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New Jersey Human Resources

Topics of Interest to the HR Industry in New Jersey

How to Be Truthful and Succinct in Your Deposition

Posted in General

The following is a guest post authored by Brian McMahon, Ph.D. of Gate City Partners.  It is written as a supplement to our March 19th post, How To Testify In A Deposition.  Brian is an Atlanta-based consultant who helps attorneys and their clients prepare for deposition to enhance litigation outcomes.  Brian can be reached at bmcmahon@gatecitypartners.com or 404.606.1294.


In his helpful post How To Testify In A Deposition, attorney Frank Cook advised HR personnel ordered to provide deposition testimony to, above all else, tell the truth and keep their answers brief. This is terrific advice well worth heeding, but quite often deponents (the legal term for those being questioned) struggle to remain focused amid intense questioning from opposing counsel. As a psychologist who has extensively studied the deposition process from the deponent’s perspective, my goal in this post is to highlight a few truths about deposition to demystify the process and better enable HR personnel to provide truthful and succinct answers. Deposition preparation is a multifaceted and time-intensive process, but these quick tips should put you on the path toward successful testimony.

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Implementing an Alternative Work Arrangement Policy? Keep Supervisors in the Loop.

Posted in Employment Policies, Flexible Schedules, Uncategorized, Work-Life Balance

Today, 70% of mothers and 94% of fathers with children under the age of 18 are working in the United States, and nearly 60% of families in the United States contain two working parents. It comes as no surprise, then, that the number of employees seeking out and taking advantage of flexible working arrangements is growing.

Indeed, a quick review of FORTUNE Magazine’s 2014 list of America’s top 100 employers confirms that employees value flexible working arrangements.  In fact, in some jurisdictions, the law now requires an employer to consider an employee’s request for a flexible working arrangement.  Thus, alternative working arrangement policies can prove valuable for employers hoping to attract talented employees.

Without careful implementation, however, such policies can also potentially lead to negative consequences, including hostility and even, in some circumstances, unintended discrimination.

Take, for example, a new mother returning from maternity leave on a reduced work schedule. Before her maternity leave, she worked full-time.  Now, invoking her employer’s new flexible work schedule policy, she expects to work 60% of her former schedule, with a corresponding reduction in her salary.  Per her employer’s policy, she has notified the human resources department of her desire to return on a reduced schedule, and the human resources department, in turn, has approved that schedule.

So far, so good.

The problem is that neither the employee nor the human resources department has adequately communicated the details of the employer’s new flexible work schedule policy or the employee’s new schedule to her supervisor, who began working for the employer long before such policies existed and grew used to the employee’s presence in the office five days each week, at least eight hours each day before she went out on maternity leave.  Because that supervisor has not adjusted his or her expectations to fit the employee’s new schedule, the employee finds herself working 100% of her old schedule for only 60% of her old salary — and therefore only earning 60% of what her full-time co-workers are earning for doing the same job.

When the employee pushes back against her supervisor’s full-time work demands, her supervisor thinks she is not working hard enough; when the employee keeps her mouth shut and works full-time hours for part-time pay, she grows resentful of her employer.  All of a sudden, a policy that the employer created to help its employees who are working parents has made balancing work and family even more difficult for them.

How to avoid this problem?  The same way employers can avoid most other human resources issues:  communication.

When an employee who once worked full-time requests a new reduced schedule, it should prove helpful to do the following:

  • Ask that employee to list all of the supervisors and/or managers for whom he or she performs work or expects to perform work in the future.  Employees who perform work for multiple supervisors are particularly susceptible to unreasonable demands on their time.

 

  • Notify those supervisors and managers of the employee’s new schedule and ensure that they understand the details of the employer’s reduced schedule or alternative work arrangement policy.  Don’t leave it up to the employee to explain it.

 

  • Follow up:  Check in with both the employee and his or her supervisors periodically to determine whether the reduced schedule is working for both parties.  Some issues to look out for:

 

  • Is the employee still working full-time despite your best efforts to communicate her new schedule?  Adjust her status and salary accordingly.

 

  • Has his supervisor, who initially was respectful of the employee’s hours, forgotten to do so as the department has grown busier?  Gently remind her of the employee’s schedule.

 

  • Is the department unable to meet the demands of its customers/patients/clients without the full-time assistance of the employee?  Consider whether you need to hire someone new.

 

  • Encourage feedback.  Make sure your employees know who they should notify if they have issues with their schedules or your flex-time policies.

Successful implementation of a flexible work arrangement policy requires both the employee who is using it and his or her supervisor to reflect periodically on their expectations and communicate those expectations to each other and the human resources department.  With adequate communication, however, your flex-time policy should remain an asset that attracts and assists your company’s great employees — and just might help get you on the next list of America’s top employers.

How To Testify In A Deposition

Posted in General

So you come to work every day and take your job very seriously.  Perhaps you work as the Director of Human Resources or in some other capacity that enables you to train employees, implement workplace policies, and have a hand in your employer’s management of the workforce.  You think you’re doing a pretty good job and actually really like what you do.

Then one day it happens … the company lawyer calls and tells you that you need to testify in a legal matter.  Your heart sinks and the thought of being “cross-examined” under bright lights by some Perry Mason wannabe makes you physically ill.  Well don’t fret.  It’s not nearly as bad as you think.  And to get you through the process, here is a brief summary of the process along with a few valuable tips that will go a long way in making it a “pain free” experience.

TruthLies

Image courtesy of Stuart Miles / FreeDigitalPhotos.net

First and foremost, remember that all litigation is in fact a search for the TRUTH.  Lawyers advocate the best set of facts on their clients’ behalf, but ultimately a judge and/or jury will see themselves in a truth seeking role.  When you testify in a deposition, your most important obligation to answer questions TRUTHFULLY and honestly to the best of your recollection.  That’s it.  Tell the truth … just like your parents taught you when you were five years old.  One of the most common mistakes I’ve seen over the years is that witnesses try to get a bit “clever” with their answers.  Maybe they hedge a bit or try to put the best spin on the facts.  Here’s some advice … just tell the truth to the best of your ability and don’t worry too much about try to “spin” facts that are not entirely favorable.  Attorneys get paid to present the best case for their clients based upon the “facts” that are presented.  Any competent lawyer can handle bad facts.  They exist in every case.  What is much more difficult to handle, and sometimes insurmountable, is a witness who does not testify truthfully.  So rule number one in any deposition is to use TRUTH as your guiding principle.

Another all too common mistake that really should be avoided is the “chatty Kathy” witness.  Here’s the scenario:  Opposing counsel shows up with coffee and donuts.  He’s a very friendly chap who takes great interest in your new sweater and your kids’ sporting events.  He is in all very respects very likeable and downright affable.  The deposition becomes very conversational and you begin to “offer” all sorts of information because he seems like a nice enough guy and you think it will make the process go more smoothly.

STOP!!!

You need to remember that the lawyer on the other side of the table has only one objective in mind … to gather facts that will enable him or her to win the case!  A deposition is NOT a conversation.  You need to exercise some restraint and resist the urge to blurt things out that will not help.  You may think it will, but 99 times out of a 100 it won’t.

Sit quietly.  Wait for the question.  Listen very intently.  And answer ONLY the question that has been asked.  Don’t volunteer anything!   If you can answer with a simple “yes” or “no,” then do exactly that.  Don’t give long narratives.  Ignore long, silent, uncomfortable pauses, and don’t feel it requires you to say something.  Remember, it’s NOT a conversation, it’s an inquisition.

Lastly, do not allow yourself to be cajoled into saying something you don’t want to say.  There are literally dozens of little tricks and word games that some lawyers may utilize in an effort to “box in” a witness to some distorted testimony.  The details of these tricks are beyond the scope of this post (but perhaps will be addressed at a later date).  But the general point to remember is that YOU, the witness (not the lawyer) should control the deposition.

Say what you mean to say.  Keep it short.  Keep it simple.

Just answer the question.  And do NOT let the lawyer put words in your mouth.  If he or she does … say NO, that’s not what I said.

Be clear.  Be concise.  Tell the truth … and you will do just fine!

 

More Emergency Relief for Employees

Posted in Employment Policies, General, Terminations

As a follow up to my previous post on the new “Sandy” Law, new legislation has been introduced that would provide even more protections for employees who are affected by a state of emergency.  The proposed bill would make it unlawful for an employer to take any adverse employment action against an employee “because the employee is not actively working and performing all regular duties [at] the employer’s place of business due to a state of emergency.”lightning

In addition, the law would not allow employers to require employees to use sick, personal, vacation, or any other leave for time that the employee is unable to work.  However, it does provide that employers are not required to compensate employees for those days that they are not working, unless that employee is performing work remotely.

Finally, the bill places the onus on the employees to “make every effort” to notify the employer that they will be absent due to the state of emergency and they must return to work as soon as possible, but not later than the first regularly scheduled work period after the state of emergency has ended.

Look back here for more updates on this bill as it makes its way through the legislature.

The New “Sandy” Law Provides Emergency Relief Under Leave Laws

Posted in Employment Policies, General

On January 17, 2014, a new law in New Jersey went into effect dubbed the “Sandy” Law because it was enacted in response to eligibility issues under the New Jersey Family Leave Act (“FLA”) and the Security and Financial Empowerment Act (“SAFE Act”) arising out of Hurricane Sandy or other state emergencies.

SCH087Normally, an individual is eligible for leave under the FLA and the SAFE Act if they have been employed for 12 months and worked a minimum of 1,000 hours in the preceding 12 month period.  However, under this new law, an employee who is furloughed or laid off due to a “curtailment of operations” resulting from a ”state of emergency” will now get credit for up to 90 calendar days as if they were employed for the purposes of determining eligibility.

The new law also addresses eligibility under temporary disability insurance (“TDI”) and family leave insurance.  Normally, to be eligible an employee must work at least 20 base weeks at a rate of at least $145 per week.  The new ”Sandy” Law allows an employee to use up to 13 weeks as “base weeks” toward eligibility under these benefits.

New Jersey Follows Trend Enacting Laws to Protect Pregnant Employees

Posted in Employment Policies, General
Pregnant

Image courtesy of David Castillo Dominici/ FreeDigitalPhotos.net

Employers should be aware that several states, including New York and New Jersey, have now enacted laws specifically enhancing and protecting the rights of pregnant employees.

In New Jersey, Governor Christie, signed into law an amendment to the New Jersey Law Against Discrimination (“LAD”) intended to provide express protection for pregnancy and child birth under the statute. The amendment took effect on January 21, 2014.

The amendment expressly prohibits pregnancy discrimination, but also includes medical conditions related to pregnancy, child birth and recovery from child birth as encompassed within the protective umbrella of the statute.

Importantly, employers are required to provide reasonable accommodations to pregnant employees, so long as they do not create an undue hardship for the employer. An accommodation that would enable the employee to perform the job while pregnant, must be provided. For example, assistance with heavy lifting, relief from strenuous positions, break periods, and the like.

With this trend in the law, employers should be ever-mindful to ensure that a pregnant employee is treated fairly and provided any reasonable accommodation that would enable her to continue performing her job while pregnant.

 

New Paid Sick Leave May Make Staffing Agencies Sick

Posted in Employment Policies, General

Jersey City, New Jersey recently passed an ordinance that requires employers with 10 or more employees to provide 1 hour of paid sick time for every 30 hours worked, after that employee has worked 80 hours in Jersey City.  This ordinance is very similar to one that was passed in New York City and one that is currently proposed in Newark, New Jersey.  As this becomes more prevalent, it raises several questions for employers who have multiple locations or staff employees in those cities.

Sick Young Woman Lying in Bed

For example, what if you run a staffing agency that places employees in various offices throughout the state?  Since the laws apply for all full-time, part-time or temporary employees who physically work in the city, the laws encompass those employed by staffing agencies.

The employer does not have to be physically located in the city where the law applies in order for the obligations to apply as long as they have employees working in those locations.  Thus for a staffing agency, if it has 10 or more employees total and they have employees who work more than 80 hours in a city with a paid sick leave law, those employees will accrue paid sick time at the rate of 1 hour for every 30 hours worked for a maximum of 40 hours per year.

It is the staffing agency’s responsibility to keep track of and apply these new laws for its employees, which would include keeping track of both the number of hours worked in the city (to get to 80) and the amount of paid sick time that is accrued.

Please contact us if you have any further questions.

 

 

Fox Rothschild Wins Big as the Supreme Court Explains the Tough Standard for Punitive Damages Against Employers!

Posted in Uncategorized

In a big win for employers, the New Jersey Supreme Court unanimously ruled that a jury instruction that excluded the requirement that a member of “upper management” must engage in or be willfully indifferent to egregious conduct in order to award punitive damages, constituted plain error that produced an unjust result.  The incorrect jury instruction coupled with an inappropriate closing argument that excacerbated the confusion by referring to indivduals who were clearly not members of upper management, lead the jury in Longo v. Pleasure Productions, Inc. to award punitive damages based upon improper considerations.  As a result, the matter was reversed and remanded for a new trial on the issue of punitive damages.

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In CEPA and LAD cases, punitive damages are only meant to be awarded in extreme circumstances and are designed to punish an employer for especially egregious conduct directed toward the employee.  In order to impute such conduct to the employer, it must have been committed by a member of upper management who has the power to hire and fire and set company policy, among other factors.  Punitive damages can also be awarded based upon the willful indifference of a member of upper management – meaning that if a member of upper management is aware of such egregious conduct but willfully ignores it, then that would equate to if they engaged in the conduct.  However, without specifically instructing the jury that upper management must be involved in the conduct that was found to be egregious, a jury could award punitive damages for any LAD or CEPA claim.

Also significant in the opinion was that the Supreme Court ruled that the incorrect standard of proof was used.  While liability can be found based upon a “preponderance of the evidence,” punitive damages requires the higher standard of “clear and convincing evidence.”  The trial court ruled that the upper management jury instruction was not necessary because a member of upper management was found to be individually liable for the underlying CEPA claim.  In doing so, however, the court essentially transposed that lower standard of proof into the punitive damage portion of the trial because the underlying liability was found using that lower standard. 

Fox Rothschild handled the case for the Defendant/Appellant and is extremely pleased with the result.  A copy of the opinion can be found here: A-37-11 Doreen Longo v. Pleasure Productions, Inc. Opinion

Retaining and Attracting Staff Without Using Big Dollars

Posted in General, Hiring

I was fortunate enough to be asked to contribute to this month’s edition of the NJ Business Magazine.  The link to the digital version of the magazine can be found here.  My article entitled “Retaining and Attracting Staff Without Using Big Dollars” can be found on page 20. http://digital.njbmagazine.com/publication/?i=156119

“No Ugly People” Policy? No Problem Under the LAD!

Posted in General

Recently, Abercrombie & Fitch CEO Mike Jeffries has come under fire for what some may call the company’s “no ugly chicks” approach to marketing and retail.

Jeffries’ remarks from an interview with Business Insider were published on the elitedaily.com website, which has also questioned whether Jeffries is “the worst CEO in the world” based on “The 13 Most Ridiculous Things Mike Jeffries … Has Said.”

gorgeous gents

While Jeffries “anti-fat” and pro-“cool kid” comments may be insensitive –and even bigoted – towards those that who do not meet the traditional American standard of beauty, employers, such as Jeffries, who display a “beauty bias” in their employment-related decisions cannot automatically be accused of illegal discrimination.

The New Jersey Law Against Discrimination (LAD) prohibits discrimination on the basis of “race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectational or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer.”

Notably absent from the LAD’s comprehensive list of protected statuses and/or characteristics is appearance and appearance-related attributes like height, weight, and hair or eye color.  This is because employers have a “valid interest in regulating the image that its employees present to the public.”  Marrero v. Camden County Bd. of Soc. Servs., 164 F.Supp.2d 455, 477 (D.N.J. 2001).  Thus, employers cannot reject applicants or make employment decisions on the basis of a protected or immutable characteristic such as race or age, but they can do so based on subjective ideals of beauty.

Therefore, if an employer makes a particular employment decision on based on what it believes to be an individual’s “attractiveness,” and it has a legitimate, non-discriminatory business reason for doing so, the LAD does not permit an individual who was negatively impacted by that decision to pursue a claim for “appearance discrimination.”

While so-called “appearance discrimination” claims have been on the rise in recent years – particularly against the hospitality and casino industry – it does not appear that New Jersey Courts (or the Legislature) are particularly interested in expanding what is already one of the most inclusive anti-discrimination statutes in the nation.

So Mike Jeffries can relax – Abercrombie’s “beauty bias” is (for now) legal discrimination under the LAD.