New Jersey Employment Lawyer Blog

Articles Posted in Workplace Privacy

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A case decided earlier this month addresses a question that periodically comes up in employment law cases: Will your former employer be able to obtain your personnel file from your current employer if you file an employment discrimination or retaliation lawsuit?

Can My Former Employer See My Current Employment Records As Part of

During an employment lawsuit, the employer and employee engage in a process called discovery. Discovery involves an exchange of information between the parties, including requests for documents, written questions called interrogatories, and oral questions at a deposition. In addition, either side has the right to issue subpoenas requiring non-parties to provide relevant documents and information. The purpose of discovery is to allow each side to gather evidence to support its case and evaluate the other side’s position.

Discovery is supposed to be broad. However, it has limits. For example, it only is supposed to be used to try to learn something relevant about your case, and not to harass or punish the other side. Unfortunately, there often are disagreements about whether a discovery request is being used for a proper purpose. The question of whether your former employer is entitled to obtain copies of records from your current employer is one such issue that can arise during an employment law case.

In Boykins v. Inventiv Commercial Services, Michelle Boykins alleges that her former employer, Inventiv Commercial Services, wrongfully terminated her because of her race in violation of the New Jersey Law Against Discrimination (LAD) and federal law. After Ms. Boykins stopped working for Inventiv she started working for New Jersey Transit. Inventiv learned that Ms. Boykins filed a charge of discrimination against New Jersey Transit with the United States Equal Employment Opportunity Commission (EEOC). Ms. Boykins provided Inventiv a copy of her EEOC claim and other related documents. Inventiv then attempted to obtain Ms. Boykins’s entire personnel filed from New Jersey Transit.

Inventiv claimed these records were relevant to various issues in the case including how much Ms. Boykins is earning from New Jersey Transit since those earnings would offset any economic damages caused by Inventiv’s alleged race discrimination. Ms. Boykins asserted that her personnel records are private. Inventiv argued that it could overcome her workplace privacy concerns because her discrimination claim against New Jersey Transit is similar to her claim against it.

United States Magistrate Judge Douglas Arpert ruled that Inventiv is not entitled to obtain Ms. Boykins’s personnel file from New Jersey Transit. He recognized that employees have a legitimate privacy concern with respect to their personnel files. While he noted that Ms. Boykins’s pending EEOC case against New Jersey Transit might have provided a basis for Inventiv to obtain those records, it already has those documents. He also found Inventiv’s s request was overly broad since it sought Ms. Boyknis’s entire personnel file, rather than particular items that might be relevant to her lawsuit.

It is important to understand that this ruling was very fact-sensitive. The judge might have required New Jersey Transit to provide some records if, for example, Ms. Boykins had not already provided the relevant EEOC records or if she did not supply adequate evidence regarding her salary and benefits at her new job. However, the case recognizes that employees do have a privacy interest in their personnel records and there should be limits on when your former employer is entitled to obtain them from your current employer.

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Late last month, the New Jersey Appellate Division ruled that ExxonMobil Research and Engineering Company may have violated New Jersey Law Against Discrimination (LAD) when it fired an employee suffering from alcoholism after she failed a breathalyzer test. The LAD prohibits employers from discriminating against employees because they are disabled. Since alcoholism is a disability, it is illegal to fire an employee because he is an alcoholic. However, the LAD permits employers to fire employees if their disabilities, such as alcoholism, prevent them from performing their jobs or create a serious health risk.

bigstock-Businessman-At-His-Desk-Workin-8972239.jpgThe case, A.D.P. v. ExxonMobil Research and Engineering Company, involves an employee who voluntarily informed her employer, ExxonMobil Research and Engineering Company, that she was an alcoholic and was checking herself into an inpatient rehabilitation program. Based on company policy, ExxonMobil required her to stop from using any alcohol and to undergo random breathalyzer tests for two years. The company did this even though the employee had an exceptional performance history, and there was no evidence she was ever intoxicated at work or that her drinking interfered with her job in any way. When the employee eventually failed a breathalyzer test, ExxonMobil fired her. She then sued, claiming the company committed disability discrimination, in violation of the LAD.

The Appellate Division found there was direct evidence of disability discrimination. Specifically, a manager admitted ExxonMobil required the random drug testing pursuant to company policy because the employee revealed she is an alcoholic, rather than because of anything relating to her job performance. The Court found this policy to be discriminatory since it shows hostility toward alcoholics. Given this direct evidence of discrimination, the court ruled that ExxonMobil has the burden to prove it would have fired the employee irrespective of her disability. Usually the employee has the burden to prove discrimination.

The Court explained that companies have the right to fire employees whose disabilities prevent them from adequately performing their jobs. However, to establish this defense, a company needs to prove the particular employee could not perform her job. In this case, the court found no evidence that the employee was unable to perform her job despite her alcoholism.

The Court also explained that companies can fire employees whose disabilities create a serious health risk. But to establish this defense the company needs to prove, with a reasonable degree of certainty, there is a probability the employee’s disability will cause a substantial injury to the employee or someone else in the workplace. To meet this test the employer has to show more than the fact that the employee has a specific disability. It has to prove the disability was likely to pose a safety risk with respect to the particular employee.

For more information, please see our previous article, When Can A Private Company Require Random Drug Testing in New Jersey?

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I often read status updates on sites like Facebook, LinkedIn and Twitter reflecting my friends’ feeling about their work, bosses, and co-workers. It is worth a reminder that such postings potentially can be used against you in an employment law case, such as a discrimination, harassment, or retaliation lawsuit. If your profile is public, or if one of your supervisors is your “friend,” your employer will have easy access to that information. But your employer might be able to obtain the information in a lawsuit even if it was originally visible only to individuals who you have accepted as “contacts” or “friends.”

For example, one of my clients recently received the following request from a large law firm that represents employers:

Produce a copy of the contents of Plaintiff’s account on any social media websites, such as Facebook, MySpace, Twitter, LinkedIn, etc.

I intend to object to this request because it is nothing more than a fishing expedition, and the employer is seeking information that is not relevant to the case. But there are many ways in which your posts may be relevant to an employment law matter. For example, if you are having a good day at work and post “I love my job,” that could be used against you to prove you did not experience a hostile work environment, and therefore harm your harassment claim. On the other hand, if you express negative feelings about your boss, co-workers, clients, or customers, then you could be accused of disparaging your employer, which could violate an internal company policy, your employment contract, or your duty of loyalty to your employer.

It is important to realize that, unless you delete it, all of the data you have posted on Facebook, including wall posts, photos with comments, videos, private messages, friend lists and other user profile content, remains accessible in an archive that is fairly easy to retrieve. You can download it from the Account Settings menu. Thus, even very old posts could hurt you if the employment relationship goes bad. Be very careful about what information you post about your job on social networking websites. At the very least, you should not post anything about your current or former employer that you would not want the employer to read.

However, once you are considering filing a lawsuit, you cannot erase your archive because you would be destroying potential evidence in your case, and you could be penalized. For example, in Lester v. Allied Concrete, a plaintiff who prevailed in a wrongful death case was ordered to pay a $180,000 fine for deleting his Facebook profile.

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On June 26, 2009, in Stengart v. Loving Care Agency, Inc., New Jersey’s Appellate Division ruled that confidential emails employees send to their lawyers using company computers are protected by the attorney-client privilege.

Under the attorney-client privilege, communications made in confidence between lawyers and their clients in the course of their professional relationship are privileged. The primary reason for the attorney-client privilege is to encourage clients to engage in a full and free disclosure of information with their lawyers.

In Stengart, employee Marina Stengart was still working for Loving Care Agency, Inc., when she emailed an employment lawyer about her potential discrimination case. She sent emails to her attorney, using her private Yahoo email address, from her company-issued laptop.

After Ms. Stengart left Loving Care and filed a lawsuit, the company created a forensic image of her computer’s hard drive. The lawyers representing Loving Care discovered numerous communications between Ms. Stengart and her lawyers in her computer’s Internet browsing history. When Ms. Stengart’s lawyers learned that Loving Care had copies of many of her emails to them, she asserted the attorney-client privilege and demanded that Loving Care return them to her. She also sought to disqualify Loving Care’s lawyers since they had unfair access to her privileged communications with her lawyers.

Prior to the appeal, based on the company’s electronic communications policy, the trial court ruled that Ms. Stengart did not have a reasonable expectation of workplace privacy when she used her company laptop to communicate with her lawyers. Accordingly, it found that the emails were not protected by the attorney-client privilege.

However, the Appellate Division disagreed. It ruled that it was unclear whether the company’s electronic communications policy prohibit Ms. Stengart from using her company laptop to email her lawyers, since it expressly permitted some personal use.

More importantly, the appellate court also found that, even if Ms. Stengart had violated the company’s email policy, the attorney-client privilege outweighed her employer’s interest in enforcing its electronic communications policy. It noted that while employee handbooks can create binding employment contracts, New Jersey courts will not enforce unreasonable workplace rules and policies. More specifically, courts will only enforce employment policies if they advance the “legitimate business interests of the employer.” Accordingly, the Appellate Division rejected what it described as “the employer’s claimed right to rummage through and retain the employee’s emails to her attorney.”

The Court noted that people conduct many personal and confidential transactions via the Internet, including accessing private medical records, viewing bank account data and telephone records, filing tax returns, and emailing attorneys about confidential matters. It indicated that those individuals have a reasonable expectation that their private communications will remain private, even if they review the private information on a company computer. However, the Court made it clear that companies are entitled to monitor whether their employees are performing non-business activities that distract them from their work, and can discipline employees who engage in personal matters during working hours.

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From the standpoint of employees, random drug testing policies can be invasive, offensive, and a violation of their right to privacy. For example, drug testing can reveal information about an employee’s medical condition or prescribed medication, even when the employer has no legitimate right to that information. In contrast, from the standpoint of a private company, random drug testing can be an effective tool to limit workplace accidents, theft, and poor job performance.

Given those competing interests, when determining whether a private company’s random drug testing policy is an impermissible invasion of privacy, New Jersey law requires a balance between the employee’s privacy interests against the public interest being advanced by the employer. In New Jersey, an employee who is fired for refusing to participate in a private company’s random drug testing program may have a legal claim for wrongful discharge in violation of public policy if the employee was fired for refusing to submit to random drug testing and the employee’s privacy interest outweighs the public interest in favor of the testing.

Determining if the public interest outweighs the right to privacy for a particular random drug testing program is a difficult question. To make that determination, a court has to balance the employee’s right to privacy with employer’s reason for testing. For example, the New Jersey Supreme Court has found that if an employee’s duties are “so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large, then the employer must prevail.” Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). Some of the factors used to determine the public policy interest in favor of testing include whether there is any evidence of drug use by employees, the potential dangers of the employee’s job, how long the drug testing program has been in place, and whether the employer can effectively detect drugs without testing, such as by having supervisor observe employee behavior.

While not legally mandated, the New Jersey Supreme Court has strongly recommended that employers that have random drug testing programs should take steps to minimize the intrusiveness of the process. This includes making sure the testing procedures allow employees to maintain as much privacy and dignity as possible, and that employers announces the program to their employees in advance, provide details about the method for selecting employees to be tested, warn employees of the lingering effect of certain drugs, explain how the testing and analysis will be conducted, warn employees of the consequences of testing positive or refusing to take the test, only conduct tests necessary to determine the presence of drugs in the urine, and take measures not to disclose any information obtained as a result of the testing.

In short, while New Jersey law recognizes that random drug testing can be an invasion of privacy, testing is permitted if that privacy right is outweighed by the public interest supporting the testing. While in some instances it may be very clear that drug testing is permissible, such as when an employee operates heavy machinery or drives as part of his job duties, in many instances it is difficult to know whether a private company’s random drug testing program violates your right to privacy. If you believe your company’s random drug program may be a violation of your rights, you should consider contacting an experienced employment lawyer to learn more about your legal rights.

The lawyers at our employment law and civil rights law firm, Rabner Allcorn Baumgart & Ben-Asher, P.C., are experienced at representing employees in New Jersey, New York State, and New York City whose rights have been violated.

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