Labor and Employment Update - Winter 2006

STATE LAWS GIVE ILLEGAL ALIENS A RIGHT TO LOST WAGES

The Immigration Reform and Control Act of 1986 (“IRCA”) places an affirmative duty on employers to determine their employees’ immigration status. Courts have concluded that an employer’s failure to investigate suspicious circumstances regarding an employee’s ability to work in the United States would be treated as if the employer had constructive knowledge that a worker is unauthorized.

The other side of this issue is the illegal immigrants’ right to protection under state employment laws. For example, in some states, if the employer fails to fulfill the affirmative duty and employs an illegal alien, in cases of work-related injuries, the employer would be liable to the illegal alien for lost wages.

The Supreme Court’s decision in Hoffman Plastic Compounds v. National Labor Relations Board has been instrumental in creating an uncertainty with regard to illegal aliens’ rights to recover lost wages. In Hoffman, the Supreme Court held that federal immigration policy foreclosed the NLRB from awarding back-pay to an undocumented alien who has never been legally authorized to work in the United States.

States have had varied responses to the decision in Hoffman. Some states have passed statutes that afford the illegal alien identical protection to those available to U.S. citizens, while in other states undocumented workers get lost wages only if they can show that the employer had knowledge or should have known that the worker was undocumented.

The Commonwealth Court of Pennsylvania recently held that undocumented workers were not precluded from receiving workers’ compensation benefits. In Reinforced Earth Co. v. WCAB, the issue was whether Juan Carlos S. Astudillo, the Claimant – – an undocumented worker – – was entitled to lost wages for a work-related injury. The employer argued that since the IRCA barred the employment of illegal aliens, the Claimant was not an employee and, therefore, not entitled to lost wages. The court dismissed this argument and held that IRCA was enacted to prohibit employers from hiring undocumented workers and that public policy demanded that illegal aliens should not be denied protection merely because of their immigration status.

New Jersey also gives illegal aliens protection, in cases of job related injuries. In Mendonza v. Monmouth Recycling Corporation, the court concluded that an illegal alien who suffered a work related injury was entitled to workers’ compensation benefits. The court reasoned that the effect on a worker of his injury was not influenced by his citizenship or immigration status, and that providing an employer with immunity from payment of compensation to illegal aliens would provide a disincentive to assure workplace safety.

It is important to note that in New Jersey, while the illegal alien is entitled to workers’ compensation benefits for work-related injuries, he/she is not entitled to unemployment compensation. The court in Mendoza drew a distinction between unemployment compensation and workers’ compensation benefits. The court observed that an illegal alien was not entitled to unemployment compensation because the eligibility of an employee for unemployment compensation depends on whether the employee is available for work. An illegal alien is not available for work, as the law prohibits an illegal alien from accepting a new job. On the other hand, the court observed that the crux of the workers’ compensation system is the compensation of a worker who is already injured on the job both for the time lost from work because of the injury and for the disabling effect of the injury on future earnings.

THIRD CIRCUIT RECOGNIZES “RETALIATORY HARASSMENT” CLAIM

On January 31, 2006, in an opinion written by Judge Samuel A. Alito, Jr. (shortly before his elevation to the United States Supreme Court), the Third Circuit ruled that a plaintiff who alleged that she was subject to “retaliatory harassment” from coworkers following her filing of a complaint did state a claim under Title VII of the Civil Rights Act of 1964.

Anna Jensen, the plaintiff, was a letter carrier working for the U.S. Postal Service in Pennsylvania. Ms. Jensen claimed that her supervisor, Carl Waters, called her from his home while she was working, made clear that he was intoxicated and implored her to come to his house so that he could “make love to her all day long.” Ms. Jensen reported the incident to her branch manager, Chris Moss. After an investigation of the claims, Mr. Waters was terminated.

Following the termination, however, Ms. Jensen was subjected to a series of comments and threatening behavior from coworkers who were upset by the termination of Mr. Waters. One coworker, in particular, Joe Sickler, referred to Ms. Jensen as “the [obscenity] who got Waters in trouble.” Mr. Sickler was overheard proposing a petition to bring Mr. Waters back. On one occasion, he crept up behind Ms. Jensen and clapped two objects together. Another coworker, who had previously been friendly to Ms. Jensen, began threatening her by driving U-Carts towards her at a rapid pace. He told Ms. Jensen that he disagreed with the decision to terminate Mr. Waters. Months later, her car was repeatedly vandalized in the parking lot. The comments and threatening behavior continued for a period of 19 months.

Ms. Jensen reported the behavior to Mr. Moss. Mr. Moss claimed that he did speak to Mr. Sickler about the comments, but he refused to move her from the work area where the behavior was occurring. The record showed that the behavior did not stop until Ms. Jensen complained to a new supervisor, who confronted Mr. Sickler formally, with the union present. Following this confrontation, the behavior stopped.

On these facts, the lower court had granted summary judgment to the employer, holding that coworker harassment did not state claim under the statute’s “retaliation” provision. The Third Circuit reversed, holding that a retaliation claim predicated upon a hostile work environment is cognizable under the statute. Noting that there is a split in the Circuits, the Third Circuit adopted what it termed the “majority” rule, holding that a claim for retaliatory harassment will lie where the harassment is the result of the plaintiff’s protected activity, where it is severe or pervasive, and where the employer fails to take remedial action to stop the harassment.

Here, although the employer’s actions in confronting the coworker were ultimately effective, the court held that 19 months was far too long to have let the situation go unremediated. In making its ruling, the Third Circuit (following the lead of the 1st, 4th and 9th Circuits) cautioned, however, against construing the coworker retaliatory harassment claim too broadly. The Third Circuit noted that a complaint of discrimination/harassment in the workplace will often create tensions between coworkers, including supporters/friends of the accused. Coworkers are not required to be “friends” with the accuser and nor should they be prevented from expressing their “support” for the accused. What is not permitted, however, is harassment of the accuser.

This case reveals a situation where the employer might have thought that the problem was “solved” once they terminated Mr. Waters, the alleged harasser. The case serves as an important reminder that employers must be equally vigilant in ensuring that employees are not subjected to post-complaint retaliation – including retaliation in the form of “harassment” from coworkers.

NEW JERSEY EMPLOYERS MAY BE LIABLE TO THIRD PARTIES FOR FAILURE TO INVESTIGATE AND RESPOND TO EMPLOYEE CONDUCT

The New Jersey Appellate Court has recently created a new affirmative obligation for New Jersey employers with actual or constructive knowledge that an employee may be committing a crime in the work place. In Doe v. XYC Corp., the court found that “an employer who is on notice that one of its employees is using a work place computer to access pornography, possibly child pornography, has a duty to investigate the employee’s activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third parties.”

In the Doe case, the company had information that one of its employees had been accessing internet pornography sites at work for a number of years. Although, like many companies, the employer had a policy which authorized it to monitor employee computer activity, the company had not properly investigated whether the particular employee was, in fact, accessing child pornography sites. In June of 2001, using his work computer the employee transmitted photographs he had taken of his 10 year old stepdaughter over the internet to a child porn site in order to gain access to the site. The child’s mother brought a claim seeking to hold her husband’s employer liable for his work place conduct. The court was asked to consider whether an employer could be held negligent in its handling of such a situation.

The appellate court stated that in order to analyze the plaintiff’s negligence claim the following issues had to be addressed:

“(1) Whether…[the employer] had the ability to monitor Employee’s use of the Internet on his office computer; (2) assuming…[the employer] had the ability to do so, whether it had the right to monitor Employee’s activities; (3) whether…[the employer] knew or should have known, that Employee was using the office computer to access child pornography; (4) whether…[the employer] had a duty to act or prevent Employee from continuing his activities; and (5) whether any failure to act on the part of the…[employer] … proximately caused harm [to a third party]…”

As a practical matter, this decision may have far reaching implications. Employers should be forewarned that policies permitting a company to monitor employee activity – be its computer activity or other activity — must be strictly enforced. Under the court’s reasoning in Doe, when an activity could have been detected it is likely the court will find the employer “should have” known about the conduct. To the extent that any potentially dangerous activity occurs on the employer’s premises or by use of the employer’s property, arguably the employer will have an obligation to act to “control and prevent its employee from harming others.” Although the court’s ruling is an isolated one, the broad language may create significant changes in employer responsibility.

The court found the company had the capability and the right to monitor employee computer activity. The court also found, based on the employee’s history, that the company knew, or at least should have known, he was using his office computer to access child pornography. The court held that the company had a “duty” to act in these circumstances because an employer generally has a duty to control and prevent its employees from harming others. Even where conduct occurs that is “outside the scope of employment” the employer’s obligation to act will be triggered where the conduct occurs on the employer’s premises or by use of its property.

The Labor and Employment Group represents and counsels employers in all aspects of the employment relationship, including EEO litigation, union avoidance, negotiations, arbitrations, executive compensation, corporate transactions, and non-competition/non-solicitation agreements, as well as compliance with federal and state laws such as the Family and Medical Leave Act, the Americans with Disabilities Act, the Health Insurance Portability and Accountability Act, the Fair Labor Standards Act and the Occupational Safety and Health Act. This document is published for the purpose of informing clients and friends of Klehr Harrison about developments in the areas of labor, employment and benefits, and should not be construed as providing legal advice on any specific matter. For more information about this publication or Klehr Harrison, contact Charles A. Ercole, Chair of the Labor and Employment Group, at (215) 569-4282 or visit the firm’s Web site at www.klehr.com