Employment Law Update for Pennsylvania Litigators and New Jersey Employers
Date: February 25, 2016
Pennsylvania litigators are probably aware that a Chester County Judge has ruled that the Pennsylvania Wrongful Use of Civil Process (affectionately known as Dragonetti) Act is unconstitutional as applied to lawyers qua lawyer on the theory that it impinges on the sole right of the Pennsylvania Supreme Court to regulate lawyers. A second Chester County judge recently ruled likewise.
The first case was appealed to the Superior Court, which in a rarely used procedure, “referred” the case to the Supreme Court which that accepted the referral. Referral is not the equivalent of allocator and does not mean the Supreme Court will actually hear the case; only that it is considering doing so without prior Superior Court review.
A recent New Jersey Supreme Court case serves as a warning to all employers in every state of the need to not only have effective anti-harassment workplace policies but to assure adequate and continual training as to those policies for employees. Under both federal and most state laws, there exists what is known as the “Ellerth/Faragher” affirmative defense to charges of harassment. The defense is available to employers who maintain “meaningful and effective harassment policies and procedures for the employee to use in response to harassment.” [See Aguas v. State, 220 N.J. 522 92014)]
Where an employer maintains such polices and a complaining employee has not availed himself or herself of them, the employer can escape a claim of workplace harassment. In Dunkely v. S. Coraluzzo Petroleum Transporters, C-437 Sept. Term 2015, the New Jersey Supreme Court emphasized that such policies and procedures must be in place before the alleged harassment occurs for them to provide a defense. Employers also must understand that without periodic training and retraining (I suggest no less frequently than annually) they run the risk that their policies or procedures will not be found to be “effective” and thus remove availability of this defense.
Employers should consider an “employment law audit” so that they will know of any deficiencies in their employment policies or training.