Employment Law Alert

Employment Law Alert

News and Updates on Employment Law

Tag Archives: Harassment

NLRB Ruling is Problematic for Employer Workplace Investigation Policies

Posted in Labor
The National Labor Relations Board (“NLRB”) decided that an employer’s workplace investigations policy, which recommends employees keep an internal investigation confidential, violated the National Labor Relations Act (“NLRA”) because it interfered with employees' rights to communicate regarding matters affecting terms and conditions of employment. The ruling creates a quandary for employers to maintain effective workplace investigation policies and practices including confidentiality statements in anti-harassment policies. … Continue Reading

New Jersey Appellate Division Decision Stresses Importance of Meaningful Anti-Harassment Policy and Training

Posted in Discrimination, Policies/Handbooks
An effective anti-harassment policy has long been recognized as a key component to an employer’s avoidance of liability for allegations of sexual, racial, or other harassment under New Jersey law. The New Jersey Appellate Division in Dunkley v. S. Coraluzzo Petroleum Transporters recently reinforced this fact, and the decision provides a helpful reminder to employers that adopting clear anti-harassment policies, providing regular training to its workforce, and immediately addressing allegations of harassment/discrimination once presented, are important factors that may help them avoid liability for the conduct of employees who violate such policies.… Continue Reading

EEOC Issues Enforcement Guidance on Pregnancy Discrimination

Posted in Discrimination
On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) — the agency responsible for the enforcement of federal anti-discrimination laws — issued Enforcement Guidance on Pregnancy Discrimination and Related Issues (“the Guidance”). The Guidance primarily discusses the requirements of the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), but also addresses additional federal laws that touch upon pregnancy and related conditions, including the Family and Medical Leave Act (FMLA), the Genetic Information Nondiscrimination Act (GINA) and the Patient Protection and Affordable Care Act (ACA).… Continue Reading

EEOC Issues Guidance Regarding Religious Dress and Grooming Practices

Posted in Discrimination
The Equal Employment Opportunity Commission (“EEOC”) -- the federal agency responsible for the enforcement of federal anti-discrimination laws -- recently issued guidance on religious accommodation under Title VII of the Civil Rights Act of 1964 (“Title VII”), specifically focusing on religious dress and grooming practices. The publication, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” along with its accompanying Fact Sheet, are designed to assist employers to comply with their legal responsibilities under Title VII.… Continue Reading

Susan Nardone to Serve as Panelist at Upcoming NJBIA Employment Seminar

Posted in Policies/Handbooks
Every day, employers are required to understand and navigate the often tricky employment laws that apply to their workplaces. The topic generating the most attention of late is workplace bullying - from proposed legislation that would provide a remedy to the bullied employee to policies that employers can put in place to address workplace bullying. While no state has passed bullying legislation, most agree that it is only a matter of time.… Continue Reading

Supreme Court Requires “But-For” Causation for Title VII Retaliation Claims

Posted in Discrimination
In a victory for employers, the U.S. Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar, that employees asserting retaliation claims under Title VII of the Civil Rights Act of 1964 ("Title VII") must establish that the adverse employment action at issue would not have occurred "but for" an improper motive on the employer's part. This "but for" causation standard, as opposed to the more plaintiff-friendly "motivating factor" causation standard used in Title VII discrimination claims, gives employers a better chance at defeating Title VII retaliation claims, particularly at the summary judgment stage.… Continue Reading

The U.S. Supreme Court Decides Who is a “Supervisor” for Title VII Purposes

Posted in Discrimination
Yesterday, the U.S. Supreme Court decided Vance v. Ball State University, one of the most-anticipated decisions of the Court's 2012 Term. The Vance case concerns who is considered a "supervisor" for purposes of establishing an employer's liability for hostile work environment harassment under Title VII of the Civil Rights Act of 1964. In a 5 to 4 decision, the Court affirmed the decision of the Court of Appeals for the Seventh Circuit, from which the case arose, and other lower courts which had defined "supervisor" to include only those individuals who possess the authority to fire, demote, promote, transfer, discipline or take some other tangible action against a harassment victim. The Court rejected the definition of "supervisor" proposed by the federal government, appearing as amicus curiae, and found in the EEOC's Enforcement Guidelines, which links "supervisor" status to the ability to exercise direction over the victim's daily work.… Continue Reading

Mitchell Boyarsky to Speak at Upcoming NJBIA Employment Seminar

Posted in Discrimination
Mitchell Boyarsky, a Director in the Gibbons Employment & Labor Law Department, will speak at the upcoming NJBIA Employment Seminar, "Workplace Harassment & Discrimination: Creating a Culture of Zero Tolerance," on Friday, May 10, 2013 at the Wilshire Grand. Mr. Boyarsky's panel, "Making Training Work," will discuss how to implement internal training programs to prevent harassement. Mr. Boyarsky will also provide insight into how to handle cases that occur when training fails or is neglected.… Continue Reading

Gibbons Director, Susan Nardone, to Speak at Upcoming NAWL Labor & Employment Webinar

Posted in Discrimination
Employee complaints concerning discrimination and harassment occur in nearly every workplace. Susan L. Nardone, a Director in the Gibbons Employment & Labor Law Department, will serve as a panelist for the upcoming NAWL webinar, "Avoiding the Pitfalls that Cost: Highlighting Best Practices in Labor and Employment Internal Investigations," taking place on Wednesday, February 27, at 11:00 am. This webinar will focus on how to handle common, yet complex, issues likely to arise during the internal investigation of an employee complaint… Continue Reading

The Importance of a Workplace Romance Policy

Posted in Policies/Handbooks
The adoption and enforcement of a policy regarding consensual workplace relationships is essential for all employers. With the American workforce spending at least one-third of their lives at work, it is inevitable that some employees will engage in romantic and sexual relationships with one another. A recent case in the Eastern District of Pennsylvania, Lucchesi v. Day & Zimmerman Group, reinforces that such relationships may have business and legal costs. While employers cannot prevent these relationships from forming or ending, they can take steps to manage their effect on the workplace and to reduce the potential liability stemming from them. A well-drafted policy is a critical first step.… Continue Reading

Recent New Jersey Law Division Decision Highlights Importance of Making Government Records Requests Under Both OPRA and the Common Law

Posted in Privacy
The right of public access to information about sexual harassment claims brought against a public entity is the focus of a recent decision of the Superior Court of New Jersey, Law Division (Atlantic County). The decision illustrates the interplay between the common law right of access to government records and the New Jersey Open Public Records Act ("OPRA"), as well as the importance of making a request for a government record under both.… Continue Reading

New Jersey Appellate Division Holds That Absence of Emotional Distress Damages Award Does Not Preclude Consideration of Punitive Damages

Posted in Discrimination
The New Jersey Appellate Division recently held in Rusak v. Ryan Automotive, LLC that a plaintiff was entitled to further proceedings on her punitive damages claim following a jury verdict in her favor on her hostile work environment and retaliation claims even though the jury did not award her emotional distress damages and rejected her separate intentional infliction of emotional distress claim. Although the case involved unique circumstances that are unlikely to be present in future matters, the decision serves as a reminder that the absence of an emotional distress award does not preclude further proceedings on punitive damages.… Continue Reading

New Jersey Appellate Division Holds that Anti-Harassment Policy Alone Cannot Shield Employers from Liability

Posted in Discrimination
An effective anti-harassment policy has long been recognized as a key component to an employer's avoidance of liability for sexual harassment. As the New Jersey Appellate Division recently made clear, however, the mere existence of such a policy is insufficient to insulate an employer from liability for its employee's sexually harassing conduct. Though an unpublished decision, Allen v. Adecco, Inc., 2001 N.J. Super. Unpub. LEXIS 197 (App. Div. Jan. 27, 2011), provides a powerful reminder that to protect an employer from liability, an anti-harassment policy must be widely publicized, supported by training, and routinely enforced. Indeed, in Allen, although the employer promptly investigated plaintiff's harassment claim and took prompt remedial action, the court ruled that the employer might still be held accountable if the harassment could have been prevented in the first place but for the employer's alleged insufficient publication and training with regard to its anti-harassment policies.… Continue Reading

Employer Sued for Harassment May Discover Plaintiff’s Social Networking Site Postings

Posted in Discrimination
In EEOC v. Simply Storage Management, L.L.C., 2010 U.S. Dist. LEXIS 52766, the EEOC brought suit in federal court in Indiana alleging that Simply Storage was liable for the sexual harassment of a number of its employees. The EEOC asserted that while three of these claimants had suffered "garden variety" emotional distress that was not ongoing, two claimants had suffered more serious emotional injuries for which they had sought medical treatment and that one claimant had been diagnosed with post traumatic stress disorder. Both of these employees maintained social networking site ("SNS") accounts on Facebook and MySpace. Maintaining that information on these sites was relevant to the employees' emotional distress claims, Simply Storage sought discovery of the their complete profiles on these sites, as well as all photos and videos posted on the sites.… Continue Reading