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Category: Articles

Best Buy’s Click to Accept vs. Click to Agree Policy

Aug 16, 2017 in Articles by

On August 11, 2017, the Appellate Division reached a decision in the matter Dugan v. Best Buy Co., 2017 N.J. Super. Unpub. LEXIS 2053 (App. Div. August 11, 2017). The case involved the enforceability of an Arbitration Agreement, which required Best Buy employees to pursue employment-related claims in arbitration rather than court.   While the Court found that Best Buy’s arbitration policy satisfactorily alerted employees that they were waiving their right to sue in court, it determined that the plaintiff, a former employee, did not assent to the terms of the agreement when he electronically acknowledged the policy. The Court noted that a party can assent to the terms of a contract by electronically clicking on a website box. However, in this case, the Court determined that the plaintiff’s mouse-click on the acknowledgment box did not manifest his assent to the policy, only that he read and understood the policy. The Court stated that Best Buy could have firmly established the plaintiff’s assent by adding the words “and agree to the terms of the policy” to the acknowledgment box. The Court could not find any evidence that the plaintiff agreed to the terms of the policy, and as a result, the Arbitration Agreement was deemed unenforceable as to the employee. Language The wording of an arbitration clause can make all the difference when it comes to whether the clause will stand up in court if it is challenged as unenforceable. As a matter of practicality, it is important for employers […]

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Risky Behaviors are Risky Business for Sexual Harassment Claims

Aug 2, 2017 in Articles by

Sexual Harassment in the workplace is risky business.  Partner Stefani Schwartz and Counsel Jody T. Walker discuss what the guidelines for Sexual Harassment are and how to recognize them.  Many types of behaviors can lead to a sexual harassment suit.  Learn how to identify what risky behaviors will put your company in jeaopardy.  What is Sexual Harassment? Take a quick poll by asking what people would consider Sexual harassment? Ask around the office.  Is it physical? Verbal? Body Language? Sexual Harassment is… Form of discrimination based on sex.​  This applies to male, female, transgender, etc. Unwelcome sexual advances.​  No one likes to be groped Requests for sexual favors.​  There is absolutely no place where this is acceptable. Other verbal or physical conduct which unreasonably interferes with an individual’s work performance, or creates an abusive work environment.  Remember, if it feels wrong, then it probably is. Two basic types of sexual harassment Quid Pro Quo Sexual Harassment​.  Otherwise known as “This for That” or “Put Out or Get Out.”​ Can be committed only by someone who can effectively take formal actions that will adversely affect the victim. (i.e., firing, demotion, denial of promotion).  For example, supervisors, managers, officers, etc. Hostile Work Environment​ The creation of an abusive work environment or interference with the employee’s work performance through words or deeds because of the victim’s gender.  This can be described as the workplace not being “welcoming”. Unlike a quid pro quo, a hostile environment can result from the gender-based unwelcome conduct of supervisors, co-workers or anyone […]

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Labor and Employment Law for Finance Officers: What You Need to Know

Jul 24, 2017 in Articles by

Labor Law is a topic that Human Resources and in-house counsel deal with on a regular basis.  Partner Stefani Schwartz, Esq. and Associate Amanda Barisich, Esq. open the Employment Law and Labor Law discussion for Finance Officers in the first of this summer long series. The workplace today is different.  Employment law has drastically evolved over the decades.  Now more than ever employers and employees must be aware of their conduct and their surroundings. What may have been “acceptable” then can easily be grounds for a lawsuit today. Where do we Even Begin? Understand that the law is constantly changing and evolving. The courts are always interpreting the law in new ways as it fits into our ever evolving society.  No matter how much we may question or disagree, these are the laws we have to abide by. Educate yourselves and your staff. Be up to date regarding workplace issues. Educate your employees. Setup proper training and procedures for educating new employees. Empower your employees to protect the company. Give your employees the right tools to do the job you require of them. When in doubt, always ask for clarification. There is no such thing as a stupid question. Always best to err on the side of caution when in doubt. It All Starts With You As Finance Officers, you are leaders and must train Managers and Supervisors to be good role models. You are held to the same standards as the employees you oversee Sometimes even a Higher Standard […]

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Achieve NJ: Components and Changes in Teacher Observations, Student Growth Objectives (SGO) and Corrective Action Plans

Jun 26, 2017 in Articles by

Partner Andrew B. Brown, Esq. has spent his entire legal career working for School Boards in New Jersey.  In this article he shares some guidance on complying with  Achieve NJ. ACHIEVE NJ  Components of New Teacher Evaluations Teacher Practice + (based on classroom   observations)   All Teachers & Principals Student Growth Objective (set by teacher and principal)   All Teachers & Principals Student Growth = Percentile (now based on PARCC)   (Less than 20% of teachers) Summative Rating (overall evaluation score) For tested grades and subjects, which include grades 4th through 8th, LAL and Math*: Teacher Practice accounts for 55% of the Evaluation, SGOs account for 15% of the Evaluation, and SGPs account for 30% of the Evaluation. For non-tested grades and subjects*: Teacher Practice accounts for 85% of the Evaluation, and SGOs account for 15% of the Evaluation.  *These Evaluation Weights are for the 2016-2017 school year Teacher Observations Old procedure v. changes under TEACH NJ Before TEACH NJ, a “long” observation was conducted for a minimum of forty (40) minutes, while a short observation was conducted for a minimum of twenty (20) minutes. This is being changed. There will only be observations for a minimum of twenty minutes. If a non-tenured teacher is present for less than 40 percent of the total student school days in a school year, he or she shall receive at least two (2) observations to earn a teacher practice score. Multiple observers are required when observing non-tenured staff and recommended when observing tenured staff. All […]

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New Jersey Family Leave as It Applies to NJ Public School Employees

Jun 19, 2017 in Articles by

Partner Andrew Brown, Esq. rounds out his multi-part series on seniority, tenure, and leaves of absence.  In this section, he discusses the Board’s obligations as well as the interplay between FMLA and FLA.  Next Week we will be working on Teacher Evaluations. NEW JERSEY FAMILY LEAVE ACT (NJFLA) Entitlements: NJFLA leave is not intended for the employee’s own disability. Rather, it provides that an employee is entitled up to twelve (12) weeks of leave in a twenty-four (24) month period, in order to care for a seriously ill family member or to care for a newborn and/or newly adopted child. N.J.S.A. 34:11B-4. Qualification: “Employee” means a person who is employed for at least 12 months by an employer, with respect to whom benefits are sought under this Act, for not less than 1,000 base hours during the immediately preceding 12-month period. N.J.S.A. 34:11B-3. “Serious health condition” means an illness, injury, impairment or physical or mental condition which requires (1) inpatient care in a hospital, hospice or residential medical care facility; or (2) continuing medical treatment or continuing supervision by a health care provider. N.J.S.A. 34:11B-3. Interplay Between FMLA and NJFLA  Consecutive Leave v. Concurrent Leave: If the basis for the leave is covered by both statutes, then the leaves run concurrently Maternity leaves: Once FMLA converts from the employee’s own disability, and becomes caring for the child, the remaining FMLA time runs concurrent with the start of the NJFLA period. 30 days before and 30 days after birth, the mother […]

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Leaves of Absence for NJ Public School District Employees

May 8, 2017 in Articles by

Public Employees, including School district employees or Board of Education Personnel have guidelines for employees taking leaves of absence.  In this segment, Partner Andrew Brown discuss what a Leave actually is.  He also discusses what the Federal Provision is for Military Leaves.   Next week he will discuss FMLA. LEAVES OF ABSENCE (LOA) What is Leave Generally? N.J.S.A. 18A:30-1 entitles an employee to a minimum of ten (10) sick days per year for use due to his own disability. N.J.S.A. 18A:30-4 permits a Board of Education to require receipt of a doctor’s note in order for an employee to obtain sick leave. N.J.S.A. 18A:30-6 allows a Board of Education to grant extended sick leave to employees who have drained their available leave balances, less the cost of a substitute. N.J.S.A. 18A:6-8.1 and 8.2 also allow certain employees to take leave to serve in the New Jersey Legislature (leave is taken with pay) or on a Board of Chosen Freeholders (leave is taken without pay). Military Leave and its Federal Entitlements The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §4301, et seq. Pursuant to guidance offered by the Office of the NJ Attorney General, USERRA: Applies to all employers, regardless of size. Covers the employer’s obligation to release an employee for military duty, reemployment requirements upon an employee’s return from military duty or training and prohibits discrimination in initial employment, reemployment, retention in employment, promotion or other benefits based on membership or application for membership, service or membership for service […]

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Tenure Charges & Seniority in New Jersey Public Schools

Apr 20, 2017 in Articles by

Partner Andrew Brown, Esq. continues in his series on seniority, tenure, and leaves of absence in New Jersey public schools.  Looking for more information?  Contact Andy. Neglect, Misbehavior, or Other Offense: Examples  Secretaries: I/M/O Tenure Charges of Charai Bowman, (S. Wood-Osborn, May 23, 2016): Tenured secretary was charged with conduct unbecoming, neglect of duty, and other just cause for her excessive tardiness, accepting a part-time teaching position with Trenton schools while still retaining her secretary job, and continuously failing to perform her secretarial duties. The Arbitrator upheld the charges and she was dismissed from her Secretarial position in the Trenton School District. Custodians I/M/O Tenure Charges of Marvin Davis (A. Symonette, May 15, 2014): Respondent tenured custodian charged with conduct unbecoming of a staff member by engaging in inappropriate physical contact with students, particularly touching and pulling the hair of several female elementary school students. The Arbitrator upheld the charges and Respondent was dismissed from the Asbury Park School District. PRACTICAL POINTS Make sure that you document everything, including preparing memoranda of verbal warnings and actions. Pay attention to details and be careful in preparing documents. Make sure that the descriptions correspond to the grades that are given to the employee. Follow the procedures. Meet every deadline. Use multiple observers, particularly if a grievance or charges have been filed against an administrator. Avoid comments or discussions that could raise possible political, discrimination or union activity claims. IMPORTANT STEPS FOR FILING TENURE CHARGES BE CLEAR IN YOUR EVALUATIONS. PROVIDE SPECIFIC COMMENTS, […]

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Seniority and Tenure in New Jersey Public Schools

Apr 11, 2017 in Articles by

  Partner Andrew Brown, Esq. is known throughout New Jersey for his knowledge and expertise in Education Law.  In the second of this multi part series, Andy bullet points Seniority and Tenure details for both teaching and non-teaching staff.  The New Jersey Association of School Business Officials recently took advantage of Andy’s expertise by asking him to present this topic to its members.  To view the full presentation, please contact Mr. Brown directly or Michele D. Roemer, Assistant Executive Director of the NJASBO. Calculating Seniority The number of academic or calendar years (or fractions thereof) in a specific district, in specific categories of employment. N.J.A.C. 6A:32-5.1. If a teacher moves to a different category, all employment is credited to the amount of seniority in all relevant categories. N.J.A.C. 6A:32-5.1(b)(h). If a teacher is employed simultaneously in two or more categories or under two or more endorsements, their seniority is counted in all subject area endorsements and categories. N.J.A.C. 6A:32-5.1(f). Leaves of absence may count towards seniority. N.J.A.C. 6A:32-5.1(b): Unpaid absences not exceeding 30 days aggregate in one academic or calendar year. Leaves of absence at full or partial pay. Unpaid absences granted for research. Military service Calculating Seniority: Custodians, Secretaries, and Other Support Staff Custodians: N.J.S.A. 18A:17-4 specifically requires that in the event of a RIF, a Board must dismiss and rehire tenured custodians in order of seniority. Secretaries: Secretaries are not afforded statutory seniority rights; however, many Districts provide seniority rights to secretaries through their CBAs. Districts may also grant seniority rights to otherwise […]

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