Corrections or additions?
These articles by Bart Jackson and Michele Alperin were prepared for the May 16, 2001 edition of U.S. 1 Newspaper. All rights
Heavy Laws of Labor: Kevin Donovan
<B>Kevin Donovan, an attorney with Carpenter, Bennett
& Morrissey of Newark, hefts the huge tome and drops it. As all 1,600
pages of the latest federal laws regarding labor and employment (plus
the 120-page index) thud onto his desk, he shakes his head. Even were
an employer miraculously able to ingest this year’s snarl of often
conflicting statutes, he still would not be safe from unknowingly
stepping into a lawsuit. An equally voluminous and tangle of state
and local laws contains yet more fine legal points.
Even if there is not time enough to learn about all the legal taboos
in your workplace, the National Business Institute says you can still
protect yourself. In an attempt to provide this basic armor, the NBI
offers its annual day-long seminar on "Fundamental Issues in Human
Resources Law." The course will be given twice in our area. On
Tuesday, May 22, at 8:30 a.m. at the East Windsor Ramada Inn, attorney
Steve Weinstein of Livingston’s Dunmetz Marcus law firm and
James P. Lidon of Newark’s Carpenter, Bennett & Morrissey speak.
On Wednesday, May 23, at 8:30 a.m. in Cherry HIll, Todd Ewan
of Princeton’s Saul Ewing speaks along with Mark Manta of Manta
& Welge in West Trenton.
Both seminars will cover the same topics, including the legal aspects
of hiring, record keeping, new employment law, sexual harassment,
discrimination, and more. This course provides a continuing education
credit for attorneys, yet also aims to inform and update employers
and human resources people. Cost is $219 for the day. Call 715-835-7509.
"To a very great extent," says Donovan, "the law has done
its job. The really blatant discriminations are very rare." Donovan,
a West Windsor resident, who has worked in labor/employment law since
graduating from University of Virginia Law School in 1985, feels that
"most discrimination offenses nowadays are inadvertent." But
alas the penalties loom just as large. Did you inquire about the kids
while interviewing that last candidate? That was nice of you. You
not only put her at her ease, but opened yourself up to an unfair
hiring practice suit. Legally, she can link arms with a lawyer and
claim you rejected her because she had children.
Legal pitfalls such as these prickle every aspect of the workplace
and honest ignorance makes an expensive plea. Yet despite the seeming
vulnerability, Donovan says that the aware employer can cushion himself,
in every area, against a crushingly costly landing. Here are some
areas where advance knowledge could prevent a lawsuit:
freedom of speech is not limited by audience appreciation — in
public at least. Not so in the workplace. At work, if it annoys me,
I can sue you for saying it. Virtually nothing in this arena is too
frivolous to be taken seriously (and expensively) by the judicial
system. Currently, Donovan points out, "there exists substantial
tension between First Amendment vs. anti-harassment advocates."
But don’t count on this safety net.
The best defense against harassment litigation is to establish an
in-house mechanism to handle complaints. It would be wise to hold
a brief, mandatory workshop on the legal bounds of workplace behavior.
Follow up with a standing investigating committee that looks into
Todd Ewan, the labor/employment attorney with Saul Ewing, says that
New Jersey companies have successfully defended themselves against
alleged victims who ignored their firm’s claims programs and sought
instead to go directly to the Equal Employment Opportunities Commission.
But why must the company pay merely because some leering, abusive
bozo verbally molests co-workers? Typically, explains seminar speaker
James Lidon, if the abuse occurs between employees on the same level,
and the company investigates the claim, the employer may be judged
blameless. Yet if the abuser is a supervisor, the firm’s involvement
is responsible for millions annually in litigation fees. Donovan has
written a law review article on the subject (find it and others at
www.carpben.com), and warns that basically every item in a handbook
can be construed as a promise, or even a binding contract. Upon reading
"At this company, we never fire people without just cause,"
your new employee may blithely infer that his handbook is promising
him employment for life. And he just may be able to prove it. Usually,
a bold disclaimer stating that no information in this book is intended
as a promise or contract will suffice. But even with a disclaimer,
some statements can come back to haunt you.
is now the law of the land. OSHA requires the physical setting be
danger free, and now equally strict and important labor laws require
the environment to stand socially secure. This laudable aim unfortunately
sets the employer on a tightrope. If the human resource manager inquires
too deeply into a candidate’s background or refuses to give a former
felon a break, he could fall into the discrimination liability abyss.
However, if a healthcare facility which tends the vulnerable elderly
in unlocked dorm rooms hires an orderly thrice convicted of petty
theft, the employer might also be liable. Lidon advises his clients
that in New Jersey the whole body of safe workplace law "presents
a murky picture." To be on the safe side, employers might consider
running a criminal records search on prospective hires.
says Donovan, "may statistically show bias and make the employer
guilty of discrimination." Innocently set standards, for instance,
of height or strength, if challenged by, say, a female candidate,
automatically demand the employer "make a showing of justification"
as to that standard’s necessity for the job. Even requiring a high
school diploma has been ruled racially biased. When establishing virtually
any job stricture, it is wise to run it by legal counsel.
The scroll of employer/labor legal considerations rolls ever onward:
immigrant hiring statutes, proper record keeping, complying with civil
rights, and more. If any caveat comes through the murk of all these
statutes and taboos, it is the need for the employer to seek frequent,
usually brief, counsel with a labor/employment attorney. That extra
phone call prior to making a decision may be annoying, but it may
be less painful than going before a judge and pleading ignorance of
— Bart Jackson
Start a new business and, pretty soon, hiring begins.
As the company grows, hiring inevitably leads to an occasional firing,
and, if the company is large enough, a layoff is even possible. Indeed
employment charts the ebb and flow of any business. Yet, says John
MacDonald, an attorney at Stark & Stark who specializes in employment
issues for the securities industry, "employment is a risky area,"
with "a lot of potential exposure." Thus the genesis of human
resources departments, with a job that includes protecting the company.
MacDonald and his colleague Thomas Lewis speak at the Human
Resources Management Association on "Hiring? Terminations? Do
it right or you may hear from someone’s lawyer" on Thursday, May
24, at 8 a.m. at the Nassau Club. Call 609-883-3000.
Human resources professionals serve as legal educators and guides
in hiring and firing for company management, training managers in
what they should and should not do. "If a human resources person
doesn’t keep an eye on the process and help guide management through
it," says MacDonald, "management can make some pretty significant
MacDonald came to employment law via the securities industry. After
graduating in 1989 from the University of Richmond with a degree in
history, he worked in Princeton for two years at Bloomberg. In 1994
he received a law degree from the University of Bridgeport School
of Law (now Quinnipiac School of Law). After law school, he worked
in northern Jersey doing securities arbitration, which, he says, "developed
into a concentration in employment and how it affects the securities
industry — issues involving brokers and their employees."
He has advice on a number of areas where the advice or presence of
human resources professionals plays a critical role in heading off
Some companies make the mistake of getting human resources involved
only "at the point when they are getting the person out of the
door," says MacDonald, expecting them to take care of the exit
interview and paperwork. If they step in earlier, they can often save
the company from liability.
When people are being terminated, they often have a hard time facing
mistakes they have made, and want to blame someone else. Human resources
should be there to help. "If human resources does its job properly
and treats a person professionally and explains the reasons for the
termination well," MacDonald says, "they may be able to dissuade
them from bringing suits."
given for a termination "flies in the face of reality," says
MacDonald, "then you’re inviting a claim that … the reason given
was pretext and the real reason was something else." And that
something else, in the employee’s mind, could include illegal discrimination.
someone," says MacDonald, "you want as much of a documentary
basis as possible," preferably performance reviews that are thorough,
done on a regular basis, and, if possible, acknowledged by the employee.
Performance criteria should be standardized throughout the company
or the position. In lieu of a formal evaluation system, he says, "
document as much as you can the reasons the termination is going to
for filing a complaint with the state civil rights division or the
EEOC or for bringing a lawsuit can be particularly dangerous for an
employer. If retaliation is proven, then the company can be responsible
for damages, even if the plaintiff fails to prove discrimination.
MacDonald says some savvy employees, who sense they may be fired,
may even file a discrimination claim to set the employer up.
down, one employment issue on the horizon is layoffs. "Make sure
the layoff is done uniformly and fairly," says MacDonald, "so
that no particular group is being singled out or is perceived to be
so." For example, do not target an age or minority group. And
no matter who will be affected, he advises employers to "be able
to articulate a legitimate business reason why the lay-off is necessary."
Employers need also note that they are required to give 60-days notice
before closing down a plant with 50 or more employees.
"If they do their job correctly," says MacDonald, "they
can prevent liability for the company and problems for employees."
— Michele Alperin
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