Legislative Chair, Jonathan Meyers gave the chapter a short legal update at the meeting last night.
Category Archives: Legal Update
Neil Dornbaum Speaks to SWHRMA
Immigration Attorney, Neil Dornbaum
Noted immigration law attorney Neil Dornbaum spoke to the Sussex Warren HRMA chapter this evening discussing a variety of issues confronting HR professionals. Mr. Dornbaum covered, among other things, hiring issues, Changes in Duties, Travel outside of the US, and Federal Govt audits. Immigration issues are pressing for every HR professional and those who attended appreciated his experienced insights.
J.T.’s Tire Service, Inc. et al v. United Rentals North America, Inc. et al
In New Jersey, is sexual harassment a form of sexual discrimination? The answer is yes, in the workplace, ever since the decision in Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993). On January 6, 2010, in the case of J.T.’s Tire Service, Inc. et al v. United Rentals North America, Inc. et al (No. A-2989-08T2), the Appellate Division broadened that view and held that “quid pro quo” sexual harassment is also a form of sexual discrimination as between customer and vendor under the New Jersey Law Against Discrimination (N.J.S.A. 10:5-12(l)) (the “LAD”).
In this case, Eileen Totorello is the sole shareholder of J.T.’s Tire Service. J.T.’s supplied tires to United Rentals. Harold Hinkes, the branch manager for United, tried to extort sexual favors from Totorello as a condition of allowing her company to continue to do business with United. Totorello refused, and United ceased doing business with her. The plaintiffs filed a complaint alleging sex discrimination under the LAD, but United was granted a dismissal on the ground that Hinkes’ conduct did not amount to sex discrimination within the definition laid out in the LAD. The plaintiffs appealed.
The Appellate Division reversed the trial court. The Court explained that first, there is no doubt that under the LAD, independent contractors are protected where there is sex or gender discrimination, and second, there is no doubt that termination of contracts is covered just as refusal to enter contracts is covered. The only issue here is whether Hinkes’ conduct amounts to discrimination on the basis of sex or gender. The Appellate Division took a broad view of the LAD. It based that broad view on the earlier decision in Jackson v. Concord Co., 54 N.J. 113 (1969), where the New Jersey Supreme Court said that the LAD was enacted “to eradicate the cancer of discrimination.” With that liberal construction, this Court found that Hinkes’ attempts to make Totorello submit to sexual demands as a condition of his company doing business with her company – i.e., “quid pro quo sexual harassment” — is a form of sex discrimination between contracting parties, and therefore that conduct violates the LAD.
To see a copy of the Court’s decision, go to http://media.nj.com/ledgerupdates_impact/other/appeals-sexual-discrimination.pdf
Posted by Len Pasculli
The Myth of the Deficient Older Employee
The article entitled The Myth of the Deficient Older Employee, published in the December 13, 2009, New York Times Magazine “The 9th Annual Year in Ideas” issue caught my eye – and apparently a lot of other eyes as well. It was a very popular blog topic this week around the internet among HR practitioners.
The takeaway message of the article is: “Older workers are commonly thought of as being less productive and less willing to learn than younger workers, as well as overly cautious. But this year economists presented a more nuanced picture than the above stereotypes suggest.”
Being a “senior” myself, I was of course interested. So I read on.
The article explained that The American Economic Review [June 2009] published the results of a study in which “seniors” (those over 50) were pitted against “juniors” (those under 30) in three different decision-making tasks: risk taking, competitiveness and cooperation. The results? According to the NYT: “In risk-taking, which the researchers assessed via an investing game, the seniors invested slightly more than the juniors. The seniors were also more cooperative, contributing more to their group during the cooperation test. The seniors outperformed the juniors on one competitive word game — and were only “very slightly less” competitive overall.”
Now I was not so sure. As much as I would have loved the study to be a resounding debunking of the myth that seniors are less productive, it sounded as though the comparisons were quite close. Yet, for me, I guess that a conclusion that seniors are not less productive is just about as good as a conclusion that seniors are clearly more productive.
I decided to dig a little deeper, so I read the report itself. It is entitled Cooperation and Competition in Intergenerational Experiments in the Field and in the Laboratory and you can find it at: http://econpapers.repec.org/RAS/pch205.htm.
Lo and behold, the authors are themselves quite cautious about their results. First, only 159 individuals were tested – 87 workers (from just 2 different manufacturing companies) and 72 non-workers (i.e., students and retirees). Second, the study was conducted in France “and clearly cannot claim to have identified a representative sample of the global working population,” say the authors. Third, “the experimental games and artificial tasks are only imperfect proxies for the work environment.”
So, the strongest conclusion they make from their study is: “[W]hile reasons for preferring younger applicants do exist, we are suggesting that hiring seniors may have advantages and that some of the perceived disadvantages may not be present.”
They go on to say “[W]e hope that our findings will lead to further study and help to influence policy regarding the employment and retention of senior workers.”
The senior population of course continues to grow. It is indeed important for companies to have empirical evidence on the issue of the value of the senior worker in the workplace. I hope that more studies are done – and that the results in fact demonstrate that seniors are not less productive than juniors.
Posted by Len Pasculli
Great Website for Busy Executives
CEOExpress is a great site with links to dozens of other sites for headline news, magazines, search engines, research sources, etc. One-stop shopping for the busy executive! Go to http://www.ceoexpress.com/default.asp
Cheers,
Len Pasculli
Stengart v. Loving Care
You may have seen yesterday’s Star Ledger which reported that the New Jersey Supreme Court heard arguments in Stengart v Loving Care Agency, the case where an employee corresponded with her lawyer through her personal e-mail account on a company-owned laptop. The question is, was that communication protected by the attorney-client privilege? What do you think?
Health Care Reform is Coming
Leading Democrats in the Congress have promised a Healthcare Reform Bill on President Obama’s desk by the end of the year. From an HR perspective what reforms do you think would help and what reforms would hurt. For example, if the “public option” penalties cost less than continuing to provide coverage, would your company simply drop company-paid coverage? Also, how would employees react if their company-paid coverage is no longer pre-tax and their cafeteria plan that allows for pre-tax payment of medical expenses goes the way of the dinosaur? These proposals remain on the table to help pay for those not receiving coverage. Limits on lawsuits and massively inflated prescription costs appear to be off the table. What do you think?
Proposed Paid FMLA
The Healthy Families Act has been introduced in the both the House (H.R. 2460) and Senate (S. 1152). The bill would require employers to provide employees with up to 56 hours of paid sick leave. SHRM National believes a paid sick leave mandate as outlined in the Healthy Families Act would limit an employer’s flexibility in designing a benefits package that meets the needs of their unique workforce, resulting in significant costs for employers as well as a potential loss to employees who prefer other benefits rather than paid sick leave. What are your thoughts? Do the costs outweigh the benefits? How about the impact on smaller employers who are not currently restricted by the FMLA or NJ FLA?
Legal Updates
This category will contain legal updates that effect the HR community