If you are filing or thinking of filing a case against your employer indicating emotional distress due to harassment, beware of what you post on Facebook or MySpace.
Despite obvious issues with privacy concerns, a court in India has required employees claiming emotional distress in a sexual harassment case to provide any entries that the employees’ posted on their social networking sites (SNS), such as Facebook and MySpace, regarding their emotional state. EEOC v. Simply Storage Management LLC. (S.D. Ind.) Case No. 1:09-cv-1223.
While the content disclosed by an employee must be proven relevant to the case at hand, this decision is troubling for any employee pursuing a sexual harassment claim. In part, the court determined that “the appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for claimants . . . that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.”
While EEOC v. Simply Storage Management LLC is not binding law in New Jersey and Pennsylvania, it raises an important issue. If you are considering or currently pursuing a claim, be aware that your employer may attempt to gain access to your SNS content.
Most of us have seen the classic 1983 movie, “A Christmas Story,” about an eight year-old boy named Ralphie who desperately wants a BB Gun for Christmas. Not just any BB Gun, of course, but “an Official Red Ryder Carbine-Action Two-Hundred-Shot Range Model Air Rifle” BB Gun, with which both his mother and Santa Clause tell him he’ll shoot his eye out. Just like little Ralphie, most of us born before 1985 knew someone who owned a BB gun as a child.
For those of you born after 1985 (I’m dating myself here), your version of the BB gun came in the form of the paintball gun – a piece of equipment that uses carbon dioxide or compressed air to propel tiny, hardened balls of paint up to 200 miles per hour toward your intended target.
Regardless of the medium used, most of us think of these “guns” as toys – things that pre-teens and teenagers play with (though dedicated players and paintball organizations have turned the game into an intense and well-organized sport). Even romantic comedies like, “Failure to Launch,” starring Matthew McConaughey and Sarah Jessica Parker, are using paintball as a light-hearted game that is good for a few laughs.
Unfortunately, to the shock of most New Jersey residents – possession and/or use of paintball guns or BB guns can actually land you in jail. So if you are one of the many New Jersey residents who believe paintball and BB guns are “just toys”- think again.
The State of New Jersey takes possession of firearms very seriously and considers BB guns and paintball guns to be “firearms” under its Title 2C Criminal Code. The statute, N.J.S.A. 2C:39-1(f), reads in pertinent part:
Firearm means any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of similar nature in which the propelling force is as spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person.
As indicated in the statute, the State of New Jersey includes BB guns and paintball guns in its definition of “firearm” because their propelling force typically uses either carbon dioxide or compressed air, and they typically eject a bullet or missile smaller than three-eighths of an inch in diameter, with a force sufficient enough to injure a person.
In laymen’s terms, that means that if you are caught shooting a BB gun, or even a paintball gun, at another person or another person’s property, you could potentially be charged with Unlawful Possession of a Weapon and/or Possession of a Weapon with an Unlawful Purpose , in addition to a host of other crimes. Though the two weapons possession statutes sound almost identical, in actuality, they have different elements and therefore carry different penalties, both of which include a period of imprisonment. Furthermore, with respect to paintball guns, if you use the paintball gun in unlawful manner, or a manner not intended by its design (such as shooting it from a car), you could face additional, severe penalties, including jail time.
A special note to parents: just because your child is still a juvenile does not mean he or she cannot be sentenced to a custodial term at a juvenile detention center. Furthermore, depending on what else your child may be charged with, your child could be tried as an adult, thereby exposing him or her to a prison term in the adult prison.
If you or a loved one has been charged with possession of a weapon with an unlawful purpose, unlawful possession of a weapon, or any other weapons-related offense, it is crucial that you retain an attorney who has experience representing clients in this area of the law. Kamensky Cohen & Associates have been representing individuals charged with criminal offenses for over thirty (30) years. To schedule a free consultation with one of our associates, please call (609) 394-8585.
Kamensky Cohen has recently had a remarkable success in a legal claim against the American Boychoir School in Princeton New Jersey. Our client claimed that the former director of the school and other co-workers were involved in pedophilia in multiple instances.
This childhood sexual abuse case presented several unique problems including the fact that it was over 35 years old. The concept of the statute of limitations made this a very difficult matter to overcome, however, our legislature in New Jersey has passed legislation which allows a more liberal interpretation of the statute of limitations. Our Supreme Court in a similar case recently provided “good law” upon which reroute let rely to get past that statute of limitations which is ordinarily two years. In a settlement reached less than one month ago our client entered into an agreement the provided him with a sum of money that we are not permitted to disclose. Our client, however, has expressed great satisfaction with this outcome. Sexual abuse is a problem that has been pervasive and has been widely reported in the press in the past several years. Claims against the church, against private schools and individuals have been handled by this office with great success.
The Labor Law Department at Kamensky Cohen is presently involved in several claims of sexual harassment, some of which have already been resolved, once again, to the great satisfaction of our clients.
By Lawrence Tomar, Esq.
Partner Kamensky-Cohen
IN NEW JERSEY
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We represent both defendants who have been charged by DYFS with abuse or neglect and those individuals appealing findings of abuse and/or neglect to the Office of Administrative Law.
