Laborsphere

William Horwitz Authors Articles for New Jersey Law Journal and BNA’s Corporate Counsel Weekly

William Horwtiz, counsel in the Labor & Employment practice group, recently authored articles for both the New Jersey Law Journal and BNA’s Corporate Counsel Weekly.

William’s article for the New Jersey Law Journal titled, “Third Circuit Rides the Class-Action Arbitration Waive”, discusses the case of Quilloin v. Tenet HealthSystem Philadelphia, in which the Third Circuit, following the U.S. Supreme Court’s lead and its own precedent, endorsed the validity of class-action waivers in predispute employment arbitration agreements. Bill outlines the facts of the case and the court’s reasoning and says that the case offers helpful guidance for employers rolling out new arbitration agreements and employers with existing agreements. He also notes that Quilloin holds that class-action waivers are enforceable and employers should consider including them in arbitration agreements, adding that employers should also “include a provision requiring the parties to submit arbitrability issues to the arbitrator.”

William’s article for BNA’s Corporate Counsel Weekly, “In Case Involving Employer’s Poor Handling of Sexual Harassment Allegation, Second Circuit Resolves Two Novel Issues”, William discusses the case of Townsend v. Benjamin Enterprises, Inc., in which the U.S. Court of Appeals for the Second Circuit resolved two issues of first impression. In outlining the facts of the case and the court’s observations, William notes that the most important takeaway from the decision may be the important guidance for employers of how not to address sexual harassment in the workplace.

To read the complete article, “Third Circuit Rides the Class-Action Arbitration Waive”, click here.

To read the complete article, “In Case Involving Employer’s Poor Handling of Sexual Harassment Allegation, Second Circuit Resolves Two Novel Issues”, click here.

New Jersey Appellate Court “Renews” Recommendation that Model Jury Charge For Failure-to-Accommodate Cases Is Needed

In Whalen v. New Jersey Manufacturers Insurance Company, Docket No. A-3155-09T4 (N.J. App. Div. August 6, 2012), the Appellate Division, in an unpublished per curiam decision (click here to read), found no reversible error in a jury charge that did not differentiate between the two distinct theories of disparate treatment and failure to accommodate. The plaintiff, a former project coordinator in NJM’s information technology department, claimed the trial judge had failed to separately charge her disparate treatment and failure-to-accommodate claims. Plaintiff had Lyme’s disease, and flare ups with her disease required her to go on short-term disability, reducing her schedule from full-time (five days a week/40 hours) to less than full-time (four days a week/32 hours). Plaintiff did not qualify for long-term disability, and there was a dispute as to whether Plaintiff had requested to work on a permanent basis on a reduced work schedule of four days per week or whether working full-time was an essential function of her job. Based on an examination of both the responsibilities of the position itself and the plaintiff’s performance, NJM concluded that the plaintiff’s job required 40 hours of work per week, that she could not perform the essential functions of her job working less than 40 hours per week, and thus terminated her for this reason.

Ms. Whalen sued NJM for disability discrimination and unlawful termination in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The case went to trial. At the close of all the evidence, the parties “engaged in an extensive discussion regarding the jury charge.” Although the plaintiff did not voice any objections after the charge was given (per Rule 1:7-2), she claimed plain error on appeal after the jury returned a defense verdict, contending the trial judge had failed to instruct the jury about the impact of the interactive process on the failure to accommodate theory of liability.

The jury was instructed on the three elements of a disability discrimination claim under LAD, the definition of the term “essential function of the job,” the four elements to consider in determining whether NJM had engaged in the interactive process, and the meaning of a “reasonable accommodation.” The panel concluded that although “the better practice” would have been to charge separately the disparate treatment and failure-to-accommodate claims, the jury had more than sufficient facts to assess the issue of the interactive process as well as the ultimate issue – whether the plaintiff could perform the essential functions of her job. Nevertheless, the panel “renewed” its recommendation that the Committee on Civil Jury Charges develop a separate failure-to-accommodate charge, stating that “[t]he addition of such a charge would be consistent with federal practice” (citing the Third Circuit’s model charge Section 9.1.2 and 9.1.3 for disparate treatment and failure-to-accommodate claims under the ADA).

Take away: until New Jersey’s Committee on Civil Jury Charges develops a separate failure-to-accommodate jury instruction, when faced with crafting jury charges in failure-to-accommodate disability discrimination cases, practioners should be guided by the courts’ direction and holdings in Whalen v. NJM (attached); Victor v. State, 401 N.J. Super. 516 (App. Div. 2008), aff’d in part and modified in part, 203 N.J. 383 (2010); Tynan v. Vicinage 13 of the Superior Court of N.J., 351 N.J. Super. 385 (App. Div. 2002); and Viscik v. Fowler Equip. Co., 173 N.J. 1 (2002).

EEOC Issues Guidelines Addressing the Use of Background Checks in Employment

The EEOC (the “Commission”) recently issued guidelines addressing the use of background checks in employment. Generally speaking, a “background check” or “consumer report” is something that is obtained from a reporting agency and reflects a consumer’s credit, character, reputation, standing, lifestyle, or the like, and is used (in this context) for the purpose of determining employment eligibility (whether for hire, promotion, eligibility to work at a particular job site, etc.). While the Commission had been focused on this issue to some extent since 2007, the new guidelines suggest that the EEOC plans to launch an aggressive enforcement campaign aimed at preventing perceived inherent disparate impact discrimination via the most common background check scenarios.

At the heart of the Commission’s guidelines and, indeed, currently the subject of legislative debates in many states, are “Ban the Box” recommendations. The “Box” being referenced typically appears on an employment application as a Yes/No choice, seeking disclosure of any prior convictions or pending criminal charges. The disclosure, if any, acts as a de facto bar to employment. The EEOC has now publicly expressed the presumption that any policy that mandates an adverse employment decision for any criminal history is inherently discriminatory.

EEOC guidance mandates what should be logical — any disclosure or “hit” on a background check should be considered on an individualized basis. Factors the EEOC recommends considering include the nature and gravity of the offense, the age of the offense, and the nature of the job at issue. Where an employer can point to a rational relationship between the job and the offense so as to justify disqualification from employment, the Commission will not likely find discrimination occurred. The clearest example is disqualifying an applicant with a fraud conviction from work as a bank teller — a position in which the person would handle funds with little supervision and be responsible for reporting balances and the like. Where businesses run in to trouble is in disqualifying applicants or employees based on a “zero tolerance” policy, or because the individual is guilty of crimes the employer finds inherently offensive, though they lack a rational relationship to the job duties at issue. One of the most common examples is an employer’s policy of refusal to hire anyone found guilty of a “sex offense,” without further clarifying the meaning of that term. That phrase can mean many things, including potentially having consensual sexual relations with someone just a few years younger than majority age (e.g., an 18-year old boy and a 17-year old girl in California). Absent individualized inquiry and analysis, a blanket policy could result in unjust actions, whether putatively race-based or otherwise.

The federal Fair Credit Reporting Act (“FCRA”) further requires that detailed disclosures be given to employees before background checks are done, when any adverse action is contemplated, and again when an adverse action decision is finalized. Separate disclosures are required if the background check will also include “interviews” (e.g., discussions with prior employers) in additional to database research. The FCRA is very specific about the format of each of these notices. And nearly half of the United States have requirements that are stricter and even more specific than those set forth in the federal FCRA. Some even mandate particular type fonts. As with any procedural violation, class certification is often virtually guaranteed (given the absence of individualized treatment). Violations of the FCRA requirements, for example, can multiply at the rate of $100-$1000 per violation (e.g., per applicant or employee, for the entire statutory period). It is common that businesses seldom complete all steps of the process correctly.

So, how does all this play out in the workplace? Fixing the paperwork might be the easy part. Most employers don’t want to spend the time or money going through individualized analyses, which the Commission says should include discussions with the subject individual to explore circumstances surrounding the offense at issue before a final decision is made. “Zero tolerance” policies are certainly much easier (and more expedient) from an employer perspective, and companies often bank on the fact that applicants or employees with “dirty laundry” may be less likely to raise complaints about potentially unfair policies. However, the Commission is empowered to pursue violations on behalf of an absent class — there does not have to be a proactive complainant. At present, the EEOC is actively engaged in hundreds of claims involving alleged violations of applicant/employee rights associated with background check procedures, and we anticipate the recent Commission guidelines to encourage the plaintiffs’ bar to focus on this area of the law in the context of class actions. In sum, this is a good time for businesses to take a fresh look at not just their paperwork, but in how they utilize the results of any consumer investigative report.

Editor’s note – Please see our other coverage of the EEOC’s guidance on use of background check’s here.

Recent Fee Shifting Cases Caution Against Diving into Non-Compete/Trade Secret Litigation Where the Facts Supporting a Violation are Unknown or Questionable

Two recent cases highlight the down side of running into court with guns blazing but without the horses to prevail, or at least without the facts sufficient to survive the bad faith standard of the Uniform Trade Secret Act. In Sasco v Rosendin Electric, Inc., 143 Cal.Rptr.3d 828 (July 11, 2012), the Appellate Court affirmed the lower court’s judgment of $ 484,943.46 in attorneys’ fees and costs pursuant to California’s Uniform Trade Secrets Act, observing:

Speculation that the individual employees must have taken trade secrets from SASCO based on their decision to change employers does not constitute evidence of misappropriation. Nor does speculation that Rosendin’s success in obtaining the Verizon Tustin contract was based on the theft of trade secrets constitute evidence of misappropriation.…..Having reviewed the parties’ respective papers, the court found there was no evidence of trade secret misappropriation.

In Loparex, LLC v. MPI Release, LLC, 2012 WL 3065428 (S.D. Ind., July 27, 2012) the District Court was even more direct in awarding the prevailing party, MPI, $475,000 in attorneys fees and nearly $29,000 in costs under the Illinois Uniform Trade Secret Act. The Court found that Loparex pursued the trade secret misappropriation claims in “bad faith.” The Court also determined there was no evidence that the employees had misappropriated any trade secrets in its diversion of a former Loparex customer. The Court went on to award fees against Loparex’s former lead counsel as well, under 28 U.S.C § 1927, for bad faith prosecution of the case.

These cases do not mean that attorneys’ fees will be shifted where a plaintiff can show that trade secrets are at issue and the plaintiff has a good faith factual basis to conclude that those trade secrets were being misappropriated or there was a threatened misappropriation. The plaintiff bringing a trade secrets action does not get assessed the other party’s attorneys fees by losing, but only when the plaintiff loses and a claim of misappropriation is made in bad faith. In these two cases, there was no reasonable basis for bringing the claims, let alone continuing to pursue the litigation after it was clear to everyone that the plaintiffs’ claims were meritless.

In addition to a statutory basis for attorneys fees under the Uniform Trade Secrets Acts adopted in many states, there are other statutory fee shifting statutes that may apply. For instance, Montana’s Declaratory Judgment Act, § 27–8–313, may provide a statutory basis for awarding attorneys’ fees as supplemental relief if such an award is determined to be necessary and proper. See, e.g., Mungas v. Great Falls Clinic, LLP. 354 Mont. 50, 221 P.3d 1230 (2009)(fees not awarded because the facts not deemed to warrant it). More frequently, however, fee shifting awards come from a well drafted employment agreement. Ohio Learning Centers, LLC v. Sylvan Learning, Inc., 2012 WL 1067668 (D. Md., March 27, 2012). The Sylvan Court quoted the relevant contract language:

[I]n the event either [SLI] or [OLC] institutes a suit or action to enforce any term or provision of [the License] Agreement, the most prevailing party in the suit or action, or on appeal, shall be entitled to recover from the losing party a reasonable attorney fee to be set by the trial or appellate court in addition to costs or disbursements provided by law.

At the summary judgment phase the Court found the fee award premature because “ at this stage in the litigation it is not yet clear that the Defendants will be ‘the most prevailing party’ in this case.” Note that the Court is enforcing the parties’ agreement as written. The Court also noted that the fee-shifting provision in the License Agreement only provides for an award of “reasonable” fees. And since evidence of the reasonableness of the fees had not yet been submitted by the putative prevailing party, the Court stated that it could not conduct the requisite analysis.

The take away: make sure you have the horses before filing suit, or at least be reasonably assured you will have those horses harnessed by the time the smoke of your rush to court clears.

Are Partners Protected by the Provisions of FEHA and/or Title VII?

According to the California Court of Appeal, a partner in a partnership is protected under the provisions of the California Fair Employment Housing Act (“FEHA”) if the partner complains that the partnership is retaliating against the partner because the partner complained about unlawful discrimination or harassment by the partnership against employees of the partnership. In Fitzsimons v. California Emergency Physicians Medical Group, the California Court of Appeal drew a distinction between a partner alleging discrimination, harassment or retaliation by the partnership against the partner versus the partner complaining that the partnership is retaliating against the partner because the partner complained about unlawful discrimination or harassment by the partnership against employees of the partnership. Say that again?

Here’s what happened in the Fitzsimons case. The plaintiff (a woman partner in the medical practice) claimed that she was retaliated against for reporting that certain male officers and agents of the partnership had sexually harassed female employees. So, the issue was not whether the plaintiff could sue the partnership for sexual harassment against herself as an employee, but whether plaintiff could sue the partnership as a non-employee based on retaliation for complaining that employees of the partnership were sexually harassed. The Court held that under the FEHA, the partner can maintain such an action, even though the partner is not deemed an employee of the partnership.

The Court drew a distinction between the provisions of Title VII and the FEHA by highlighting that Title VII and the FEHA differ significantly. The Court explained that Title VII prohibits employers from retaliating against employees or applicants for employment, whereas the FEHA prohibits employers from retaliating against any person who opposes or challenges unlawful employment practices, such as discrimination or harassment. In Fitzsimons, the plaintiff was regarded as “any person” who opposed harassment of female employees by the officers and agents of the partnership.

Moral of the story: just because a partner is not regarded as an employee of the partnership, the partner still can sue the partnership for retaliation under the FEHA. The case is attached here: Fitzsimons v. California Emergency Physicians Medical Group.

Lawrence Del Rossi and Joshua Rinschler Publish Article on an ‘Awkward Theory’ of Personal Liability for Supervisory Employees Under the NJLAD

Associates Lawrence J. Del Rossi and Joshua D. Rinschler’s article, Aiding and Abetting Your Own Conduct – An ‘awkward theory’ of personal liability for supervisory employees under the N.J. Law Against Discrimination (NJLAD), was published in the July 16, 2012 edition of the New Jersey Law Journal. Their article takes a look at what is becoming a common practice in wrongful discharge cases brought under the NJLAD where terminated employees are not only suing their employer, but also naming as an individual defendant the supervisor who made the decision to terminate. Their complete article appears below.

Aiding and Abetting Your Own Conduct – New Jersey Law Journal – Larry Del Rossi and Joshua Rinschler – 7-16-12