“You Can’t Take It With You:” Another Lesson in the World of Non-Compete Agreements
Wednesday, March 29, 2017
“You Can’t Take It With You:” Another Lesson in the World of Non-Compete Agreements
We have cautioned before in our blogs and on our website that one of the worst mistakes an employee can make when leaving a job is to email information of any sort from a work computer to a home computer in the weeks leading up to the last day of employment. If you do so, even if you think the information you’re sending home is purely personal, your employer will inevitably suspect that you are attempting to steal a trade secret, customer lists, product information, or some other kind of information the employer may label as “proprietary or confidential.” And the result, particularly if you’ve signed a non-compete or confidentiality agreement, can be very ugly.
This lesson was recently highlighted in news reports about a Pfizer marketing executive against whom a Pennsylvania federal court issued a “temporary restraining order,” in the days immediately after she left her job with Pfizer. In the legal action brought by Pfizer against this employee, it accused her of having sent “at least 42 emails containing confidential information to her personal email account and copied 600 files to a USB drive before her departure, violating an existing employee agreement she signed regarding sensitive company information,” according to a March 1, 2017 report by Law360.
Upon being presented with these accusations, presumably supported with some evidence of the electronic transmissions and downloading by the employee, a Pennsylvania federal judge, without giving the employee notice that he was doing so, entered a temporary restraining order against her, finding that, “there is a real danger that, if given advance notice, defendant will either disclose or destroy the confidential information and trade secrets at issue.”
Employees should also be forewarned that employers will often leave no stone unturned – and spend enormous amounts of money –in searching for every potential communication containing company information that a departing employee may have sent to herself or others prior to leaving employment. In a case we recently handled for an employee, his employer undoubtedly spent far more than $100,000 in retaining attorneys, filing suit, and hiring a very expensive “forensic” computer search firm to search every email, text message, and phone message our client sent in the months preceding his leaving the company. While it ultimately found nothing and had to dismiss its case, it was a harrowing and expensive procedure for our client who had to defend himself against the company’s legal action and turn over access to all of his personal computers, cell phones, iPads, etc. to be searched by the forensic experts in order to be vindicated.
In fact, just as this blog was about to be published, I learned, again from Law360, that this Pfizer employee’s case had been settled as a result of an agreement reached that would allow Pfizer to bring in an independent computer forensic specialist to examine all of the employee’s computer and other electronic devices. The agreement also provides that the judge in the case will retain jurisdiction over it for the next three years to resolve any disputes that may arise. While this Pfizer employee was able to “settle” this dispute, I am sure that she has incurred and will likely continue to incur substantial legal fees and costs in conjunction with the litigation and its ongoing resolution.
So, if you are contemplating leaving your employer and seeking alternate employment, a word to the wise: think twice before hitting that “send” key.
Richard M. Schall, Esq.
Schall & Barasch LLC
110 Marter Ave, Ste 302
Moorestown, NJ 08057
A decision on the Flores v. The city of San Gabriel case was eagerly awaited. The case had pit police officers against their City employer whom they had sued for three years of overtime that had not been paid and liquidated damages. The charges were made under the Fair Labor Standards Act (FLSA).
The ruling and the implications
The ruling came in on June 2, 2016, four years after the lawsuit was filed; the Ninth Circuit ruled that under the FLSA, such payments have to be included in the regular rate for overtime purposes. This ruling could have far-reaching and significant impact on how agencies pay employees and provide benefits.
If your agency makes payments in cash to employees who opt-out of a health insurance plan, there is a need for the agency to re-evaluate based on the ruling made on the Flores V. City of San Gabriel case. This decision could require that either all plan benefits or cash in lieu amount are factored into the employees’ regular rate of pay to avoid violating the FLSA.
A lot of agencies provide contractual overtime in excess of FLSA minimum overtime requirements like working overtime on a workday rather than working for over 40 hours per week. Keep in mind that including cash in lieu or benefit plans amounts in the regular rate of pay applies only to FLSA overtime hours and not contractual overtime hours. If your employer offers cash-in-lieu, the company may face potential penalties under the Patient Protection and Affordable Care Act.
With the change brought about by the ruling, it is important to ensure that your employer is in compliance with the new ruling. If you are unsure of how this ruling may affect your wages, contact a New Jersey employment lawyer to discuss your employer’s wage policies today!
Schall & Barasch LLC is a New Jersey employment law firm based in Moorestown that has a team of proficient and experienced employees dedicated to standing up for the rights of employees. We offer representation for employees facing wrongful termination, discrimination, non-compete agreements, contract breaches and all other matters related to employee rights.
If you are facing any of these issues and need a New Jersey employment attorney, contact us today and let us help you to resolve them. If you also have questions about how this ruling affects you, get in touch, and we will explain the repercussions to you as well as the changes you should be seeing on your pay slip.
In the middle of the 2016 LGBT week, the National LGBTQ Task Force and the District of Columbia Office of Human Rights released a guide to help those facing discrimination in their workplace because of their sexual identity or orientation. The resource guide is for those facing these issues at work and those who can’t find a job in the first place. A National Transgender Discrimination Survey found that 90% of transgender employees in the US had experienced harassment and discrimination in the workplace.
A report from the DC Office of Human Rights indicates that 48% of employers who were surveyed preferred candidates who were less qualified if they were believed to be “cisgender” over transgender candidates who had more qualifications. Cisgender is a term used to describe people who have retained the same gender they were born with.
The National LGBT Task Force resource guide is aimed at helping employers create a workplace that is all-inclusive and where those in the LGBT community can feel safe, affirmed and welcome. To this end, the report includes in-depth recommendations put together by human resource specialists.
Another challenge that LGBTs face at work is that they are paid less. Roughly 15% of LGBT community in the US have an annual income of less than $10,000, which is a poverty rate four times that of the general population’s. The Human Rights Center reports that this wage disparity makes it more difficulty for those in the community to provide for themselves and their families.
Are you in this situation?
If you are a transgender in New Jersey facing these issues, there is help at hand. The Schall & Barasch LLC law firm in Moorestown is the New Jersey has the employment lawyers you can count on. We are dedicated to protecting employee rights and have successfully represented employees in transgender cases, sexual harassment cases, non-compete agreements, employment discrimination and other virtually every kind of employment-related situation. Choose an experienced and skilled New Jersey employment lawyer from Schall and Barasch and get the justice that you deserve. Contact us today!
Age discrimination is a real and growing problem that affects employees across all industries, both here in New Jersey and around the country. One of the reasons that age discrimination is particularly pernicious is that, when an employee is in his or her 50’s or 60’s, it often proves very difficult to find comparable replacement employment.
Older employees do fall into a class protected both under the New Jersey Law Against Discrimination and the federal Age Discrimination in Employment Act. When discrimination occurs, there is sometimes “direct evidence” of discrimination, in the form of employer comments like, “we need to bring in some fresh blood;” or “younger employees have the technical skills we need;” or “why haven’t you retired yet?”
But more often, age discrimination needs to be proven with circumstantial evidence. We generally do that in the “discovery process” that is part of any litigation: digging into the reasons offered by the employer for the termination and pointing out the weaknesses, inconsistencies and contradictions in those reasons. For example, the employer may claim that it fired the older employee for supposed “errors” made on the job, but we then are able to establish that other, much younger employees have committed much more serious errors and were never even spoken to, much less terminated.
To determine whether you have a basis for a claim, we strongly advise you meet with a qualified New Jersey employment lawyer who will spend the time necessary to review with you the reasons your employer has given for your termination and whether sufficient “holes” can be poked in the employer’s story to successfully make out a claim of age discrimination. If successful, the potential damages you can recover include lost back and future wages, emotional distress damages, and potentially even punitive damages against your employer. You may contact the New Jersey employment attorneys at Schall & Barasch today for a consultation regarding your age discrimination claim.
At first, it seems harmless. After all, your new employer has already run a background check on you. Isn’t a credit check merely the next step in proving you’re an upstanding member of society? False. In most cases, credit checks have no bearing whatsoever on the ability of an employee to do his or her job.
Some employers reason that a financially responsible person will be responsible at work, whereas a financially struggling employee may put their own needs ahead of the company’s. But this is a stereotype that has been debunked by various studies.
Beyond the lack of correlation between productivity and wealth, an employer’s involvement in an employee’s financial situation can lead to bias. Whether fair or not, that will always be a factor in the employee’s time with the company.
That is why laws to regulate credit checks by employers are strict. Nationally, according to the Fair Credit Reporting Act (FCRA), employers must get an employee’s consent first, give a warning if he is to be rejected, and give an official action notice, with reasoning, if he is not to be hired due to the contents of the report. State legislature can be even more severe. For example, New Jersey has passed a law that no employer can obtain a credit check whatsoever, except under two circumstances: (1) if the position requires a credit report by law, and (2) if the employer has good reason to believe the employee has participated in a financial violation of the law.
If you have a disability, you may still be fully able to work, particularly if provided with a reasonable accommodation. For example, if you have a back injury, you may be able to request that certain of your non-essential job duties be reassigned or eliminated. Or, if you are unable to travel, your employer may be required to allow you to work remotely, either some or all of time. Unfortunately, many New Jersey employers continue to discriminate against workers on account of their disabilities in failing to provide them with reasonable accommodations.
Both the New Jersey Law Against Discrimination and the Americans with Disabilities Act provide protections to employees with disabilities. While both laws are very strong, we here at Schall & Barasch typically recommend pursuing your claims under the New Jersey Law Against Discrimination, as its definition of what constitutes a “disability” is extraordinarily broad, and the remedies available in litigation have no “caps” as is the case under the federal Americans with Disabilities Act.
Under either law, it is illegal for your employer to deliberately show a bias against you for being disabled – whether you are currently disabled, the disability was a past affliction you’ve recovered from, or even if your employer mistakenly assumes you have a disability.
But even if your employer isn’t necessarily “biased” against you because of your disability, it may still be in violation of the law if it fails to provide you with a requested “reasonable accommodation” of your disability.
If you are disabled and feel you may need a reasonable accommodation from your New Jersey employer, here are some of the basic steps you should be sure to take:
- Make sure your employer is aware of your disability. If you don’t, and the employer terminates your employment because it feels you are unable to perform the job, or your performance has fallen off, the employer can always say, “Hey, we didn’t even know you were disabled, so we couldn’t have violated the law;”
- Advise your employer that you need a “reasonable accommodation” of your disability and make proposals as to what kinds of accommodations you think might help. Once you’ve done so, under New Jersey employment law, your employer is required to engage with you in what is called an “interactive process” in order to determine if you can be reasonably accommodated. Even if your employer doesn’t think your proposed accommodations are workable, it is required to try to come up with other accommodations to suggest that might work;
- Don’t quit your job or resign your position. This is hardly ever a good idea, and if you do quit or resign, you are making it much more difficult to bring any kind of legal action to obtain relief. In addition, if you quit, you are putting your eligibility for benefits under New Jersey’s Unemployment laws in jeopardy;
- If your employer doesn’t respond to your request for reasonable accommodation, get a lawyer involved. The rights you have for reasonable accommodation under both the New Jersey Law Against Discrimination and the Americans with Disabilities Act are incredibly strong, and, with good legal representation, your chances of have these rights vindicated are very good.
In 1963 Congress enacted the Equal Pay Act, which requires that women receive equal pay for equal work. While, over the past 50-some years, thousands of lawsuits have been filed alleging violations of the Act, with varying degrees of success, five members of the United States Women’s National Soccer Team, in filing their recent complaint with the Equal Employment Opportunity Commission (EEOC), have acted to bring this law back into the national spotlight. Although prior cases brought under the Act by female sports figures – most often coaches – have generally not fared well, there are good reasons why I think the Women’s National Soccer Team may well prevail in their case.
Congress enacted the Equal Pay Act “recognizing the weaker bargaining position of many women and believing that discrimination in wage rates represented unfair employer exploitation of this source of cheap labor.” In response to evidence of the many families dependent on the income of working women, Congress included in the Act’s statement of purpose a finding that “the existence . . . of wage differentials based on sex . . . depresses wages and living standards for employees necessary for their health and efficiency.” And Congress declared it to be the policy of the Act to correct this condition.
The Equal Pay Act prohibits an employer from paying different wages to employees of the opposite sex for equal work on jobs the performance of which requires “equal skill, effort, and responsibility” and which are performed under “similar working conditions.” Notably, to qualify as “equal work,” the work female employees perform need not be identical to that of their male comparators; rather the work must merely be “substantially equal.”
So when women are performing essentially the same job functions as men, under similar working conditions, and handling a similar amount of responsibility, the Equal Pay Act requires that their employer pay them equal amounts of compensation. At first blush then, when one compares the “job functions, working conditions, and responsibilities” of the women playing for the Women’s National Soccer Team with those of the men, playing on the men’s National Team, it seems clear that there is no difference, and that the women’s team should have an easy go of winning their case.
However, the Equal Pay Act does contain a major “escape clause” for employers: if an employer can show that the pay differential between what it is paying its female and male employees is based on a “factor other than sex,” then the pay differential is permissible. Acceptable factors “other than sex” include experience, prior salary, education, skills which the employer deems useful to the position, and “a proven ability to generate higher revenue for the employer’s business.”
It is the last of these factors – “the ability to generate higher revenue” — that has typically doomed the efforts of female coaches to obtain equal salaries to those of their male peers. One of the most frequently cited of such cases is that of the former women’s basketball coach at the University of Southern California, Marianne Stanley. who, in 1993, filed suit over the lesser compensation she was receiving compared to the coach of the men’s team. In finding against her, the court cited, among other reasons, the fact that the men’s basketball team, at that time, produced 90 times greater revenue than the women’s team.
But, in the case of the women playing soccer for the Women’s National Team, which has enjoyed incredible success and popularity in recent years, it may be difficult for their employer, U.S. Soccer, to argue that it is revenue generation that justifies the enormous disparity in pay received by these women, when compared to that paid to the men on the Men’s National Team. According to the figures filed with the EEOC by the five women players, the Women’s National Team, which won the World Cup in 2015, generated $20 million more in revenue than the men’s team in 2015. The 2015 women’s World Cup final was viewed by some 25 million television viewers – a record for a men’s or women’s soccer game on English language television in this country. The women’s team is favored to win its fifth Olympic Gold medal this summer in Brazil. Yet, despite the success – and the financial benefits that result — the women are paid only a fraction of what the men get paid. For each of the minimum of 20 “friendly” matches each team plays every year, the top five women are guaranteed only $72,000 per year, whereas the top five male players earn $406,000 from these games. If a male soccer player for the U.S. team were to win the World Cup, he would receive a bonus of $390,000. By contrast, for winning the 2015 World Cup, star player Carli Lloyd received a bonus of only $75,000. As Ms. Lloyd stated in her April 10, 2016 op-ed piece in the New York Times, “simply put, we’re sick of being treated like second-class citizens. It wears on you after a while. And we are done with it.”
My prediction: Not only will the women’s team win an Olympic gold medal in Brazil, but they will ultimately win their Equal Pay Act case.
Calling a waitress darlin’ and shamelessly flirting (and annoying) her for hours on end may be an amusing gimmick in films and television, but these days it just won’t fly in the workplace – or, at least, it shouldn’t. Unfortunately for many women, as well as men, in the food service industry, sexual harassment is a pervasive part of their work environment.
Under New Jersey employment law, what exactly constitutes sexual harassment? According to the New Jersey Supreme Court, in the leading case of Lehmann v. Toys ‘R Us, to successfully make out a hostile work environment claim, you must be able to show that (1) you were treated in a certain way on account of your gender; (2) the conduct that you were subjected to was “severe and pervasive;” and (3) that a reasonable person would find that, as a result of the unwanted conduct, his or her working conditions were altered.
While we often think of sexual harassment as involving explicit sexual references being made, the courts interpreting the New Jersey Law Against Discrimination have held that any sort of hostile conduct can constitute sexual harassment, as long as the reason you are being singled out for the treatment you are receiving is on account of your gender.
One of the key requirements that you must show, however, is that the conduct is either “severe” or “pervasive.” The question under New Jersey employment law becomes, “At what point is the line crossed” between a few innocuous comments that may reflect on a person’s dress or appearance and comments that become “severe or pervasive” harassment. Many employers, fearful of getting sued, adopt “zero tolerance” policies, and so employees generally should be very conscious of what they are saying, how they are saying it, and how the person hearing it might perceive the comment.
A recent report by several restaurant worker advocacy groups revealed that 90 percent of female employees in restaurant settings said they had been sexually harassed at work. This harassment can come from managers, co-workers and customers. Disturbingly, many female servers said they were required by their employers to wear more suggestive uniforms than their male co-workers in order to generate better sales.
In this day and age, you should not have to worry about hearing lewd comments, being propositioned by your customers or experiencing other behavior on the job that makes you feel uncomfortable or unsafe. In this regard, New Jersey employment law is very protective of your rights. If bringing your concerns to your manager does not make the situation any better, you fortunately have legal options. Talking to the New Jersey employment lawyer at Schall & Barasch LLC can give you a better idea on how to protect your rights and get the harassment to stop for good. Contact us today!
After any maternity leave a new mother has chosen to take, readjusting to life in the workplace can continue to be difficult. Not only is she away from her child consistently for the first time, but she is also still dealing with a body that still seems foreign. The mothers who have chosen to breastfeed their children, in particular, have a disruption to their day as they must express breast milk.
The Fair Labor Standards Act (FLSA) requires an employer to give breastfeeding employees a reasonable amount of break time and a private place other than a bathroom whenever necessary, for up to one year following the birth of the child. Beyond that, standards vary.
New Jersey, for example, has continually attempted to pass a bill to expand the rights of breastfeeding employees by placing them under the protection of the New Jersey Law Against Discrimination (NJLAD). In addition to the FLSA, including nursing mothers in the NJLAD would give them protection from being terminated due to her adherence to those breaks during which they express breast milk. Unfortunately, the New Jersey Assembly Bill which attempted to protect breastfeeding mothers in this way, was unsuccessful, just like six preceding versions since 2000.
In this exciting new time of growth and change, new mothers deserve a smooth transition and a positive environment. If you aren’t receiving that in your place of work, and you fear your workplace is not a safe environment for you as a new mother, contact the experienced New Jersey Employment Lawyers at Schall & Barasch today.
Written By: Richard M. Schall
Schall & Barasch, LLC, New Jersey Labor and Employment Lawyers.
If a Friend Calls Your Boss a “Jerk” (or Worse) on Facebook, and You “Like” Her Post, Can The Boss Fire You Both and Get Away With It?
Well, these are really two separate questions. Your boss may well fire you just because bosses can. But, they may no longer be able to “get away with it” according to a very recent federal court decision, upholding a decision by the National Labor Relations Board.
The case breaks some new ground because it deals with what employees can and cannot say about their employers in the world of “social media” – Facebook, LinkedIn, and the like.
Here’s what happened: A number of current and former employees of the Triple Play Sports Bar and Grille, located in Watertown, Connecticut, became upset because they felt that Triple Play had failed to withhold sufficient funds for state income tax purposes, leaving them with large tax payments to make up at the end of the year.
A Facebook discussion about the issue was started by a former employee, who posted the following on her Facebook page:
“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!”
One of the current employees, Vincent Spinella, a cook at the restaurant, did not even post his own comment, but simply “liked” the comment that had been posted. A second employee, Jillian Sanzone, a waitress and bartender, then chimed in as follows:
“I owe too. Such an asshole.”
When the boss learned of the employees’ Facebook postings (his wife happened to be a “friend” of someone who got the posts), he summoned each of them to his office, accused them of being “disloyal,” and fired them. And, as Spinella was leaving the office after being fired, the boss added, “You’ll be hearing from our lawyers.” The boss was apparently particularly upset because, not only had his employees seen these posts, but some of his customers, who happened to be “friends” of the employees, had also read them and responded online.
The two fired employees then took their case to the National Labor Relations Board, where they filed a Charge alleging that their discussions about the tax withholding issue constituted “protected, concerted activity,” and that their firings were therefore illegal under the National Labor Relations Act (or “NLRA”).
Section 8(a)(1) of the NLRA guarantees employees the “right to . . . engage in . . . concerted activities for the purpose of [their] mutual aid and protection,” and it has therefore long been understood that it is illegal for an employer to fire or otherwise retaliate employees for discussing or raising concerns about workplace issues.
However, under the law that has developed under the NLRA, the right of employees to speak out or complain to each other about their employers is not unlimited. Both the National Labor Relations Board and the courts have identified two types of comments about an employer that may “cross the line” and lose the protection of the law: (1) comments that disparage an employer’s product and are therefore considered “disloyal,” and (2) comments that are “malicious” or “deliberately untrue.”
And so the issue in the Triple Play case was, by participating in this Facebook discussion, in which Ms. Sanzone had called the boss “an asshole,” and Mr. Spinella had “liked” the “wtf!!” posting by a former employee, these employees had crossed that line.
Fortunately for Mr. Spinella and Ms. Sanzone, the National Labor Relations Board, in a decision just affirmed by the United States Court of Appeal for the Second Circuit, found that the Facebook discussions in which they had participated retained their protection under the law. The Board and the Court found that the employees’ comments, since they did not touch on the restaurant’s service or food, should not be considered “disloyal.” Moreover, while the comments may have been somewhat vulgar, both the Board and the Court found that they were neither “malicious” or “deliberately untrue.”
Significantly, as to the employer’s argument that the employees’ Facebook discussion should lose the protection of the law because members of the “public” –not just other employees—had read the online obscenities directed at the Company, both the Board and the Court addressed what they referred to as the “realities of modern-day social media use” in which there is always some potential that what is posted on Facebook may be seen by the public, including the customers of a company.
I quite enjoyed the Board’s discussion in its decision of Ms. Sanzone’s posting her view that her boss was “an asshole” — a statement that the boss had claimed was defamatory. But, recognizing that to be “defamatory” a statement must assert a certain fact as true, the Board held that Sanzone’s “characterization of [her boss] as an ‘asshole’ . . . cannot reasonably be read as a statement of fact.”
Finding in favor of the two employees, the Board ordered that the Company reinstate them (which rarely actually happens in these cases, with a monetary settlement usually reached instead) and compensate them for all the backpay they had lost as a result of being fired.
The other interesting point to note about the decisions by the Board and the Court is that they found that the restaurant’s “Internet/Blogging policy” also violated the NLRA as it could unlawfully “chill” employees in exercising their right to discuss workplace concerns. The restaurant’s internet policy, contained in an employee handbook, advised employees that they could be subject to disciplinary action if they “engaged in inappropriate discussions about the company, management, or co-workers” on line. Both the Court and the Board found this policy language too broad and potentially chilling of employees’ rights under the NLRA since they might understand it as forbidding them to discuss on social media their concerns about the terms and conditions of their employment.
A couple final reminders: First, the obscenities these employees directed on line at their boss were found to be “protected conduct” only because they were made in the context of a group discussion of working conditions. Second, just to be clear, I don’t advocate directing online obscenities at your boss. There’s less risk involved if you choose your words more carefully.
* In every year since 2014, the law firm of Schall & Barasch has been included in the Tier 1 list of best law firms in New Jersey practicing in the field of employment law on behalf of individuals. This list is compiled by U.S. News & World Report. A description of the selection methodology can be found at www.bestlawfirms.usnews.com/methodology.aspx.
** The methodology for the Avvo ratings of Richard Schall and Patricia Barasch can be found at www.avvo.com/support/avvo_rating.
*** In every year since 2009, Richard Schall has been chosen to be included on the list of Best Lawyers in New Jersey practicing in the field of labor and employment law. The Best Lawyers list is issued by Best Lawyers International. A description of the selection methodology can be found at www.bestlawyers.com/about/MethodologyBasic.aspx.
**** In every year since 2005, both Patricia Barasch and Richard Schall have been chosen to be included on the list of Super Lawyers in New Jersey practicing in the field of employment law on behalf of plaintiffs. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawyers.com/about/selection_process.html.
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