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FMG Law Blog Line

Archive for August, 2014

NJ Adopts “Ban the Box” Requirements

Posted on: August 15th, 2014

By: Joyce M. Mocek

Recently, New Jersey joined the growing number of states prohibiting employers from asking about applicants’ criminal histories in the hiring process.

“The Opportunity to Compete Act”, signed by New Jersey Governor Christie this week, goes into effect on March 1, 2015.   This law prevents companies with more than 15 employees (over 20 calendar weeks) from inquiry, whether verbal or written, into an applicant’s criminal record during the initial application process.  It also imposes certain requirements on employers as it relates to advertisements.

The law carves out certain types of employment, including law enforcement, corrections, the judiciary, homeland security and emergency management, and/or positions where a criminal history record check is required by law, rule or regulation.

The new law does permit an employer to inquire about an applicant’s criminal history after the initial interview.  The employer is also permitted to further inquire if the applicant voluntarily discloses their criminal history.

The Act imposes penalties up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

As more and more states and municipalities join the growing trend with “ban the box” requirements, employers should conduct a thorough review of their employment applications to make sure there are no boxes or questions that inquire into whether an applicant has been convicted of any crimes.   Employer’s should also review their hiring policies and practices, and confirm that training is conducted for appropriate personnel on the most recent EEOC guidelines and state laws on “ban the box” requirements.

Employer Beware: BYOD and the Remote Data Wipe

Posted on: August 13th, 2014

By: Kacie L. Manisco

A growing number of companies have implemented Bring Your Own Device (BYOD) programs that allow employees to use their own phones and devices for both business and personal activities. Such programs benefit employers and employees alike, reducing information technology costs for employers, while providing employees the freedom and ease of working on a single device of their choosing. Unfortunately, however, the tendency of BYOD programs to blur the line between an employees’ work and personal life implicates a myriad of legal issues. One such issue likely to be tested through the courts in the near future is the trend of “remote data wiping.”

Many Companies have taken to data wiping as means of removing trade secrets, intellectual property and other confidential information from departed employees’ personal devices. While some employers limit the wipe to sensitive company data, others chose to erase the contents of the entire phone to ensure absolutely no confidential information leaves with the employee. In doing so, all personal data on the device such as contacts, messages, and photos are also deleted. Employee complaints regarding this practice are on the rise. There have been reports of employees demanding compensation from employers for lost data, including a demand from an employee who lost photos of a deceased relative. While no legislation or case law has shed light on this issue, experts suggest ex-employees will find legal remedies in computer-trespass statutes, which were originally designed to prosecute computer hackers. As such, employers should carefully consider how to handle privacy and data security challenges implicated by this practice.

Employers should develop and disseminate a comprehensive BYOD policy that includes a conspicuous remote data wiping policy. Before performing the data wipe, the employer should obtain clear and unambiguous consent from the employee and maintain records of such consent. Employers would also be wise to give proper warning immediately prior to the data wipe so the employee has an opportunity back up any personal data, while also communicating that back-up of corporate data or information is strictly prohibited.  Such precautionary measures should strike a balance between the employee’s rights and the employer’s interest in protecting proprietary information while the issue of remote data wiping hangs in legal limbo.

Does Your Liability Insurance Protect You Against Immigration Enforcement?

Posted on: August 6th, 2014

By: Kelly Eisenlohr-Moul

Employers — do you assume that one of your insurance policies covers immigration enforcement actions — such as an investigation by the Department of Justice (DOJ), Immigration and Customs Enforcement (ICE), or U.S. Customs and Immigration Services (USCIS)?


If so, you may be in for an unpleasant surprise.


A federal district court recently ruled that a criminal immigration action against an employer, brought by ICE, was not covered by any of company’s liability policies: employment practices or D&O liability.  The court found that the policy language was not intended to encompass enforcement actions by the government.


This issue is important, as the Obama administration has increased immigration enforcement actions against employers, and will likely continue this trend.  Additionally, E-Verify usage makes slip-ups easier to monitor, and USCIS may “refer” an employer’s mistake to another agency for penalties or prosecution.


While this decision may isolated, it serves as an excellent reminder to check with your broker about what administrative actions or government investigations are covered by your liability insurance.


To paraphrase my favorite legal professor: “All I can tell you for certain about insurance is that you don’t have enough.”

Caps on Medical Malpractice Awards- How Much is Too much?

Posted on: August 5th, 2014

By: Taryn M. Kadar

Monetary caps on medical malpractice awards are commonplace in many states throughout the country. In today’s highly litigious environment, these monetary caps help limit the exposure a doctor or hospital may have in a medical malpractice suit. While some states such as Florida and Georgia have declared non-economic caps on damages to be unconstitutional, states such as California are currently considering whether to raise the cap on medical malpractice awards from $250,000 to $1.1 million. This significant raise ensures that both patient advocates and health care professionals will have a hand in the debate.

Patient advocates argue that raising the cap will help deter medical negligence. While opponents believe that a higher cap will raise healthcare costs and limit patient access to care. Further, doctors in California would need to spend more on medical malpractice insurance which may also hinder patient care.

How would this significant raise in the monetary cap amount impact the medical community in California? It is up to California residents to decide, as the issue has been approved for the ballot in November 2014. However, the debate is an important one, as other states may follow suit and consider raising its medical malpractice award caps.