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Public Entities, Take Note: The Hat You Wear May Determine the Cross You Bear

Posted on: March 24th, 2017

By: Paul H. Derrick

Public entities – cities, towns, counties, public service districts – often wear many hats. On the one hand, they are governmental bodies that engage in activities that are discretionary, political, legislative, or public in nature and performed for the public good. Conversely, they sometimes act as proprietors and engage in activities that are commercial or chiefly for the private advantage of a more compact and limited community.

Surprisingly often, for example, public entities acquire ownership of dilapidated buildings and other properties in order to lease them out to private tenants as part of a downtown revitalization project or similar effort. When someone is later injured because of the run-down condition of the property, the question of whether the public entity/owner is liable may hinge on whether its ownership and maintenance of the property was a governmental function or a proprietary one.

If the former, then the defense of governmental immunity might foreclose the public entity from being found liable. If the entity was acting as a private proprietor, however, that defense would be out the window and the case could likely proceed as it would against any other building owner. Often, whether a public entity is acting as a governmental body or a proprietor comes down to what the state’s legislature has said about the particular conduct at issue.

If the legislature has designated an activity as either governmental or proprietary, the courts generally defer to that designation. In cases where the legislature has been silent, however, activities are typically found to be governmental when they can only be provided by a governmental agency or instrumentality.  In the example of public entities acquiring ownership of dilapidated buildings and leasing them to private tenants, that often means that other factors will be examined, such as whether the service (i.e., leasing) is one traditionally provided by a governmental entity, whether a substantial fee is charged for the service, and whether that fee does more than simply cover the public entity’s operating costs. The more strongly those factors make it look like the public entity is acting as a private proprietor, the less likely it is that courts will allow it to take advantage of traditional governmental immunity and other related defenses.  It may then be answerable to an injured party for any negligent act that may have caused injury and damage.

Public entities should be vigilant and exercise caution when it comes to taking on roles that might make them look like just another private proprietor. Even the most altruistic intentions can lead to the loss or impairment of important legal protections. Absent clear legislative direction, courts will usually look to the economic realities of any given situation, especially when someone has been injured. Remember, if it looks like a duck, walks like a duck, and quacks like a duck ….

If you have any questions or would like more information, please contact Paul Derrick at [email protected].

Employers Beware: Wearing Pins and Buttons at Work May be Protected Activity

Posted on: March 24th, 2017

By: Paul H. Derrick

Employers that have a rule or policy prohibiting the wearing of pins and buttons that are not company-issued would do well to rethink that ban. The National Labor Relations Board has again ruled that an employer acted unlawfully by banning all pins and buttons other than those provided by the business.

Generally, workers have a federally-protected right to wear pins, buttons, and other items that show their support for causes involving wages, hours, and other terms and conditions of employment. The NLRB has found that special circumstances may warrant an exception to that rule where the wearing of such items would jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or, unreasonably interfere with a public image that the employer has established as part of its business plan.

In this latest case, a fast-food chain told workers they could not wear small “Fight for Fifteen” pins on their uniforms in support of the national campaign for a higher minimum wage. Although the NLRB acknowledged that even a purveyor of hamburgers, fries, and soft drinks is entitled to take steps to maintain its chosen public image, the company was unable to demonstrate that the pins unreasonably interfered with its business plan of creating a public image of a very clean restaurant where all employees dress alike.

The decision is just the latest in a long string of reminders that the NLRB has a high bar when it comes to showing the special circumstances needed to justify a ban on non-company pins, buttons, and other insignia. Workers have a protected right to engage in a broad range of activities that involve both their own workplaces and the workplaces of others. Employers should consult with counsel and reexamine all rules and policies that might be viewed as unlawful restraints on protected employee activity and either modify them to comply with the general state of the law or be prepared to prove to the NLRB and courts that special circumstances exist justifying the restrictions. No business wants, or can afford, to become the next cautionary tale.

If you have any questions or would like more information, please contact Paul Derrick at [email protected].

New Jersey’s Appellate Court Rules LAD Exception Applies Concerning Accommodation of Employee’s Religious Practice

Posted on: March 22nd, 2017

By: Barry S. Brownstein

In Tisby vs. Camden County Correctional Facility (CCCF), New Jersey’s Appellate Court decided in January of this year whether the trial court had properly found that the CCCF’s concerns for its safety, security and neutrality were legitimate non-discriminatory reasons why allowing plaintiff an accommodation would cause an undue hardship on defendants. New Jersey courts have not previously addressed this issue.

After reporting to work in a traditional Muslim khimar, a tight-fitting head covering, Tisby’s supervisor informed her she was not in compliance with the uniform policy and could not work unless she removed the khimar. When Tisby refused to remove her khimar, she was sent home and disciplinary charges were recommended. Even though she had not formally submitted a request, CCCF’s warden advised Tisby he considered her “position as a request for an accommodation under Title VII of the Civil Rights Act, as well as New Jersey’s Law Against Discrimination (LAD).” Following her removal, Tisby filed a complaint against the CCCF, asserting that she had been “wrongfully suspended without pay” due to her religious beliefs, in violation of N.J.S.A. 11A:2–13, and CCCF had failed to reasonably accommodate her religious beliefs pursuant to the LAD.

The core of Tisby’s complaint is a violation of her religious rights. Under the LAD, employers cannot impose any condition upon employees that “would require a person to violate … sincerely held religious practice or religious observance.” N.J.S.A. 10:5–12(q)(1). However, an exception exists if an employer cannot accommodate “the employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” after putting forth a “bona fide effort” to accommodate. An “undue hardship” is defined as “an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement.” N.J.S.A. 10:5–12(q)(3)(a).

After weighing the safety concerns, including the safety risk and the ability to hide contraband in head coverings, as well as the necessity of uniform neutrality, the trial judge determined that the CCCF had met its burden of establishing accommodation was a hardship. In addition, the CCCF’s reasons for denying an accommodation were not pretextual. Therefore, Tisby failed to overcome the finding of a hardship to the CCCF. Consequently, the Appellate Court held that summary judgment to CCCF had been properly entered.

Employers should be aware that this exception exists if they cannot accommodate an employee’s religious observance or practice.

For any questions, please contact Barry Brownstein at [email protected].

Will the Department of Labor be “Kinder and Gentler” Under Acosta?

Posted on: March 22nd, 2017

By: Marty Heller

As Secretary of Labor nominee Alexander Acosta awaits his impending confirmation hearings, senators from both sides of the aisle have been asking questions about where Acosta will fall on issues such as the currently enjoined changes to the overtime rule, potential increases to the federal minimum wage, and countless changes to OSHA’s injury reporting and investigation rules. 

We may have to wait a while to find out the answer to these questions. Nonetheless, reviewing Acosta’s background, we have a glimpse of how he might run the Department of Labor. As an assistant attorney general, Acosta collaborated with the police to try to develop policies and procedures to avoid litigation, and he was active in helping the Department of Justice meet with government and private employers to advance efforts to voluntarily comply with discrimination laws through compliance training and outreach. In 2005, Acosta told a house panel reviewing police investigations “rather than adopting a purely litigation-driven enforcement model, our experience demonstrates that a cooperative model produces much better and faster results.” 

Business groups around the country are welcoming Acosta’s nomination and potential confirmation, with the hope that the Department of Labor may adopt a more training and compliance friendly approach that uses enforcement procedures, such as suing employers to obtain back pay, only when absolutely necessary. Ed Foulke, who ran OSHA under President Bush, echoed these expectations, saying “they’ll definitely be moving more to compliance assistance, helping employers be safe, helping employers be successful…I don’t think you’ll see the really nasty press releases.”

The confirmation hearings for Acosta are expected to begin on March 22, and his testimony during the hearings may give us additional information about his views on lingering issues. One thing is for certain – Acosta is a much less controversial selection then Andrew Puzder, who withdrew prior to his senate confirmation hearings, and barring something unforeseen, Acosta is expected to be confirmed as Secretary of Labor in the near future. 

 For any questions, please contact Marty Heller at [email protected].


Federal Court Rejects Jane Doe’s Wrongful Conception Claims Too

Posted on: March 21st, 2017

By: Shaun Daugherty

It made headlines when several families around the county sued Atlanta based sperm bank Xytec Corp. for claims that they were lied to regarding the specific characteristics of a donor that had been responsible for the birth of 36 children through the bank. The bank had promoted donor 9623 as having a PhD and being physically and mentally healthy. As it turned out, Mr. James Aggeles was a convicted felon who had not finished college and had multiple mental health diagnoses.

At the state court level, a suit filed by Angela Collins and Margarent Hanson, Canadian residents, was dismissed in 2015. The judge ruled that the allegations of fraud, negligence and product liability were essentially claims alleging wrongful birth which is not a recognized cause of action in Georgia. Wrongful birth claims are ones contending that the parents would have not had a child if they have been fully aware of a child’s condition. Typically these claims arise in the scenario of undiagnosed disabilities or conditions materially affecting the fetus and later child development. Plaintiff’s sue for the damages related to the increased cost of raising a disabled child.

In 2016, an Ohio woman, identified as Jane Doe, filed suit against Xytec Corp. in federal court related to her interactions with the company and receipt of donor 9623’s sperm. Eleven different counts were alleged, including fraud, negligence, and breach of warranty. Defendants immediately moved to dismiss the complaint for failure to state a claim as they argued that all of Ms. Doe’s claims were based in a theory of wrongful birth and not actionable in Georgia. Plaintiff argued that it was not a case of wrongful birth, but one of wrongful conception, which is recognized under the law. Wrongful conception claims arise when a sterilization or abortion procedure goes wrong and a live birth results.

On Friday, March 17, 2017, US District Judge Thomas Thrash, Jr. issued his ruling granting the defendants’ motion and dismissed the case. The Judge explained the difference between accepting one theory over the other was a matter of the measure of damages.  A successful wrongful conception claim could recover the expenses for an unsuccessful sterilization procedure, pain and suffering, medical complications, cost of delivery, lost wages and loss of consortium. By contrast, “wrongful birth claims are disfavored because they require the court to decide between the value of the life with disabilities and the value of no life at all.” The Judge found that Ms. Doe’s claims were rooted in the theory that she would not have used the sperm from donor 9623 if she had known of his true nature and, therefore, her child would not have been born, i.e. a wrongful birth claim.

As pointed out by the state court judge in Ms. Collins and Ms. Hanson’s case, this appears to be another instance where science has overtaken the law and leaves no remedy to the parents.

For any questions, please contact Shaun Daugherty at [email protected].