ACC Focus on the New Jersey Chapter - September 7, 2011 (Print All Articles)
September is a big month for the NJCCA because it heralds the return of our flagship event, the Annual All Day CLE Conference. This year’s conference, our 9th, will be held on Friday, September 23 at the Hanover Marriott on Route 10 East in Whippany, and promises to be the best yet. You can review the program contents in this Newsletter, and I trust that you will find multiple presentations of interest. It’s not too late to register, and we hope that you will. NJCCA remains the only professional association devoted exclusively to serving the needs of the New Jersey in-house legal community, through programs such as the Annual All Day CLE Conference and other programs and events held throughout the year. I want to thank in advance the many NJCCA members and outside sponsors who worked tirelessly over the past year to put together this conference. I look forward to seeing you on September 23!
We are always interested in welcoming anyone interested in taking on a leadership role with the NJCCA. If you would like to become involved in any capacity, please do not hesitate to contact me at (201) 272-5308 or at firstname.lastname@example.org Becoming actively involved with the NJCCA is one of the smartest career moves I ever made and I hope that you will give it some thought. I’d love to meet over lunch or coffee sometime if you’d like to chat. I’ll be happy to answer any questions that you might have.
Finally, for those of you interested in learning how social media can help with networking and bridging the gap between full-time jobs, we are offering a Social Media Workshop on September 14 at the Vine Restaurant in Basking Ridge. Details can be found under the Upcoming Events tab in this month’s Newsletter. Thank you to Update Legal for generously sponsoring this event, which is being offered for free to NJCCA members.
Best regards and now on to the All Day Conference!
Safeguarding the Decision-Making Process in Employee Actions
Kelly Ann Bird
When our clients seek legal advice concerning adverse employment actions, they almost always, whether articulated or not, present us with a challenge: “how can we run our business as we see fit, and avoid repercussion?” Thus begins our high-wire balancing act, during which we attempt to encourage and aid our clients in exercising their best business judgment while also minimizing the legal risk inherent in some performance management and termination decisions.
We are more facile in accomplishing these dual objectives when we have had the opportunity to work with our clients to take certain steps in advance of each employment decision, as opposed to when we have been advised of a decision and then asked to assess or, as happens on occasion, merely to “bless” it. As the discussion below reveals, some of these anticipatory steps are simply a matter of laying a strong foundation that will be the base for each and every decision, while others are more contemporaneous with the decision itself, such as utilizing a checklist for individual decision-making.
First, everyone who might be involved in any employment-related decisions should be aware of the policies and agreements that govern both the employment relationship and any adverse employment action. For example, in a union context, each supervisor is generally well-versed concerning the terms of the collective bargaining agreement and the constraints on discipline and terminations. However, this same level of awareness of contracts and policies does not always exist in non-union workplaces, where “employment at will” is the norm. At supervisory training sessions, at annual performance management programs, and whenever an adverse employment action is even broached, it is always helpful to remind potential decision-makers that some employees may have written employment agreements, that your company may have a progressive discipline policy or policy that details performance management, and that there may be language in a performance improvement plan or other performance management document that sets forth next steps for an employee. Human resources employees, company executives, company supervisors – in short, anyone who might have the authority to bind the company – should also be reminded frequently that they must take care in communications with employees, whether written or oral, and whether related to performance or not. Certainly, “employment at will” is not always the case, and even “at will” employees believe they can rely on their employer’s written policies or statements related to employment status and processes. While review and awareness of agreements, policies, and representations to employees might seem to be a basic premise, consider Lapidoth v. Telcordia Techs., Inc., in which an employer’s correspondence concerning leave was critical. In short, the New Jersey Appellate Division held that an employer had potentially created a contract when it sent its employee a letter granting the employee’s requested leave “with a guarantee of reinstatement.” The court concluded that the routine communication could be evidence of a contractual obligation that, in terminating the employee, the defendant company had breached.
Second, when an adverse employment action is presented, we all expect it will be accompanied by a laundry list of explanations as to why it is essential to take certain action with regard to a particular employee. But occasionally our client decision-makers are not educated regarding conduct that is protected by law or are focused only on the conduct or performance at issue. Indeed, while many have been educated concerning the anti-retaliation provisions of Title VII and parallel state laws as well as leave laws, and thus may tread carefully when employees have made a complaint or taken leave, these same decision-makers may not be considering other protected conduct. For example, has the employee engaged in activity that might be deemed protected under the National Labor Relations Act? Consider the highly publicized “Facebook firing” case, in which the National Labor Relations Board challenged an employer that terminated an employee for criticizing her boss on her Facebook account, characterizing the criticism as “concerted activity.” See American Medical Response of Connecticut, Inc. and International Brotherhood of Teamsters, Local 433.2 In light of this case, as well as subsequent complaints issued by the NLRB, any termination or discipline decision based on a Facebook or other social media posting, or even an employee complaint, should be subjected to substantial scrutiny and analysis. In that vein and by way of additional example, have the decision-makers considered whether an employee who is perceived as engaging in aggressive and seemingly unproductive complaining actually engaged in protected activity, that is, whistleblowing? Some supervisors might not discern the difference. Again, awareness of these topics would optimally be discussed in a supervisory training session or an annual performance management workshop, but if not they are prime to raise before the business is too far down the road in its decision-making process. In addition, review of (and, if necessary, updating) company policies on these topics, as well as ensuring company-wide dissemination and acknowledgment, is also a step toward laying the foundation for future action.
Third, we should all employ a checklist of both questions and documents. This will help ensure consistency and will allow the decision-makers to approach the process in the same way each time, knowing what we are looking for. Generally, questions concerning possible statutory claims, the employee’s recent history, and how putative comparators have been treated should be routine. In addition, we cannot be hesitant to review and question the documentary support for the proposed adverse employment action. Indeed, recent decisions, such as the United State Supreme Court’s in Staub v. Proctor Hospital,3 and the Third Circuit’s in McKenna v. City of Philadelphia,4 teach us that we cannot simply “rubber stamp” or devote less than thorough scrutiny to recommended actions. In brief, these expansive interpretations of the “Cat’s Paw” theory hold that if the decision to terminate is based in whole or in part on the malicious recommendation or false allegations from a supervisor who has discriminatory motives, the employer can be held liable under federal statutes that prohibit employment discrimination, even where the decision-making process involves a second level of unbiased review. To best protect the company, at a minimum we need to ensure that the decision has ample support and is more than defensible, and that the treatment afforded the employee neither differs from that afforded comparators nor is causally linked to any protected category or activity.
While some of these concepts appear to require application of simple common sense, we all have a tendency to either get wrapped up in the facts of the individual employee’s deficiencies, or to focus on the legal risks. And we cannot expect that our clients see our legal concerns - which are well-justified in light of recent statutory amendments and case law - as more than just “road blocks” until we lay the foundation for decision-making. Establishment of policies and processes, education, and frank discussion of the macro- and micro-issues, as opposed to a rubber-stamp, will allow us to partner with our clients and provide them with the tools to reach consistent, well-supported and (if need be) defensible decisions.
Duty to Protect the Confidentiality of E-Mail Communications with One's Client
Just as you got comfortable using e-mail . . .
In August, the ABA Standing Committee on Ethics and Professional Responsibility issued a new ethics opinion, Formal Opinion 11-459 “Duty to Protect the Confidentiality of E-mail Communications with One’s Client”. In short the opinion places an obligation on the attorney to “ warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.”
The scenario envisioned by the opinion is when the attorney suspects his client is communicating confidential information with him via email on the clients employers system, where the employer has a keystroke logging or some other monitoring software that might enable the employer to access the privileged information. As noted in Footnote 7 “…if the lawyer becomes aware that a client is receiving personal e-mail on a workplace computer or other device owned or controlled by the employer, then a duty arises to caution the client not to do so, and if that caution is not heeded, to cease sending messages even to personal e-mail addresses. ”
The opinion is not limited to employment, and reads in part “… the employment scenario is not the only one in which attorney-client electronic communications may be accessed by third parties. A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, to which a third party may gain access.”
Other situations that might apply include unsecured hot spots (i.e., Starbucks), public access computer kiosks (airports), infected personal computers (malware), cloud applications and a variety of mobile devices (Blackberries, smart phones & I-pads).
For in-house counsel this opinion creates an obligation to counsel corporate clients about the appropriate methods of transmission of privileged or confidential information, and ways to protect that privilege. A review of your company security and/or email standards might be in order to reflect compliance with good practices when using electronic devices.
Ultimately what this opinion requires is thoughtful communication with a client, early in the engagement process about the risks involved with electronic communications and some methods available to protect that privilege. Of course communication with ones clients is always a good idea. A disclaimer at the bottom of your emails just won’t cut it.
ABA Model Rules of Professional Conduct, Rule 1.6 Confidentiality of Information
International Legal Technology Standards Organization “ILTSO” 2011 Guidelines for Legal Professionals
NJCCA's 9th Annual Full Day Conference
A quick overview of the program schedule for the most cost-effective CLE program in New Jersey!
NJCCA’s 9th ANNUAL FULL DAY CONFERENCE
Breakfast and Registration - 7:30 a.m. – 8:30 a.m.
CAREER DEVELOPMENT NETWORKING FORUM
CAREER DEVELOPMENT NETWORKING FORUM
NJCCA and its Career Management Committee will host an informal networking session over breakfast and all attendees and sponsors are encouraged to participate.
WOMEN’S NETWORK COMMITTEE MEETING
The Women’s Networking Committee invites its members to a breakfast meeting at 7:30 a.m. to discuss ideas for 2012 programs and activities.
8:00 a.m. – 8:30.m.
TRACK 1: 8:30 a.m. – 9:50 a.m. (101-107 Select One)
TRACK 2: 10:00 a.m. – 11:20 a.m. (201-207 Select One)
MORNING BREAK: 11:20 a.m. – 11:35 a.m.
TRACK 3: 11:35 p.m. – 12:55 p.m. (301-307 Select One)
LUNCHEON PROGRAM 1:05 p.m. – 2:20 p.m.
TRACK 4: 2:30 p.m. – 3:30 p.m. PLENARY SESSION
Afternoon Break: 3:30 p.m. – 3:45 p.m.
TRACK 5: 3:45 p.m. – 5:05 p.m. (501-506 Select One)
Networking Cocktail Reception 5:05 p.m. – 7:05 p.m.
Back by Popular Demand---Mathew Friedman, the Piano Man in Billy Joel’s Moving Out - Returns, and a host of wonderful gifts at our Prize Drawing!
2011 NJCCA "Backpack Event" - Photo Essay
Revisit one of NJCCA's most popular events.
Now in it's fourth year, the annual Build-a-Backpack event, has become on the the most popular and best supported events in the NJCCA calendar. This year more than 60 adults and children, helped fill 200 backpacks with essential school supplies for inner-city first and second graders. Inspired by the Association of Corporate Counsel's National Community Service Day, the event has been jointly spearheaded for the past four years by Rebecca Brazzano of Thompson Hine and Valerie Camara of Merck (and a past president of NJCCA.)
NJCCA members and their families, and our generous sponsors (Thompson Hine, NJCCA, Update Legal, the Dolce and Axiom) donated the backpacks, books, pencils, pencil sharpeners, markers, composition notebooks, pencil boxes, art smocks, construction paper, crayons, erasers, glue, scissors and other items requested by the school administration. Axiom donated tee shirts for the volunteers. We had an overwhelming number of donations, both of school supplies and cash all of which will be donated to the schools.
By far this was the best outpouring of NJCCA members and their families helping in a small way the community in which we live and work. Below are some photos from the packing event for your enjoyment!
Our New Members
NJCCA has passed the symbolic 1,200th member, here are some of our most recent new members.
Upcoming NJCCA Events
Register today for these relevant and insightful events.
SOCIAL MEDIA WORKSHOP
NINTH ANNUAL FULL-DAY CONFERENCE
GENDER DISCRIMINATION IN THE WORKPLACE
NJ INBLF FALL SOCIAL FOR NJCCA MEMBERS
ANNUAL DINNER MEETING
Short notes of interest to and about our members
BIKE MS RALLY
On Sunday, October 2, our fearless leader, Joe Aronds, will participate for the 4th year in a row in the 30-mile Bike MS NYC event in New York City. This annual bike challenge raises significant funds for research into multiple sclerosis. Joe’s team, Guys and Dolls, looks forward to a fine day of riding and camaraderie. If you would like to make a donation to Joe, his team’s page is at www.guysanddolls.info Thank you!Feedback Wanted:
Your feedback is very important to us. I’m very interested to hear your ideas, thoughts, concerns, and anything else that you wish to mention or discuss regarding the NJCCA. Please feel free to call me at (201) 272-5308 or contact me by e-mail at email@example.com
NJCCA Board of Director and Technology Committee co-Chair, Eugene Weitz has started in a new position as Deputy General Counsel at Computer Sciences Corporation where he will focus on Information Governance and all matters of concern to the Office of the CIO. In addition, Eugene will continue to lead CSC's Legal Department's Global Knowledge Management program. If any corporate counsel are interested in knowledge sharing regarding different aspects of a corporate Law Department's knowledge management program, feel free to contact him at firstname.lastname@example.org. Eugene is also on the Board of Directors of the International Technology Law Association (www.itechlaw.org).
Tell Us About Yourself
Please tell us your exciting news and we will publish it in an upcoming Newsletter (space permitting).
… Or anything else you'd like to share with the 1,200 members of NJCCA?
Social Networking and the NJCCA
Earlier this year the NJCCA joined the world of online professional networking. Because the success of online networking is predicated on building enough participation for ongoing conversations, we are very interested in asking you to join, participate and let us know if you see benefit in these activities. We hope you agree with us that online professional networking is a new and compelling way for NJCCA members to discuss issues and solicit ideas inbetween NJCCA events and seminars.
OVERRULED! by Aronds
As far as we know, still the only Chapter Newsletter with its own in-house cartoonist! And now in color!