Recent Blog Posts

    • Regulatory Hammer Strikes Again
      Gerald Faber, Shareholder of Stark & Stark's Employment, Business & Corporate and Real Estate, Zoning & Land Use Groups authored the article Regulatory Hammer Strikes Again for the June 9, 2008 edition of the New Jersey Lawyer. The article discusses a company's need to have a clear understanding of the Construction Industry Independent Contractor Act (CIICA), as well as the need for employers to follow the requirements outlined in the Act. Mr. Faber discusses the need for an employer to exercise control over the methods and quality of a worker's performance in order to maintain a positive and productive employment relationship. You can read the full article here. (PDF) ....
    • President Signs Genetic Information Nondiscrimination Act into Law
      Earlier today (May 21, 2008) President Bush signed into law a bill that prohibits employers from using genetic information about prospective employees to make decisions on hiring. The Bill had received almost unanimous support in both the House and Senate. The Bill contains, among other things, the following two Congressional findings (as stated in the bill): (4) Congress has been informed of examples of genetic discrimination in the workplace. These include the use of pre-employment genetic screening at Lawrence Berkeley Laboratory, which led to a court decision in favor of the employees in that case Norman-Bloodsaw v. Lawrence Berkeley Laboratory (135 F.3d 1260, 1269 (9th Cir. 1998)). Congress clearly has a compelling public interest in relieving the fear of discrimination and in prohibiting its actual practice in employment and health insurance.(5) Federal law addressing genetic discrimination in health insurance and employment is incomplete in both the scope and depth of its ....
    • Job References: Problems for Good References, Problems for Bad References
      As the economy worsens, employers are facing an increasing number of lawsuits over employee references.  Whether the employer gives a good reference or a bad reference, there is an increase in lawsuits being filed against the employer. In Georgia, a lawsuit is pending against a school district for giving a positive reference to a teacher who had been convicted of a sex crime and went on to teach in a district where he was later charged with raping a student.  In New Jersey a man is suing Best Buy Company, Inc. alleging that a human resources manager wrote a defamatory email about him to a prospective employer, thus costing him the job.  Many employers believe that the potential liability in the employment arena ends when an employee terminates his or her employment with the company.  This clearly is not the case.  In fact, if an employee does not get a job, that employee will often times draw the conclusion that a negative reference was given by the former ....
    • Court Limits Damages in Restrictive Covenant Cases
      Thomas B. Lewis, Shareholder and Chair of Stark & Stark's Employment Litigation group, and Michael J. Brittan, member of Stark & Stark's Employment Litigation group, have authored the article, Court Limits Damages in Restrictive Covenant Cases, for the March 17, 2008 edition of the New Jersey Law Journal. The article discusses a decision in the New Jersey Supreme Court Case of Totaro, Duffy, Cannova and Company, L.L.C. v. Lane, Middletown & Company, which established new factors in assessing breaches of nonsolitication agreements. You can read the full article here. ....
    • Non-Disclosure and Restrictive Covenant Agreements
      Amy Beth Dambeck, member of Stark & Stark's Employment group, authored the article Non-Disclosure and Restrictive Covenant Agreements: Cost-Effective and Preventative Toolsthat Protect the Value of Your Business and Investment in Your Employees for the March 2008 edition of Mercer Business Magazine. You can read the full article here. ....
    • Counsel Fees & Costs May Be Awarded In A New Jersey Law Against Discrimination Case
      In a recent Appellate Division case, Michael vs. Robert Wood Johnson University Hospital, et al., the New Jersey Superior Court - Appellate Division was presented with a question of whether reasonable counsel fees could be awarded to a Defendant who prevails in an action under the New Jersey Law Against Discrimination.  Typically, counsel fees are only awarded to a prevailing Plaintiff under the Law Against Discrimination.  In the Michael case, Plaintiff was a part-time employee of Defendant Robert Wood Johnson University Hospital for more than twenty years and filed a lawsuit alleging age discrimination, a hostile work environment and other tort based claims.  Plaintiff’s claims centered on the hospital’s vacation policy, tuition reimbursement policy and Plaintiff’s performance evaluations.  The trial court granted summary judgment dismissing Plaintiff’s claims without a trial. After the trial court entered summary judgment, the Defendant ....
    • Halting Employee Theft
      Kevin M. Hart, Shareholder and member of Stark & Stark's Litigation group, recently authored the article Halting Employee Theft for Biz 4 NJ. The article discusses various options an employer can take to prevent employee theft within an organization, during a time when more than $600 million annually is being stolen from companies. You can read the full article here. ....
    • Damages For An Alleged Violation of A Non-Solicit Agreement
      The New Jersey Supreme Court in the case of Totaro, Duffy, Cannova & Company, LLC vs. Lane, Middleton & Company, LLC gave some insight for a Court to award damages for violations of a non-solicit agreement. The facts of the case are as follows:  In 1997, Merritt Lane and David Middleton formed an accounting firm known as Lane, Middleton & Company, LLC.  In connection with his employment, Lane signed a restrictive covenant barring him from soliciting clients of the Company for a period of four years should he depart from the Company.  In 2001, Lane started his own accounting practice.  Lane sent solicitation packages to clients for whom he had previously performed services, including clients of Lane, Middleton & Company.  Numerous clients left to join Lane in his new accounting practice.  During trial, several clients testified that they had a relationship with Lane and they were dissatisfied with the Company, and they would not have ....
    • New Bill Will Add Additional Burden To Employers
      A Bill has now passed in the Senate, 38 – 0 (S-2488/A-3451) on December 19, 2007 that will make it unlawful for an employer to discriminate against employees because of “religious practices.”  The importance of this bill is that it goes beyond protecting an employee from being discriminated against because of their religion, and specifically protects them from discrimination based on “religious practice.”  Given the lack of opposition to this Bill, it is likely that the Governor will sign it into law shortly.  ....
    • Congress Adds FMLA Rights
      In somewhat of a surprise move, on December 14, 2007, Congress amended the Family Medical Leave Act (FMLA) to add two additional reasons for applying for FMLA leave.  One provision adds that FMLA can be taken for a “qualifying exigency” arising from active duty in the armed services.  Additionally, time off can be taken under the FMLA to care for a wounded service member for up to 26 weeks paid leave (which must be taken within a single 12-month period).  It is anticipated that President Bush will sign the Bill into law within the next few weeks.  Once the Bill is signed, employers will need to notify their employees of this change in their FMLA rights. ....
    • Employees Giving Notice of FMLA Requests
      On appeal, the Third Circuit reversed this holding with the Court stating that the Plaintiff’s “verbal” notice was sufficient to entitle him to a claim under benefits through the Family Medical Leave Act (FMLA), even if he had not followed the Company’s policies.  This is a somewhat disturbing development for employers, because it raises many issues about the type of “verbal” notice an employee can give, and “muddies the waters” as to a company’s ability to require its employees to follow its written policies regarding disability benefits.  For example, if an employee leaves a voice mail message on the Human Resource's voice mail requesting FMLA leave, is that sufficient to put the company on notice?  This question will need to be answered in subsequent cases. ....
    • At Will Employment Alive and Well in the Franchise Context
      In a recent unpublished decision by the New Jersey Appellate Division, known as Ashwall and Winograd v. Prestige Management Services, Inc., et als. (Decided October 16, 2007), the Court dealt with a claim by employees of a New Jersey automobile dealership franchise who claimed religious discrimination and “promissory estoppel” against their former employer.  The Plaintiffs, a manager and top-salesman, claimed discrimination based on their religious faith (Judaism) under the New Jersey Law Against Discrimination.  One of them had also claimed that, since he had been given the task of turning a non-profitable dealership “around,” that he was entitled to employment for at least a reasonable period of time.  His argument was that he had been a very successful manager of another dealership, and by asking him to take on the management of a non-profitable dealership, the franchisee in effect “owed” him employment for a certain period of ....
    • At-Will Employment: New Changes and Challenges for Employers
      Thomas B. Lewis, Chair and Shareholder of Stark & Stark's Employment Litigation Group, and Michael J. Brittan, member of Stark & Stark's Employment Litigation Group authored the chapter At-Will Employment: New Changes and Challengers for Employers for the Winter Edition of Human Resources 2008. The chapter discusses issues and challenges employers will face when initiating changes in the relationship to protect the company, even though legal protections may be in place. You can read the full chapter here. ....
    • Executive Recruiters Should Be Wary of Restrictive Covenants
      Executive recruiters can often find themselves "stuck in the middle" of disputes between a former employer's candidates and perspective new employers. As restrictive covenants become more ubiquitous in employment, executive recruiters need to make themselves aware of the potential impact that non-solicitation, non-competition and/or non-disclosure agreements can have upon their perspective job placements. A discussion with a potential candidate regarding employment contracts, including restrictive covenants, that they may have previously entered into with their employer is an essential first step to protecting the interests of the client and in defending against claims that a client has intentionally interfered with an existing restrictive covenant between an employee and his/her former employer. Other practical steps can be taken to help protect the recruiter and the candidate from being entangled in unnecessary litigation with former employers over restrictive covenants. ....
    • Employer Not Liable For Refusing To Grant Employee's Unreasonable Accommodation Request
      In a recent decision by the United States Court of Appeals for the 3rd Circuit, the  Court upheld a trial decision finding that an employer did not violate the Americans With Disabilities Act (ADA) by terminating an employee who insisted on an unreasonable accommodation.  The case involved Edward Whelan, an employee of Teledyne Metalworking Products, who informed his employer that he had a degenerative eye disease.  As an accommodation for the eye disease, Mr. Whelan requested and received a transfer to an outside sales job.  Later, his vision worsened and he was no longer able to work in outside sales.  Therefore, Mr. Whelan notified the company that he was only able to work as a marketing coordinator out of his home. Several years later, Teledyne consolidated its operations in Alabama.  Teledyne advised Mr. Whelan that he was required to transfer to Alabama and requested information about the accommodation Mr. Whelan would need to perform his essential ....
    • Litigation Gets Personal
      Thomas B. Lewis, Chair of Stark & Stark's Employment Group, and Shareholder of Stark & Stark's Litigation Group, was quoted in the August 6, 2007 issue of the National Law Journal, in the article, Litigation Gets Personal. You can read the full article here. ....
    • What Not To Say - Reference Checks
      Believe it or not, some employers still want to respond to inquiries by potential employers of former employees. Do not give in to the temptation! While it is true that New Jersey has a qualified privilege for statements made by former employers about their former employees, you do not want to be in the position of having to justify comments you make about former employees. Further, most employers these days are familiar with getting nothing more than “name, rank, and serial number,” so you will not be discrediting former employees by severely limiting information. Carefully limit what you say, and you won’t live to regret it.  ....
    • New Requirements for New Jersey Employee Handbooks
      Recent additions to the New Jersey Law Against Discrimination has some employers a little confused on what is now considered discrimination. In addition to race, religion, age, etc., your anti-discrimination policy now needs to protect against:           1) discrimination based upon “civil union” and           2) sexual orientation and sexual “expression” discrimination  The smart employer will have counsel review their employee handbook every year. An example of why this is necessary is the new changes (applicable as of this coming Monday) to the scope of the New Jersey Law Against Discrimination (NJLAD) that you need to reflect in your handbooks. Also, on a practical note, these changes need to be published on new, anti-discrimination posters (like the ones posted in your “break room”). The smart employer will make the appropriate changes to the ....
    • New Jersey Legal Update - Podcast # 69
      This week's New Jersey Legal Update podcast will discuss the recently revised anti-discrimination laws in New Jersey. This podcast will address the new additions to the New Jersey Law Against Discrimination, which are "gender expression" and "an employee's involvement in civil unions."This week's New Jersey Legal Update podcast is presented by John MacDonald, Shareholder of Stark & Stark's Employment Litigation Group.You can download the New Jersey Legal Update Podcast # 69 here. (2.95 MB) ....
    • New Transsexual Rights Law Leaves Lawyers Guessing About Its Terms
      Thomas Lewis, Chair and Shareholder of Stark & Stark's Employment Litigation Group was quoted in the article New Transsexual Rights Law Leaves Lawyers Guessing About Its Terms, in Monday's New Jersey Law Journal. The article discusses a recent ammendment to the Law Against Discrimination,  barring "gender identity or expression" discrimination. You can read the full article here. ....