civil Part filings have increased only 24% over the same period. It is critical that New Jersey employers handle CEPA or whistleblower issues with caution.

Stark & Stark attorneys can help your Company develop notices that satisfy CEPA's new requirements.