New Jersey Employment Lawyer Blog

Supreme Court nominee Judge Sonia Sotomayor has an even-handed record when it comes to discrimination lawsuits and employment cases, in particular. Since becoming a federal appellate judge in 1998, she has written several opinions and dissents which sided with persons alleging discrimination, including an African-American elementary school student who claimed his demotion from first grade to kindergarten was racially motivated, and a law school graduate who needed extra time to take the bar exam because of a reading and learning disability. In the realm of employment law, she has ruled in favor of a security guard who filed his case too late because of a medical condition, a female police office who alleged sexual harassment and retaliation, and a group of job applicants who were denied jobs because there were taking medication.

At the same time, however, Judge Sotomayor has issued a number of decisions which went against employees. Recently, she ruled against a group of New York City fire alarm inspectors who asserted that they should be compensated for all or part of their commuting time because they are required to carry inspection documents during their commutes. She also upheld the trial court's denial of an employee's request to enter an injunction against her employer, seeking to prohibit the employer from retaliating against her witnesses by firing or disciplining them. In another case, she ruled that a group of corrections officers had not satisfied their burden of proving a connection between their whistleblowing and their employer's decision to discipline them.

The media has unanimously decided that Judge Sotomayor is a "moderate." Her fellow judges on the Second Circuit and commentators appear to agree. After reviewing some of her court decisions myself, I also agree that Judge Sotomayor is a very middle of the road jurist, at least with respect to discrimination and employment cases. In my view, President Obama has made a very wise political appointment -- one that will put him in the history books for appointing the first Hispanic Supreme Court justice, and at the same time leaves little room for opposition from congressional Republicans.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Civil Rights Violations , Discrimination and Harassment , Food for Thought , Wage and Hour Claims , Whistleblower Retaliation

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A recent case from the New Jersey Superior Court should make any employee who has ever used a work computer to send or receive email from an attorney a little nervous. In Stengart v. Loving Care Ag. Inc., No. BER-L-858-08 (Feb. 5, 2009), the Court held that the attorney-client privilege did not apply to emails between an employee/plaintiff and her lawyer which were accessed on the employee's work computer -- despite the fact that the emails were accessed through a personal, password-protected email account. The Court thus permitted the company to use the employee's emails to and from her attorney to defend against her discrimination claims.

As reported by the law firm of Buchanan Ingersoll & Rooney, the Court based its decision on the fact that the employer had a published electronic communication policy which "adequately warned employees that there [was] no reasonable expectation of privacy" with respect to any emails generated or viewed on company issued computers, and the fact that the employee was aware of the policy.

This decision reminds us that any time you contact your lawyer from your work computer, you run the risk of exposing the communication to your employer or other third parties. This situation is particularly dangerous for employees who are engaged in litigation with their current employers, although it applies to everyone. If you must communicate with your lawyer during the work day, the most prudent thing to do is to step outside the office and make a telephone call. Save the emails for when you get home from work.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Civil Rights Violations , Discrimination and Harassment , Employment Contracts , Food for Thought , Non-Compete Agreements , Severance Negotiations , Wage and Hour Claims , Whistleblower Retaliation

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In an age of increasing identity theft, the State of Connecticut has become the second state (after Michigan) to pass a law requiring that all businesses and their employees safeguard and protect the confidentiality of social security numbers. In signing the new bill into law, Governor M. Jodi Rell, said that “[i]n our fast-paced world, it takes only moments for someone to steal an identity and commit significant, long-lasting damage to a credit record." “This bill protects not just Social Security numbers, but any personal information," continued the Governor. "The law requires anyone possessing such information to safeguard it, along with the computer files and documents containing it, and specifically mandates that businesses that collect Social Security numbers develop a privacy protection policy."

The new law requires businesses to not only safeguard the personal information of their customers, but their employees as well. Although the law does not give individuals whose information is improperly divulged a right to file a lawsuit, it does provide for penalties and fines up to $500,000. A thoughtful description of the new law is set out in Daniel Schwartz's Connecticut Employment Law Blog.

Federal agencies and their employees, like IRS agents, have long been prohibited from disclosing taxpayer's financial information to third parties, pursuant to 26 U.S.C. 6103 and related laws and regulations. However, CT is only the second state to apply this prohibition to private citizens.

I recently counseled a client whose personal financial information was improperly disclosed by his employer to a group of his coworkers. While this client undoubtedly suffered embarassment and emotional injury due to his employer's thoughtless actions, I had to advise him that he did not have a case. Unfortunately, New Jersey does not have a similar statute and common law claims such as invasion of privacy did not apply to his situation.

I strongly feel that Connecticut and Michigan have done the right thing by passing legislation requiring employers and businesses to maintain confidentiality of financial information. I would like to see our New Jersey legislators follow suit.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Civil Rights Violations , Food for Thought

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NELA colleague Neil Mullin, Esq. won a significant victory for a gay couple who claimed they were harassed and discriminated against by firefighters in the Town of Secaucus, NJ. The plaintiffs alleged that they were subjected to anti-gay epithets and death threats after they asked the firefighters, whose station house was next to their residence, to quiet down. The plaintiffs alleged that the Town promoted two of the individuals involved, instead of disciplining them. The jury ruled in favor of the couple, concluding that Secaucus was responsible for the actions of the firefighters who perpetuated the attack, and that town officials had been indifferent to the harassment and discrimination the men experienced.

Mr. Mullin told The Hudson Reporter that he hoped the verdict "will signal to the Town of Secaucus the need to make some major changes. The mayor, the town attorney, and administrator failed to take any significant action to protect these men when their lives were in danger."

Having litigated against municipalities myself, I know that these cases are complicated and highly adversarial. My heartfelt congratulations to a terrific attorney and his team, and to the two gentlemen who prevailed in this case.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Civil Rights Violations , Discrimination and Harassment

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In my experience, most people who sue their employers for discrimination or retaliation are not looking for money. They are looking for justice. They want a wrong to be righted. They want an admission of guilt from the employer, an acknowledgment that it messed up. In short, they want an apology. Unfortunately, an apology is the one thing my clients never get. They might get some money. They might get some self-respect back and some vindication. But those three little words they want to hear so badly -- "I am sorry" -- will never, ever come. And that's a shame.

So-called "apology laws" are on the books in 34 states in the medical malpractice area. Under these laws, apologies made by health professionals to injured patients are not admissible in court. This encourages doctors, who are only human after all, to own up to their mistakes and apologize without having a plaintiff's attorney ram it down their throat at trial. The New York Times reported yesterday that hospitals which have adopted this approach have seen their medical malpractice lawsuits diminish substantially. http://www.nytimes.com/2008/05/18/us/18apology.html?pagewanted=1&_r=2&hp

This approach would work quite well in employment discrimination and retaliation cases. I recently resolved a whistleblower case largely because the employer owned up and admitted it made a mistake. I was stunned. My client was satisfied. The case got settled. I know a lot of my cases would go the same way if the employers did the right thing and acknowledged their wrongdoing.

Posted by Steven Siegler | Permalink | Email This Post

Posted In: Civil Rights Violations , Discrimination and Harassment , Food for Thought , Whistleblower Retaliation

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