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                             LEGAL CORNER

  We are pleased to announce that the leadership of Local 177 has requested that we contribute a newsletter for periodic posting on the Local 177 website. We hope to keep members of Local 177 advised of legal decisions or trends which are both interesting and informative. Of course, no synopsis or summary of any court cases or laws can substitute for an in depth review tailored to individual circumstances. Nonetheless, we hope that our summaries will provide you with a good understanding of recent legal decisions of significance.

 Robert A. Fagella and Edward H. O'Hare

(Robert A. Fagella and Edward H. O'Hare are attorneys who along with their law firm Zazzali, Fagella, Nowak, Kleinbaum & Friedman represent Local 177 and its members)

Aug 29, 2011

  Pursuant to New Jersey Law, a finding that a parent or guardian committed child abuse or neglect results in the abuser's name being placed on the Department of Youth and Family Services (DYFS) Child Abuse Registry. A listing on the Registry can have negative consequences on future employment, and also may preclude recreational involvement with kids such as serving as a coach. Two recent New Jersey Supreme Court decisions have refined the definition of "child abuse" and "neglect" in the State, and have limited the circumstances in which a parent may be placed on the Child Abuse Registry.

   In DYFS vs.T.B., 2011 WL 3425666 (NJ Sup. Ct. 2011), the Supreme Court held that a mother who accidentally left her four year old child unsupervised for two hours, believing that the child's grandmother was home, did not "neglect" the child and deserve to be on the Registry. More specifically, the mother and child lived with the child's grandparents. The mother and child lived in the downstairs portion of a ranch-style home, and the grandparents lived upstairs and frequently supervised the child. One Sunday evening,  the mother and child were returning home from visiting family when the child fell asleep in the car. Upon arriving home, the mother saw the grandmother's car in the driveway and assumed the grandmother was at home (according to the mother and grandmother, the grandmother was "always" home on Sunday evenings). The mother put the child to bed and went out to dinner with a friend. However, the grandmother was not home that evening, and the child panicked when he woke up without any adult supervision. He crossed the street and went to a neighbor's house, who called the police. The mother returned home between 9:30pm and 10:00pm, found the police at her house, and was transported (but not arrested) to the police station to make a statement.

   Therafter, DYFS conducted an investigation, and held that the mother neglected the child by failing to adequately supervise him. The Appellate Division affirmed, but the Supreme Court reversed the decision, holding that a parent only commits child neglect if he/she fails to exercise a minimum degree of care in supervising the child, which requires conduct that is grossly negligent or reckless to constitute neglect or abuse. In this case, the Court held that the mother was plainly negligent, but not grossly negligent, when she left her child unsupervised for two hours because she mistakenly thought the grandmother was home. While the mother obviously should have checked to see if the grandmother was home, her conduct did not constitute child neglect. As a result, the holding was reversed and the mother's name was removed from the DYFS Child Abuse Registry.

   Similarly, in DYFS v. P.W.R., 205 NJ 17 (2011), the Supreme Court held that a child's father and stepmother, although by no means stellar parents, did not abuse and neglect their sixteen-year old daughter. The child told her grandfather that her stepmother was "slapping her around" and taking money she earned working at a fast-food establishment. The grandfather called DYFS, which conducted an investigation. DYFS removed the child from the home immediately because there was no central heat in the home, the child had not been to the pediatrician in two years, the father admitted that the step-mother had slapped the child in the face and taken some of her earnings for cable bills, and the parents restricted the child's ability to see her grandfather. A hearing was held at Superior Court, Family Part, to determine whether removal of the child from the home was appropriate, and the Family Part held that DYFS had proven its allegations of abuse and neglect and removal was appropriate. The Appellate Division affirmed.

   However, the Supreme Court reversed the decision, holding that the actions of the father and stepmother did not fall below the minimum degree of care required by the Statute. Specifically, the court held that occasionally slapping the teenager in the face as a form of discipline, which did not result in bruises, scars, lacerations, fractures, or any other medical ailment, did not constitute "excessive" corporal punshment: it was not "neglect or abuse", even though there was no central heat in the home, as the parents could not afford to have it fixed and they were using space heaters instead: requiring the working age child to contribute to support the family was not a reason for DYFS to remove the child from the home: there was no evidence that the child was in imminent danger because she had not seen a pediatrician in two years; and the parents had the right to restrict the child's visitation with her grandfather. Accordingly, the Court reversed the lower court's decision that the parent abused and neglected the child.

   In sum, the definition of child abuse and neglect in this State has recently been clarified by the Supreme Court. The conduct described above, while unfortunate, did not constitute abuse and neglect, and makes clear that the Supreme Court will require that improper conduct towards a minor must be intentional and significant before a parent's placement on the DYFS "child abuse" registry will be permitted.

Dec 13, 2010

   The Legislature has recently enacted a law sought by Govenor Christie which significantly limits an employee's eligibility for unemployment compensation in the event of a temination. The issue has gone unnoticed by many employees and the media, and we are accordingly bringing it to your attention.

   Many employees believe that they are automatically entitled to unemployment if they are terminated. In fact, that is not the case. Current law provides that if an individual is fired for "misconduct", there is a six week ineligibility period before unemployment may be collected. If the employee engages in "gross misconduct", the individual is not entitled to any unemployment whatsoever. "Gross misconduct" has generally been interpreted to mean actions that rise to the level of a "crime" as defined by the New Jersey Code of Criminal Jusitce.

   Recently, however, the Legislature added a third level of unemployment ineligibility, known as "severe misconduct". Under this standard, if the employer contends that the termination was because the employee engaged in "severe misconduct", the employee is completely barred from collecting any unemployment compensation. Thus, the question is what would constitute "severe misconduct", and how does it differ from "gross misconduct".

   Under the new Law, "severe misconduct", can involve offenses which certainly would not previously have resulted in disqualification from unemployment. The statute states that "severe misconduct" may include: 1)repeated lateness or absences after written warnings; 2)repreated violations of an employer's rules or policies; 3)misuse of sick time; 4)theft of time; and "other similar examples". Put differently, under the new law, employees who would have been eligible for unemployment upon termination may now be ineligible if the employer contends that the employee engaged in "severe misconduct" as described above.

   Accordingly, it is very important for employees to understand the exact reasons for their termination, and whether their employer will allege that the employee engaged in "severe misconduct" or "gross misconduct". If so, the employee will not only be terminated, but may find that he/she is not eligible for unemployment.

May 10, 2010

 In Quon v. Arch Wireless Operating Co., 554 F.3d 769 (9th Cir. 2009), cert. granted, 130 S.Ct. 1011 (2009), a Federal Appeals Court addressed the issue of whether employees have a protected expectation of privacy in their text messages sent over employer-owned pagers. In Quon, a city employer contracted with a wireless compnay to provide two way pagers to city employees. While the city had no specific policy regarding personal use of the pagers, the city had a general computer and e-mail policy which provided that computers and related equiptment were city property and could not be used for personal reasons. However, despite this policy, the city also had an informal practice whereby employees' texts would not be audited as long as they paid any texting overage charges incurred.

Nonetheless, pursuant to an internal affairs investigation, the city audited the text messages of an employee who exceeded his monthly text allowance and discovered that the employee used his pager to send personal and sexually explicit text messages. The employee brought suit against the employer and the wireless provider, claiming that his Fourth Amendment rights against illegal searches were violated. The Court agreed, stating that the informal policy of not auditing employees' texts so long as they paid their overage charges created a "reasonable expectation of privacy" in the text messages. Furthermore, the Court held that the search itself violated the Fourth Amendment because it was unreasonable, as there were less intrusve ways of determining whether the employee violated the company policy, such as informing the employee that their pager was for work-related purposes only and that the next month, their text messages would be monitored to ensure compliance.

   However, the United States Supreme Court has agreed to hear an appeal on this case, so it is unclear whether the holding in Quon will be upheld. In the meantime, it is critical that employees not use employer-owned computers, e-mail systems, and other communications devices to conduct personal business, to avoid any claims that the employee's messages violate employer policy.

Nov 25, 2009

   The internet has rapidly become the primary mode for communicating and receiving information in contemporary society. In the last few years, millions of people have connected to websites, blogs, or other instant messaging forums to communicate with, or obtain information from, other users. The benefits of the new medium are obvious.

   But there is a darker side to these technological advancements. The anonymity which internet sites provide creates the opportunity to make statements which are threatening, demeaning, defamatory, or otherwise problematic. The law has been struggling to keep up with these changes, and recent court cases have begun to provide some guidance regarding regulation of these activities.

   In Stengart v. Loving Care Agency, The New Jersey Appellate Division recently concluded that an employer overstepped its bounds by retrieving a former employee's confidential internet communications with her attorney on a company computer. The employer had provided the employee with a laptop computer to help her perform her responsibilities. A handbook distributed by the company informed all employees that the computer was for business only usage, and that any communication made on that computer was the property of the company. The handbook recognized, however, that "occasional personal use is permitted".

   Just prior to being fired, the employee had begun to gather information to support a potential lawsuit against the employer. She shared that information, and other communications, with her attorney over the internet. After she was fired, the employer seized the laptop computer and was able to extract all of the prior communications. It then attempted to use some of the communications against the employee in the subsequent lawsuit.

   The court held that the mere fact that the computer was provided by the employer did not convert every message on the computer into company property. Recognizing that computers today can be utilized to access tax returns, medical records, intimate personal conversations, and other communications in which the employee has a privacy interest, the court concluded employee handbooks must be tailored to protect the legitimate interest of the employer. Moreover, ambiguity in handbook language should be resolved against the employer, since the employee must communicate clearly permissible or impermissible usage.

   As a result, the court concluded the employer did not have the right to obtain or retain the email messages between the former employee and her attorney, even though the communications were conducted on the employer's computer. The court was careful to point out, however, that the employer can certainly terminate an employee for the improper usage of company property. In other words,a company can fire its employee for using work time to conduct private internet activity. Retaining the actual messages that the employee sent, however, is an entirely different matter.

   Obviously, the case raises as many questions as it resolves. For current purposes, however, it is critical that employees understand that an employer can access a company supplied computer, and can learn both the amount of usage, and type of usage in which the employee engages on work time. The employer can also terminate an employee for spending time surfing the web at work. Checking whether the employer has a policy regarding internet usage or any claimed right to the employees email messages is an important step in protecting job security.

   In two other recent cases, the courts have spoken on whether an employee can be terminated for private and personal internet usage which affects the employer's interest or that of its employees.

   In Matter of Smith v. City of Newark, a police officer accessed a blogging website called "Newark Speaks". The officer would log on anonymously and make defamatory statements about superior officers, contending they were thieves, pimps, crooks and other demeaning characterizations. The officer never identified himself, and assumed-mistakenly- that his identity would never be known to the City. To the contrary, Newark officials were monitoring the website, and obtained a Grand jury subpeona to compel the internet provider to disclose the names of the users. Eventually, Newark learned the identity of the officer who was making the anonymous postings. The City then fired the officer. The case went to trial and the court upheld the termination. It concluded that employers have a legitimate interest in precluding defamatory or scandalous statements made by its employees on a publicly accessed website. This is true even if the postings occur off duty on the employee's own computer.

   A similar result was reached in Nicosia v. City of Belleville. There, a town employee posted a statement on a website that "all of the city cops should be shot in the head". Again the employer was able to obtain the identity of the individual, and terminated him. The court rejected the claim that an employee's off-duty internet usage as of no concern to the employer, and upheld the termination.

   While these cases are clearly not the last word on the subject, thay provide some guidance about the rosks associated with defamatory or threatening statements on internet websites.

Jun 05, 2009

  As genetic testing, and its consequences, become more prevalent, the possibility that health insurers will attempt to deny coverage or increase premiums because of genetic characteristics becomes increasingly likely. A recent federal statute should preclude that possibility.

   Late last year, Congress amended the Americans With Disabilities Act ("ADA") to prohibit discrimination against individuals whose genetic charactersitics give them a predisposition to certain diseases. Under the amended law, an individual who has been subject to genetic testing, or whose gentic or family history indicates a greater likelihood of particular diseases, may not be the subject of discrimination by a health insurer becauses of that genetic trait. Such discrimination would include cancellation of coverage, a refusal to extend or renew coverage or an increase in the cost of coverage.

   It should be noted that New Jersey has been in the legal forefront of this area for several years. The New Jersey Law Against Discrimination has long provided that it is impermissible to discriminate against an individual because of a genetic characteristic. In combination with the federal law, New Jersey employees should feel comfortable and confident that the results of genetic testing, whatever their outcome, will not also trigger health care denial, difficulty in obtaining new coverage, or increased premiums.

Apr 29, 2009

   Many employees who lose their jobs also lose health insurance because they cannot afford to pay the applicable COBRA premium.Under the recently enacted American Recovery and Reinvestment Act of 2009, certain individuals who are eligible for COBRA continuation health coverage may now be eligible to pay a reduced premium amount, equivalent to 35% of the premium for COBRA, for up to 9 months. This reduced premium is made possible by a government paid subsidy, "fronted" by the employer, for the remaining 65% of the COBRA premium cost. Please refer to the following questions and answers for important information about how the COBRA premium reduction may affect you:

Q: Who is eligible for the subsidy?

 The subsidy is available to employees who are, involuntarily terminated on or after September 1, 2008 but before January 1, 2010 (the last date to qualify is December 31, 2009) and who are eligible for, and elect, COBRA continuation coverage (or similar State coverage). The spouses and dependants of these employees, who are otherwise entitled to COBRA coverage are also eligible. Please note that employees terminated for "gross misconduct" are not eligible, since they are not entitled to elect COBRA continuation under already existing COBRA rules.

   There exists a phase-out of eligibility for the subsidy based upon income. Accordingly, those individuals whose modified gross income is less than $125,000, or $250,000 for those filing joint returns, are entitled to recieve the entire subsidy tax free. However, individuals, or joint filers, with modified gross income above those amounts will be required to repay a portion of the subsidy, and the subsidy is phased out completely for individuals whose adjusted gross income exceeds $145,000, or $290,000 for those filing joint returns. For those individuals, the subsidy would have to be repaid completely as an additional tax. The Act provides that persons who earn in excess of these amounts may choose to permanently waive the subsidy by notifying the employer of the waiver.

   For individuals who were involuntarily terminated between September 1, 2008 and February 16, 2009 (the day before the Act became effective) but did not enroll in COBRA continuation coverage, those individuals will have a second opportunity to enroll. Under the Act, a plan is required to notify such individuals of the second election period by April 18, 2009, after which time they have 60 days to enroll in COBRA coverage with the premium reduction. Individuals that elected COBRA coverage during this period and paid the full premium during this period will be eligible for reimbursement of the premium subsidy or a credit against future premium payments.

Q: How long does the subsidy last?

    The subsidy can last up to 9 months. However, the subsidy will end earlier if:

    1) an individual becomes eligible for Medicare or another group health plan (such as a plan sponsored by a new employer or a spouse's employer); or

    2) an individual reaches the end of their maximum COBRA coverage period.

   An individual must notify a plan if they become eligible for coverage for another group plan or Medicare. Failure to do so will result in a tax penalty.

Q: How is the subsidy paid?

   An employer is required to pay 65% of the COBRA premium upon receipt of payment for 35% of the premium from the employee. The employer submits this payment on the employee's behalf and can then seek reimbursement from the government through a payroll tax offset.

Q: What action is my employer and/or plan administrator required to take?

   For involuntary terminations that occur after February 17, 2009, plan administrators (and employers, if they are the plan administrator) are required to give notice of premium subsidy to terminated employees and their spouses within 44 days of the termination. However, because the Department of Labor did not issue a Model notice until March of this year, plan administrators had the option of waiting to issue the notice. In that event, however, the 60 day period in which to elect the COBRA coverage with the premium subsidy does not commence until the notice is issued.

   For persons terminated involuntarily after September 1, 2008, and before the Act's enactment date, plan administrators must provide notice of the premium subsidy on or before April 18, 2009. These indivuduals will have 60 days after the notice is issued to elect coverage with the premium subsidy.

Q: What can I do if my employer refuses to pay the subsidy?

    Persons who are eligible for the subsidy, but are not provided the subsidy by their employer, may appeal the denial directly to the Department of Labor. A decision will be issued within 15 days after reciept of the application for review. However, procedures for initiating such an appeal have not yet been issued by the Department of Labor. An official application form will be designated for such appeals. This form will soon be available at:, along with instructions for submitting the form.

   If you believe you have been inappropriately denied eligibility for the premium reduction, you may wish to speak with an Employee Benefits Security Administration Benefits Advisor at: 1-866-444-3272 before filing this form.


Mar 24, 2009

   In a unanimous decision issued last month, the New Jersey Supreme Court ruled that the right of free speech in a labor dispute trumps local zoning ordinances which prohibit signs, balloons, or other methods of verbal expression. In State v. DeAngelo, the New Jersey Supreme Court addressed the right of a local union to place a 12 foot rubberized rat on a picket line to publicize its labor dispute with a non-union contractor. The inflatable rat is often associated with efforts to advise the public about labor unrest at a particular location. This practice however, ran contrary to a local zoning ordinance in Lawrence Township, where the dispute arose. The Township zoning ordinance specifically prohibited signs, inflated balloons, banners, or other types of advertising.

   Wayne DeAngelo was the union business agent who was ordered by police to remove the inflatable rat because the local zoning ordinance prohibited such demonstrations. When DeAngelo refused, he was given a summons by the local police for violating the ordinance. A trial court and the intermediate appellate court both ruled in favor of the Township, concluding that the sign ordinance was a legitimate method to control "visual pollution", and was not directed specifically at union disputes.

   The New Jersey Supreme Court took a broader view and unanimously reversed the conviction. It held that the constitutional guarantee of freedom of expression embodied requires that local zoning ordinances give way to peaceful and non-verbal methods for communicating with the public. A ban on signs or "inflatable rats", when applied to a labor dispute involving expressions of speech, is an unconstitutional and overbroad method of regulating matters of traditional local concern. The Supreme Court did acknowledge that a township has the right to regulate the "time, manner and placement" of such signs or demonstrations. However, a total prohibition upon such efforts to communicate with the public runs afoul of the right to freedom of speech.

Mar 23, 2009

      The New Jersey Legislature recently enacted a revision to this State's current Family Leave Act ("FLA"), which already provides that an employee is entitled up to 12 weeks of unpaid leave for illness of a family member. The New Jersey Paid Family Leave Act was enacted in late 2008, and becomes effective in July, 2009. It provides that an employee who needs care for an ill spouse, child or parent can now receive up to six weeks of pay during the course of that 12 week leave.

     Under the new law, an employee who qualifies for a FLA leave will be afforded a payment of up to $525 per week for six weeks of the leave. The weekly payment is based upon a percentage of the employee's salary. The program is financed through a small payroll tax which is already being levied upon each employee in the State.

   A qualifying employee may first be required to utilize other paid leave time, such as sick time or vacation time, for the first two weeks of the leave before the paid portion of the leave would be triggered. For example, an employee who requests twelve weeks to care for an unborn child, and who has significant vacation time available, could utilize the leave as follows. The employer could require that vacation time be used for the first two weeks of leave. The next six weeks could be taken as paid leave under the amended law. The remaining four weeks could be taken as either paid or unpaid leave, depending upon the policies of the employer and the availability of additional sick or vacation time on the books of the employee.

   In order to qualify for family leave, it is important to follow the applicable procedures promulgated by the employer. Generally speaking, leaves should be requested at least 30 days in advance and be supported by adequate medical documentation. The employee should also insure that the employer has recieved all necessary forms and issued the appropriate approvals to avoid misunderstandings when the leave begins. Discussion with the human resource office is usually the best first stop, and any request should always be put in writing.

Dec 16, 2008

   New Jersey has some of the most stringent laws in the country regarding workplace harrassment. Generally speaking, however, to be illegal, harrassment in the workplace must be based on a particular "protected characterstic" of the indivdual being harrassed. The most obvious classifications are gender, age, ethnicity, martial status or sexual preferences. It is illegal to discriminate, harrass or retaliate against someone based upon such characteristics. Recent decisions of the New Jersey Supreme Court have made clear that words alone, even if uttered in a joking manner, can constitute discrimination in certain circumstances. In Cutler v. Dorn, the New Jersey Supreme Court found that police officers in Haddonfield violated the New Jersey Law Against Discrimination ("LAD") through frequent and pervasive comments which were directed at a Jewish police officer. The Court concluded that a hostile work environment claim can be sustained under the LAD if a reasonable person of plaintiff's religion or ancestry would consider the workplace acts or comments made to, or in the presence of, plaintiff to be sufficiently severe or pervasive.

   In this case, the plaintiff police officer observed that his supervisor would makes negative and demeaning comments or "jokes" about Jews in his presence. For example, the Chief of Police would comment on his ancestry a couple of times a month, often referring to him as "the Jew" when he was present. The Chief also asked the plaintiff on one occasion "where [his] big Jew... nose was", and the Lieutenant also made derogatory comments directed at plaintiff's ancestry. Stickers were also placed on the officer's locker including a German flag which was placed above an Israeli sticker. On one occasion, fellow officers referred to "dirty Jews" when speaking to the plaintiff.

   At trial, the trial court denied the employer's motion for a dismissal and allowed the claims to be decided by a jury. The jury found in the plaintiff's favor on the hostile work environment claim but awarded him no damages. On appeal, the Appellate Division reversed the verdict and dismissed plaintiff's complaint. The Supreme Court agreed to review the case.

   In its decision, the Court found that the comments directed at the plaintiff constituted a hostile work environment based upon its prior decisions. Specifically, the Court concluded that plaintiff succeeded in establishing a hostile work environment claim because the conduct at issue would not have occurred but for his religion and ancestry, and because it was "severe and pervasive" enough to make a reasonable person believe that the working environment was hostile and abusive.

   The Cutler opinion follows similar previous decisions addressing hostile work environment claims of sexual or racial harassment, and accordingly rejects the theory that these comments were "just teasing". The Court noted that stereotypical ethnic references made in the presence of an individual could in the aggregate create an objectively humiliating and painful environment. While each comment, in and of itself, might not be considered harrassment, the Court emphasized that one must look at the comments as a whole, particularly if comments are uttered by one's supervisors.

   In Kwiatkowski v. Merrill Lynch, a recent Appellate Division case, the court made it clear that even a single insult can result in an LAD violation if it is sufficiently egregious. That case involved a claim by an employee that he was fired because of his sexual orientation.He claimed that his supervisor called him a "stupid fag", and that this demonstrated bias and the real reason for his termination. While the trial court dismissed the contention that this single comment could trigger LAD liability, the Appellate Division disagreed and reinstated the case. It held that a jury could find that the single statement "stupid fag" created a hostle work environment, even if it was made by a different supervisor than the one who actually fired plaintiff.

   In short, the courts have been very active in addressing hostile work environment claims. It is important to understand that even workplace comments made in a teasing or joking manner in certain instances can support hostile work environment claims. Those comments could be made about a person's gender, ethnic background, sexual orientation or religious beliefs. And while it is usually the cumulative impact of these incidents which may constitute a hostile work envirnment, in some instances even a single outrageous comment may be sufficient and trigger liability. We caution that these decisions certainly do not mean that all workplace jokes and teasing are unlawful. But if the remarks are numerous, made by supervisors directed towards subordinates, or outrageous and egrerious when made by a co-worker, the courts are more likely to find LAD vioaltions.

May 10, 2010

  In Miller v. Mitchell, 598 F. 3d 139 (3d Cir. 2010), the Third Circuit (the Federal Appeals Court of New Jersey) upheld a temporary injunction preventing a District Attorney from bringing criminal charges against students for "sexting", which is defined as "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the internet." More specifically, the District Attorney offered students who engaged in sexting a choice; They could attend a six to nine month education program, or criminal charges would be filed against them for disseminating child pornography. Parents of the students who refused to engage in the program brought a lawsuit against the District Attorney and sought to enjoin the criminal charges.

   The Third Circuit upheld the trial court's injunction. More specifically, the Court held that the Plaintiffs demonstrated a reasonable likelihood of success of proving that the District Attorney violated the parents' constitutional right to teach their children morality without State intrusion, as well as their children's First Amendment right to be free from State compelled speech, i.e., freedom from being forced to write essays on why their conduct was morally wrong.

   The Court also held that the Plaintiffs demonstrated a reasonable likelihood of success of proving that the District Attorney sought to bring charges not based upon probable cause that the children commited a crime, but rather, in retaliation for the parents' and children's exercise of their Constitutional rights. While the case was not decided on the merits, the injunction was upheld and the case was remanded for further proceedings.

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