Author: Brittany E. Grierson

Court Dismisses Complaint and Sanctions Plaintiff for Fabricating ESI

The Southern District of New York recently issued significant sanctions in a case with a background story fit for Hollywood. In Carrington v. Graden, plaintiff brought claims against entertainment giants Paramount Pictures and Viacom, Inc. for sexual misconduct, unfair competition, fraud, misappropriation, federal antitrust violations, and New York State and City labor violations. Plaintiff attached various exhibits to his complaint that contained emails purportedly between defendants and non-parties. After it was discovered, through an arduous cat-and-mouse game between defendants and plaintiff, that plaintiff completely fabricated the emails that were presented in support of his claim, the court dismissed plaintiff’s claims with prejudice against all defendants and granted defendants’ application for attorneys’ fees and costs incurred in connection with their work regarding the authenticity of the emails. At the onset of the litigation, defendants sent plaintiff’s counsel a preservation notice for electronically stored information (ESI) and documents, after noting that the documents plaintiff referenced and attached as exhibits to his complaint “appeared highly questionable and inaccurate.” Significantly, the emails were not produced as native-format email communications, rather, they were all produced as email forwards from plaintiff to his attorney. Defendants, as part of a pre-motion submission to the court in connection with their anticipated motion to dismiss, submitted affidavits from the individuals who were represented as...

The Need for Counsel to Maintain Active Involvement in Discovery: California District Court Sanctions Attorney for Failing to Make “Reasonable Inquiry” as Required by Fed. Rule 26(g)

On June 1, 2020, the District Court for the Northern District of California in Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., issued a strong reminder to counsel: act in accordance with the obligation to manage and oversee the collection of discovery, or risk running afoul of the attorney certification obligations of Federal Rules of Civil Procedure 26(g). In this case, defendant’s attorney signed a certification pursuant to Rule 26(g) as to the completeness of defendant’s responses to discovery requests despite being unaware of what defendant actually did to search for responsive documents. The District Court found the lack of involvement by defendant’s attorney to be worthy of sanctions based on the specific circumstances of the case. Plaintiff sought sanctions concerning defendant’s responses to its post-judgement document requests in a litigation in which defendant had previously been found to have deliberately withheld documents, contradicting certain representations made to the court. Plaintiff did not seek sanctions pursuant to Rule 37 and/or the court’s inherent authority. Plaintiff claimed, among other issues, that defendant’s production was not complete and that defendant’s counsel “had not taken a sufficiently active role” in supervising the collection and production of documents. In response, defendant admitted that its counsel did not personally collect the documents, and instead provided “guidance” on what should be...

EEOC Updates “COVID-19 Technical Assistance Questions and Answers” with a Focus on Return-to-Work Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) is continuing to offer COVID-19 related guidance to support employers and employees in navigating the workplace during the pandemic. As we discussed in a previous blog post, the EEOC updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance (first published in 2009) to specifically address the COVID-19 pandemic. In addition to the Pandemic Preparedness guidance, the EEOC has issued What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, technical assistance guidance that contains numerous COVID-19 related questions and answers. Similar to the pandemic preparedness guidance, the technical assistance addresses employer’s obligations under the Americans with Disabilities Act (ADA), specifically as they relate to accommodation requests and medical exams due to COVID-19, as well as other COVID-19 related workplace issues. The EEOC has continued to regularly update the technical assistance since its initial publication in March 2020, with the most recent updates in June 2020. The EEOC has explained that EEO laws like the ADA and Rehabilitation Act continue to apply during the COVID-19 pandemic, but do not interfere with or prevent employers from following guidelines and suggestions made by the Centers for Disease Control and Prevention (CDC) or state and local public health authorities concerning preventative...

New York Issues Guidance on Use of Sick Leave and Paid Family Leave for COVID-19

As discussed previously, New York recently passed a COVID-19 sick leave law that provides job protection and paid leave for employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 (“COVID-19 quarantine leave” or “quarantine leave”). New York State has since published guidance (“Guidance”) and FAQs relating to the COVID-19 sick leave law (“FAQs”), which discuss, among other things, how employees may be compensated under the new law, through a combination of benefits that include COVID-19 sick leave, New York’s Paid Family Leave (PFL), and short-term disability (DBL) benefits while in quarantine. Under the COVID-19 sick leave law, as clarified by the Guidance and FAQs: An employee who works for a small employer – one with ten or fewer employees as of January 1, 2020 (with a net income of less than $1 million in the prior tax year) – and is subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, department of health, local board of health, or any other government entity authorized to issue such an order due to COVID-19 (“quarantine order”) is entitled to unpaid sick leave until the termination of the quarantine order. The employee may also be eligible to receive compensation for the duration...

New Jersey Supreme Court Allows Disability Discrimination Claim Brought by Medical Marijuana User Employee to Move Forward

Last month, New Jersey’s high court ruled in Wild v. Carriage Funeral Holdings, Inc. that an employee’s disability discrimination claim brought under the New Jersey Law Against Discrimination (LAD), arising from being terminated for his use of medical marijuana, was not barred by the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), and that he had sufficiently stated his claim to survive a motion to dismiss. Plaintiff, a funeral director, brought suit against defendant-employer/Carriage Funeral Holdings, Inc. (“Carriage”), and others, based on, among other things, allegations that defendants violated the LAD by terminating him due to his disability and failing to accommodate him, as a result of his lawful use of medical marijuana for treatment of his cancer, as permitted by the CUMMA and in accordance with his physician’s treatment plan. Defendants moved to dismiss plaintiff’s complaint, and the trial court granted the motion, with prejudice, finding plaintiff was lawfully terminated for violating Carriage’s drug use policy after a positive drug test, given to him by his employer after plaintiff’s car was struck by another vehicle while plaintiff was driving for work purposes. In reaching its decision, the trial court relied, in part, on the CUMMA’s declaration that employers are not required to accommodate medical marijuana use in the workplace. Plaintiff appealed, and the Appellate...

EEOC and NJ’s DCR Publish COVID-19 Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights (DCR) have joined a growing number of governmental agencies and public health organizations in issuing specific COVID-19 related guidance. The EEOC and DCR guidance each includes a series of frequently asked questions directed at ensuring compliance with federal and state anti-discrimination laws in the treatment of individuals affected by the novel coronavirus, in connection with employment, housing, and places of public accommodation. The DCR guidance, “Civil Rights and COVID-19: Frequently Asked Questions,” reminds employers, housing providers, and places of public accommodation of their obligations under the New Jersey Law Against Discrimination (LAD) and the New Jersey Family Leave Act (NJFLA). Among the topics covered by the DCR, the guidance: Reminds employers that the prohibitions against discrimination and harassment because of an LAD-protected characteristic apply even when the conduct at issue “stems from concerns related to COVID-19.” The DCR explains that firing an employee who is perceived to have a disability related to COVID-19 is unlawful. In addition, behavior such as referring to COVID-19 as the “the Chinese virus” or harassing employees of East Asian heritage by claiming Asian people caused COVID-19 is expressly prohibited, and employers must take steps to immediately stop the behavior. Reminds landlords and building managers that...

Governor Cuomo Takes Action in Response to the Coronavirus Pandemic

New York now has the highest number of confirmed COVID-19 cases in the United States, and, unfortunately, the number continues to increase on a daily basis. In efforts to contain the spread of the virus and support those employees who have been impacted, Governor Cuomo and the legislature have acted swiftly to enact responsive laws. Relief for Employees on Orders of Quarantine or Isolation On March 18, 2020, Governor Cuomo signed into law Senate Bill S809/ Assembly Bill A10153, which provides job protection and paid leave for New York employees subject to mandatory or precautionary orders of quarantine or isolation issued by the State of New York, the Department of Health, local board of health, or any governmental entity duly authorized to issue such orders due to COVID-19. The law is effective immediately and provides sick leave to affected employees as follows: Employers with ten or fewer employees as of January 1, 2020 and a net income less than $1 million must provide affected employees with unpaid sick leave, along with job protection for the duration of the quarantine or isolation order and must provide those employees with access to Paid Family Leave and disability benefits (short-term disability) for the period of quarantine or isolation including wage replacement for their salaries up to $150,000. Employers...

New Jersey Amends Its WARN Act to Extend Advance Notice and Require Severance Pay

The New Jersey “Millville Dallas Airmotive Plant Job Loss Notification Act” (“NJ WARN Act” or “Act”), which requires covered employers to provide employees (and designated state and local government officials) with advance notice of covered “mass layoffs,” the shutdown of an establishment, or transfers of operations, was recently amended to place more onerous obligations on New Jersey employers. Senate Bill 3170, which becomes effective July 19, 2020, requires employers to provide 90 days’ (instead of 60 days’) notice to affected employees. The Act also contains enhanced severance provisions, requiring employers to pay severance to all affected employees, even those who receive proper notice under the Act. As a preliminary matter, many of the NJ WARN Act’s definitions have been amended, greatly expanding the Act’s reach. For example, “employer” is now more broadly defined to include “any individual, partnership, association, corporation, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee, and includes any person who, directly or indirectly, owns and operates the nominal employer, or owns a corporate subsidiary that, directly or indirectly, owns and operates the nominal employer or makes the decision responsible for the employment action that gives rise to a mass layoff subject to notification.” Under this expanded definition, the...

NYC Council Passes Legislation Barring Pre-employment Marijuana Testing

On April 9, 2019, the New York City legislature passed legislation that would amend Section 8-107 of the New York City Administrative Code to prohibit employers from testing job applicants for marijuana or tetrahydrocannabinols (THC) – the active ingredient in marijuana. Specifically, the law states, “it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” The legislation creates an exception for individuals who apply to specifically defined roles; such as police officers or peace officers, those requiring a commercial driver’s license, those requiring the supervision or care of children, medical patients, or other vulnerable persons, and those with the “potential to significantly impact the health or safety of employees or members of the public.” Furthermore, the law would not apply to drug testing that is required pursuant to: (a) regulations promulgated by the federal department of transportation; (b) federal contracts; (c) a federal or state law, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or (d) a collective bargaining agreement. Lastly, it should be noted that the bill does not bar marijuana testing...

2019 Rings in Further Protections for Delaware and Philadelphia Employees

Before 2018 wrapped up, the year of the #MeToo movement, the Delaware and Philadelphia legislatures worked to ensure the passage of employee-friendly legislation. While Delaware’s new law focuses on sexual harassment,  Philadelphia has turned its focus on the work schedules for those employed in service industries. Delaware, like many other states in 2018, passed legislation to strengthen workplace harassment laws. The legislation was signed into law in August 2018, and went into effect on January 1, 2019. Delaware’s Discrimination in Employment Act has now been amended to include provisions specifically dedicated to sexual harassment that apply to employers with at least four employees in the state. It should be noted that Delaware’s law includes unpaid interns, applicants, joint employees and apprentices within its definition of employee. In addition to defining sexual harassment, the law provides that employers will be liable for sexual harassment if: (1) A supervisor’s sexual harassment results in a negative employment action of an employee; (2) The employer knew or should have known of a non-supervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures; or (3) A negative employment action is taken against an employee in retaliation for the employee filing a discrimination charge, participating in an investigation of sexual harassment, or testifying in any proceeding or...