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Appellate Division Extends New Jersey Law Against Discrimination to Divorcing Employees

Published on: October 23, 2014 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The New Jersey Law Against Discrimination (“LAD”) has long prohibited discrimination against individuals on the basis of their “marital status,” barring employers from considering an individual’s status as married or unmarried in making any employment decisions. In the recent case of a New Jersey appeals court recently examined the scope of the marital status protections of LAD and determined that they also extend to engaged, separated and divorced individuals.

The Facts: Robert Smith, Director of Operations for the Millville Rescue Squad (“Millville”), supervised over one hundred employees, including his wife. In February 2005, Smith had an affair with a subordinate who later resigned, and shortly thereafter, Smith and his wife separated. Mr. Smith’s supervisor became aware of Smith’s affair and subsequent separation and told him he could not promise these developments would not affect Smith’s job, that it “all depends on how it shakes down.” Several months later, Smith’s employment was terminated for poor work performance. Smith’s supervisor purportedly told Smith that he had to present the situation to Millville’s board of directors because he believed there was no chance of reconciliation between Smith and his wife and “it’s going to be an ugly divorce.” Smith filed suit alleging marital status discrimination in violation of the LAD.

The Ruling: In the proceedings below, the trial court dismissed Smith’s marital discrimination claim because Smith failed to present evidence that Millville fired him because he was either married or unmarried. The Court reasoned that Millville had the right to terminate Smith because it was concerned about the potential impact his divorce proceedings might have on his work. Smith appealed that ruling.

What To Do When the OSHA Inspector Appears

Published on: January 10, 2013 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Sooner or later, your facility will be the subject of an inspection by the Occupational Safety and Health Administration (“OSHA”). OSHA usually does not provide any advance notice of these inspections (which always seem to occur at the “wrong” time). Nevertheless, how facility representatives handle themselves can directly influence the severity of the outcome of the inspection.

To help you improve your company’s chances of a favorable outcome, basic procedures and rules must be carefully followed. Safety Officers and Plant Managers can and should be prepared for these inspections and must be able to quickly and easily implement a well-practiced and automatic response at the time. Time spent in preparation of these visits will ensure that the facility is exhibited in its most favorable light. This will minimize both the time the Inspector spends at the facility as well as the severity of any penalty assessment.

Your OSHA inspection response/action plan should take into account the following elements:

New NLRB Report Stymies Employers’ Efforts to Reign in Employee Social Networking Activities

Published on: August 31, 2012 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The prevalence of social media in today’s workplace is undisputed. With the lack of discretion often displayed on social media sites such as Facebook, it is no wonder employers seek to control inappropriate employee communications and the unauthorized dissemination of confidential employer information through policies restricting employee social networking activities. The National Labor Relations Board (the “Board”), however, has issued a new social media report that sets forth substantial limitations on employers’ efforts to regulate social networking activities. More important, the report puts employers on notice that most workplace social medial policies will be deemed in violation of the federal labor law if subject to the scrutiny of the Board.

In its May 30, 2012, Report of the Acting General Counsel Concerning Social Media Cases (“the Report”), the Board analyzed provisions of numerous social networking policies that, according to the Board, constitute impermissible restraints on rights accorded employees under Section 7 of the National Labor Relations Act (the “NLRA”) to freely discuss the terms and conditions of employment with fellow employees. In general, the Report suggests that the mere existence of a social media policy that could reasonably be construed by employees “to chill the exercise of Section 7 rights” is a violation of the NLRA. This would be the case even if the employer has not invoked the policy to discipline employees for social networking activities. Thus, the Board cautioned that social media policies should be narrow in their scope and clearly carve out protected discussions among employees concerning wages and benefits, discipline, working conditions and other the terms and conditions of employment.

Until recently, many of us would not have questioned a policy putting employees on notice that they may be subject to discipline for posting disparaging or defamatory remarks about the company and its employees. However, employers may be stunned to learn that such standard provisions are among those that the Board will view as impermissible under the NLRA. While the Report provides numerous additional examples, the following provisions deemed unlawful by the Board are illustrative of the Board’s expansive view of Section 7 rights.