Gibbons Law Alert Blog

Supreme Court Broadens Retaliation Lawsuits Under Title VII

The U.S. Supreme Court has just decided that an employer cannot “get back” at an employee who has complained about discrimination by going after other employees related to, or in a close relationship with, the complaining employee. By ruling in favor of a man who was fired after his fiancée complained about alleged sex discrimination at the same company, the Court’s decision in Thompson v. North American Stainless, LP has expanded Title VII anti-retaliation jurisprudence to encompass employees who themselves do not engage in “protected activity” as defined by the statute. Finding that the fiancée fell within the “zone of interests” of protection afforded by Title VII, he thus qualified as a “person aggrieved with standing to sue.” The decision is significant for employers because it establishes important precedent authorizing retaliation claims by employees other than the employee who made the original complaint of discrimination. Employers should make sure that their written anti-retaliation policies make clear to managers and supervisors that, after a claim of discrimination has been made, it is against company policy to retaliate not only against the employee making the claim but against any employee related to, or in a close relationship with, the complaining party.

Delaware Court of Chancery Adopts ESI Preservation Guidelines

Following the lead of other state courts, Delaware’s Court of Chancery — known for handling of some of the nation’s most complex corporate matters — has adopted guidelines for the preservation of electronically stored information (“ESI”). The guidelines reference counsel’s “common law duty to their clients and the Court” to preserve ESI, noting that a “party to litigation must take reasonable steps to preserve information, including ESI, that is potentially relevant to the litigation and that is within the party’s possession, custody or control.” At a minimum, this means that “parties and their counsel must develop and oversee a preservation process,” including the dissemination of a litigation hold notice.

You Want Discovery of an Adversary’s Computer? Better Have a Good Reason.

That was the lesson of a recent case out of the New York State Supreme Court, Nassau County, where the court refused to order a forensic examination of a plaintiff’s personal computer hard drive. DeRiggi v. Krischen arose out of the death of a woman during a routine surgical procedure to treat lower back pain. Plaintiffs alleged that her death was the result of perforation of the left common iliac vein by a “Spine Jet HydroDisectomy” system utilized during the procedure. Plaintiffs further alleged, among other things, that the manufacturer of the system misrepresented the risks affiliated with its use, and one of the plaintiffs, the decedent’s husband, testified at deposition that he and his wife visited the manufacturer’s website prior to the surgery and read that the procedure “felt like a bee sting and nothing more.”

Gibbons Directors Douglas Janacek and Russell Bershad Recognized as Leading Real Estate Lawyers

Douglas Janacek and Russell Bershad, Co-Chairs of Gibbons Real Property & Environmental Department were each recognized as leading real estate practitioners in recent industry publications. Doug was one of 12 lawyers to be included in a feature story on the leading real estate attorneys in the state in New Jersey & Company’s November/December issue.

Expansion of Philadelphia Minimum Wage and Benefit Standards Could Impact Retail and Restaurant Tenants

Under a newly enacted City of Philadelphia Ordinance, some tenants in properties developed with financial assistance by the City of Philadelphia may now be required to comply with a minimum wage requirement that is 150% of the federal minimum wage. Benefits provided to full-time employees of tenants may also be impacted.

A New Jersey Statute That May Go a Long Way On Your Next Solar or Wind Project!

Experienced New Jersey developers and land use attorneys understand the challenges that face an applicant when the proposed use is not expressly permitted in the municipality’s zoning district wherethe subject property is located. The challenge is only more complicated if the proposed use involves novel or unfamiliar technology such as renewable energy. However, in New Jersey, the government has been proactive in welcoming renewable energy projects through grants and legislation, making New Jersey definitely the place to be if you want to develop property geared towards the creation of a renewable energy facility powered by solar or wind.

How to Avoid “Sun-block” – New Jersey’s Solar Easements Act

As more and more business owners and homeowners in New Jersey take advantage of the incentives available to build and maintain solar energy systems and solar panels, it’s important that such investments be protected from unwanted disputes with neighbors. A little known New Jersey statute may be able to help. Recent statistics on New Jersey’s Clean Energy Program website indicate that New Jersey is the fastest growing market for solar power in the United States, and has the largest number of solar panel installations, second only to California, where neighborly disputes over trees blocking solar panels, solar panels impairing views, causing glare and other general nuisance claims are becoming more and more common.

Federal Communications Commission to Move to the Cloud

In early 2011, the Federal Communications Commission will launch a new, updated website and become the first major federal agency to utilize cloud computing technology to completely support its principal web presence. By moving to cloud technology, the FCC hopes to give a boost to this increasingly popular technology and to improve the FCC’s technology platform. In announcing its move to cloud computing, the FCC’s Managing Director stated, “given that we oversee an industry that should lead this country in innovation, we want to lead the government in the things we do every day as well.” Terremark will manage the FCC’s transition to cloud computing.

Focus on Training in 2011

2011 should be the year in which all companies renew their commitment to training employees. Specifically, all employees should be trained on important company policies, such as the anti-harassment and discrimination policies, and human resources employees and supervisors should be trained on consistently problematic topics such as performance management, accommodating disabilities under the Americans with Disabilities Act and leaves under the Family and Medical Leave Act and similar state laws.

EBSA Provides Additional Guidance Regarding the Patient Protection and Affordable Care Act, the Mental Health Parity and Addiction Equity Act and the Health Insurance Portability and Accountability Act

The U.S. Department of Labor’s Employee Benefits Security Administration (“EBSA”) recently provided additional guidance on its website regarding implementation of provisions of the Patient Protection and Affordable Care Act (PPACA), implementation of the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This guidance, which is provided in the form of Frequently Asked Questions and responses, was prepared jointly by the Departments of Health and Human Services, Labor and the Treasury.