Insights Archives — Page 30 of 50 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

3 Simple Steps to Prevent Workplace Harassment

Published on: June 18, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The floodgate of sexual harassment allegations spawned by the #MeToo movement is evidence that employers have dropped the ball on fostering work environments free from inappropriate sexual behaviors. The good news is, there are three simple steps employers can take to begin preventing workplace harassment from occurring — and potentially avoid liability if legal action ensues.

The courts have created a safe harbor defense available in most instances to employers who can show they acted reasonably to prevent the occurrence of workplace harassment. Although most employers have implemented written policies prohibiting sexual harassment, merely disseminating such policies falls short of the actions courts require to invoke the safe harbor defense. Rather, employers must show that their anti-harassment policies are far more than paper documents, but are part of a program enforced through consistent practice and employee training. Employers may qualify for the defense if they undertake three actions.

Action 1: Distribute an Anti-Harassment/Complaint Policy

Protecting Privilege Before and After a Cyber Breach

Published on: June 8, 2018 | by Robert W. Anderson and Eric B. Levine

If you are not already thinking about cybersecurity for your company or firm, you should be. Regardless of your organization’s size or industry, cyber crime is probably the greatest threat to your bottom line today.

One of the most important things a company/firm can do is to regularly conduct an investigation to understand what its cybersecurity defense weaknesses and vulnerabilities may be. The results of such an investigation most likely will produce a lengthy list of potential problem areas that in an ideal world should all be promptly and exhaustively remedied. Many times, this remedial approach is not feasible as most companies have budgetary and other practical limitations that may require them to prioritize which vulnerabilities to address first, and the degree of remediation of each such vulnerability that can reasonably be undertaken at a given time.

Unfortunately, another problem with this scenario is that the company or firm will end up with a written report identifying all variety of cybersecurity weaknesses, and then a set of actions that address some — but not all — of those weaknesses. If, at a later date, the organization experiences a cyber breach incident, this written report is likely to become Exhibit A of any plaintiff action against the company over that breach. The report, after all, shows that the company or firm clearly knew about certain vulnerabilities and chose not to remedy several of them.

How Are Employer’s Obligated to Accommodate Employees Who Are Also Nursing Mothers?

Published on: May 11, 2018 | by Lisa Gingeleskie

Effective January 8, 2018, the New Jersey Law Against Discrimination (“NJLAD”) was amended to include breastfeeding as a protected category. Under the amended law, employers must provide nursing mothers with reasonable breaks during the work day and a suitable private location close to the employee’s work area to express milk for her infant child. The only exception to this requirement to accommodate is when doing so would place an undue hardship on the employer’s business. When considering whether or not an undue hardship exists, the court will look to the following factors:

The overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of the budget;
The type of the employer’s operations, including the composition and structure of the workplace;

NJBIZ: Vendor Vexation: Third-Party Providers Can Open Door to Hackers

Published on: May 9, 2018 | by Eric B. Levine

Lindabury’s Cybersecurity and Data Privacy Practice Group Co-Chair Eric Levine was recently interviewed by NJBIZ regarding the recent security lapse of a South Jersey physicians network which wiped out the password protection on a supposedly secure site.

Eric says, “A company that engages in thorough due diligence may be able to use that as a defense if it’s sued as a result of a third-party provider hack.”

“It’s important to deal with cybersecurity and other issues up front, especially when you’re dealing with a new vendor,” Levine said. “Consider the depth of access to your data that they need, too. If a firm is just providing you with paper products, they don’t need deep access to your data, so a cybersecurity audit may not be very important.

Attention All New York Employers: State And City Now Mandate Sexual Annual Harassment Training And Other Measures

Published on: May 7, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In the wake of the #MeToo and #TimesUp movements, the New York Legislature and the New York City Counsel have adopted groundbreaking legislation imposing significant employer obligations and expanding employee protections for unlawful sexual harassment in the workplace.

New York State Legislation: As part of its 2018-2019 state budget bill, on the New York Assembly included numerous provisions aimed at eradicating workplace sexual harassment. In his press release, Gov. Cuomo (who is expected to sign the bill) described the action as “the strongest and most comprehensive anti-sexual harassment protections in the nation,” which includes the following key provisions:

Mandatory Training and Anti-Harassment Policy: regardless of size, all New York employers must provide annual “interactive” sexual harassment training to all employees that covers the following:

Paid Sick Leave Comes to New Jersey: Time To Update Your Employee Handbook

Published on: May 4, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In recent years many New Jersey municipalities passed varying ordinances requiring employees within their jurisdictions to be afforded paid sick leave benefits. To the relief of those employers who were dealing with the patchwork of local sick leave ordinances, on May 2, 2018, Governor Murphy signed New Jersey’s first state-wide paid sick leave act into law, pre-empting all local ordinances in favor of uniform paid sick leave requirements. The act becomes effective on October 29, 2018.

Although most employers provide some measure of paid time-off benefits, they must nevertheless ensure that existing policies meet the minimum requirements of the new paid sick leave act. For those employers who do not provide any paid time off benefits for sickness, they will now be required to do so for those absences that fall within the law.

Coverage: Under the new law, all New Jersey employers, regardless of size, must provide one hour of paid sick leave for every 30 hours worked to each covered employee, including temporary employees, working in the State. Construction employees covered by a collective bargaining agreement, health care employees and public employees with paid sick leave benefits are excluded from coverage.

What Steps Can Employers Take to Ensure Compliance with the Americans with Disabilities Act?

Published on: April 30, 2018 | by Lisa Gingeleskie

Similar to other federal anti-discrimination laws, the Americans with Disabilities Act (ADA) expressly prohibits employers from discriminating against employees on the basis of disability. The ADA, however, is unique in that it requires an employer to provide a reasonable accommodation to its disabled employees.

Ordinarily, it is up to the employee to request an accommodation for his or her disability. In order to do so, the employee may verbally advise that he or she needs an adjustment, change, or assistance at work and that this need is related to a disability. In spite of this formality, there are other ways an employer may become obligated to provide an accommodation even in the absence of a formal request. For that reason, employers should learn to identify specific circumstances in which an employee may require an accommodation. For example, if the employer knows of the employee’s disability, sees the employee struggling to access existing facilities or notices that the disability itself prevents the employee from requesting the accommodation, the employer should initiate a conversation with the employee to determine whether an accommodation is necessary.

Once an employee has requested an accommodation or the employer has identified its obligation to provide an accommodation, the employer should strive to diligently address the need of an accommodation by way of clear and constant communication. This form of communication is referred to as the “interactive process” under the ADA. The interactive process and is an informal practice in which the covered individual and the employer determine the precise limitations created by the disability and how best to respond to the need for accommodation.

In A Novel Ruling, New Jersey Appellate Court Hints That Telecommuters Working Outside The State For A New Jersey Employer May Be Entitled To The Protections Of The NJLAD

Published on: April 27, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

In its recent decision in Trevejo v. Legal Cost Control, Inc., the Appellate Division signaled that the anti-discrimination protections of the New Jersey Law Against Discrimination (NJLAD) may be applied extraterritorially to employees who are not inhabitants of New Jersey, who do not come into the State to perform any services, but who provide services to a New Jersey employer exclusively via a remote computer.

Susan Trevejo worked for Legal Cost Control, a New Jersey corporation located in Haddonfield, NJ. Trevejo was not a resident of New Jersey, and during her tenure with Legal Cost performed all of her job duties from her home computer in Massachusetts. Following her termination, Travejo filed an age discrimination claim against Legal Cost under NJLAD, and the company responded with a motion for summary judgment on the ground that Travejo was not an “inhabitant” of the State entitled to pursue an NJLAD claim.

Reversing the lower court’s grant of summary judgment, the appellate court found the dismissal of the claim premature. The court noted that the statutory language of the NJLAD consistently extends to “any person.” Conversely, the term “inhabitants” only appeared in the legislative preamble, not the substantive provisions of the statue; thus, limiting the NJLAD’s protections to “inhabitants” of the State would be an overly restrictive reading of a statute that must be broadly construed to achieve its goal of “the eradication of the cancer of discrimination in the workplace.”

So You Think Your Handbook Disclaimer Is Adequate? Think Again . . .

Published on: April 27, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

This past February the Appellate Division of the New Jersey Superior Court issued its unreported opinion in Maselli v. Valley National Bancorp (the “Bank”), a case that serves as a stark warning to employers of the exacting standards that must be met before a contractual disclaimer in an employee handbook (or other document) will be deemed adequate by the courts.

By now, most employers are aware that employee handbooks or other policies describing the terms and conditions of employment may give rise to contractual obligations unless the employer includes a clear and prominent disclaimer of any contractual obligation. In its seminal decision in Woolley v. Hoffman La Roche, the New Jersey Supreme Court suggested that the disclaimer indicate that “there is no promise of any kind by the employer contained in the manual; [and] that regardless of what the manual says and provides, the employer promises nothing…”

In Maselli, the plaintiff claimed she was transferred and ultimately terminated because the Bank failed to comply with that anti-harassment and bullying provisions of its Code of Conduct. The Bank moved to dismiss, pointing to the following disclaimer that was prominently displayed on the first page of its employee manual:

New Jersey Legislature’s Potential Response To The #MeToo Movement

Published on: April 27, 2018 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Since the #MeToo movement captured the public’s attention, state legislatures across the country have proposed legislation banning the confidentiality of settlement agreements and mandatory arbitration of sexual harassment claims.

A comprehensive bill pending before the New Jersey State Legislature, Senate Bill S3581, goes farther, banning employers from including a jury waiver, mandatory arbitration clause, or non-disclosure provision in any settlement agreement or employment contract. Unlike many of the bills proposed in other jurisdictions, this prohibition extends to all potential discrimination claims under the NJLAD, not just to sexual harassment claims.

The Legislature’s effort to address the ongoing issue of workplace harassment by banning confidentiality in settlements ignores the fact that in some instances the complaining employee may want the settlement to remain confidential, not to mention the disincentive to employers to quickly and fairly resolve cases without engaging in protracted litigation. Given both the legislative and cultural climate changes brought on by the #MeToo movement, it is critical for employers to review their anti-harassment policies and employment, arbitration and settlement agreements to ensure they stay compliant with any legal developments in this changing area. More important, employers should develop a robust employee training program to educate employees about the wide array of unlawful behaviors that are prohibited in the workplace, and to demonstrate the Company’s commitment to eradicating these behaviors and fostering an environment that accords respect to all employees.