not bear substantially on his or her abil-ity to do the job in question. However,an employee may be terminated ordenied a job if the criminal convictionbears on the employee’s ability to per-form the job at issue.New Jersey’s Division of CivilRights also has taken the position thatemployers who inquire about the num-ber and kinds of arrests of an applicantengage in wrongful discrimination inviolation of the Law AgainstDiscrimination, because an arrest is notan indication of guilt or ability to per-form a job and screening out applicantson that basis may have a disparateimpact on minorities. In Pennsylvania,the Criminal History RecordInformation Act, 24 P.S. §1-111, andrelevant case law, require that employ-ers limit consideration of such recordsto convictions that relate to the employ-ee’s suitability for employment in theposition at issue; terminations basedsolely on the fact of arrest are prohibit-ed. See
Cisco v. United Parcel Services, Inc.
, 328 Pa. Super. 300, 476 A.2d 1340(1984).
• Update the employee handbook.
Every human resources profession-al and employer has had the experienceof wishing his or her company’semployee handbook had an explicitprovision to cover a recurring situationin the workplace. Employment counselbest serve their clients and their clients’employees by recommending and over-seeing periodic updates of employeehandbooks to include such situationsbefore or after they occur, as well asprovisions for new changes in the law.This is an inexpensive and cost-effec-tive way to serve your clients by help-ing them avoid future headaches, andhas the added benefit of cementing yourbond as their proactive employmentcounsel.Many employers have yet to catchup with the requirements of the 1993Family and Medical Leave Act, 29U.S.C. 2601 et seq., and the duty toaccommodate and avoid questionsabout pre-employment disabilitiesunder the Americans with DisabilitiesAct, 42 U.S.C. 12101 et seq.
• Consider a binding arbitrationclause.
Many employers, wanting to avoidthe unpredictability of lawsuits and jurytrials, require their new hires or jobapplicants to sign agreements to arbi-trate any dispute that arises out of theemployment relationship. These can beincorporated in job application forms,employee handbooks and employmentagreements — but lawyers must reviewsuch clauses to ensure the courts willenforce them.Under both state and federal law,the arbitration clause must allow for afair and impartial process that is notunduly burdensome to the employee.New Jersey employers also are requiredto ensure that the arbitration clause isunambiguous in obligating the employ-ee to arbitrate the claim at issue. TheN.J. Supreme Court has held that anarbitration clause or agreement, to beenforceable, should put the employeeon notice that he or she is agreeing toarbitrate “all statutory claims arisingout of the employment relationship orits termination,” as well as any othertypes of claims the employer intends tocover.The employee also should be madeaware, via the arbitration clause, thatother options exist, such as federal andstate courts and administrative reme-dies, and that the employee is waivingsuch remedies by agreeing to arbitratehis or her matter. See
Garfinkel v. Morristown Obstetrics & Gynecology Assocs.
, 168 N.J. 124 (2001).
• Noncompete agreements 1 — get yours.
Counsel who advise employers hir-ing new sales and marketing personnel,executives, researchers or others towhom trade secrets or client relation-ships may be entrusted, should remindtheir clients that the best time toimpose, negotiate and obtain restrictivecovenants is during the hiring process.In drafting noncompete agree-ments, however, counsel need to becareful not to “overreach.” TheSupreme Court of New Jersey is expect-ed to decide this year the case of
Maw v. Advanced Clinical Communications, Inc.
, which could rewrite the law of noncompete agreements in New Jersey.Under the Appellate Division’s 2003decision in the case, an employee couldhave a claim of wrongful discharge inviolation of the ConscientiousEmployee Protection Act if he or shewas terminated for refusing to sign anoverly broad and unenforceable non-compete agreement.Employers are hopeful that theSupreme Court will reverse or narrowthe Appellate Division’s
Maw
ruling. Inthe meantime, counsel should ensurethat each restrictive covenant imposedon an employee is appropriately tai-lored to protect the employer’s legiti-mate business interests.In Pennsylvania, state law providesthat the time of hire provides adequateconsideration for noncompete agree-ments, but that an employer cannotimpose such a covenant midwaythrough the employment relationship,unless substantial “additional consider-ation” is given to the employee. Suchnew consideration can include a payraise, a promotion or a substantialincrease in benefits.
• Noncompete agreements 2 —check theirs.
The flip side of this issue is thatcounsel advising on employment issuesneed to warn their clients to take stepsto ensure that new hires will not be vio-lating restrictive covenants with formeremployees. The best way to check thisis to discuss the issue with candidatesahead of time, and include in the offerletter or employment agreement a state-
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MARCH 29, 2004
175 N.J.L.J. 1350
The USA Patriot Act requires that all persons who have accessto restricted biological agents and toxins must provide back-ground information that includes criminal records.
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