By Louis Pashman, Esq.
In June of last year, the Appellate Division of the Superior Court issued what many considered a surprising decision. In Rodriguez v. Raymours Furniture Corporation, 436 N.J. Super 305 (App.Div. 2014) the court held that the two year statute of limitations for claims of retaliatory discharge and disability discrimination can be modified by agreement.
In August 2007 Mr. Rodriguez submitted an application for employment with Raymour & Flanigan. Just above the application signature line the applicant is advised to read the application carefully, that it will become part of his employment record. It went on to say, in all capital letters that “any claim or lawsuit relating to my service with Raymour & Flanigan must be filed no more than six (6) months after…the subject of the claim or lawsuit.” It specifically waived any contrary statute of limitations.
On April 5, 2010, Rodriguez was injured on the job. He returned to unrestricted duties on September 28, 2010. On October 1, 2010, he was laid off, along with 101 others, as part of a reduction in force. Rodriguez claimed retaliation for filing a workers’ compensation claim and discrimination because of his disability. He filed suit nine months after the alleged wrongful termination. His suit was dismissed because of the six month limitation.
The court thoroughly examined several legal issues involved. Among the more critical, the court determined:
- The application that created the six month limitation was a contract of adhesion, it was part of a non-negotiable form;
- The two year statute of limitations can be modified if the limitation period is reasonable and does not violate public policy;
- The provision was not unconscionable. It was set forth in large type, clearly, and Rodriguez was under no time pressure to sign (he took it home before signing). Therefore, notwithstanding that it was an adhesive provision, it was enforceable.
As I said at the outset, many were surprised at this result, but stay tuned, the New Jersey Supreme Court has agreed to review the decision.
By Eleanor Lipsky, Esq.
The National Labor Relations Board (“NLRB”) has recently ruled that when employers provide access to their email system to their employees, the employer may generally not ban non-work related emails.  Both union and non-union employees are entitled to use the system to engage in statutorily protected discussions during non-working time. This includes using company email systems for union organizing or any other activity protected by the National Labor Relations Act (“NLRA”). Further, an employer generally cannot impose a complete ban of non-business use of its email system, unless there are “special circumstances.” This NLRB decision overturns a previous ruling issued in 2007, which held an employer could ban all non-business email communications. The NLRB found that the previous decision undervalued employees’ rights under the NLRA to communicate in the workplace about the terms and conditions of their employment.
The NLRB decision has some limitations, however. The decision only applies to those employees who have already been granted email access in the course of their work. This means employers are not necessarily required to provide employees with email access. In addition, the NLRB decision upholds the right of employers to monitor computers and email systems for legitimate management reasons, such as preventing harassment or maintaining productivity. Also, although generally not permitted, an employer can impose a complete ban of non-work use of email if the employer can show “special circumstances” that make such a ban “necessary to maintain production or discipline.” However, this burden is very difficult for an employer to meet. The decision also does not restrict an employer’s right to prohibit non-work emails during “working time.” However, it is worth noting that the NLRB traditionally considers meal periods and work breaks as “nonworking time,” so an employer’s policy should reflect that view. The decision fails to address common complications that can arise in such situations. For example, even if an email is sent by someone during their nonworking time, that email is likely to be received by the recipient during their working time. Employers might find the realities of enforcing “working” versus “non-working” time difficult. An employer should also be careful to avoid circumstances where an employee could bring a potential legal challenge claiming that monitoring occurred in response to a protected activity, such as union organizing. All of this should be kept in mind when considering a stricter email policy.
 Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014).