“Burn Files” and Employee Self-Help: Effective Policies Protect Documents Wrongfully Taken by Former Employee

A New Jersey appellate court recently upheld the disqualification of a former employee’s attorneys in a whistleblower claim against his former employer, because the employee had improperly taken documents containing privileged attorney-client communications to use against the employer “when they try to get him.”

Facts

The defendant, Maquet Getinge Group (“Maquet”), a German pharmaceutical company, designs, develops, manufactures, and distributes medical devices.  Because of the medical and technological focus of defendant’s business, Maquest maintains sensitive research and development data, new products, quality processes and procedures and protocols for the preparation of inspections by the Food and Drug Administration (“FDA”) on its computer systems.  Maquet had in place comprehensive policies designed to protect its confidential, proprietary information, including a “Standards of Conduct” policy, an “End User Acceptable Use Policy.”  Plaintiff, Oscar Sanchez (“Sanchez”), was employed by Maquet as the Chief Quality and Compliance Officer for approximately 18 months, until he was terminated in April 2015.  As a condition of his employment, Sanchez and other similarly situated employees had to sign a “Confidential Information, Invention Assignment, and Non-Compete Agreement.”  This agreement contained, inter alia, a “Covenant Not to Disclose” and a provision on “Return of Company Documents.”  Two months prior to his termination, Sanchez was disciplined after an investigation into numerous complaints about his conduct and deportment involving employees who reported to him.  After receiving the complaints, Sanchez informed a Senior Vice President of Marketing at Maquet that “he had personally retained copies of all kinds of Maquet-owned documentation – which he referred to as his ‘burn files’ and which included copies of . . . two executives’ hard drives and a binder full of emails and documents,” which he allegedly told his co-worker he “would use the ‘burn files’ to “f***” Maquet ‘when they tried to get him.’”

On July 2, 2015, Sanchez filed a complaint against Maquet alleging he had been wrongfully terminated for whistleblowing activities, in violation of the Conscientious Employee Protection Act (“CEPA”).  Maquet served Sanchez with its First Request for the Production of Documents in October 2015, to which plaintiff responded on February 1, 2016.  Upon receipt of the documents, Maquet claimed the documents plaintiff’s counsel had produced were owned by Maquet and had been improperly taken by Sanchez without Maquet’s knowledge or consent. Further, Maquet claimed the documents produced contained privileged attorney-client communications between Maquet’s staff and its attorneys, including correspondence regarding FDA compliance issues, results of third-party audits, budgeting issues, research and development, quality processes and procedures, and FDA findings.

Lower Court Decision

Defendant moved to preclude plaintiff from using these documents against defendant, and to remove plaintiff’s chosen counsel and his firm from continuing to represent plaintiff in the case.  In its decision, the lower court rejected plaintiff’s argument that Maquet had waived the attorney-client privilege. The Judge then found that Plaintiff’s chosen counsel “knew or should have known the material was privileged” yet failed “to promptly notify the opposing side that they had received privileged information” until nine (9) months after the case had been initiated. In disqualifying chosen counsel from serving as plaintiff’s counsel, the Judge found he would neither be harmed in the prosecution of the case nor that he would be unable to secure competent substitute counsel, as the case was still in its early stages.

Appellate Court’s Decision

Sanchez appealed arguing that the motion judge erred in reaching her decision to disqualify his chosen counsel without conducting an evidentiary hearing and that the judge misapplied the multi-factor analysis the NJ Supreme Court established in the seminal case, Quinlan v. Curtiss-Wright Corp. The Appellate Division rejected these arguments and affirmed the lower court’s decision.

The Appellate Division concluded the motion judge properly found the documents in question to be covered by the attorney-client privilege, particularly finding that the motion judge had noted the documents in dispute contained communications between Sanchez, Maquet’s Global Chief Quality Assurance & Regulatory Officer, and Maquet’s General Counsel. The record also indicated the documents included emails labeled “ATTORNEY CLIENT PRIVILEGE” by plaintiff. The Appellate Division found no legal basis to question the motion judge’s conclusion that Maquet’s counsel was included in the communications to offer legal advice and guidance if he so chose.

The Appellate Division then rejected as untimely and legally unnecessary, plaintiff’s argument that the motion judge should have conducted an evidentiary hearing to consider the Quinlan factors.  Quinlan set forth seven (7) factors to consider when an employee may take or use documents belonging to his or her employer. The first consideration a judge must make is “how the employee came to have possession of, or access to, the document.” In reviewing the record, the court found that Sanchez removed the documents at issue in direct violation of Maquet’s policies related to confidential documents containing proprietary information in an act that was outside of his ordinary duties because he wanted to [get] the company when they tried to get him.  The court also noted that Sanchez copied the documents to share with his attorneys for the purpose of evaluating whether he had “a viable cause of action” against Maquet and conversely, that Maquet had a strong interest in keeping the materials confidential.

Finally, while recognizing that the disqualification of counsel is a harsh discretionary remedy that must be used sparingly, the Appellate Division concluded that Sanchez’ extra-judicial self-help measures deprived Maquet of the opportunity to prevent the disclosure of the privileged information and that plaintiff’s counsel’s unreasonable delay in disclosing this information rendered futile any attempt to mitigate this harm.

Bottom Line

Employers need to maintain robust policies related to maintaining and access to proprietary and confidential information, and in appropriate circumstances, agreements like those used by Maquet. These policies should: (1) set forth what materials are confidential or proprietary; (2) specify who within the company is permitted access to the proprietary and confidential information, whether by job title, level, need to know basis, etc.; and (3) set forth the purpose for which the employee is granted access and any limitations on access to the proprietary and confidential information. These policies and agreements will be critical in allowing a court to determine the employee was unauthorized in taking the documents and acted outside their ordinary duties of employment.

For more information about the potential impacts of this ruling or what steps your company can take to effectively prevent and address whistleblower complaints, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

Welcome to The Garden State: NJ’s Law Against Discrimination Grows to Protect Non-Resident Employees

A New Jersey appellate court recently held that a non-resident employee who telecommuted to her New Jersey employer from her home in Massachusetts may be covered by the New Jersey Law Against Discrimination (NJLAD).

Facts

The employer, Legal Cost Control, Inc. (LCC), was a corporation located in Haddonfield, New Jersey.  The employee, Susan Trevejo, lived in Massachusetts, paid property taxes in Massachusetts, and held a Massachusetts driver’s license.  She never lived in New Jersey, and she never worked in LCC’s New Jersey office.  Trevejo received health insurance benefits from LCC’s insurance provider, Amerihealth New Jersey, but the plan did not condition coverage on New Jersey residency.  Trevejo’s sole connection to New Jersey was using a company-issued computer to remotely connect to LCC’s network and a company-issued phone to engage in conference calls.  After twelve years with the company, LCC terminated Trevejo’s employment.  In turn, she filed a lawsuit alleging age discrimination in violation of the NJLAD.

Lower Court’s Decision

LCC moved to dismiss the case, arguing that Trevejo was not an “inhabitant” of New Jersey, and thus, could not pursue a claim under NJLAD.  The trial court allowed for limited discovery over whether Trevejo was an “inhabitant” of New Jersey; the parties were barred from engaging in discovery over Trevejo’s other connections to the state.  The trial court ultimately dismissed the case, finding that Trevejo was not an “inhabitant” of New Jersey covered by NJLAD.

Appellate Court’s Decision

Trevejo appealed, arguing that the trial court overly restricted discovery and that she needed to engage in discovery regarding the nature and substance of her daily “virtual” connection to LCC’s New Jersey office.  The Appellate Division agreed, reversing the trial court’s decision and sending the case back to the trial court for more discovery.

In deciding that NJLAD’s coverage is not limited to inhabitants of New Jersey, the Appellate Division relied on the text of NJLAD itself.  The statute expressly prohibits discrimination against “any individual” and repeatedly uses the term “person” to identify who is protected from discrimination.  The term “person” is used throughout the statute, whereas the word “inhabitant” appears only in the legislation’s preamble.  Accordingly, the court concluded that NJLAD’s coverage is not limited to inhabitants of New Jersey.  This was, as the Appellate Division reasoned, consistent with the overarching goal and strong public policy behind NJLAD, to eradicate discrimination from the workplace entirely.  The trial court’s restricting discovery to whether Trevejo was a New Jersey inhabitant could not be reconciled with that principle.

Rather than Trevejo’s place of residency, the Appellate Division directed that discovery focus on where the discriminatory conduct took place and whether Trevejo was employed in New Jersey or Massachusetts.  The scope of discovery should extend to:

  • Where plaintiff’s co-employees worked;
  • Whether those co-employees worked from home;
  • The nature of the software used by plaintiff and other LCC employees to conduct business on behalf of LCC;
  • The location of the server used to connect plaintiff and other employees to LCC’s office in New Jersey;
  • The location of the internet service provider allowing plaintiff and other employees to connect to LCC’s office in New Jersey;
  • The individual or individuals who made the decision to terminate plaintiff and the basis for the decision; and
  • Any other issues relevant to plaintiff’s contacts with New Jersey and her work for LLC that may demonstrate her entitlement to protection under the NJLAD.

Facts Matter

The New Jersey Appellate Division has consistently applied this type of fact-sensitive approach to deciding whether non-resident telecommuters are covered by New Jersey laws, even outside the discrimination context.  But this fact-sensitive approach often produces seemingly inconsistent results.  For example, in one case, an employee who telecommuted to her New Jersey employer from her home in North Carolina was denied New Jersey unemployment benefits based on a finding that she performed all of her work in North Carolina.  This seems to contradict the holding in Trevejo’s case, where the court was unconvinced by the fact that Trevejo performed all of her work in Massachusetts.  As if you were not already confused enough by the muddle of laws and regulations governing the workplace, this case illustrates the importance of facts, rather than bright line rules, in making decisions about your employees.

Bottom Line

Beware that all of your employees, regardless of where they perform their work, may be entitled to claim protection from discrimination under NJLAD.  The issue will come down to a factual inquiry over whether they have sufficient contacts with the state.  Be mindful that NJLAD is one of the most employee-protective state anti-discrimination statutes in the country.  In light of that fact, and the absence of any bright line rule regarding NJLAD’s applicability to out-of-state employees, you may want to consider executing, where available by law, a written agreement with your non-resident telecommuters delineating which state’s law applies in the event of a legal dispute (“choice of law” clause), and in which court those disputes are to be filed (“forum selection” clause).

For more information about the potential impacts of this ruling or what steps your company can take to effectively prevent and address complaints of discrimination, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

AG Requires New Jersey Police Departments To Randomly Drug Test Officers

The New Jersey Attorney General has issued new directive requiring all law enforcement agencies in the state to conduct random drug testing. The guidelines now make all officers subject to drug testing, whether they are employed by state, county, or municipal departments. At a minimum, random drug testing shall be conducted at least once for the remainder of 2018 and at least twice every year thereafter. At least 10% of the total number of sworn officers in an agency shall be drug tested every year.

Each agency must also notify officers of the implementation of the random drug testing policy. This includes notification that, upon an initial positive result, the officer shall be suspended from all duties. Upon final disciplinary action, the officer shall be terminated from employment as a law enforcement officer, reported to the Central Drug Registry maintained by the State Police, and permanently barred from future law enforcement employment in New Jersey.

The new guidelines also contain reporting requirements. Each department will be required to notify the County prosecutor within 10 days of (1) a positive drug test by an officer, (2) a refusal by an officer to take a drug test, or (3) administration of a reasonable suspicion drug test to an officer. Upon completion of any disciplinary action, each agency shall report the discipline to the County Prosecutor. By December 31 each year, each law enforcement agency shall provide written notice to the County prosecutor of the dates of testing conducted during the prior year, the total number of sworn officers employed by the agency, the total number of sworn officers tested, and the total number of sworn officers who tested positive.

By January 31 of each year, each County prosecutor will have to send the Attorney General a report including a statement indicating those agencies under the County Prosecutor’s supervision that are in compliance with this Directive and those that are not. Neither summary shall reveal any subject officer’s identity.

Law enforcement agencies are required to adopt or amend their random drug testing policies to meet these new requirements within 30 days of the March 20, 2018 directive. Aside from these minimum requirements, the drug testing procedures themselves are unchanged.

For more information regarding this directive and best practices for implementing appropriate drug testing policies and procedures, please contact Joseph M. Hannon, Esq. at jhannon@nullgenovaburns.com or Jennifer Roselle, Esq. at jroselle@nullgenovaburns.com, attorneys in the firm’s Labor Law Practice Group, or call 973-533-0777.

President Ends DACA Program, Gives Congress Six Month Deadline to Pass Long-Term Fix for Dreamers

On September 5 U.S. Attorney General Sessions announced that the Administration will end the Obama Administration’s Deferred Action for Childhood Arrivals program, known as DACA. The program has been in effect since mid-2012 and has allowed individuals brought to the U.S. as children or teens before 2007 to apply for work permits and avoid deportation. To be eligible to apply for DACA, an individual had to be under age 16 upon entry into the U.S. and no older than 31 as of June 15, 2012, must have lived in the U.S. continuously since 2007, either be enrolled in high school or college, or already have a diploma or degree, and have no felony criminal convictions, no significant misdemeanor convictions, no more than three other misdemeanor convictions, and not otherwise pose a threat to national security or public safety. If granted deferred action, the individual’s deportation would be deferred and received a work permit (EAD) valid for two years and renewable for additional two-year periods. These individuals are known popularly as dreamers.

Under the Trump administration program, anyone whose DACA status is set to expire by no later than March 5, 2018 will be able to apply for a final two-year permit by October 5, 2017, but all DACA program beneficiaries whose permits expire after March 5, 2018 are ineligible for a renewal. No new DACA applications will be processed. Any individual who has an EAD though the DACA program has no obligation to tell his or her employer that it is a DACA EAD. An employee whose EAD expires and is not renewable will be ineligible to work legally in the U.S. It is crucial that employers know when their employees’ EADs expire. Although there are indications that Congressional Democrats and President Trump are nearing a deal to save the DACA program, the official stance of the Administration is that Congress has six months to pass legislation to save the program. If Congress does not pass legislation by early March 2018, then DACA program enrollees whose EADs expire in the meantime will be subject to deportation.

For an employer that knows or believes it has employees with work permits through DACA, there is currently little they can do after the Attorney General’s announcement, other than advising these employees who are eligible to renew their EADs to do so by October 5, 2017. Employers cannot preemptively discharge these employees before their EADs expire. Doing so may expose the employer to claims of national origin discrimination. An employee whose EAD expires must be removed from the employer’s active payroll. Employers that refuse to release the employees who are not authorized to work in the U.S. can be liable for significant monetary penalties.

For questions about DACA and how it could affect your employees and your business, contact Patrick W. McGovern, Esq., Partner in the firm’s Immigration Law Practice Group, at pmcgovern@nullgenovaburns.com, or by phone at 973-535-7129.

Hawaii Court Enjoins Trump Travel Ban For Excluding Non-Immediate Family Members of US Persons and DHS-Approved Refugees

In June the Supreme Court enforced temporarily President Trump’s travel ban to the extent it excludes persons without a “bona fide relationship” to a person or entity in the U.S. The Court expressly identified wives and mothers-in-law as persons who have a bona fide family relationship to a person in the U.S.  Following the Court’s decision, the Trump administration interpreted “bona fide relationship” narrowly, to include only fiancés, spouses, children, parents and siblings of the U.S. person. On July 13 a federal judge in Hawaii loosened the travel ban by entering a nationwide injunction that orders the Trump administration to exempt from the ban grandparents, grandchildren, aunts, uncles, brothers-in-law, sisters-in-law, nieces, nephews, and cousins of persons in the U.S. U.S. District Judge Derrick Watson criticized the Administration’s narrow definition of bona fide family relationship as “the antithesis of common sense,” which “dictates that close family members be defined to include grandparents.”

Additionally, Judge Watson enjoined enforcement of the ban to the extent it excludes from entry refugees who have formal assurance from a U.S. resettlement agency. Judge Watson reasoned that such assurance “meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades…Bona fide does not get any more bona fide than that.”

Immediately, the Justice Department appealed Judge Watson’s ruling to the Ninth Circuit and simultaneously filed motion papers with the Supreme Court requesting clarification. In its motion, the Justice Department argues that Judge Watson’s interpretation of the travel ban “empties the Court’s decision of meaning,” because it includes “not just ‘close’ family members, but virtually all family members…Treating all of these relationships as ‘close familial relationship[s]’ reads the term ‘close’ out of the Court’s decision.” The Justice Department asked the Court to stay the effective date of the Hawaii court’s order until the Court resolved the motion to clarify the Court’s June ruling. The Justice Department’s motion, which remains pending, may be viewed here.

If you would like to discuss the implications of the travel ban and the various court decisions affecting the ban for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

SCOTUS Lifts Injunctions Against Trump Travel Ban for Aliens Unable to Establish Bona Fide Relationship with a U.S. Person or Entity

On June 26, the Supreme Court granted the Trump Administration’s petitions for certiorari and agreed to review next term the Fourth and Ninth Circuits’ decisions that affirmed broad injunctions against enforcement of the President’s second Executive Order on U.S. entry by foreign nationals. In the meantime, in a per curiam decision, the Court granted in part the Administration’s request to lift the lower courts’ injunctions against the travel ban affecting nationals of six predominantly Muslim countries, the 50,000-person refugee cap, and the suspension of the refugee program “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” The Court will hear argument on these consolidated cases in October 2017.

The Supreme Court left in place the lower courts’ injunctions “only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii. In practical terms, this means that §2(c) [of the second Executive Order] may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO-2.”

The Court defined “bona fide relationship” as including individuals with a “close familial relationship,” including a wife or a mother-in-law. For entities, the relationship “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.”  This category includes a student who has been admitted to a U.S. university, a person who accepted a job offer with a U.S. employer, and a lecturer invited to address an American audience. The Court stated that the same “bona fide relationship” test will apply to a foreign national who seeks entry to the U.S. as a refugee, regardless of the 50,000- person cap.

Justices Thomas, Alito, and Gorsuch concurred in part and dissented in part. Justice Thomas stated that he would “grant the government’s applications for a stay in their entirety” and agreed “with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.” The Administration can therefore rely on at least three solid votes to overturn the injunctions in their entirety next fall.

If you would like to discuss the current status of the President’s Executive Order, and the implications of the Executive Order and the Court’s decision for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

Fourth and Ninth Circuits Sink Trump Travel Ban as Prelude to High Court Review

In the most recent judicial setbacks to President Trump’s Executive Order earlier this year suspending the U.S. entry of aliens from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen), reducing the number of refugees allowed entry in 2017 to 50,000, indefinitely and then temporarily barring the admission of Syrian refugees, and suspending the Refugee Admissions Program for 120 days, on May 25 the Fourth Circuit en banc enjoined nationally enforcement of the Executive Order. Although the Justice Department argued that the Order’s primary purpose is advancing national security, the court, with three of the 14 judges dissenting, remained unconvinced that the travel ban had “more to do with national security than it does with effectuating the President’s promised Muslim ban.” The Fourth Circuit found that the Order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” The opinion referenced statements that President Trump made in 2016 while on the campaign trail, which the court found supported its finding that the Executive Order was religiously motivated and violated the Constitution’s Establishment Clause. However, the court vacated the lower court’s injunction to the extent it enjoined the President. International Refugee Assistance Project v. Trump.

On June 12 the Ninth Circuit in a per curiam decision by a three-judge panel, also upheld a lower court’s nationwide injunction against enforcement of the travel ban, but on the separate grounds that the Executive Order violated U.S. immigration law. The court stated that the revised travel ban “exceeded the scope of authority delegated to [the President] by Congress.” The panel held that by broadly prohibiting entry by all persons from the listed countries, the Executive Order is too broad and ignores important factors, such as the alien’s working arrangements, family matters and access to U.S. medical care. The Ninth Circuit did not address Establishment Clause issues, as the Fourth Circuit did. Instead, its major concern was that “the order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.” However, the court vacated the injunction against the President and against the Government’s conducting internal reviews of security risks posed by nationals of the listed countries and the refugee program. Hawaii v. Trump.

The Supreme Court must now decide whether to hear the Administration’s appeal from the Courts of Appeals decisions this term. Most recently, in view of the current non-enforcement of the travel ban, on June 14 the President revised the 90-day ban on travelers and the 120-day ban on refugees to ensure they do not expire in the interim and will take effect 72 hours if and after the Administration prevails in having the injunctions lifted.

If you would like to discuss the implications of the Executive Order and these court decisions for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nulllgenovaburns.com.

Two Federal Courts Dismiss ADA Website Accessibility Claims

In the last two months, at least two federal district courts have dismissed website accessibility lawsuits filed against private companies under the Americans with Disabilities Act (“ADA”), proving that this issue continues to be the Achilles Heel of the Department of Justice’s (“DOJ”) Regulatory Arena.

For context, imagine a blind person who is unable to make online mortgage payments because his bank’s website did not provide him the means.  The DOJ is tasked with enforcing the ADA, a federal statute that provides for equal access to places of public accommodation, including private businesses, for such persons with disabilities.  However, the text of the ADA is silent about public accommodations’ websites, and a recent executive order aimed at decreasing federal regulations has all but eliminated any chance that the DOJ will issue regulations on that topic.  The absence of such regulations has emboldened disability advocacy groups across the nation to flood the courts with lawsuits against companies alleging a failure to provide equal access to audio, audiovisual, or other content made available online.

Not so fast, said the U.S. District Court for the Central District of California.  On March 20, 2017, in the case of Robles v. Domino’s Pizza LLC, No. 16-06599, the federal court dismissed ADA web accessibility litigation brought against the enormous food retailer, Domino’s.  The court relied on the “primary jurisdiction doctrine,” which allows courts to dismiss complaints pending the resolution of an issue that is “within the special competence of an administrative agency.”  Noting that Congress has vested exclusive authority with the DOJ to promulgate regulations defining what web accessibility standards to impose on private companies, the court concluded that it was inappropriate to render judgment against Domino’s in the absence of such regulations.

There are various other legal issues that arise in ADA web accessibility cases, including the concept of standing, which means having a concrete injury that can be rectified by a court order, and whether a website is a place of public accommodation.  The U.S. District Court for the Southern District of Florida, in the case of Gomez v. Bang & Olfusen America, Inc., No. 16-23801, shed light on both issues.  The Gomez court dismissed an ADA web accessibility claim brought by a plaintiff who contended that the company’s website could hypothetically impede a blind person from enjoying all the benefits of the company’s retail stores on the basis that the plaintiff did not have a particularized injury (i.e., standing).  As the court concluded, “[h]is generalized grievances are wholly unconnected to any harm he actually suffered at the place of public accommodation (i.e. the concrete, physical store) and are therefore insufficient to survive a motion to dismiss.”  The court also recognized that websites are not included in the ADA’s express list of public accommodations: “If Congress – recognizing that the internet is an integral part of modern society – wishes to amend the ADA to define a website as a place of public accommodation, it may do so.  But the Court, having no legislative power, cannot create law where none exist.”

Although these cases may suggest a shield to ADA web accessibility litigation, there are just as many courts across the country taking completely opposite views.  For example, only one year ago, a Massachusetts federal court rejected the “primary jurisdiction doctrine” (relied upon in Robles) as a basis to dismiss ADA web accessibility claims made against Harvard University and the Massachusetts Institute of Technology.  See Nat’l Ass’n of the Deaf, et al., v. Harvard Univ., et al., No. 15-30023; Nat’l Ass’n of the Deaf, et al. v. Massachusetts Inst. of Tech., No. 15-30024.  Given the national split over these issues and the unlikelihood that the DOJ will issue clarifying regulations, businesses should be cautious.

The first step a business should take to minimize the risk of expensive litigation and exhausting DOJ investigations is to designate an ADA coordinator/compliance group to audit its website.  Companies should simultaneously work with counsel so that reports and findings from these audits are generated under privilege.  In addition, companies should adopt strong website accessibility polices and staff training materials.  Moreover, one of the most effective ways to stave off litigation is to provide a customer service, like a hotline, devoted to assisting customers who encounter difficulties in accessing a company’s web content.

Those with questions about these emerging issues or looking for a preliminary assessment of their legal exposure under the ADA should contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Brigette N. Eagan, Esq., Counsel with the firm’s Human Resources Practice Group, at beagan@nullgenovaburns.com or 973-533-0777.

 

District of New Jersey Ruling Leaves Employers High and Dry as to Guidance on Dealing with Medical Marijuana Users

On February 21, 2017, the District of New Jersey dismissed a wrongful termination lawsuit by a medical marijuana user who claimed that the employer failed to accommodate his disability in violation of the New Jersey Law Against Discrimination (“NJLAD”).  See Thomas Barrett v. Robert Half Corporation, et al., No. 15-624.  The case raises key issues for New Jersey employers whose employees are legally using medical marijuana, however, the court avoided dealing with the significant substantive issues for employers and their employees raised by medical marijuana, including preemption issues, by focusing on a defect in how the complaint was plead.

The New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”), protects medical marijuana patients “from arrest, prosecution, property forfeiture, and criminal and other penalties” for using medical marijuana to alleviate suffering from debilitating medical conditions.  Since the law was passed in 2010, ambiguities remain regarding the rights of employees who use medical marijuana.  Currently, the NJCUMMA does not require employers to provide reasonable accommodations for “the use of marijuana in any workplace.”  However, the statute is silent on use of medical marijuana outside of the workplace, and there is currently no case law clarifying this provision.  Employers who drug test their employees are obviously left in limbo because if an employee tests positive for marijuana, the employer will be hard pressed to prove that the positive test results from workplace use of marijuana as opposed to use outside of the workplace.

In Thomas Barrett v. Robert Half Corporation, et al., No. 15-6245, the plaintiff suffered chronic pain resulting from a car accident and was issued a license from the State of New Jersey Department of Health’s Medicinal Marijuana Program.  Mr. Barrett alleged that he notified his employer, Robert Half Corp., a staffing company, that he was issued a medical marijuana license and that it was for treatment of his disability.  Prior to a new work assignment, his supervisor required him to submit to a drug test, to which Mr. Barrett alleges he responded by again informing his employer that he was licensed to use medicinal marijuana.  He claimed that his employer responded by telling him not to worry about failing and to simply present his license at the time of the test.  Nevertheless, about a week after starting his new work assignment, Mr. Barret was terminated due to a positive drug test.

In moving to dismiss, the employer argued (i) the plaintiff failed to request accommodation with enough specificity, (ii) the NJCUMMA is preempted by the federal Controlled Substances Act (“CSA”) and should not prohibit employers from terminating employees whose conduct violates federal law, and (iii) even if not preempted by federal law, the NJCUMMA does not confer employment protections.

In the order dismissing the action, the court only ruled that Mr. Barrett failed to plead a request for accommodation of his disability, and therefore failed to state a claim.  The court held that it was insufficient for the plaintiff to simply notify his employer that he was licensed to use medical marijuana as treatment for his disability.  Instead, a plaintiff must allege that he requested an accommodation in connection with his disability.  By ruling strictly on whether the plaintiff requested an accommodation, the court left the other points raised in the employer’s motion to dismiss unaddressed – particularly, whether an employee who does properly request an accommodation has a right to such an accommodation under the NJLAD for medical marijuana use, assuming that any marijuana use takes places outside of the workplace.  Currently, there is legislation pending in the New Jersey State Senate and Assembly, Bill S-2161, that would make it unlawful for an employer to take adverse employment action (e.g., termination) against an employee for being enrolled in the State medical marijuana program or failing a drug test.  However, the bill has yet to come out of committee.  Moreover, even if the bill does become the law in New Jersey, it is an open question as to whether the law and the NJCUMMA are preempted under federal law by the CSA, especially with a new federal Department of Justice which has issued public comments indicating a desire to continue to strictly enforce marijuana prohibition.

As a practical matter, employers are in a bind because anyone who has a license to legally use medical marijuana is likely going to have a disability under the NJLAD (and possibly the Americans with Disabilities Act).  Plaintiff employees may try to conflate any adverse employment action as being related to the underlying disability as opposed to marijuana use.  As  a result, the standard advice to employers that they must have anti-discrimination policies in place, policies regarding reasonable accommodations, and training on these policies, is more important than ever.  Any adverse action against an employee based upon performance should always be backed up with the appropriate paper trail of performance reviews and/or employee discipline documents to help to show that the termination was not based upon a protected characteristic such as disability.

As to potential adverse action that an employer takes against legal medical marijuana users based solely on failing a drug test for marijuana, employers are in a difficult position.  For employers in the transportation and logistics industry where the federal Department of Transportation mandates drug testing and does not allow exceptions for medical marijuana, an employer is going to have a strong legal defense if a fired truck driver attempts to sue after being terminated for testing positive for marijuana, even if he or she has a license to use medical marijuana.  However, in other industries where there is no federal drug testing requirement, employers must carefully weigh the benefits and risks before taking adverse action against an employee for a failed drug test based upon marijuana if the employee has a legal license for medical marijuana.  Any employers dealing with issues involving medical marijuana should consult with an attorney as the law is constantly evolving in this area.

If you have any questions or would like to discuss employers’ obligations regarding medical marijuana users, please contact Harris S. Freier, Esq., of the firm’s Employment Law and Appellate practice groups, at hfreier@nullgenovaburns.com, or call 973-533-0777.  Please visit our free Labor & Employment Blog at www.labor-law-blog.com to stay up-to-date on the latest news and legal developments affecting your workforce.

What Pretext? The Tenth Circuit Shows the Value in Trucking & Transportation Employers Citing to Safety and Customer Complaints to Justify Discharge

On March 10, 2017, the Tenth Circuit in Henson v. AmeriGas Propane, Inc., no.: 16-7057, declined to revive a discrimination and wrongful discharge lawsuit in finding that the lower court was correct in its holding that that the former AmeriGas Propane, Inc. delivery driver who brought the claims had not shown that his termination was pretextual.  While this case originated out of Oklahoma, it provides beneficial guidance for our transportation trucking, and logistic clients.

In his initial complaint, filed in May 2015, Plaintiff Isaac Henson alleged that AmeriGas Propane, Inc. (“AmeriGas”) violated the Americans with Disabilities Act of 1990 (and subsequent Amendment) as well as Oklahoma’s Retaliatory Discharge Act for terminating his employment because his disabilities and/or because AmeriGas regarded him as disabled. Henson also asserted that he was terminated because he engaged in statutorily protected activity under Oklahoma’s workers’ compensation law.

Henson began working as a delivery driver for AmeriGas in May 2011. His responsibilities included filling and delivering propane tanks to commercial and residential customers. While executing those tasks in August 2012, he injured the middle finger of his right hand. AmeriGas attempted to accommodate him by assigning light work duties as needed. Despite this, Henson still required over sixty medical and occupational-therapy appointments and underwent hand surgery in April 2013. In September 2013, he advised AmeriGas that his doctors recommended a second surgery. During this time, Henson’s performance declined, though his initial performance appraisal was generally positive. There were repeated safety violations, including three separate incidents of Henson driving too fast and running a stop sign. In November 2012, he received a formal written warning in an employee disciplinary report for the safety violations. Also in April 2013, Henson received a second written warning and a four-day suspension for insubordination, a negative attitude, and customer service deficiencies. In May 2013, his performance appraisal reiterated AmeriGas’s safety concerns and advised him to be more positive toward the company. Ultimately, Henson was terminated in October 2013, with AmeriGas citing insubordination along with another safety violation: leaving the gauge open on a customer’s propane tank.

Dissatisfied with the termination, Henson filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and with the Oklahoma Employment Security Commission. He exhausted his administrative remedies but secured a right-to-sue letter, prompting him to file suit asserting that (1) AmeriGas violated the federal law when it fired him because of his hand impairment; and (2) AmeriGas violated the Oklahoma state law when it fired him in retaliation for engaging in statutorily protected activity. The district court found that Henson established a prima facie claim of discrimination under both federal and state law, however, it also found that AmeriGas established a legitimate and nondiscriminatory reason for termination. Moreover, the court said that AmeriGas was aware of Henson’s injury and its impact on his ability to perform his duties well before the need to go for a second surgery.

On appeal, the Tenth Circuit rejected Henson’s pretext argument using a standard similar to the Third Circuit and found that Henson’s performance history outweighed any timing issues as to the discharge being close to Henson’s workplace injury. The court also found that Henson’s self-assessment of his performance was not enough to show pretext. Rather, it noted that it is the manager’s perception of the employee’s performance, as opposed to a subjective self-evaluation, that is relevant to review of legitimate and nondiscriminatory termination practices carried out in good faith by a company.

This case is useful for our clients in the transportation, trucking, and logistics industries because it shows that when an employer effectively uses written discipline and can cite to safety and/or customer complaints, this can provide a powerful counter to a plaintiff’s claims of pretext.  Employers in any industry should always try to ensure that there is a written and comprehensive record of discipline and/or performance reviews of employees to negate a plaintiff’s pretext argument.

For questions about employment issues involving the trucking and logistics industries, please contact John Vreeland, Esq., Chair of the Transportation, Trucking & Logistics Group and Partner in the Labor Law Practice Group at jvreeland@nullgenovaburns.com or (973) 535-7118, or, Harris S. Freier, Esq., Partner in the Firm’s Employment Law and Appellate Practice Groups, at hfreier@nullgenovaburns.com or (973) 533-0777.  Please also sign-up for our free Labor & Employment Law Blog at www.labor-law-blog.com to keep up-to-date on the latest news and legal developments effecting your workforce.