Author: Richard S. Zackin
In a recent decision, A.D.P. v. ExxonMobil Research and Engineering Company, the New Jersey Appellate Division held that an employer’s drug and alcohol policy requiring recovering alcoholics to submit to periodic testing to determine whether they have used alcohol since returning to work after undergoing rehabilitation constitutes handicap discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 (the “LAD”). The decision presumably applies as well to recovering drug addicts. Employers with alcohol and drug policies should immediately evaluate and, if necessary, modify them in light of the Court’s decision.
Four months ago we reported on the decision of the United States Court of Appeals for the Seventh Circuit upholding United Airlines’ position in a lawsuit brought by the Equal Employment Opportunity Commission (EEOC) that United did not violate the Americans with Disabilities Act (ADA) by its policy of filling vacant positions with the most qualified candidate even though another employee, unable to perform his own job because of a disability, had applied for the vacant position as a reasonable accommodation. The three-judge panel of the Seventh Circuit that issued that decision has now vacated its opinion and has decided the case in favor of the EEOC. The panel’s reversal of its position is not that surprising. The panel originally ruled in favor of United because it felt bound by a Seventh Circuit ruling in a similar case decided in 2000, EEOC v. Humiston-Keeling. The panel, however, questioned that earlier decision in light of the Supreme Court’s 2002 decision in US Airways, Inc. v. Barnett and thus recommended that the issue be considered by the court en banc (i.e. by the entire membership of the Seventh Circuit). The EEOC promptly moved for reconsideration en banc. Each member of the court expressed the view that EEOC v. Humiston-Keeling should be overruled and, in lieu of formally rehearing the case en banc, simply directed the original panel to vacate its decision and issue a new opinion.
A recent Third Circuit decision, In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation, addresses the circumstances under which a parent company will be liable under the Fair Labor Standards Act (“FLSA”) as a “joint employer” of employees of the parent’s subsidiaries. The Third Circuit’s opinion gives concrete guidance to employers confronted by the broad definition of “employer” set forth in the FLSA’s regulations, providing a standard for assessing joint employer liability. (The FLSA defines an employer as “any person acting directly or indirectly in the interest of an employer in relation to an employee.”) Although the standard announced by the Third Circuit is by no means a bright-line test, it does provide fair notice to employers of the factors that will determine joint employer status.
The United States Court of Appeals for the Seventh Circuit has held that two pharmaceutical companies did not violate the Fair Labor Standards Act (FLSA) by failing to pay overtime to their sales representatives, concluding that the FLSA’s “administrative exemption” from the statute’s overtime requirements was applicable to these employees. Although the Court’s opinion focused on the job duties of pharmaceutical sales representatives (PSRs), the Court’s analysis of the general scope of the administrative exemption may prove useful to employers in other industries.
Are employers obligated, as a reasonable accommodation, to fill a vacant position with an employee whose disability renders him unable to perform his own job when other candidates for the vacant position are more qualified? The position of the Equal Employment Opportunity Commission (EEOC) that employers have that obligation under the Americans with Disabilities Act (ADA) was recently rejected by a three-judge panel of the Court of Appeals for the Seventh Circuit. But the panel took the unusual step of recommending that the issue be considered by the court en banc (i.e. by the entire membership of the Seventh Circuit). In the great majority of circuits, the issue remains unsettled, and employers must tread carefully when responding to such accommodation requests.
The Equal Opportunity Commission (“EEOC”) today published its final regulations and commentary concerning the “reasonable factors other than age” provision of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), as that provision pertains to claims of disparate impact. A disparate impact claim is one that alleges that the implementation by an employer of a policy or practice, although non-discriminatory on its face, has had an adverse impact on a category of employees protected by the laws against discrimination in employment.
New Jersey employers should be aware that yesterday Governor Chris Christie signed into law the New Jersey Trade Secrets Act (“the Act”), which for the first time codifies the law in New Jersey concerning the misappropriation of trade secrets. The new law is derived largely from, although is not identical to, the Uniform Trade Secrets Act, variations of which have been adopted in the great majority of states. New Jersey companies who are concerned about potential trade secret misappropriation by current or former employees should study the new law carefully.
In our June 15, 2011 post, we reported on Donelson v. DuPont Chambers Works, a case in which two employees alleged they were retaliated against after they raised safety concerns about the employer’s manufacture of a dangerous chemical. The jury rendered a verdict in favor of one employee (Seddon) and against the other (Donelson). On appeal, the New Jersey Supreme Court held that the employer was liable under New Jersey’s Conscientious Employee Protection Act (“CEPA”) for the economic losses of Seddon, who was unable to continue working because of his mental injuries caused by the employer’s retaliatory actions. The Court reversed the decision of the Appellate Division that Seddon could not recover his economic losses because he had not been discharged or constructively discharged from his job. The Supreme Court remanded the case to the Appellate Division to decide the issues of punitive damages and attorneys’ fees.
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.
