For Employers

In most cases, an employer does not have to give reasons for not hiring an individual. It is, however, a wise business practice to keep a record of all interviewed candidates and your reasons for not hiring them. If in the future you are accused of illegal discrimination in hiring, you can use these records to recall the reasons and defend your company against the claim.

Each state has laws which vary drastically concerning alcohol and drug testing in the workplace. Depending on the occupation in question, including some transportation jobs, federal law may also play a role in whether and how often employees should be tested. If you are considering drug or alcohol testing for your employees, it is crucial that you consult an experience employment lawyer who can explore your options with you, reviewing state and federal regulations.

Yes, the Immigration Reform and Control Act requires that all U.S. employers verify the identity and eligibility of all workers, whether they are American citizens or not, by completing the Employment Eligibility Verification Form I-9. In order to complete the I-9 form, the employer must review particular documents for proof of legal work eligibility. An employer must retain these forms for all employees either for three years after the date of hire or for one year after employment is terminated, whichever is later.

In most cases, the employer may tell potential employers the real reasons for the termination. As long as the information provided by the employer is true and based on a thorough investigation, they are generally protected by qualified privilege. If untruthful statements are made concerning the employee and the employer has no credible grounds for these accusations, they may be sued for defamation. To avoid suits, many employers refuse to release any information concerning past or present employees. Others require that all individuals seeking a reference sign a release giving the employer the right to discuss any good or bad feedback; these releases protect the employer from any claim which may arise from the dissemination of this information.

Recently in Rodriguez v. Raymours Furniture Company, Inc., the Superior Court of New Jersey, Appellate Division, considered whether an employer can contractually limit the time an employee has to file an employment lawsuit against the employer. In Rodriguez, the Court ruled that a six (6) month limitation placed in an employment application was enforceable to bar a former employee’s lawsuit against his employer, when the employee failed to file his claim within six (6) months of his action accruing.

The Court allowed the limitation provision to stand based on the parties’ right to freely contract and the fact the provision was prominently displayed in the employment contract. The limitation provision was in the same font and size as the rest of the terms, was in all capital letters, and following a section of bold type cautioning the applicant to read the section carefully before signing because it would become part of the terms of their employment if the applicant was hired.

This decision is beneficial to employers because typically employees can have longer time limits to bring employment claims against their former employers. For example, under New Jersey’s Law Against Discrimination an employee typically has two (2) years to file a discrimination claim, but an employer who adds an enforceable limitation provision can limit that employee’s time to file a discrimination claim under New Jersey law to six (6) months.

An employer may think its liability for a potential discrimination claim or sexual harassment claim stops at the employer’s front door, however, an employer may be liable for sexual harassment or discriminatory conduct that takes place outside of the workplace and on the internet. An employee’s internet postings may be a pervasive source of future liability as the generation akin to school cyberbullying has entered the workplace. In fact, the internet is everywhere, especially with the explosion of personal blogging and social media sites like Twitter, Facebook, Google+, and Instagram in the recent decade. Therefore, it is important that an employer becomes aware of and becomes vigilant against such cyber harassment to minimize potential discrimination and sexual harassment liability.

In recent years, the law has been slowly catching up to the internet age by analogizing and adapting old rules to fit our new online society. Our traditional notions of what constitutes workplace conduct versus non-workplace conduct has become blurred as so much more activity takes place on the internet and we are now almost always virtually on the job with smartphones. Blakey v. Continental Airlines, Inc., 164 N.J. 38 (2000) (“Blakey”) is the leading New Jersey authority on harassment through internet postings, but it has been recently discussed, applied, and to some extent extended in the unpublished opinion of Montone v. City of Jersey City, 2013 N.J. Super. Unpub. LEXIS 3021 (2013) (“Montone”). By the Montone opinion, it is strongly arguable that many more off-site internet postings are within the realm of workplace conduct.

Blakey v. Continental Airlines, Inc. – Applying Non-Workplace Rules to Internet Postings

In Blakey a female pilot brought a suit against Continental Airlines, Inc. (“Continental”) claiming sexual harassment and a hostile work environment caused by coworkers. There was in workplace conduct such as sexist comments and the placing of pornography in her cockpit as well as comments on a web forum. This Court specifically addressed web forum posts. The forum was managed by a third party vendor but specifically created for Continental employees to collaborate and share ideas. At issue was whether Continental had the duty to police this forum for harassment even though it did not control the forum and it was accessed solely by the employees’ own personal computers. Traditionally, employers are not required to police personal communications not related to work.

Blakey held that if “the employer had notice that co-employees were engaged on such work-related forum in a pattern of retaliatory harassment directed at a co-employee, the employer would have a duty to remedy that harassment” Blakey at 46. The court used the analogy of a physical chalkboard. It looked to whether this chalkboard was hypothetically: 1) physically placed in the office; or, 2) physically placed in a work-related place where employees used it to continue a pattern of harassment; and, 3) the employer knew or should have known of such continued harassment. Under traditional notions, harassment at a nearby bar or through phone calls from a personal phone outside of work hours can be actionable if it tends to exacerbate an existing pattern. Further, the employer’s inaction after being notified of such harassment “sends the harassed employee the message that the harassment is acceptable and that the management supports the harasser.” Blakey at 59.

Blakey did not impose a duty to monitor the private communications of employees and it required a substantial workplace benefit from the forum to the employer, but in the end, the Court all but said that Continental knew of the harassing and retaliatory posts and benefited from the forum through increased communication and collaboration of its employees. Therefore, while the ultimate determination was for a lower Court to decide, it said such posts may create an employer liability despite the employer’s lack of control and access only through personal computers as opposed to the employer’s owned computers. Further, Blakey recommends that, while not required to, employers should take a proactive and no-tolerance approach to protect itself against future harassment litigation.

Montone v. City of Jersey City – Applying Workplace Conduct Rules to Internet Postings

Montone was an unpublished case (meaning it does not have precedential value), but it is important to see how Blakey was applied and extended after the internet and law relating to the internet has had 13 years to evolve. The internet is now in every aspect of our lives and smartphones/tablets have evolved past the simple Blackberry to send and receive texts, emails and internet postings so we are now not confined to a single home or workplace computer or workspace.

In Montone, a female police sergeant of nearly 29 years claimed sexual harassment, discrimination, and retaliation against the police department, the city of Jersey City, the police chief, the Jersey City mayor, and other parties. At issue were posts on www.NJ.com (the “Posts”) where individual defendants, including the police chief, indirectly referred to Valarie Montone (“Montone”) as a “c**t” or “cow c**t”, wrote “Moooo” in reference to her, accused her of sleeping with police chiefs, and made other sexually vulgar posts (“posts”). The key distinction between this case and the Blakey case is that the Continental forum was created and used solely by Continental employees whereas www.NJ.com is a public forum unrelated to the employer.

In Montone, the Court stated that it was possible for the employer to be liable for the Posts under two possible theories: 1) the Posts were related to a pattern of workplace harassment as in Blakey; or, 2) the Posts were deemed to happen in the workplace where the employer had a duty to monitor and address such harassment as it would for other workplace misconduct. The key distinction is that now with the internet and computers in every aspect of our lives, the harassing posts sent outside of work might be considered communication actually taking place at the workplace.

Under the first theory, the Court stated that given the ongoing pattern of harassment at the police station, the Posts could be a continuation of such pattern, thus making it related to such workplace harassment. However, the Court stated that a substantial benefit from www.NJ.com must exist for the employer for which the lower Court would examine further. In the end, the Court skirted the employer benefit issue by making a distinction between public and private employers where the public employer has an interest in disciplining certain public employees such as police officers or firemen for off-duty misconduct to preserve morale and good order. It further stated that private employers may have a duty to oversee off-duty misconduct if its policies state so, but may not otherwise. This may be a stepping stone from removing the benefit requirement.

Montone also further stated that the Posts may be workplace conduct themselves. It states that a determination is required by the Lower Court as to whether some of the posts were created by work computers or at work. Therefore, this is another legal theory of liability for an employer. The importance is that whereas Blakey simply classified non-workplace posting by the internet as creating legal liability, however, now with computers/smartphones/tablets being everywhere, which allows employees to both post and access from similar forums everywhere, there is more of a likelihood that these types of posts may be deemed workplace conduct in itself creating a duty for the employer to monitor and remedy such harassment.

Steps for Employers to Protect Themselves

The internet is something that is everywhere and nowhere at the same time. Whether internet content is here or not is dependent on if employees are aware of it or not, and not whether the information is physically at the workplace. As the law and internet evolves, these types of posts will become more and more frequent and arguably be classified as a part of workplace conduct subjecting the employer to liability. It will become important for employers to follow the recommendations made by the Blakey court to be vigilant to ensure employees are not posting or accessing such posts and to take swift action to remediate such discriminatory or retaliatory harassing behavior. Some steps for an employer to protect itself are:

  • Have clear discrimination and sexual harassment policies and execute them properly so employees feel like the employer actually addresses the problem rather than the employer simply attempting to reduce its legal liability.
  • Have a clear policy with examples stating that discriminatory or harassing posts on third party sites are unacceptable and could subject an employee to discipline.
  • If an employee makes a complaint or an employer becomes aware of internet cyberbullying by coworkers or discriminatory or harassing posts, these need to be addressed and remedied swiftly. Require the posting employee to remove such posts, apologize, and be suspended, take an unpaid leave of absence and/or be terminated, as is appropriate. Try to keep the problem from getting out of hand by being sensitive to the complaining party.
  • Have software that scans workplace computers for keywords that may be indicative of harassment or discrimination such as racial slurs, sexually vulgar words, and other offensive words.
  • Use legal and human resources advisors to counsel how to handle specific issues to avoid misstatements or missteps. Many sexual harassment and discrimination claims have strict regimented rules with specific notice periods and specific notice requirements. It is important not to misstep these requirements.

An experienced business, employment law attorney should be consulted for all questions or concerns about your employment law policies.