Employers Seek Access to Your Facebook Page

Employers are requiring their employees to provide the passwords to their Facebook and Twitter accounts. Potential employees are asked to provide this information at their interviews. Is this legal?

For now, yes. However, some state legislatures and organizations such as the American Civil Liberties Union (ACLU) are fighting back to preserve the privacy rights of employees. The ACLU has compared employers looking at employee’s private Facebook page as akin to opening their personal mail or listening to their phone messages. The Equal Employment Opportunity Commission comments that the American with Disabilities Act (ADA) prohibits employers from obtaining information about a person’s disability or genetic information, and allowing access to Facebook would increase the likelihood of employers violating the ADA.

Certain states have already recognized the negative implications of allowing employers to ask for passwords and are contemplating legislation to prevent employers from requesting passwords from employees or potential employees. California, Illinois, Michigan, Minnesota, and New York are among the states who are contemplating passing legislation which would restrict employers from asking for passwords. Recently, Maryland became the first state to pass a bill banning employers from requesting passwords to social media websites.

New Jersey has yet to officially propose any legislation banning the practice. New Jersey Assemblyman John Burzichelli says he plans on introducing a bill which would ban the practice and even prevent employers from requesting that employees waive their rights under the law. Given the broad protections already allotted to New Jersey residents, requesting potential employees to give their passwords to social networking sites will almost certainly be highly scrutinized by the state legislature and courts.

NJ Court Expands Definition of Discrimination

The Appellate Division of the New Jersey Superior Court recently expanded the scope of employees protected from employment discrimination. The Court ruled that anti-discrimination protection extends to employees who are perceived to be, but aren’t, members of a protected class. For example, if your employer thinks you are Jewish, but you aren’t, you are still protected from anti-Semitism at work.

The case was brought by Myron Cowher, a truck driver for Carson & Roberts Site Construction & Engineering. Mr. Cowher claims that his supervisors subjected him to anti-Semitic remarks on a daily basis. While Mr. Cowher is not Jewish, either by ethnicity or by faith, he felt that these remarks caused a hostile work environment.

The primary issue analyzed by the Appellate Division was whether an individual may bring a suit against an employer for discrimination based on a perceived membership in a protected class. The Court noted that, in the area of disability discrimination, an employee is protected if her employer believes she is disabled, even when she is not. This is the concept of “perceived disability discrimination.” Other states and the federal courts have recognized this concept as well. The Appellate Division reasoned that there is no basis to grant protection to individuals who are perceived to be disabled, but not to employees who are perceived to be members of other protected categories.

The purpose of anti-discrimination law is to eradicate discrimination, wherever it lurks. Whether you are actually a member of a protected group or whether your employer just thinks you are — you still have the right to work in an environment free of discrimination. The Court’s expansion of the definition of discrimination makes perfect sense.

Unemployment Benefits Cannot Be Denied After “Compelled Resignation”

The Appellate Division of the New Jersey Superior Court recently ruled in favor of a man who claimed his supervisor “forced” him to resign. The ruling, which overturned the decision of the Department of Labor denying benefits to the employee, is significant for the thousands of New Jerseyans who are seeking unemployment insurance benefits now or will be in the future.

This matter involved Mr. Talmage Lord, who was employed by a company to reset merchandise at retail stores in New Jersey and Pennsylvania. Mr. Lord’s job required that he use his own car to travel to different retail stores to perform his work. On June 3, 2009, Mr. Lord’s car broke down while he was driving and it had to be towed to a garage. Mr. Lord immediately informed his supervisor of his situation. The supervisor allowed Mr. Lord to take off of work the next day. Mr. Lord then learned that his transmission was shot. He could not afford the repair. Mr. Lord attempted to find alternative transportation to work, but he was unsuccessful. When Mr. Lord called his supervisor and told him that he was not sure if he would have a car on Monday, his supervisor told Mr. Lord that he had to resign effective immediately. Mr. Lord considered himself “terminated” and he filed for unemployment compensation that same day.

The Division of Unemployment Compensation denied Mr. Lord’s claim on the ground that he left his employment voluntarily and without good cause. The Appeal Tribunal agreed and stated in their opinion that “claimant left work because he was unable to obtain transportation to perform his job…[which was] a personal reason…not attributable to the work.” The Board of Review, the final level of appeal within the Division, affirmed this decision.

The Appellate Division reversed. The Court reasoned that a decision to leave employment is considered voluntary within the statutory framework only if the decision at the time lay with the worker alone. The Court stated that when Mr. Lord’s supervisor told him that he “had to resign” because he had no transportation, it was essentially the same as telling him, “you’re fired.” Mr. Lord did not choose to leave the employment on his own, his employer did it for him. Therefore, the Court concluded that Mr. Lord was entitled to unemployment insurance benefits.

We believe this is a very favorable decision for recently unemployed individuals as it sends a message to the DOL that, even in these times of governmental austerity, the law must be followed. We have seen far too many employees denied benefits improperly over the last two years. Kudos to Mr. Lord and his attorneys for pursuing this matter all the way to the Appellate Division, and congratulations on this victory.

Unpaid Interns May Have Wage and Hour Claims

A former editorial intern for the Charlie Rose Show, Lucy Bickerton, brought a lawsuit against Mr. Rose and the show’s production company, in the New York State Supreme Court, for unpaid wages. The catch is, she agreed to work as an unpaid intern.

Hundreds of thousands of Americans work as unpaid interns every year to gain experience with desired employers. Now interns like Lucy Bickerton are now speaking out that their unpaid positions violate federal and state labor laws, because their employers are using them to do jobs of paid employees instead of providing any real educational experience.

The Fair Labor Standards Act requires companies to offer an educational benefit to their interns if there is no other compensation involved. The New Jersey Administrative Code (N.J.A.C. 12:56-18.2) provides that the following conditions should be met to allow for non-paid activities of student learners at for profit and non-profit organizations:
1. The student shall be at least 16 years old
2. The activity must be related to a formal school-to-work transition plan for a student learner
3. There is collaboration and planning between worksite staff and school staff resulting in clearly identified learning objectives related to the non-paid activities
4. Any productive work is incidental to achieving learning objectives
5. The student learner receives credit for time spent at the worksite and the student is expected to achieve the learning objectives
6. The student learner is supervised by a school official and a workplace mentor
7. The non-paid activity is of a limited duration, related to an educational purpose and there is no guarantee or expectation that the activity will result in employment
8. The student learner does not replace an employee

While the New Jersey Administrative Code addresses “student workers,” the Code does not provide specific guidance for young New Jersey residents who have recently graduated and have taken unpaid internships in lieu of paid employment due to the poor economy. The failure to address this sector of the state’s workforce may actually be advantageous for unpaid interns in New Jersey who find that they are taking on responsibilities that paid employees within their company generally take on. Since many employers will find it challenging to meet the stringent requirements of N.J.A.C. 12:56-18.2, many unpaid interns within the state may find themselves within the protection of New Jersey’s wage and hour laws.

If you are working for a company as an unpaid intern, carrying out responsibilities and duties of paid employees, and believe you are not receiving any type of benefit in return, you should contact an employment law attorney to see if you have a possible wage and hour claim against your employer.

Supervisors May Be Sued Under The FMLA

On January 31, 2012, the U.S. Court of Appeals for the Third Circuit outlined factors to be used when determining whether a supervisor at a public agency can be subject to individual liability under the Family Medical Leave Act (FMLA).

The Family Medical Leave Act allows employees to take unpaid and job protected leave for up to 12 weeks per year. This Act allows employees to balance work and family responsibilities by entitling them to take leave for certain medical or family reasons. FMLA applies to all public agencies and companies with 50 or more employees. To be eligible under the FMLA, an employee must have worked for the employer at least 12 months. An employee may use the FMLA for the following reasons:

• Give birth or care for a newborn
• During placement of a child for adoption or foster care
• To care for an immediate family member with a serious health condition
• To take medical leave when the employee is unable to work due to a serious health condition

Debra Haybarger, a former employee of Lawrence County Adult Probation and Parole sued her former supervisor under the FMLA after she was terminated from her position as office manager. Ms. Haybarger, who suffered from type two diabetes, heart disease, and kidney problems, received poor performance reviews from her supervisor which included comments stating that Haybarger needed to improve her overall health and cut down on sick days. Haybarger was eventually fired by the President Judge of the Lawrence County Court of Common Pleas after Haybarger’s supervisor advised the Judge that termination was necessary.

Haybarger sued the County of Lawrence, Lawrence County Probation, and her supervisor under the FMLA (along with the Americans with Disabilities Act, Pennsylvania Human Relations Act, and the Rehabilitation Act). The District Court held that Haybarger’s supervisor could not be seen as an “employer” under FMLA since the supervisor did not have “sufficient control over the conditions and terms of employment” and that an employer has sufficient control over an employee if they have authority to fire them.

The Court of Appeals disagreed and ruled that although a supervisor may not have ultimate authority over employment practices, they are not relieved from liability. The Court reasoned that the totality of circumstances must be examined when determining whether an individual supervisor can constitute an “employer.” In Haybarger’s case, while the Court concluded that even if the supervisor did not have final authority to fire Haybarger, the supervisor acted in the interest of the county, carried out his role as a supervisor, exercised control over her work, had authority to discipline her, and recommended to the Judge that she be terminated. These factors were enough for the Court of Appeals to conclude that the supervisor is considered an “employer” and could be held individually liable under the FMLA.

This decision is notable in the employment law context as it expands the circumstances in which supervisors can be held liable for violating employee rights. Supervisors and managers should be aware that just because they may not have direct authority over an employee, they are not shielded from liability when they take actions against employees which are contrary to federal laws such as the FMLA.

Employees Told Not To Gamble on Job Security at New Casino

Revel Casino, soon opening in Atlantic City, has announced an unusual policy of setting term limits on certain employees. The Casino will be setting term limits of four to six years on front line employees, which includes employees who would have face time and/or interact with guests in any way such as dealers, waiters, or bellhops. The Casino comments that the policy will ensure that highly professional staff will be attracted to work for them.

The term limit policy has been met with some criticism. One employment lawyer from Philadelphia points out that the policy may be a way for the Casino to age discriminate in a low profile manner as the policy allows the casino to regularly clear out older employees.

This is yet another example of employers taking advantage of a tough job market. Atlantic City casinos have recently let go many employees who will not be deterred from applying to Revel despite the term limits. They reason that a job with term limits is better than no job at all. The Casino is expecting to bring in 2.4 billion in revenue and provide 5,000 full time jobs. Many hope that the Casino helps revive Atlantic City which has been struggling to maintain jobs.

Good News for Employment Lawyers and Their Clients

The New Jersey Supreme Court recently issued a unanimous decision confirming that a court’s application of contingency enhancements in awarding attorney fees is not only appropriate, but essential in cases where the relief sought is equitable in nature. The Court’s decision, which combined two different appeals, comes as a victory to many lawyers who take cases on a contingency basis, including employment lawyers.

Traditionally, each party in a suit is responsible for their own fees, unless there is an applicable statute that warrants “fee-shifting.” A contingency enhancement is a mechanism which allows the Court to increase the fee to take into account the risk of nonpayment when an attorney’s compensation is substantially contingent on a winning outcome. The Court relied primarily upon Rendine v. Pantzer, an employment discrimination case, in reaching its decision. The Rendine Court spelled out three important policy purposes for fee-shifting, which include:

1. Allowing litigants equal access to the courts.
2. Provide these individuals with the resources to enforce protected rights in court.
3. Providing these litigants with adequate representation.

By way of background, the first case on appeal, Walker v. Guiffre, involved a woman who sued multiple car dealerships in New Jersey under the Consumer Fraud Act. During the case, her attorneys pursued extensive discovery and expended a lot of time and effort which resulted in the accumulation of high attorney fees. After winning the trial, Walker’s attorneys requested counsel fees and a contingency enhancement, which the trial court allowed. The Appellate Division overturned the trial court’s award of attorney fees for numerous reasons, including that counsel did not justify the hours utilized, there was little analysis of the reasonableness of the hourly rate charged, there was no justification of the 45% contingency enhancement.

The second case, Humphries v. Powder Mill Shopping Plaza, involved a complaint about the lack of handicap accessibility at a shopping center. The case ultimately settled on most issues and the issue of attorney fees and costs was submitted to the Court to resolve. The trial court concluded that the time expended on the matter was reasonable, especially as the rate charged in the amount of $350 an hour was low for this type of case. The Court applied a 20% contingency enhancement on the award of counsel fees. On appeal, the Appellate Division concluded that Humphries failed to meet a more stringent U.S. Supreme Court standard for justifying a contingency enhancement.

On January 25, 2012, the New Jersey Supreme Court reinstated the contingency enhancements in both cases. The Court emphasized the Humphries case, where the relief sought by the Plaintiff was about more than money, it was about effecting a change which would benefit all handicapped individuals who would have been denied access to the shopping area in the future.

In the field of employment law, fighting for employee rights is not just about obtaining monetary compensation. It has a broader purpose of ensuring that protected classes of people are not discriminated against. The Court’s recent decision affirms that lawyers who do this work on a contingency fee basis deserve enhanced fees to buffer the risk they take by accepting these cases.