Called slave labor by some and invaluable learning experiences by others, unpaid internships have, for the most part, been considered outside the aegis of workplace laws protecting employees from harassment, discrimination, and retaliation. However, that may soon change in New Jersey.
On December 5, 2013, New Jersey State Senator Nia H. Gill introduced bill S-3064, which amends three existing New Jersey laws—the New Jersey Law Against Discrimination, the Conscientious Employee Protection Act, and the Worker Freedom from Employer Intimidation Act— to extend the laws’ protections and remedies to unpaid interns.
Recently, the New Jersey Appellate Division reversed a trial court decision which had dismissed plaintiff’s claims under the New Jersey Law Against Discrimination (“LAD”) because plaintiff had signed a release of all claims. The appellate court determined that the release was not “knowing and voluntary.” The decision is a primer for employers who want to obtain a valid and enforceable release from employees who are terminated.
Earlier this year, we reported on the New Jersey Security and Financial Empowerment Act (the “NJ SAFE Act”), a new law which provides unpaid leave to New Jersey employees who suffer from domestic violence or sexually violent offenses. The NJ SAFE Act takes effect on October 1, 2013.
On August 29, 2013, Governor Chris Christie signed into law an amendment to the New Jersey Law Against Discrimination (“NJLAD”). An earlier version of this bill had been conditionally vetoed by the Governor.
The amendment to the NJLAD bars employers from retaliating against employees who ask their co-workers or former co-workers for information about their job title, occupational category, pay or benefits, or make inquiry about the gender, race, ethnicity, military status or national origin of any employee or former employee of the employer, if the request is made to assist in investigating the possibility of, or in taking legal action reporting, potential discriminatory treatment concerning pay, compensation or benefits. The prohibition against retaliation applies whether or not the request was responded to and does not require any employee to disclose such information about him/herself.
On July 17, 2013, Governor Chris Christie signed into law the New Jersey Security and Financial Empowerment Act (“NJ SAFE Act”). New Jersey now joins over a dozen other states to provide leave for employees who suffer from domestic violence or sexually violent offenses. The law applies to employers with 25 or more employees. Employees must work at least a year and for at least 1,000 hours before they are eligible for such leave. The law is scheduled to go into effect on October 1, 2013.
If recently proposed legislation is signed into law, certain private sector employers in New Jersey would be required to provide paid sick leave to their employees. Under new legislation, Assembly Bill No. 4125, introduced on May 20, 2013, employers would be required to “provide earned sick leave to each employee working for the employer…. For every 30 hours worked, the employee shall accrue one hour of earned sick leave.”
However, this requirement would not be open-ended, as the legislation proposes caps on the maximum time-off that could be accrued. For those employees working for a “small employer,” namely, those with less than 10 employees, an employee can earn no more than 40 hours of paid sick leave each year. For employers with more than 10 employees, an employee can earn up to 75 hours of paid sick leave. This time could not be carried over from year to year.
Appellate Division Rules that Employee’s CEPA Claim Cannot Be Based Upon a Code of Ethics Not Applicable to the Employer
In a case that undoubtedly will be welcomed by New Jersey health care employers, the Appellate Division in Hitesman v. Bridgeway Inc., d/b/a Bridgeway Care Center, Docket No. A-0140-11T3 (App. Div., March 22, 2013) announced that a licensed health care provider cannot sustain a Conscientious Employee Protection Act (CEPA) claim where he or she relies upon a professional code of ethics that applies to the plaintiff, but does not apply to the employer. In doing so, the court overturned a jury verdict in favor of a “whistleblower” that was fired for sharing confidential patient information with a TV news reporter, in violation of the company’s confidentiality policy.
On May 6, 2013, Governor Christie conditionally vetoed Assembly Bill 2878, the so-called “Facebook Bill.” If enacted, it would have prohibited an employer (other than law enforcement agencies or corrections departments) from requiring or requesting a current or prospective employee to provide a user name or password, or access to a personal account on a social networking site. Although he termed the bill well-intentioned, he stated that the proposed legislation painted with “too broad a brush” because it contained provisions that would also allow an employee or job applicant to sue for an injunction and damages, including attorneys’ fees, even in cases in which the inquiry was innocuous and relevant to the job. He gave the example of an employer interviewing a candidate for a marketing job who would be prohibited under the bill from asking about the candidate’s use of social networking in order to assess his or her technological skills and media savvy.
Section 7 of the National Labor Relations Act protects the right of employees to discuss with each other, the terms and conditions of their employment, including their wages and benefits. A recent decision of the National Labor Relations Board once again emphasized that these protections apply to both union and non-union employees, whether the discussions are in person or through social media such as Facebook. Read the rest of this entry »
In a recent decision rendered in the United State District Court for the District of New Jersey, the Magistrate Judge imposed sanctions on a plaintiff who deleted his Facebook account thereby depriving defendants of permissibly requested relevant discovery.
In Gatto v. United Air Lines, Inc., et al., 2:10-cv-01090 (D.N.J. 2013), plaintiff asserted that he incurred personal injuries in the course of his employment as a ground operations supervisor, while he was unloading baggage. As part of their damages-related discovery, defendants sought information related to plaintiff’s social activities, including a request for documents and information related to plaintiff’s social media accounts. Plaintiff initially refused to execute an authorization for the release of his Facebook records, but later was ordered to do so and to change his password to “alliedunited” so that the account could be accessed for review by defendants in connection with the litigation. Plaintiff thereafter received an alert that his account was accessed by an unfamiliar address and, in response, plaintiff deactivated his account, despite the fact that defendants had confirmed it was they who had accessed the account. Plaintiff advised that the Facebook account was not only deactivated, but all account data had been lost. The record reflected that plaintiff’s account was not merely deactivated, but that plaintiff also had to have taken the additional steps required to permanently delete his account and all data stored in the account.
Defendants moved for sanctions based on plaintiff’s spoliation of evidence. Specifically, defendants requested that the court enter an order awarding costs to defendants related to the motion, and an order issuing an instruction at trial that the jury draw an “adverse inference” against plaintiff for failing to preserve his Facebook account. An “adverse inference” permits a jury to infer that the fact that a document was not produced is evidence that the party who destroyed the evidence had a well-founded fear that the contents of the evidence would harm him. The Court denied the request for costs but granted the defendants’ request for an adverse inference charge.
The Court observed that parties in federal court have an obligation to preserve relevant evidence that they know or should know might be requested in the litigation. Spoliation occurs when evidence is destroyed or significantly altered or where a party fails to preserve the evidence. The Court concluded that plaintiff’s conduct met all of the prerequisites for an order directing an adverse inference at trial. Under the facts presented, the Court found that the plaintiff’s Facebook account was relevant to the litigation because plaintiff sought damages for personal injuries and the defense requested information and posts relative to that aspect of damages. Moreover, there was little question that plaintiff had a duty to preserve the account data as it was foreseeable that the account would be sought in discovery. In addition, the Court concluded that the defense was prejudiced by plaintiff’s destruction of the Facebook account because it lost all access to evidence that was potentially relevant to plaintiff’s damages claim. Based primarily on these factors, the Court ordered that an adverse inference would be appropriate at the time of trial.
While this case arose in the personal injury context, it did involve an injury incurred at work, and thus, the facts indirectly relate to the employment context. Undoubtedly, the Court’s reasoning and the legal precepts underlying this decision can be applied in any employment litigation. As social media continues to grow as a form of communication, its potential relevance to an employment dispute likewise continues to grow. As this case demonstrates, employers are able to pursue social media as an area of inquiry in the discovery process, and employees need to be mindful of obligations to preserve their social media, as well as other potentially discoverable electronically stored data related in any way to the litigation, or risk the consequences of not doing so. It is important to craft non-objectionable discovery demands for electronic communications, including social media accounts, because these communications and accounts may be a valuable source of information relevant to the case.