Capehart Scatchard Attorneys Recognized as Super Lawyers

Capehart Scatchard is pleased to announce that the following shareholders have recently been named “Super Lawyers” as voted by their peers and facilitated by Law & Politics and New Jersey Monthly:  John Geaney (Workers’ Compensation), Amy  Goldstein (Family Law), Lora Northen (Workers’ Compensation), and Betsy Ramos (Business Litigation).  Fewer than 5% of lawyers are named as Super Lawyers.

Additionally, Jessica Anderson (Civil Litigation: Defense), Ana-Eliza Bauersachs (Workers’ Compensation), Michael Bileci (Workers’ Compensation), Michelle Duffield (Workers’ Compensation), Kelly Grant (Land Use/Zoning), Melissa Mignogna (Family Law), Laurel Peltzman (Employment Litigation: Defense),  Daniel Robinson (Workers’ Compensation), Samantha Vander Wielen (Business/Corporate) and Ian Zolty (Workers’ Compensation) were selected as “New Jersey Rising Stars” for 2016

The Legal Importance of the Interactive Process

By: Ralph R. Smith, 3rd

One of the most important duties that is imposed by anti-disability discrimination laws is the obligation to accommodate the disabled employee in performing the essential job duties of a desired employment position.  As part of that obligation, both federal and New Jersey state law impose a duty upon the employer to engage in an interactive dialogue process after an employee requests an accommodation as part of the required effort to work towards finding a suitable accommodation.  One of the areas where employers get in the most trouble in complying with anti-disability discrimination requirements is in failing to adequately engage in this required interactive process.

A recent case from the federal court in Philadelphia demonstrates the potential legal pitfalls in not taking the required interactive process duty seriously.  In Lindsey v. St. Mary Med. Ctr., 2016 U.S. Dist. LEXIS 29180 (E.D. Pa. Mar. 7, 2016) a former employee of the defendant was able to survive the dismissal of her disability discrimination claim under the Americans with Disabilities Act (“ADA”) largely due to the fact that the employer did not meaningfully engage in the required interactive process after the plaintiff had requested an accommodation for her disability.

In Lindsey, the plaintiff formerly worked as an ultrasound technician at the defendant hospital. Due to back problems, the plaintiff was forced to take a medical leave under the Family and Medical Leave Act. (“FMLA”).  Approximately a week before her FMLA was set to expire, the plaintiff advised her employer that she could not come back at the expiration of her leave to her former position without the making of an accommodation limiting the number of patient tests she performed on a given work day.  The employer never responded to the request for an accommodation while plaintiff was on her FMLA leave. Instead, it waited until after the FMLA leave ran out, and after the plaintiff’s job position was eliminated, to inform plaintiff that her accommodation request was being denied.  Eventually, plaintiff was rehired after her firing for failing to return once her FMLA leave had expired.  Plaintiff was hired into one of the two part time technician positions that was created ironically from the elimination of plaintiff’s original technician position. Plaintiff subsequently injured her back once again and could not even work light duty jobs, which led to her second employment termination.

Plaintiff brought suit claiming that her firing violated the ADA. She also claimed that, upon her return to work in her part time position, she was subject to ridicule and retaliation for exercising her legal right to take a needed medical leave and request a workplace accommodation.  The employer sought a summary judgment dismissal of the claims, which was ultimately denied by the court.  In finding that the plaintiff had offered enough evidence of possible discrimination to have her case heard by a jury at trial, the court noted that a major reason for denying the application for dismissal was because of the employer’s failure to engage in any meaningful dialogue in attempting to reasonably accommodate plaintiff’s back issues before she was fired the first time.

The Lindsey case illustrates the dangers that can arise if an employer ignores a disabled employee’s request for a workplace accommodation.  Rather than ignoring such a request as the employer did in Lindsey, it is important that there be meaningful employer participation in the interactive process in a reasonable effort to try and work with the disabled employee towards finding an accommodation.  Had the employer in Lindsey done that, maybe the results could have been different.  The employer had a legitimate reason for denying the requested accommodation, that its operations could not support a reduced amount of patient tests by the plaintiff.  However, that is only part of the interactive process.  Had the employer considered other options, maybe the result in being unable to accommodate the plaintiff would have been the same.  But, by getting to that end point through engaging in an inactive process with the employee, the employer would have satisfied its legal duties and created a strong defense to any subsequent ADA claim.

Therefore, always remember the importance of the interactive process whenever a workplace accommodation request is raised by an employee in your workplace. Engage in that process in good faith, and always document your efforts as part of the process to establish a written history of your efforts in case any subsequent litigation ensues.

Township Found Not Liable for Fatality Caused by Falling Tree Limb from Tree on Township’s Right-of-Way

By: Betsy G. Ramos

Tragically, James Connor was killed when he was clearing snow from his driveway and a 25 foot tree limb from a Bradford Pear tree fell on him, killing him instantly. The tree was located in the right-of-way owned and controlled by the Township of East Brunswick. In Connor v. Township of East Brunswick, 2016 N.J. Super. Unpub. LEXIS 921 (App. Div. April 20, 2016), the plaintiff Michael Connor (the Executor of the Estate of James Connor) sued the Township for this fatality. He claimed that the Township was not immune from liability under either the Tort Claims Act or the Shade Tree Commission Act, had actual or constructive notice of the dangerous condition of this tree and, thus, should be liable for the fatal injury inflicted by the tree’s limb to the decedent James Connor.

Bradford Pear trees had been planted by municipalities in the 1980’s and early 1990’s for shade. However, they turned out to have a genetic flaw which caused them to split apart. As a result, their mature tree branches would stress and break off from their trunk, risking serious or fatal injury to people nearby.

Sometime after the trees had been planted but, before this accident, the Township learned of this defect. The Township’s trees were maintained under its shade tree program managed by its Recreation Department. The program was fully compliant with the requirements set forth in the New Jersey Shade Tree and Community Forestry Assistance Act (“Community Forestry Act”).

The defendant Township filed a motion for summary judgment. The trial court judge found that the Township was immune from liability as a volunteer participant in a community forestry program and, therefore, was immune from liability under the Tort Claims Act provision, N.J.S.A. 59:4-10(shade tree commission immunity). The judge also concluded that the Township was immune under the Tort Claim Act’s provision, N.J.S.A. 59:2-3(a) and (d)(immunities for discretionary activities).

The Appellate Division disagreed that the Township would be immune under N.J.S.A. 40:64-14, as a volunteer participating in the Community Forestry Program, or have immunity under N.J.S.A. 59:4-10 (immunity provided to a shade tree commission or a member of the shade tree commission).

In reviewing the Community Forestry Program statute, the Appellate Division concluded that the Township did not qualify as a “volunteer.” It found that the Township is a municipal governing body, not a person providing volunteer services. Likewise, the court found that the Township was not immune under the Tort Claims Act, N.J.S.A. 59:4-10. It was not a shade tree commission, member of a shade tree commission or volunteer participating in a community forestry program. This provision in the Tort Claims Act did not provide immunity to the local government.

Next, the plaintiff argued that the Township also had no immunity under the Tort Claim Act provision, N.J.S.A. 59:4-2 (dangerous condition of public property) because the Township was aware of the inherent dangerous condition posed by the Bradford Pear trees and was negligent in not removing the tree before the branch caused the Connor fatality. The Plaintiff contended that this knowledge met the notice requirement under the Tort Claims Act. Plaintiff further argued that the question whether the Township’s decision not to remove the tree was “palpably unreasonable” was a fact sensitive inquiry which should have been decided by a jury.

The Appellate Division noted that there was nothing in the record to indicate that this particular tree was in a dangerous state. The Township did have a proactive program in which it conducted yearly inspections and removed hazardous or dead trees. Plaintiff’s contention, however, was that because the Township knew that the Bradford Pear trees had inherent dangers, it should have removed all of them.

The Court found that this contention was unreasonable and refused to find that this knowledge created constructive notice on the part of the Township. Further, the Appellate Division held that, even assuming that the Plaintiff could establish notice, it still had to establish that the Township’s action or inaction as to the tree was “palpably unreasonable.”

The Court noted that “palpably unreasonable” had been defined as “behavior that is patently unacceptable under any given circumstances.” It further found that palpably unreasonable conduct “implies a more obvious and manifest breach of duty than negligence.”

Here, the Township did have a yearly inspection program for its trees, which was a discretionary activity. With the Township’s limited resources, the Appellate Division held that it was not within their power to impose an “ideal” tree inspection program on the Township. There was no reported problem either with this tree or any tree in this neighborhood. The Court found that the Township’s program was not unreasonable. Hence, it concluded that no rational factfinder could find that the Township was palpably unreasonable for its failure to remove this tree which caused the decedent Connor’s death. Thus, it upheld the trial court’s dismissal of this matter.

Regulatory, Reputational and Techno-Legal Considerations Facing Employers and Government in the Smartphone Era

By: Vincent T. Cieslik, Esq. and Samantha J. Vander Wielen, Esq.

Over the past few months, a struggle for control over smart phone technology has emerged in federal courts in both New York and California.  In the midst of investigations into the San Bernardino mass shooting and in a drug case in New York, a new legal battle has erupted over the lengths the government may go to in compelling a private company, in this case Apple, to assist it in cracking a smart phone device to further a criminal investigation being conducted by the government.  Curiously, in the New York case Apple initially assisted the government in its investigation but only after the Magistrate Judge raised his own concerns, and solicited feedback from Apple, did Apple then vigorously oppose the Government’s request for “i-access” to the smart phone of a criminal.

For those of who read “Steve Jobs” by Walter Isaacson or saw the movie starring Michael Fassbender and Kate Winslet, you can easily imagine the fun Jobs would have had taking on the federal government, had he been alive and still at the helm of Apple.  Going off on a tangent here, but the book was fantastic and Isaacson provides incredible insight into Steve Jobs the man, providing the good, the bad and the ugly regarding Apple’s co-founder.  The movie was also fairly compelling, in a sort of action-drama style format where Job’s rants and idiosyncratic character traits (and flaws) were on full display.

But Apple now has its own new place in legal history, beyond literature and cinema, in a courtroom drama that has played out in federal courts across the country.  Ironically, flashy and interesting characters are not the subject of this legal drama, which instead has required the courts in New York and California to focus on an arcane statute, the All Writs Act — a 227 year-old law passed by our Founding Fathers.  The ancient All Writs Act was intended to assist the courts as a gap filler when no other federal statute applied – which now stage front stage with very current technological and legal issues which private sector American businesses may have never considered before.  Before iOS 8, the operating system which was introduced by Apple in 2014, Apple was able to extract important iPhone data and provide it to government officials in the course of their criminal investigations.  Apple and other providers routinely assisted the state or federal governments by providing access to their telephone technology and smart phones to assit the flow of information necessary to criminal investigations.  Following the introduction of iOS 8 in 2014, and the subsequent release of iOS 9, Apple claims it is no longer able to extract that same data because the data is now encrypted with a password protected 4-digit code that is selected by the user or operator of the iPhone itself.  Since Apple no longer has access to what a user’s 4-digit code is, only the user has access to the phone and its encrypted data.  Unless an employer had adopted a policy which required the employee to register login information with the company (which is often not the case prior to today), the investigators cannot break into a smart phone without the technology giant’s assistance.

For example, the San Bernandino investigation was hampered by the fact that the San Bernardino County technology team conducted an auto reset of the password to the phone in an attempt to gain access to information.  In the process, they eliminated the possibility of performing an iCloud backup of the iPhone.  Had the phone been taken to a location where it recognized the Wi-Fi network, like the alleged shooter’s home, it could have been backed up to iCloud and far more information could have been accessed at that time.  Thus, by re-setting the password before it was backed up, the investigation was limited in what it could search without the intervention and assistance by Apple following the iOS 9 software implementation.  Without Apple’s assistance to create a “back door” to the software, the investigation would be limited.  In addition to this miscue by the County, which may or may not have been at the investigator’s request, it is possible that the owner had disabled the auto back up function on the phone in an effort to avoid the iCloud backup function to hide evidence of the crime.  An employee’s ability to control his or her own encrypted data and iPhone raises several issues for public and private employers.

First, what types of protocols should public or private employers require for regular backups and password registrations?  While employees of public and private employers often take their smartphones with them wherever they go, who has the responsibility for regularly backing up the device to ensure that data is not lost?  As a business owner, do you know who owns or control the encrypted data contained on an iPhone you provide to an employee or, alternatively, an iPhone for which your company pays the monthly bill?  Does your employee handbook address such ownership issues? Had the County required a regular backup of the iPhone, this situation may not have occurred, as the information may have already been stored by the County, who owned the iPhone device.   Alternatively, had the County required that employees use a County-issued Apple username ID and password, the County would have been able to easily access much of the information it sought without destroying the phone or its data.

Second, the County was forced to auto reset the password.  Does this mean the County did not have the County employee’s password?  If it had the employee’s password, could it have avoided the auto reset procedure?  If not, why not?  Should public and/or private employers require their employees to register their passwords or only be able to use passwords that are provided and set by the employer?  As an employer, do you address this with your employees?  Do you have written rules regarding use of your employer-issued device?

Third, where is the line between public and private use of a smartphone given to a public employee?  Does the public use mean that the smartphone is subject to review, inspection, and evaluation by the county or public agency’s technology team?  Practically speaking, a phone is not like a government or corporate-issued vehicle, where the “rules of the road” can be clearly delineated and company versus personal use can be easily defined.  This may be reason for an employer to ban the use of a company or employer-issued smartphone for personal use, thus forcing employees to obtain a second, personal iPhone or other smartphone device for non-work related communications.

Fourth, considering public agencies and governments serve the public and public interests, do these public entities bear different responsibilities for evaluating the use of their smart phones to police usage that could potentially be criminal?  What protections should public or private employers have in place for security, passwords, usage, etc. which can provide safeguards against use for wrongful and criminal enterprises?
Further, for companies that are involved in information technology, where is the line between protection of the company’s brand, its software products, and its reputation for protecting consumers from theft and intrusion versus its obligation as a good citizen to assist the government in investigating serious crimes such as mass shootings and drug distribution?  It appears that Apple assisted the government on many similar requests for access to stored information and/or back up on iPhones for years prior to this current dispute.  Apple noted recently that it has received many more requests from government to assist with discovery into its smartphones since the New York and San Bernardino issues came to light, illustrating its concern that its business interests in protecting its consumers’ information puts it on a collision course with these criminal investigations.

Finally, should employers enact new provisions for their employment handbooks to cover these policies, and enforcement of them?  If anything, employers and businesses should make it as clear as possible who owns the company or employer-issued iPhone, as well as its password, data and encrypted information. Public and private employers alike should consider these issues, and their impact on the current business and operations.  Changes may need to be made to corporate policies and procedures, and to handbook technology and privacy provisions, to keep track with fast changing technology and times.

As you may have read, the FBI recently announced that it was able to access the alleged San Bernardino shooter’s iPhone without Apple’s assistance.  Instead, the FBI was assisted by an undisclosed third party company.  Despite having been able to unlock the iPhone at issue in California, the United States Department of Justice is pushing forward in its demands that Apple and other smart phone makers assist it in unlocking phones linked to criminal conduct.  So, the battle is not over.  In fact, it may have just begun.  As we continue to see legal battles play out across the country, we will see issues of national security, privacy, and the government’s role in each be at the forefront of the conversation.  In the meantime, you should consider the issues that are raised by the access, or lack thereof, you may or may not have to your employees’ iPhone or other devices and devise a plan to address what you would do if faced with the need to unlock one in case of emergency, investigation, or even national security.

Amy Goldstein Participates in Family Law Seminar

On March 16, 2016, Amy Goldstein participated in a Panel Discussion at the Annual Seminar presented by the New Jersey Chapter of the American Academy of Matrimonial Lawyers entitled “Handling Financial Issues for Moderate and High Net Worth Clients.” The focus of the seminar was the detailed evaluation of personal and business income tax returns and other financial records for use during depositions and trial.

Amy Goldstein was recently named in the Best Lawyers’ Business Edition for 2016 which was subtitled  “Women in the Law” for her expertise in the area of Family Law. Ms. Goldstein was the only woman in South Jersey to receive this honor. Ms. Goldstein will be sworn in as President of the  New Jersey Chapter of the American Academy of Matrimonial Lawyers on June 11, 2016. She frequently lectures and writes on issues relating to family law. Her full biography can be found in Attorneys Section of the Capehart Scatchard Website.

Capehart Scatchard Runs for the Kids

2016 CASA RUNCapehart Scatchard employees and their family members participated on April 23, 2016 in the CASA Kids Superhero 5K Run.  The firm raised over $1,200 for CASA and was commended for giving the most for the past two years in a row for the CASA run. The event was held to raise money for the Mercer and Burlington Counties affiliate board of CASA (Court Appointed Special Advocates) for children.   CASA is an independent, non-profit organization committed to speaking up for the best interests of abused and neglected children

Recent Win: Fitzgerald v. Walmart

Appeal Argued by Lora V. Northen, Esq.
Briefed by Andrea L. Schlafer, Esq.

Just because an incident occurs at work does not mean that it is compensable.  In fact, there are many health issues that manifest during work that are not necessarily caused by work.  In Fitzgerald v. Walmart, the Appellate Division recently affirmed the decision of the trail court finding the petitioner’s claim to be unrelated to work.

Ms. Fitzgerald, a zone merchandising supervisor at Walmart, filed a claim petition alleging that on April 26, 2010 she was walking down a store aisle when she felt a “pop” in her back.  This “pop” accompanied severe pain radiating down her legs.  Although she testified at trial that she was only walking at the time of the incident, she also testified that prior to the incident she was doing some lifting at work.

The petitioner reported the injury to her manager, but did not fill out an accident report as she believed the pain would subside. She returned to work the following day, but left early to see her family doctor when the pain became more severe and her leg gave out.

Ms. Fitzgerald then took FMLA leave for 12 weeks.  During this period an MRI was performed that showed multiple disc protrusions in the lumbar spine.  She was also treated by a chiropractor.  Ms. Fitzgerald returned to work following her FMLA leave but her pain did not subside.  In June of 2011 she sought additional medical treatment when her back pain increased following a coughing spell.  She subsequently took a second leave of absence and received additional treatment including epidural injections.  Three months later in September of 2011 Ms. Fitzgerald was involved in a non-work-related slip-and-fall that required a third leave of absence.  She did not return to work following the leave of absence and her employment was terminated.  Despite her termination she continued receiving medical treatment through December of 2013.

Ms. Fitzgerald filed a pair of Claim Petitions.  In the first, she claimed that a traumatic accident occurred on April 26, 2010.  In the second, she claimed her injuries were the result of occupational exposures from December of 2008 through April of 2010.

In December of 2013 Ms. Fitzgerald filed a motion for medical and temporary benefits.  The ensuing trial centered on the issue of causation.  Ms. Fitzgerald’s motion was supported by her own testimony as well as the testimony of her medical and psychiatric experts.  Respondent relied upon the expert testimony of its orthopedic expert as well as the report of its psychiatrist.  After weighing the evidence at trial the Judge of Compensation dismissed both claim petitions.  Ms. Fitzgerald appealed the decision.  The Appellate Division affirmed the dismissal of both cases citing the requirement that petitioner prove her injury would not have occurred but for her employment.

In affirming the decision, the Appellate Division concluded that ‘[t]he facts here do not establish that the petitioner would not have been exposed to the risk if she had not been at work.’  The decision also noted that the appellate court must give ‘due regard to the opportunity of the one who heard the witnesses to judge of their credibility’ and owes deference to the judge’s expertise in workers’ compensation issues.

Recent Win: Lesley Joseph v. Monmouth County

Client: Monmouth County

Appeal Argued by Carla P. Aldarelli

Recently, in Joseph v. Monmouth County, A-4144-13T3 (App. Div. December 14, 2015), the Supreme Court of New Jersey denied certification of the Appellate Division’s affirmation of the trial court’s dismissal of this case.

Lesley Joseph, a nursing supervisor, worked at a nursing home owned by Monmouth County.  On June 9, 2011, Mr. Joseph was resting in the break room when his female assistant attacked him with a hammer, causing multiple injuries and cuts to his face and head.  Police and paramedics responded and took Joseph to the hospital.  Joseph filed a workers’ compensation claim.  Following an investigation the County questioned the compensability of the claim based upon the circumstances surrounding the attack.

Through its investigation, the County learned that Joseph had become involved in a pyramid scheme run by his assistant.  This scheme, called a “susu,” required an investment in which participants put money into a pot and then took turns sharing the amounts collected.  An example was provided where 20 employees would contribute $100 each week, then over the course of 20 pay periods, each employee would take turns collecting $2,000 during his or her assigned week.  No interest was paid.

Joseph participated in the pyramid scheme on three occasions.  He never collected any funds.  Trouble began when Joseph became concerned that his assistant said she had an upcoming wedding.  On June 9, 2011, Joseph approached his assistant to discuss her shift, however, he then told her that everyone in the “susu” was upset because people in the pool who were supposed to be paid the week prior had not yet been paid.  The assistant admitted that she used some of the “susu” money.  Shortly thereafter the assistant attacked petitioner and eventually pleaded guilty to aggravated assault with a deadly weapon.

The Honorable Lionel Simon III, Supervising Judge of Compensation, Monmouth Vicinage, held that the confrontation between the two employees did not arise from work but rather from the fact that Joseph felt he was not going to be paid from the “susu” on time.  Judge Simon further found that there was no nexus with work. The mere fact that the attack happened at work was not sufficient to establish coverage as it did not arise from work activities. Petitioner appealed the dismissal of his case.

In affirming the Judge of Compensation, The Appellate Court wrote, “Assuming there was no prohibition against sleeping in the break room, petitioner’s claim still could not be sustained because its origins were only related to his involvement in the susu scheme, a personal connection to the assistant that resulted in injuries for reasons wholly unrelated to their employment.”  The Court said that the attack arose from personal motivation and was not attributable to a risk of employment.  “Had petitioner not been a participant in his assistant’s susu, the attack would not have occurred. Once he became involved and questioned his assistant about the ‘invested’ money, he was attacked at a location that just happened to be their place of employment.”

The petitioner argued that work brought the two employees together and created the conditions that resulted in the confrontation.  However, the Judge of Compensation and the Appellate Division both noted that this was a case where the disagreement between the two employees arose from purely personal reasons unrelated to the work that they performed at the county nursing home.

Following the Appellate Division’s affirmation of this case, Joseph petitioned the New Jersey Supreme Court for certification.  The Supreme Court denied the Petition for Certification and assessed costs against Joseph.

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