February 2017 Employment Law Update



Harassment: It’s Not Just Your Own Employees You Have To Worry About

Most employers understand that they are legally obligated to promptly investigate an employee claim that he/she is being unlawfully harassed by a fellow employee or supervisor based upon some legally protected characteristic (e.g., gender, race, disability, national origin, etc.). Employers must remember, however, that they also are obligated to insure their employees are not subjected to unlawful harassment by third parties that interact with the employees such as clients, patients, vendors, suppliers, customers and independent contractors. It can be particularly problematic for employers where, for example, the employee makes a complaint of harassment against a significant client or someone who refers a significant amount of business to the employer. Although investigating such complaints may be uncomfortable, failure to do so may result in a harassment lawsuit claiming the employer ignored the employee complaint because it valued company profits above its obligation to provide its employees with a workplace free of unlawful harassment. It is not enough to have a written policy that prohibits harassment by third parties. Employers must insure that, in practice, they are actually following that policy.


Use of New Form 1-9 Required

Form I-9 is used for verifying an individual’s identity and authorization to be lawfully employed in the United States. Employers are legally required to timely complete and maintain the form. Effective as of January 21, 2017, employers were required to start using a new Form I-9 prepared by the U.S. Citizenship and Immigration Services (USCIS). The new form is available at: https://www.uscis.gov/i-9


Appellate Court Reaffirms Importance of Getting Jury Waiver Language Right

Employers received another reminder that, although employee jury waivers and arbitration agreements are permitted, if they are not drafted properly they will not be enforced by the courts. In Noren v. Heartland Payment Sys., a trial court ruled that the plaintiff/employee had signed an enforceable jury waiver agreement and, after a full non-jury trial before the judge, a verdict was rendered in favor of the defendant/employer. However, the New Jersey Appellate Court reversed the trial court and found that the signed agreement was not specific enough to constitute a valid waiver of a plaintiff’s right to a jury trial on his whistleblower claim. As a result, the verdict in favor of the defendant/employer was overturned and the employer will now have to defend the whistleblower claim a second time before a jury.