Fall 2006

Dear Colleagues, Clients, Referring Attorneys and Friends:

Several new developments have occurred in the field of Employment Law which require your careful attention.

First, there is a relatively new posting requirement for employers under the Conscientious Employee Protection Act. (N.J.S.A. 34:19-1 et seq). CEPA has required employers (1) to "conspicuously display" notices to their employees of the protections afforded by the Act and (2) to use "other appropriate means" to keep employees so informed. The Act however did not specify how this was to be done or what format or language was to be used. On September 14, 2004 New Jersey amended CEPA's notice provisions. As a result, CEPA now requires, for those employers with 10 or more employees:

· That an employer conspicuously display, and annually distribute to all employees, written or electronic notices of its employees' protections and obligations, rights and procedures under CEPA;

· That the notice posted or distributed to employees be in English and in the language spoken by the majority of the employer's employees, if that is not English, Spanish or, at the employer's discretion, any other language spoken by the majority of the employer's employees; and

· The notice include the name of the person or persons the employer has designated to receive written notifications.

The New Jersey Department of Labor has made available sample notices in English and Spanish. The notices are to be displayed where the employer posts the other required employment-related postings and they are to be annually disseminated to employees, in both English and Spanish. These samples are available by going to www.state.nj.us/labor and clicking on the caption on the home page for Conscientious Employee Protection Act "Whistleblower Act".

Secondly, improper use by employees of workplace computers has given rise to lawsuits against employers for negligent supervision and misuse of electronic communications via the internet.

In a recent case captioned Jane Doe v. XYC Corp. 382 N.J. Super 122, (App. Div. 2005) and decided by a New Jersey Appeals Court on December 27, 2005, an employee took clandestine pictures of his nude 10 year old step-daughter and distributed them over the internet to a child porn site. The child's mother sued the employer upon discovering the computer transmissions on grounds of negligence and failure to monitor and supervise. The employer failed to pursue reports that the employee had been visiting porn sites on his computer, but argued that "monitoring of employee internet activities was against company policy".

The trial court dismissed the case on grounds that none of the child abuse occurred on company property and the employee's privacy rights trumped the employer's duty to monitor the employee's use of a workplace computer.

The Appeals Court reversed the trial court's dismissal and held the employer had imputed knowledge of what was going on and had a duty to investigate the matter fully. Thus the matter was sent to trial.

Employers are now on notice that workplace privacy is subordinate to preventing abuse and misuse of company equipment and electronic transmission systems owned by employers, and particularly where illicit acts, defamatory messages and acts of harassment are concerned. So be on the alert to prevent such abuses from happening.

If you have any employment law questions or need assistance on any legal issues please phone me or any of my partners.

Have a happy and healthy holiday season.

Edward F. Broderick, Jr.

EFB,Jr.:lh