Employment Law Monitor

EEOC Provides Guidance to Employers Regarding The Use of Criminal/Background Checks

Randi W. Kochman — Wed, 16 May 2012 13:37:26 -0500

The Equal Employment Opportunity Commission (“EEOC”) has provided useful guidance to employers in issuing its April 25, 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act” (the “Guidance”). The Guidance contains the EEOC’s view on employers’ use of criminal arrest and conviction records in making employment decisions under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). This Guidance, along with a useful Q&A regarding the topic, can be found at www.eeoc.gov.

The Guidance reiterates the EEOC’s longstanding position that an employer’s consideration of an applicant’s criminal conduct in making hiring or other employment decisions may violate Title VII by causing a “disparate impact.” A “disparate impact” occurs when a neutral employment policy – such as excluding all applicants from employment consideration where they have engaged in any criminal conduct – negatively impacts some groups protected under Title VII more than others. An employer with a practice that is found to cause a “disparate impact” may defend by showing that its policy is job related and consistent with business necessity. Even if the employer can show job relation, it may still have to defend against a claim that an effective “alternative employment practice” is available that is less discriminating than the challenged policy.

The Guidance also notes the difference between arrests, which may not be considered in making employment decisions, and convictions, which provide “sufficient evidence” that a person engaged in criminal conduct and may be considered by employers. With respect to the former, the EEOC notes that while an employer may not consider arrests, if the employer conducts a factual investigation and determines that the conduct underlying the arrest actually occurred, then the employer can deny the applicant a position if the confirmed conduct makes the employee unfit for the position.

With regard to convictions, the EEOC recognizes that a conviction is “sufficient” evidence of criminal conduct. However, the EEOC recommends that an employer not ask about convictions on applications, and if inquiring about such convictions during the application or background check process, the employer should ensure that such inquiries are related to the specific position sought and consistent with business necessity.

The Guidance also provides additional information on background data and statistics. In short, the EEOC Guidance confirms that while employers may consider workers’ criminal records under certain circumstances, before denying employment to anyone with a record, they must consider all the facts and circumstances and may not automatically deny everyone with a record every job. Employers who intend to consider workers’ criminal records in making employment decisions, either during the application process or employment, are well advised to consult counsel to ensure they do not run afoul of any laws.

Third Circuit Holds FLSA Collective Actions and State Law Class Actions Are Not Inherently Incompatible

Michael N. Morea — Tue, 01 May 2012 09:54:31 -0500

In the recent case of Knepper v. Rite Aid Corp., --- F.3d --- (3d Cir. 2012), the Third Circuit Court of Appeals joined the Second, Seventh, Ninth and D.C. Circuits in holding that Fair Labor Standards Act (“FLSA”) collective actions and state law class actions are not inherently incompatible. While at first glance the decision may seem significant, in actuality, it is not a change in controlling law, but rather, reaffirms and clarifies existing and well established case law.

The FLSA provides, among things, that employers must pay minimum wages and overtime to non-exempt employees. In many respects the FLSA overlaps with state wage and hour laws. As a result, in actions alleging violations of the FLSA, plaintiffs’ counsel also often assert claims for alleged violations of comparable state laws. These actions can be filed on behalf of the named plaintiffs individually and as representatives for similarly situated individuals – i.e., a class action for the state law claims and a collective action for FLSA claims. Such combined actions are called “dual” or “hybrid” actions.

Because of the original jurisdiction vested with the federal courts over FLSA claims, these dual-actions are filed in the federal district courts. In so doing, plaintiffs ask the district court to exercise supplemental jurisdiction over the state law claims, which allows the courts to hear cases over which they do not have original jurisdiction. Federal district courts can exercise supplemental jurisdiction where the state law claims are part of the same case or controversy as the claims of original federal question jurisdiction. 28 U.S.C. §1367. As explained by the Third Circuit, in determining the propriety of supplemental jurisdiction, “[t]he issue is whether there is a ‘common nucleus of operative fact’ and whether the claims are part of the ‘same case or controversy under Article III.’” DeAsencio v. Tyson Foods, Inc., 342 F.3d 301, 308 (3d Cir. 2003)(quoting In re Prudential, 148 F.2d at 303 (3d Cir. 1998)).

There are, however, inherent differences in how a federal or state law class action works compared to the FLSA equivalent, which is termed a collective action. In a class action, similarly situated individuals are automatically members of the class, unless they opt-out of the class. By contrast, in a FLSA collective action, individuals must affirmatively opt-in to be members of the collective. Depending on the circumstances, this can create a disproportionate number of members between a FLSA collective and a state law class. As a result, defense counsel will sometimes ask a district court to refuse to exercise supplemental jurisdiction over state law claims in a dual action, relying upon 28 U.S.C. §1367(c).

Under 28 U.S.C. §1367(c)(2), a district court may decline to exercise supplemental jurisdiction when, among other reasons, “the claim substantially predominates over the claim or claims over which the district court has original jurisdiction[.]” In DeAsencio, the Third Circuit recognized that due to the differences between a FLSA opt-in collective and a state law opt-out class that “the disparity in numbers of similarly situated plaintiffs may be so great that it becomes dispositive [of predomination] by transforming the action to a substantial degree, by causing the federal tail represented by a comparatively small number of plaintiffs to wag what is in substance a state dog.” DeAsencio, 342 F.3d at 311. Thus, the DeAscencio court directed district courts “faced with the prospect of dual certification of a FLSA class and a state-law based class to determine, on a case-by-case basis, whether to exercise supplemental jurisdiction over such state law claims.” White v. Rick Bus Co., 743 F.Supp.2d 380, 385 (D.N.J. 2010)(citing DeAsencio, 342 F.3d at 312).

Some district courts have misinterpreted DeAsencio to stand for the proposition that dual actions are always “inherently incompatible” and automatically barred. That was the issue in Knepper, where the district court held that the state law class action was inherently incompatible with the FLSA collective. On appeal, however, the Third Circuit rejected that notion, stating that “we disagree with the conclusion that jurisdiction over an opt-out class action based on state-law claims that parallel the FLSA is inherently incompatible with the FLSA’s opt-in procedure.” Knepper at *8.

Although Knepper is the first time that the Third Circuit joined other Circuit Courts in expressly rejecting an inherent incompatibility argument, Knepper does not change the law. Rather, Knepper clarifies what the Third Circuit already held in De Asencio, namely that the propriety of dual certification must be determined “on a case by case basis” to determine whether dual certification is consistent with Article III jurisdiction of the district courts. Knepper at * 8 DeAsencio, 342 F.3d at 312.

Supervisors can be held Individually Liable Under the Family and Medical Leave Act

Michael N. Morea — Wed, 14 Mar 2012 10:53:41 -0500

In a case of first impression, the United States Court of Appeals for the Third Circuit has confirmed that supervisors of both private and public sector employers can be held individually liable under the Family and Medical Leave Act (“FMLA”) 29 U.S.C. § 2601 et seq. Haybarger v. Lawrence Cty. Adult Probation and Parole, 667 F.3d 408 (3d Cir. 2012). Although this was the first occasion for the Third Circuit to decide the issue of supervisor liability, other Circuit Courts of Appeals have consistently held that, based upon the FMLA’s plain language, supervisors may be held individually liable in the private sector. There is, however, a split amongst the Circuit Courts of Appeals as to whether the FMLA permits individual liability against supervisors at public agencies. The Fifth and Eighth Circuits have permitted such liability, while the Sixth and Eleventh Circuits have not. In Haybarger, the Third Circuit joined the Fifth and Eighth Circuits in holding that the FMLA imposes individual liability against supervisor at public agencies.

In order to be subject to individual liability, the supervisor must exercise supervisory authority over the plaintiff and be responsible in whole or part for the alleged FMLA violation. Id. at 417. The Haybarger Court further noted that supervisors, and others, can also be subject to personal liability under the FMLA if they qualify as “employers” under the “economic reality test” (“ERT”). Id. at 417-418. The ERT is the same test applied in Fair Labor Standards Act (“FLSA”) cases, where courts will consider whether the individual against whom personal liability is sought: (1) had the power to hire and fire the subject employee; (2) supervised and controlled the conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records. Id. at 418 (internal citations omitted).

Employers Should Remember The New York Wage Theft Prevention Act's February 1st Deadline

Kathryn Dugan — Fri, 27 Jan 2012 11:26:44 -0500

As readers of this blog may recall, in 2011 New York implemented the New York Wage Theft Prevent Act (the “Act”), which amended the New York Labor Law to impose new recordkeeping and notice obligations on the majority of employers operating within New York State, as well as expanding the civil and criminal remedies available when employers fail to comply with these provisions. Specifically, the Act requires that by February 1st of each year, employers provide notice to employees of their rate(s) of pay, designated pay day, the employer's intent to claim allowances as part of minimum wage, all identifying, affiliate and contact information for the employer, which includes the name of the employer and any "doing business as" names used by the employer and additional information that may be specified by the Commissioner of Labor.

The notice must be provided in the employee's primary language, as identified by the employee, through translated notices provided by the Department of Labor. These notices are required at the time of hire, as well as yearly between January 1 and February 1, and when there are changes in the information on the pay notices. With respect to changes in the terms of an employee’s notice, the employer must provide notice of changes to the affected employees either in a separate written notice seven days in advance of the change or in the detailed wage statement accompanying payment of wages. The employer is required to retain copies of these notices and a signed, dated acknowledgement of receipt from each employee for six years. The notices must be made available to the Department of Labor upon request.

Employers should also be aware of changes in the Act that expand the Department of Labor's authority to enforce the Labor Law. For example, the Act increases the mandatory liquidated damages for wage violations to 100% of unpaid wages. In addition, the Act provides for interest from the date of any underpayment and additional civil penalties for failure to comply with final judgments within 90 days. The Act also provides for individual recovery of civil damages for each workweek in which the employer fails to comply with its new notice requirements. Finally, the Act expands an employee's ability to bring complaints and private actions for such violations, while also strengthening an employee's protections against any prohibited retaliation by an employer. Prohibited retaliation includes, among other things, any action that negatively affects workers such as discharge, suspension, transfer to another shift or reduction in wages or hours, which is done because a worker has engaged in a protected activity. A protected activity includes any of the following: an employee’s right to complain to their employer, the Department of Labor or the Attorney General about possible violations of the Labor Law and regulations issued under it; an employee’s right to file a complaint about these possible violations and give information about their conditions of employment to the Department of Labor or Attorney General; and an employee’s right to testify at hearings or other proceedings. The penalties for retaliation can include fines up to $10,000, as well as an additional $10,000 in liquidated damages. The Department of Labor can also request reinstatement of the worker and/or compensation for lost wages.

With February 1, 2012, the deadline for compliance quickly approaching, New York employers should take steps to ensure compliance with these necessary obligations.

United States Supreme Court Recognizes "Ministerial Exception" and Bars Certain Religious Employees from Bringing Employment Discrimination Claims

Randi W. Kochman — Wed, 18 Jan 2012 11:26:22 -0500

In a significant religious freedom decision, on January 11, 2012, the United States Supreme Court unanimously recognized a “ministerial exception” to employment discrimination laws. The “ministerial exception” had been recognized by the lower Courts of Appeals, but, until now, had not been affirmed by the Supreme Court. In its decision, the Court found that the Establishment and Free Exercise Clauses of the First Amendment preclude “ministers” from asserting employment discrimination claims against their churches.

In Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Opportunity Employment Commission – No. 10-553, the Court addressed the claims of Cheryl Perich (“Perich”), a teacher at the Hosanna-Tabor Evangelical Lutheran Church and School (the “Church”), which is a member of the Lutheran Church – Missouri Synod in Redford, Michigan. Perich claimed that the Church terminated her because of her disability, narcolepsy, as well as her threat to pursue a disability discrimination claim. The Church claimed that it terminated Perich because she violated its religious doctrine by failing to resolve her conflict internally rather than initiate litigation.

Following Perich’s termination, the Equal Opportunity Employment Commission sued the Church on behalf of Perich alleging that her termination was unlawful and in retaliation of her threats to file an Americans with Disabilities Act (“ADA”) lawsuit. The lower courts acknowledged the “ministerial exception” to anti-discrimination laws, and thus, recognized the First Amendment’s guarantee of freedom of religion to churches and their operations with regard to their treatment of employees. The Supreme Court upheld the exception. Issuing the Court’s opinion, Chief Justice John G. Roberts, Jr. wrote that “the interest of society and the enforcement of employment discrimination statutes is undoubtedly important … but so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.” The Court expressed concern that requiring churches to follow anti-discrimination laws could hinder their selection and retention of religious leaders.

In precluding Perich from pursuing her employment discrimination claim, the Court considered whether Perich was a religious employee, or “minister,” covered by the ministerial exception. Although she taught secular subjects, a small portion of her day involved religious duties. Moreover, the Court recognized that Perich was a “called” (to God) teacher who had received religious training. Thus, the Court found her to be covered by the ministerial exception and prohibited from invoking anti-discrimination laws. Although concluding that Perich was a “minister,” the Court neglected to establish a bright line rule distinguishing religious from secular employees, leaving such determinations to the facts of each case.

Employers Should Update Their Discrimination Policies in Light of the EEOC's Increased Awards for Discrimination Victims in 2011

Kathryn Dugan — Fri, 16 Dec 2011 10:56:50 -0500

Overall, 2011 was a record breaking year for the EEOC. During the 2011 fiscal year, the Equal Employment Opportunity Commission (“EEOC”) won a record-breaking $365 million for discrimination victims. In addition, the EEOC’s private sector mediation program obtained more than $170 million in monetary benefits for employees.

It was also a productive year for the EEOC in terms of reducing its backlog. For example, in fiscal year 2011, 99,947 charges of discrimination were filed with the EEOC. However, as of September 20, 2011 there were only 78,136 pending charges – a decrease in ten percent over the last year. This reduction was due to the EEOC following through on its pronouncement to make the reduction of its backlog a priority.

EEOC enforcement was also up. In 2011 the EEOC reported that at the end of the fiscal year, there were 580 systematic investigations under way, which was up from 485 investigations the previous year. In addition, EEOC field legal units filed 261 lawsuits – 23 of which involved systematic allegations affecting large numbers of people; 61 involved between two and 19 alleged victims; and 177 were individual lawsuits.

Based on the increased activity by the EEOC, employers need to review and revise, if necessary, their discrimination and harassment policies to ensure they are up-to-date. With the EEOC being aggressive in its pursuits to dispose of cases as well as the increased success in obtaining awards for discrimination victims, employers must protect themselves against these types of claims.

The New Jersey Department of Labor and Workforce Development Releases New Mandatory Recordkeeping Poster

Michael N. Morea — Mon, 28 Nov 2011 09:08:28 -0500

On November 4, 2011, the New Jersey Department of Labor and Workforce Development (“NJDOL”) issued a new notice/poster entitled “Employer Obligation to Maintain and Report Records.” A copy of the poster can be found here.

Employers are required to immediately post the notice and provide it to all new employees hired on or after November 7, 2011. Additionally, by December 7, 2011, employers must distribute the poster to all current employees who were hired before November 7, 2011.

Employers should immediately take steps to ensure compliance with the posting and distributions requirements of the new poster and should seek legal counsel if they have any questions concerning their obligations.

Employers May Not Be Liable For The Boorish Behavior Of Their Employees

Nicole G. McDonough — Wed, 09 Nov 2011 11:29:22 -0500

On October 19, 2011, the Appellate Division affirmed a trial court’s decision that abrasive, abusive, and condescending conduct toward employees does not, on its own, equate to a hostile work environment claim if the workplace conditions were the same for men and women. In other words, while the law protects against harassment motivated by a protected category such as race, gender, or religion, it does not guarantee a civil or courteous environment.

In Miceli v. Lakeland Automotive Corp., A-302-10T2, the Appellate Division considered the trial court’s grant of summary judgment in favor of Lakeland Automotive Corporation (“Lakeland”). Miceli, the only female car salesperson at Lakeland, brought a gender discrimination claim under New Jersey’s Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 to 49, against her former employer, Lakeland. She alleged that on three occasions a male co-worker abused, belittled, and harassed her. The scope of the alleged abusive language included the co-worker yelling at her saying she was “going to get hers” and that her “day is coming.” Miceli also complained that her supervisor permitted this conduct and directed his own abrasive behavior toward her by speaking to her (and other employees) in an angry, belittling, and condescending manner, and making statements in front of her and everyone else about his frustrations with the employees’ work.

The trial judge initially denied Lakeland’s pre-discovery motion for summary judgment, noting that the conduct complained of, “while it is impolite, while it is boorish, while it is probably reflective of a lack of human kindness, does not seem to be predicated upon . . . sexist conduct.” Nevertheless, the trial court denied the motion so that plaintiff could pursue discovery. Following discovery, Lakeland renewed its motion for summary judgment, and the Court granted it, finding that Miceli did not allege sufficient additional proofs “that the conflicts and altercations between herself and both the sales manager and the co-worker were motivated by her gender,” other than Miceli’s “blanket assertions.”

On appeal, Miceli argued, among other things, that Lakeland had a duty to eliminate the abusive behavior that constituted a “hostile work environment” in violation of LAD. The Appellate Division affirmed the trial court’s decision, recognizing that “there is no LAD violation if the same conduct would have occurred regardless of [Miceli’s] sex.”

The Appellate Division reasoned that the sales manager did not permit the conduct to continue as he addressed each incident about which Miceli complained and warned the co-worker that he would be terminated if problems continued. Moreover, plaintiff admitted that her supervisor’s abrasiveness was not limited to plaintiff, but that “[e]veryone complained about [the sales manager].” Miceli even admitted that the sales manager treated two other male co-workers abusively. She explained that the sales manager was “[j]ust an angry person all together.”

The Appellate Division concluded that, although rude and obnoxious, “there is no evidence to suggest that the co-worker’s conduct . . . was motivated by gender.” “Personality conflicts, albeit severe, do not equate to hostile work environment claims simply because the conflict is between a male and a female employee.” citing Herman v. Coastal Corp., 348 N.J. Super. 1, 20-21 (App. Div. 2002).

Even though “boorish” behavior may not be unlawful, employers should implement and enforce appropriate workplace guidelines. Also, if issues arise, employers should consult legal counsel regarding the remediation of and potential exposure for acts of their employees and obtain guidance on the best course of action to pursue to avoid and/or minimize liability for such acts.

Are Inside Sales Persons Now Entitled To Overtime in New Jersey? They May be, at Least For Now

Michael N. Morea — Wed, 26 Oct 2011 09:36:18 -0500

Last month, new overtime exemption rules of the New Jersey Department of Labor and Workforce Development (“NJDOL”) became effective. These new rules are intended to bring overtime exemptions under the New Jersey Wage and Hour Law (“NJWHL”) in line with the 2004 revisions to the federal Fair Labor Standards Act rules, by repealing the existing state overtime exemption rules and replacing them with the analogous federal exemptions. NJDOL accomplished this by revising N.J.A.C. 12:56-7.2 to remove the definitions of the various overtime exemptions and adopted by reference the counterpart in the Code of Federal Regulations (“CFR”), specifically 29 CFR 541.

However, in an apparent omission, by adopting 29 CFR 541, the NJDOL removed the state exemption for inside salespersons. The NJWHL inside salesperson exemption had provided that salespeople who received at least 50% of their total compensation from commissions and earned more than $400 per week, fell under the administrative exemption to overtime. Federal regulations provide a similar exemption, but that exemption is found in a different section of the regulations, not 29 CFR 541.

NJDOL has indicated that the removal of the inside salesperson exemption was not intended and that it is working on rectifying the situation. In the meantime, however, certain employees who were previously exempt from overtime are, at least for the time being, apparently entitled to receive it.

New Jersey employers who have inside salespersons who were previously exempt from overtime should consult legal counsel to determine how best to handle overtime for such employees, until the state rules are revised.

What Every Business Owner Needs To Know About OSHA (Part Three)

Gerard M. Giordano — Tue, 11 Oct 2011 09:00:51 -0500

The final installment of this three part series describes what employers should expect after an OSHA inspection as well as the employers’ rights.

1. What happens after OSHA completes its inspection?

Unless your establishment is in full compliance with OSHA’s standards, you will receive a “Citation and Notification of Penalty” from OSHA. Generally, OSHA has up to six months after it initiates the inspection to issue a Citation. A Citation includes: the type of violation (classification); the standard, regulation or section of the Occupational Safety and Health Act that was violated; a description of the violation; the abatement date; and the penalty.

A. The alleged violation could fall into one of the following categories:

Willful - A willful violation is a violation in which the employer knew that a hazardous condition, which violated a standard, regulation or a section of the Occupational Safety and Health Act, existed but made no reasonable effort to eliminate it. If the willful violation results in a death, OSHA can seek criminal sanctions against an employer.

Serious - A serious violation exists:

if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

Repeat - OSHA may cite an employer for a repeated violation if:

(A) the employer has been cited previously for a substantially similarviolation;

(B) the previous citation containing the substantially similar violation has become final order of the Occupational Safety and Health Review Commission; and

(C) the current violation occurred within 5 years from the date that the earlier citation became final order or from the final abatement date, whichever is later.

Other-Than-Serious - An other than serious violation exists where an accident or illness that could occur from a violation “would probably not cause death or serious physical harm but would have a direct and immediate relationship on the safety and health of employees.”

De Minimis – A de minimis violation is a “violation of a standard that has no direct or immediate relationship to safety and health.”

In addition, an employer can also be cited for failure to correct a previously cited condition. The Occupational Safety and Health Act allows OSHA to assess penalties for each day a violation continues past the final abatement date.

B. Section of OSHA Standard Violated and Description of the Violation

The citation must also describe the violation and section of OSHA’s standard that was violated.

C. Abatement Date

The abatement date is the date by which the violation must be corrected. The abatement period is “the shortest interval within which the employer can reasonably be expected to correct the violation.” Abatement dates are usually discussed at the closing conference. In determining the abatement date the inspector generally considers the following factors:

(a) The seriousness of the alleged violation;

(b) the equipment, material and/or personnel needed to correct the alleged violation and their availability;

(d) the time period to construct or install the abatement equipment; and

(e) the time period to train personnel.

If an employer is unable to meet an abatement date because of some uncontrollable circumstance, the employer can petition the OSHA Area Director to modify the abatement date contained in the Citation.

D. Penalty

The Citation also sets forth the penalty assessed by OSHA. OSHA is authorized to assess the following civil penalties: $70,000 for each willful or repeated violation; $7,000 for each serious or other than serious violation; $7,000 for each violation of the posting requirement; and $7,000 per day beyond a stated abatement date for failure to correct a violation.

Penalties are calculated once a violation is classified. In calculating penalties OSHA takes into account the following factors: the seriousness of the violation; the number of employees employed by the employer; the employer’s good faith as demonstrated by the employer’s efforts to comply with the Occupational Safety and Health Act and OSHA’s standards and regulations; and the employer’s past history of compliance. OSHA can, at its discretion, reduce the maximum penalty that it will impose after considering these factors.

2. If OSHA issues citations to my company, what should I do?

Once you receive a Citation, you must post the Citation at or near the place where each violation occurred so that it will be conspicuous to employees. The purpose of this is to make employees aware of the hazards to which they may be exposed. The Citation must remain posted for three (3) working days or until the violation is corrected, whichever is longer. You are required to comply with these posting requirements even if you subsequently decide to contest the Citation.

You have two choices once you receive a Citation. The first option is you can comply with the Citation. That is, you can correct the alleged violations by the date specified in the Citation and pay any penalty that may have been assessed. If you do not contest the Citation, the Citation will become a final order in fifteen (15) working days after receiving the Citation. Once the Citation is a final order, it will be binding and not subject to review by any court or agency.

The second option available to you is to contest the Citation. You have fifteen (15) working days from the date of receipt of the Citation to contest the Citation.

However, before you decide which course to take, you should take advantage of an OSHA process known as the Informal Conference. You must request and schedule the Informal Conference with the OSHA Area Office that issued the Citation within the fifteen (15) working day contest period.

If you cannot reach a settlement agreement with OSHA at the informal conference, you may wish to contest the Citation. Generally, a notice of intent to contest all or any portion of the Citation must be submitted in writing to the OSHA Area Office that issued the Citation within fifteen (15) working days after the receipt of the Citation.

3. Should I challenge the OSHA citations?

There is no universal formula to assess whether you should challenge the OSHA Citation. The decision must be made in good faith and based on the facts, which include consideration of alleged violation, its impact on employee health and safety, the classification of the violation, the method of abatement and the cost involved in abating the alleged violation.

4. If I do challenge an OSHA citation, what should I expect?

Once you file a notice of contest, jurisdiction over the matter vests with the Occupational Safety and Health Review Commission (the “Commission”). The Commission, sometimes called “OSHRC,” is an independent agency not connected in any way with OSHA. Its primary purpose is to decide contested cases arising from Citations issued by OSHA. It does not perform investigations or promulgate standards.

Once the Notice of Contest is filed with the OSHA Area Office that issued the Citation, the OSHA Area Director will forward a copy of the Notice of Contest to the Commission. The Commission will appoint an Administrative Law Judge who will preside over the hearing and render a decision, which can be appealed by the employer or OSHA.

5. How can I clear my company’s record from any citations issued by OSHA?

There is no method to clear your company’s record of past Citations issued by OSHA. However, the longer your company operates without OSHA Citations the better. OSHA can use past Citations as a basis to issue Citations that have a more severe classification with increased penalties. For instance, if OSHA re inspects your company in the future, it can issue repeated violations for conditions that were violated during the original inspection.

6. Can OSHA re-inspect my facility? If so, is there any action that I can take to prevent OSHA from inspecting my facility in the future?

Yes, OSHA can re-inspect your facility. You cannot prevent OSHA from re inspecting your facility in the future, but you can minimize the chances of that occurring by being proactive. By establishing safety and health programs that incorporate coordination and communication of safety and health issues among personnel; means for planning and implementing needed training and job orientation for employees; and means for identifying and controlling workplace hazardous and monitoring the effectiveness of such program, you can minimize workplace hazards and thus, reduce the chances of OSHA re-inspecting your facility. In certain situations you may want to utilize the services of a safety and health consultant to assess your workplace and make recommendations to better comply with OSHA’s standards. Your lawyer can assist you with deciding whether to retain a consultant to evaluate your workplace.

7. If OSHA re-inspects my facility, should I expect the same result as the initial inspection?

The answer to this question is dependent on your company’s response to the initial inspection and your company’s commitment to health and safety. Only by being proactive and implementing programs that protect employees can you reduce the possibility of future OSHA enforcement actions.

Employers Beware: United States Department of Labor and Internal Revenue Service Team up to Combat Misclassification of Workers as Independent Contractors

Randi W. Kochman — Mon, 03 Oct 2011 15:18:39 -0500

On September 19, 2011, the United States Department of Labor (“DOL”) and the Internal Revenue Service (“IRS”) announced the agencies’ agreement to jointly combat the misclassification of workers as independent contractors. Specifically, the DOL and IRS’s joint Memorandum of Understanding (“MOU”) indicates that their efforts are aimed at ending some employers’ practice of misclassifying employees. In signing the MOU at the DOL ceremony Secretary of Labor Hilda L. Solis declared: “We’re here today to sign a series of agreements that together send a coordinated message: We’re standing united to end the practice of misclassifying employees.” Employers must take heed.

Various state and labor officials have signed on to the MOU, including Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah, Washington and New York’s Attorney General. State labor agencies in Hawaii, Illinois and Montana have also entered into memorandums of understanding with the DOL’s Wage and Hour Division. By signing on to the MOU, the agency and state signatories may more freely share information and coordinate law enforcement. Employers that utilize “independent contractors” in any manner are well advised to assess their relationships and determine whether the classification can withstand what will surely be heightened scrutiny from various enforcement agencies.

Of course, as independent contractors do not necessarily receive minimum wage or overtime pay, unemployment insurance, workers' compensation or Social Security benefits, they lose valuable protections if they become disabled or unemployed, and thus become a drain on the system. In addition, employers do not pay employment taxes on compensation paid to such contractors, which deprives the government of substantial tax revenue. For all these reasons, the government is well incentivized to root out improperly classified relationships. The DOL and IRS have made clear their intention to do just that.

What Every Business Owner Needs To Know About OSHA (Part Two)

Gerard M. Giordano — Tue, 20 Sep 2011 13:34:31 -0500

This article, the second of a three part series, focuses on OSHA’s procedures during an inspection and outlines what employers should and should not do during an inspection.

1. What should I do or not do during an inspection?

There are certain actions that you should take to protect your interest during an OSHA inspection. These actions include:

(a) Check the inspector’s identification to ensure he/she is who he/she says he/she is.

(b) Ascertain from the inspector the reason for the inspection. If the inspection is the result of a complaint, you should request a copy of the complaint.

(c) Have someone from management escort the inspector through the entire inspection process i.e., from opening to closing conference.

(d) Document the inspector’s activities i.e, areas inspected, interviews, measurements taken, etc..

(e) If the inspector performs any monitoring i.e., noise or air monitoring, you should consider performing similar monitoring at the same time. The purpose of the “side by side” monitoring will allow you to document and confirm the results obtained by OSHA.

(f) Request the results of all monitoring performed by the inspector.

(g) At the closing conference, if the inspector indicates that violations have been found, determine why certain conditions constitute a violation. In addition, you should request from the inspector recommended methods to correct any alleged violations.

(h) Consult your attorney at the time an OSHA inspection is initiated and if at any time you are unsure how to respond to a certain requests made by the inspector.

The following is a list of “don’ts”:

(a) You should not forcibly interfere with the conduct of an inspection.

(b) You should not discriminate against or punish any employee who cooperates with OSHA or who may exercise his or her rights under the Occupational Safety and Health Act.

(c) You should not provide the compliance officer with false or misleading information. Providing false information to OSHA is punishable as a crime under the Occupational Safety and Health Act.

(d) You should not argue with or antagonize an inspector during an inspection.

2. How long will OSHA be at my facility?

OSHA will remain at your facility until it completes its investigation. The inspection could last a couple of hours or up to several months. The length of time is determined by the scope of the inspection i.e., whether it is confined to one area or the entire facility. It is also dependent on the type of inspection. That is, whether the inspector will be required to make subsequent visits to the facility to perform monitoring to establish employee exposure to workplace contaminants or noise.

3. Do I have to let my employees talk to the OSHA inspector?

OSHA inspectors are authorized to use various investigatory techniques, such as observing employees’ activities in the workplace, conducting employee interviews, and taking photographs and measurements in the workplace (i.e., air and noise monitoring).

The Occupational Safety and Health Act authorizes OSHA to interview employees privately to obtain whatever information is necessary or useful for the inspector to perform his or her inspection effectively. The interviews, however, must be conducted in a reasonable manner and within a reasonable time limit. If they appear to be unreasonable, you should consult your attorney. On occasions, interviews may be conducted at locations other than the workplace (e.g., employee’s house or OSHA Area office). OSHA’s regulations afford any employee the right to bring any alleged violation to the attention of the inspector.

OSHA inspectors are also authorized to take photographs or videos whenever such are deemed necessary. Generally, an employer cannot prohibit an inspector from taking photographs or videos because a certain process or equipment is a trade secret. To protect a trade secret, you should inform the inspector of the process or equipment that is proprietary. Once informed of trade secret status, the inspector is obligated to treat the information obtained from the inspection in a manner assuring confidentiality.

In order for OSHA to document employee exposure to chemical or physical hazards, it is often necessary for the inspector to perform monitoring. Typically, during the walkthrough phase of the inspection the inspector will identify certain areas where monitoring must be performed. The inspector may then return on another day to perform the monitoring, which may last for the full term of the work shift.

Monitoring employees for chemical and/or physical hazards usually consists of placing monitoring devices such as air samplers or noise dosimeters on the employees. The employer may not object to such investigatory procedures. Once the monitoring devices are placed on the employees, the inspector will observe the employees throughout the day and document their work practices, use of personal protective equipment and other relevant information.

What Every Business Owner Needs To Know About OSHA (Part One)

Gerard M. Giordano — Tue, 13 Sep 2011 10:11:07 -0500

A significant number of businesses are likely to find themselves face-to-face with an inspector from OSHA, and many will be caught off guard. We recommend that businesses take a two-pronged approach to OSHA compliance.

First, make every effort to comply with OSHA’s safety and health rules to protect your employees. Second, be prepared in the event OSHA initiates an inspection at your establishment. If you have a plan in place that provides guidance to your managers, describe the procedures employed by OSHA and what to expect during an inspection, you can minimize disruption of your business and possibly adverse consequences.

This is a three-part series to assist employers and familiarize them with OSHA and its procedures. Part One will focus on OSHA’s function, who is subject to OSHA’s requirements and what OSHA looks for during an inspection.

Part Two describes an actual step-by-step inspection and outlines suggested procedures for employers to follow. The third and final part describes what an employer should expect following an inspection and the employers’ rights and obligations.

1. What is OSHA and what does it do?

OSHA or the Occupational Safety and Health Administration, is an agency within the United States Department of Labor. OSHA’s primary function to protect employees by inspecting workplaces to ensure that employers comply with the safety and health standards promulgated by OSHA.

2. Who is subject to OSHA’s requirements?

Most private sector employers and their employees are subject to OSHA’s requirements. Employees employed by state and local governments are not covered by OSHA. Likewise, certain private sector workers are exempt from OSHA’s requirements. Specifically excluded are self employed individuals, farm workers where only immediate members of the farm employer’s family are employed and workers at facilities where safety and health is regulated by other federal agencies under separate federal statutes.

3. If OSHA shows up at my facility, do I have to allow the inspector in my facility?

In most cases, OSHA must either obtain your consent or a valid warrant authorizing an inspection before entering your facility to perform an inspection. The inspector who arrives at your workplace, may not inform you of your rights.

If denied entry to perform an inspection without a warrant, OSHA has the authority to obtain a warrant by ex parte application to the United States District Court (i.e., OSHA will ask the court to issue a warrant to allow the inspection). If OSHA seeks a warrant, you will not receive advance notice that OSHA is seeking a warrant or receive copies of any materials supplied to the court by OSHA in applying for the warrant.

The decision regarding whether to allow OSHA to inspect your facility is not always clear cut. We recommend that you discuss your options with your lawyer and have a plan in place should an OSHA inspector show up. That plan should be made as a matter of company policy developed prior to the actual inspection. Your managers and key employees should be familiar with the plan and who to contact should they have questions.

4. What does OSHA look for?

There are three phases to an OSHA inspection, the opening conference, the walkthrough and the closing conference.

At the opening conference, the inspector will seek general information concerning your business (e.g., name, address, etc.) as well as your safety and health program. For instance, the inspector may inquire into the following:

The details of your company’s safety and health program;
How information on your company’s safety and health program is communicated to employees;
How your company enforces violations of its safety and health rules;
The type of safety and health training programs that your company has established and how they are implemented;
How your company performs an accident investigation and whether your company implements preventative measures as a result of the investigation; and
Whether the OSHA Notice is posted on site in your facility.

In addition, the inspector will request access to the records that you are required to maintain under the OSHA’s standards (e.g., injury and illness records and Hazard Communication Records, etc.).

The next phase of the OSHA inspections is the walkthrough. The main purpose of the walk-through is to allow the inspector to identify potential safety and/or health hazards in the workplace. You and the employee representative will be given the opportunity to accompany the inspector.

During this phase of the inspection the inspector will assess your safety and health program, collect information on your business and document any hazards found in the workplace.

The final phase of the OSHA inspection is the closing conference. The inspector is required to have a closing conference with you and the employee representative. At the closing conference the inspector is required to describe any and all alleged violations that were observed during the inspection and identify the applicable sections of the OSHA standards or Occupational Safety and Health Act that were allegedly violated. The violations that are found by the inspector will be outlined in a Citation. Citations are not issued at the closing conference, but are issued at a later date under the signature of the Area Director. In addition, the inspector is required to advise you and the employee representative of your rights following an OSHA inspection.

Employers Are Now Required to Post Notice Informing Employees of Their Rights Under the National Labor Relations Act

Randi W. Kochman — Fri, 09 Sep 2011 08:42:35 -0500

As promised, on August 25, 2011, the National Labor Relations Board (“NLRB”) issued final regulations pursuant to which the NLRB now requires all National Labor Relations Act (“NLRA”) - covered employers to post a notice to employees informing them of their rights under the NLRA. NLRA-covered employers include private employers that have an impact on interstate commerce, which is determined by the dollar volume of business generated. Importantly, employers must post the notice regardless of whether or not they have a unionized workforce. The notice, which is 11 x 17 inches, is required to be posted by November 14, 2011. Employers can find the content of the poster at www.nlrb.gov.

The posters must be conspicuously displayed in the workplace in a location where employment notices are customarily posted. Employers that normally use the Internet or Internet sites to post personnel rules and/or policies should also post the notice, or the NLRB’s link to the notice, on the company’s website. As with the New Jersey Conscientious Employee Protection Act notice, where a majority of the workforce is not fluent in English, the employer must display a poster in the applicable and appropriate languages of the workforce.

Employers that fail to comply with this posting requirement may be subject to penalties, including an unfair labor practice charge, a finding that they have an “unlawful motive,” and/or the granting of extra time for employees to file an unfair labor practice charge against the employer.

Supreme Court Clarifies the Standard on which Future Class Actions will be Evaluated in the Federal Courts

Kathryn Dugan — Tue, 05 Jul 2011 08:43:09 -0500

On June 20, 2011, the United States Supreme Court issued an opinion in Wal-Mart Stores, Inc. v. Dukes, No. 10-277, which clarifies how certain class actions will be defined and litigated in the lower federal courts. In Wal-Mart, the plaintiffs sought to certify a class of up to 1.5 million current and former Wal-Mart employees alleging gender bias in pay and promotions in violation of Title VII of the Civil Rights Act of 1964. Specifically, the plaintiffs sought class certification under Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 23(b)(2), which prescribes the rules for class actions seeking injunctive relief rather than money damages. The Wal-Mart plaintiffs were also seeking billions of dollars in damages in addition to their request for injunctive relief.

Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), the party seeking certification must demonstrate, first that: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Second, the proposed class must satisfy at least one of the requirements listed under Rule 23(b). As stated above, in Wal-Mart, the plaintiffs relied on Rule 23(b)(2) which applies when the “party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

The Wal-Mart Court made several important findings. First, the Court held that claims for monetary relief may not be certified under Fed. R. Civ. P. 23(b)(2) unless they are merely incidental to injunctive or declaratory relief being requested on behalf of the class as a whole. Specifically, the Court found the plaintiffs’ back pay claims could not be certified as incidental. The Court held that Wal-Mart was entitled to individualized determinations of each employee’s eligibility for back pay.

Secondly, the Court addressed the commonality requirement for class certification. In that regard, the Court rejected the notion that Wal-Mart’s alleged policy of giving local managers discretion regarding pay and promotion decisions presented common issues of law or fact best addressed in a Fed. R. Civ. P. 23(a)(2) class action. The Court explained that although the plaintiffs sought to litigate millions of employment decisions at once, “without some glue holding the alleged reasons for all of those decisions together” it would be impossible to say that examination of all the class members’ claims for relief would produce a common answer to the crucial question of “why I was disfavored.” The Court found that without the answer to that question, class wide treatment was inappropriate.

Additionally, the Court in Wal-Mart the held that a party seeking class certification must prove that the Fed. R. Civ. P. 23 requirements are satisfied, even if the issues overlap the merits and must be proven again at trial. Therefore, regardless of whether certain issues may overlap or be identical to one or more issues to be decided in ruling on the merits of the plaintiff’s claims, a court must resolve any issues of fact that are necessary to determine whether one or more elements of Rule 23 are satisfied.

Finally, the Court’s decision in Wal-Mart is important because it held that claims for individual monetary relief cannot be replaced with “Trial by Formula” where damages are determined by a formula derived from a sample class. Specifically, the “Trial by Formula” approach to class actions results where a sample of claims is tried on the merits, and the results of the sample are then applied proportionally to the claims of the entire class. The Court unanimously disapproved of this method.

Overall, the Court’s decision in Wal-Mart is significant for negating the largest employment class action ever certified in any United States court. The implications of the Court’s decision will continue to be seen in the future.

NLRB Again Lodges Charges Against Employer Who Terminated Employee Based on Facebook Comments

Kathryn Dugan — Wed, 15 Jun 2011 11:09:23 -0500

On May 18, 2011, the National Labor Relations Board (the “NLRB”) announced its issuance of a complaint against Hispanics United of Buffalo (“HUB”) arising out of HUB’s termination of five employees who posted comments on Facebook criticizing HUB’s working conditions. As we previously posted with regard to the In re American Medical Response of Connecticut, Inc. case the NLRB lodged a similar charge against American Medical Response of Connecticut, Inc. (“AMR”) on October 27, 2010 based on that company’s termination of an employee who posted remarks about her supervisor on her Facebook page.

In the HUB case, the complaint claims that one employee used Facebook to post a co-worker’s allegation that workers were not doing enough to help the organization’s clients. That prompted other employees to defend their job performance and criticize workload and staffing issues. HUB claimed that the Facebook comments constituted harassment of the co-worker who originally posted the comment and, therefore, the terminations were justified. The NLRB, however, disagrees.

The National Labor Relations Act makes it an unfair labor practice to take an adverse employment action against employees because they engage in “protected concerted activity”. Employees engage in “protected concerted activity” when they, among other things, discuss working conditions with other employees. The NLRB takes the position that comments made on Facebook are analogous to conversations among co-workers and thus constitute protected concerted activity.

The interplay between employees’ rights and social networking under the National Labor Relations Act may not become clear for sometime. However, there should be some clarity once a case gets tried before an administrative law judge. With regard to the HUB termination, a hearing is set for June 22, 2011 before an administrative law judge in Buffalo.

The NLRB has now made its position clear with regard to employee comments about working conditions made on social networking websites such as Facebook. As a result of the NLRB’s position and pending litigation, employers should review their social networking policies to ensure that the policies themselves do not prohibit lawful activity and invite an NLRB charge.

Effective June 2011 New Jersey Will Prohibit Employers From Bias Against Unemployed In Job Advertising

Kathryn Dugan — Mon, 23 May 2011 09:14:23 -0500

Effective June 2011, New Jersey will have a new law which will penalize employers for advertisements that show bias against unemployed persons. Specifically, N.J.S.A. 34:8B-1 et seq., which was signed into law by Governor Christie on or about April 24, 2011, prohibits businesses from knowingly or purposefully publishing, in print or on the internet, advertisements for any job openings in New Jersey that include one or more of the following:

A provision stating that the qualifications for a job include current employment;
A provision stating that the employer or employer’s agent, representative, or designee will not consider or review an application for employment submitted by a job applicant currently unemployed; or
A provision stating that the employer or employer’s agent, representative, or designee will only consider or review applications for employment submitted by job applicants who are currently employed.

While the new law is intended to protect job applicants, it does not create a private cause of action against an employer who has violated, or is alleged to have violated, the provisions of the act. However, the act does authorize the New Jersey Commissioner of Labor to bring a summary proceeding against any business which violates the act. Violators will be subject to a civil penalty of up to $1,000 for the first offense, up to $5,000 for the second and up to $10,000 for each subsequent offense.

Employers should immediately review and revise their advertisements for job openings to ensure that the advertisements comply with the new law and do not subject themselves to potential fines by the New Jersey Commissioner of Labor.

New York Amends The New York Labor Law To Impose New Wage & Hour Recordkeeping And Notice Obligations On The Majority Of Employers

Kathryn Dugan — Wed, 20 Apr 2011 10:45:33 -0500

The New York Wage Theft Prevention Act (the "Act"), which went into effect on April 9, 2011, amends the New York Labor Law to impose new recordkeeping and notice obligations on the majority of employers operating within New York State, as well as expanding the civil and criminal remedies available when employers fail to comply with these provisions. Specifically, the Act requires that employers provide notice to employees of their rate(s) of pay, designated pay day, the employer's intent to claim allowances as part of minimum wage, all identifying, affiliate and contact information for the employer, which includes the name of the employer and any "doing business as" names used by the employer, and additional information that may be specified by the Commissioner of Labor.

The notice must be provided in the employee's primary language, as identified by the employee, through translated notices provided by the Department of Labor. These notices are required at the time of hire, yearly between January 1 and February 1, and when there are changes in the information on the pay notices. With respect to changes in the terms of an employee’s notice, the employer must provide notice of changes to the affected employees either in a separate written notice seven days in advance or in the detailed wage statement accompanying payment of wages. The employer is required to retain copies of these notices and a signed, dated acknowledgment of receipt from each employee for six years. The notices must be made available to the Department of Labor upon request.

Employers should also be aware of changes in the Act because it expands the Department of Labor's authority to enforce the Labor Law. For example, the Act increases the mandatory liquidated damages for wage violations to 100% of unpaid wages. In addition, the Act provides for interest from the date of any underpayment and additional civil penalties for failure to comply with final judgments within 90 days. The Act also provides for individual recovery of civil damages for each workweek in which the employer fails to comply with its new notice requirements. Finally, the Act expands an employee's ability to bring complaints and private actions for such violations, while also strengthening an employee's protections against any prohibited retaliation by an employer. Prohibited retaliation includes, among other things, any action which negatively affects workers such as discharge, suspension, transfer to another shift or reduction in wages or hours, which is done because a worker has engaged in a protected activity. A protected activity includes any of the following: an employee’s right to complain to their employer, the Department of Labor, or the Attorney General about possible violations of the Labor Law and regulations issued under it, an employee’s right to file a complaint about these possible violations and give information about their conditions of employment to the Department of Labor or Attorney General, and an employee’s right to testify at hearings or other proceedings. The penalties for retaliation can include fines up to $10,000, as well as another $10,000 in liquidated damages. The Department of Labor can also request reinstatement of the worker and/or compensation for lost wages.

The New York Department of Labor’s FAQ for the Act can be found here. New York employers should immediately check their policies to ensure that they are complying with the Act’s new requirements.

Verbal Complaints Can Fall Within the Protection of the Fair Labor Standards Act's Anti-Retaliation Provision

Michael N. Morea — Tue, 05 Apr 2011 10:47:29 -0500

On March 22, 2011, in Kasten v. Saint-Gobain Performance Plastics Corp., the United States Supreme Court held that an employee who lodges verbal complaints regarding alleged violations of the Fair Labor Standards Act of 1938, 29 U.S.C. §201 et seq. (“FLSA”), may be entitled to protection of the FLSA’s anti-retaliation provision. The Kasten decision is a boon to employees, but could create potential problems for employers.

The FLSA’s anti-retaliation provision prohibits an employer from discharging or discriminating against an employee “because such employee has filed any complaint or instituted any proceedings under or related to [the FSLA][.]” 29 U.S.C. §215(a)(3). The Kasten Court was presented with the question as to whether “filed any complaint” includes oral as well as written complaints. In a 6-2 decision, the Court concluded that it did.

In Kasten, the plaintiff, Kevin Kasten (“Kasten”), sued his former employer, Saint-Gobain Performance Plastics Corp. (“Saint-Gobain”), alleging that he was terminated in violation of the FLSA’s anti-retaliation provision after he orally complained to Saint-Gobain’s management of alleged violations of the FLSA. Kasten complained internally in accordance with Saint-Gobain’s grievance resolution process. Saint-Gobain subsequently terminated Kasten, leading to the underlying lawsuit.

Even though the parties disputed the reason for Kasten’s termination, the district court granted summary judgment in favor of Saint-Gobain and dismissed the complaint, finding that the FLSA’s anti-retaliation provision did not protect oral complaints. The Seventh Circuit Court of Appeal, agreed and affirmed the grant of summary judgment.

The Supreme Court, however, held differently, resolving a conflict on this question among the Circuit Courts. The Court analyzed the meaning of “filed” and “any complaint,” and held that the FLSA includes oral complaints. In reaching this holding the Court considered dictionary definitions of the words in question, legislative intent, and the views of agencies such as the Department of Labor and the Equal Employment Opportunity Commission.

The Court appears to have left somewhat open the question of when an oral complaint will be deemed “filed” within the meaning of the FLSA. The Court did, however, note that “a ‘filing’ is a serious occasion, rather than a triviality”, and that the FLSA “contemplates some degree of formality” such that the employer receives fair notice of the complaint. The Court did not, however, expound upon the contours of such formality and notice, and these will likely be issues in future FLSA retaliation lawsuits.

ADR in Employment Cases: Choosing the Right Arbiter

Steven I. Adler — Fri, 01 Apr 2011 12:51:46 -0500

How times have changed. Not so long ago, courts and litigants were unreceptive to alternative dispute resolution (ADR). Now parties make much more use of these alternatives to litigation. Steven Adler, Chair of the Employment Law Department of Cole Schotz recently had an article on the subject published in the MArch 28, 2011 issue of the New Jersey Law Journal. Click here to read the article.