By: Brandon C. Goldberg, Esq.

Harassment occurs when someone is made to feel intimidated, insulted or humiliated because of their race, religion, national origin, age, gender, disability, or some other personal characteristic specified under antidiscrimination legislation. Unlawful harassment can also occur if such behavior creates a hostile or intimidating work environment.

Harassment can include, but is not limited to, behavior such as: telling insulting jokes about particular racial groups; sending explicit or sexually suggestive emails; displaying offensive or pornographic posters or screen savers; making derogatory comments or taunts about someone's race or religion; and asking intrusive questions about someone's personal life.

Employers must be aware of their responsibility to ensure that the working environment or workplace culture is not racially or sexually "hostile". Potentially hostile working environments include where crude conversations, innuendo or offensive jokes are part of the accepted culture and where pornographic materials are displayed. An employee has the right to complain about the effects of a racially or sexually hostile working environment, even if the conduct in question was not specifically targeted at them.

In contrast to harassment in the workplace, legitimate comment and advice (even if negative) from managers and supervisors regarding the employee's or a group's work performance or work related behavior is perfectly appropriate.

If the charge nurse was motivated by race, religion, national origin, gender, etc. to act in a manner perceived by the employee as "harassing," then the charge nurse is "unlawfully harassing" the CNA. If, on the other hand, the charge nurse is blind to personal characteristics protected by law and is simply trying to do her job, however ineffective she might be, then her behavior is not harassment and is not unlawful.

If you have any questions regarding separating claims of harassment from legitimate management, you can contact Brandon Goldberg, Esq. at 609-454-5351 or bgoldberg@barmak.com. 

Matthew R. Streger, Esq., Counsel at the Law Offices Of David S. Barmak, LLC, will be a featured speaker at the 2013 New Jersey Statewide Conference on Emergency Medical Services (EMS) in Atlantic City, November 14 - 16th. Mr. Streger will be speaking on "The Ethical Dilemma: Ethics Outside the Box", "EMS Legal Mythbusters" and "Swimming with Sharks: A Litigation Primer". This conference is the largest symposium of EMS providers in New Jersey, and this year will focus on the response to Superstorm Sandy which impacted this area one year ago and resulted in the cancellation of last year's symposium.

Our law firm provides integrated regulatory, transactional, employment and litigation/advocacy services to healthcare organizations.

Representative Clients: 

Entities:  Skilled nursing facilities; Home health agencies; Hospice agencies; Hospitals.

Providers: Physicians; Therapists; Orthotists and Prosthetists

Suppliers:  Durable medical equipment; Long-term care pharmacies; Retail pharmacies.

Businesses: Billing; Management service organizations; Independent provider associations

Regulatory Issues: Corporate Compliance Programs (Fraud, waste & abuse; Privacy & Data Security; Employment); Healthcare facility; Licensed Professionals; Medicare & Medicaid (certification, survey and reimbursement); Auditing (legal; clinical; administrative; and reimbursement).

Transaction Issues: General Counsel Services; Contracts.
          
Employment Issues: Wage and hour; Equal employment opportunity; Discrimination; Whistle-blowing; Employment agreements; Severance packages; Employee release agreements, Non-compete agreements; Non-solicitation agreements; Confidentiality agreements, Employee leave issues, Electronic monitoring and employee privacy, Employee separation (suspensions, terminations and reductions in force); Documentation.

Litigation/Advocacy: Contracts; Employment; Fiduciary issues; Commercial leases; Payment (Managed Care Organizations; Medicare; Medicaid); Guardianship; Professional and facility licensing; Healthcare regulatory; Fraud and privacy issues.
  
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This newsletter has been prepared by the Law Offices Of David S. Barmak, LLC for informational purposes only and is not intended to provide legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

For more information, please contact:

David S. Barmak, Esq.

Telephone (609) 454-5351
Fax (609) 454-5361

www.barmak.com