ACC Focus on the New Jersey Chapter - November 7, 2008 (Print All Articles)

NJCCA President's Message

by Lee Bream

Lee Bream offers his final message as President.

To the Membership,

This is my last message as President of NJCCA.  At our Annual Membership Dinner on November 20, the gavel will pass to Valerie Camara.  I hope all of you can join us for the evening and have a great time with the thespian comedy of the Capitol Steps.  Alas, they won't have the draw of a Tina Fey but they offer great political satire.

While I am not a Luddite, I am having an increasing problem with the social networking sites for legal professionals, such as Linked In and Martindale Counsel to Counsel.  First, I am receiving an ever increasing number of invitations to join networks -- and from many people I don't know.  Second, if you want to join someone's network, you must first become a member of the hosting website.  Third, about a year ago, I became concerned about identity theft and started cutting back on the personal information I provide to public websites.

And once you're on someone's network, what is supposed to happen?  I've linked to maybe about two dozen attorneys I know through NJCCA.  I have received no follow-up emails from them, but I do receive notices that the linkages are expanding -- at levels two, three, or six levels removed from my friends.  
So, if you send me a LinkedIn invitation and I don't respond immediately or not at all, don't be offended.  I just may be weighing my options.  And besides, when you can network through NJCCA and our programs and events, what else do you need?

Other miscellaneous thoughts:

• We will miss Richard Mannella, who resigned his Board position to accept a new position in Greensboro, NC.  We will also miss Arthur Saiewitz who had been on the Board as Past President.  His terms ends on November 20th.  Thanks to Giuliano Chicco who works behind the scenes to publish this Newsletter on a monthly basis.
• They should abolish use of "Reply All".  Please consider who needs to see your reply before you hit the button.  
• Does anyone who smokes and drives actually use their car ashtray anymore?  You may find this story amusing, "BUTT, I DIDN’T KNOW IT WAS LITTERING."

Please plan to attend our November 20th Annual Dinner at the Whippany Marriott on Route 10.  The wine tasting, hosted by yours truly, starts at 5 pm.  We'll be tasting six wines suitable for Thanksgiving.  As in prior years, some of the supply is given away as door prizes.

Lee Braem
President NJCCA

NJCCA's Annual Dinner Meeting

There is still time to sign up for this fabulous event. Wine, Dinner, Humor and Great Networking!

NJCCA's Annual Dinner Meeting

November 20, 1008

6:00 p.m. –9:30 p.m.

Hanover Marriott

Whippany , New Jersey

5:00 p.m. Wine Tasting

The evening will welcome in the incoming Officers and Board Members with…

6:00 p.m. Cocktail Reception & Jazz Music

7:00 p.m. Dinner

and conclude with entertainment by the Capitol Steps

                                        REGISTRATION FEES:
                                        NJCCA Member & their guest
                                        $35 p.p. Wine Tasting*
                                        $75 p.p. Cocktail Reception & Dinner received before November 7th
                                        $100 p.p. Cocktail Reception & Dinner received after November 7th
                                        Non-member**& their guest 
                                        $45 p.p. Wine Tasting*
                                        $100 p.p. Cocktail Reception & Dinner received before November 7th
                                        $125 p.p. Cocktail Reception & Dinner received after November 7th

For additional details and to register complete the attached registration form and mail, fax or email to njcca@comcast.net:

                              Mail:
                                        NJCCA
                                        15 Pierhead Drive
                                        Barnegat, NJ  08005
                                        Fax:609.607-0236
                                        Email: njcca@comcast.net

To pay by credit card (click on the hyperlink and follow the instructions):
https://thriva.activenetwork.com/Reg/Form.aspx?IDTD=2357763&IDRPH=2409179

 NJCCA'S CHARITABLE OUTREACH

PRO BONO PARTNERSHIP

The Pro Bono Partnership is a tax-exempt public charity that provides free business legal services to eligible nonprofit community-based organizations throughout New Jersey ; in Westchester, Putnam, Orange , and Rockland Counties , New York ; and in Greater Hartford and Fairfield Counties , Connecticut . The Partnership’s mission is:

We ask our members to consider supporting thepro bono work that Pro Bono Partnership does by donating your time or money. Checks made payable to Pro Bono Partnership will be accepted.  Donate online at www.probonopartnership.org.

* * *

COMMUNITY FOODBANK OF NEW JERSEY

Their mission is to alleviate the direct effects of hunger and poverty in New Jersey .   The Food Bank engages, educates and empowers the community to be part of its ongoing efforts.

The FoodBank distributes over 21 million pounds of food and groceries a year, ultimately serving 1,656 non-profit programs including 436 programs served by its Partner Distribution Organizations.  Through their combined efforts, they assist three-quarters of a million low-income people in 18 of New Jersey ’s 21 counties.

We ask our members to help support the Food Bank by bringing non-perishable and unexpired food to donate. Checks made payable to Community FoodBank of New Jersey will also be accepted.

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Directions to Hanover Marriott

1401 Route 10 East, Whippany NJ 07981

FROM JERSEY SHORE Take Garden State Parkway North to Route 287 North. Follow to Exit 39, Route 10 West. Go through first traffic light (you will see the hotel on other side of highway at this point), stay in right lane and take second right after the light (sign reads Cedar Knolls U-Turn). This will bring you to Route 10 East. We are the first entrance on right.

FROM NORTHWEST NEW JERSEY Take local roads to I-80 East. Take I-80 East. Exit 43 to I-287 South. Take Exit 39B, Route 10 West. Go through first traffic light (you will see the hotel on other side of highway at this point), stay in right lane and take second right after the light (sign reads Cedar Knolls U-Turn). This will bring you to Route 10 East. We are the first entrance on right.

FROM CENTRAL & SOUTHWEST JERSEY Take NJ Turnpike North to Exit 10, Route 287 North. Follow Route 287 North to Exit 39, Route 10 West. Go through first traffic light (you will see the hotel on other side of highway at this point), stay in right lane and take second right after the light (sign reads Cedar Knolls U-Turn). This will bring you to Route 10 East. We are the first entrance on right.

FROM NEWARK AIRPORT Exit Airport to 78 West. Follow to Route 24 West. Take 24 West to Route 287 North to Exit 39, Route 10 West. Go through first traffic light (you will see the hotel on other side of highway at this point), stay in right lane and take second right after the light (sign reads Cedar Knolls U-Turn). This will bring you to Route 10 East. We are the first entrance on right.

FROM THE LINCOLN TUNNEL Take Lincoln Tunnel to Route 3 West to I-80 West. Take I-80 West to I-287 South. Take Exit 39B, Route 10 West. Go through first traffic light (you will see the hotel on other side of highway at this point), stay in right lane and take second right after the light (sign reads Cedar Knolls U-Turn). This will bring you to Route 10 East. We are the first entrance on right.

New Amendments to the ADA Broaden the Concept of 'Disability'

Thomas F. Doherty and Marisa J. Steel
Now more employees will qualify for reasonable accommodations and more people will be able to assert claims for disability discrimination.

President Bush recently signed important legislation that, when it takes effect on January 1, 2009, will expand the scope of the Americans with Disabilities Act of 1990 ("ADA"). The new law, entitled the "ADA Amendments Act of 2008" ("ADAAA"), overturns certain United States Supreme Court holdings and broadens the ADA's current definition of "disability," meaning that more employees will qualify for reasonable accommodations and more people will be able to assert claims for disability discrimination.

The ADAAA Rejects the U.S. Supreme Court's Narrow Interpretation of "Disability"

As initially enacted in 1990, the ADA defined "disability" as a "physical or mental impairment that substantially limits one or more ... major life activities," "a record of such impairment," or "being regarded as having such an impairment." According to Congress, both the Equal Employment Opportunity Commission ("EEOC") and the Supreme Court interpreted this statutory definition too narrowly. Thus, the stated aim of the ADAAA is to reject those interpretations and "reinstate a broad scope of protection."

Specifically, the ADAAA overturns Supreme Court decisions holding that (1) Individuals with physical or mental impairments that are mitigated by medications or assistive devices may be excluded from the ADA's protections; and (2) In order to be considered a disability, an impairment must "prevent" or "severely restrict" activities that are of "central importance to most people's daily lives." Arguably, under the reasoning of these judicial decisions, individuals with certain conditions such as diabetes or epilepsy were not protected by the ADA if they were treated by medications that ameliorated their impairments. In addition, individuals with cancer in remission may have been excluded from protection if their major life activities were not "severely restricted." The ADAAA disapproves of the Supreme Court's narrow interpretation of the ADA and directs the EEOC to revise its regulations accordingly.

Expansion of "Disability" Under the ADAAA

The ADAAA broadens the ADA's protections in a number of ways. First, the ADAAA provides that the determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures. "Mitigating measures" are defined to include things such as medication, prosthetic limbs and devices, hearing aids, mobility devices, and oxygen therapy equipment. In addition, the use of assistive technology, reasonable accommodations or auxiliary aids, and learned behavioral or adaptive neurological modifications may not be considered in determining whether an individual is disabled within the meaning of the ADA.

Notably, the ADAAA states that impaired vision that is corrected through the use of ordinary eyeglasses or contact lenses is not a disability. On the other hand, "low-vision devices," which are devices that "magnify, enhance, or otherwise augment a visual image," are "mitigating measures" that may not be considered in determining whether an individual is disabled. Furthermore, the ADAAA provides that employers may not test job applicants' uncorrected vision, unless the test is job-related and consistent with a business necessity.

The ADAAA also expands the scope of individuals covered by the ADA by providing that an impairment that is "episodic" or "in remission" constitutes a disability if the impairment, when active, would substantially limit a major life activity.

Moreover, the ADAAA makes it easier for a person to qualify as disabled by providing a lengthy -- but not exhaustive -- list of what are considered "major life activities," including the following: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and "the operation of a major bodily function," which would include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

In addition, the ADAAA explicitly rejects the Supreme Court's and the EEOC's interpretations of what must be shown to establish that an impairment "substantially limits" one or more major life activities. In prior decisions, the Court found that "substantially limits" meant the impairment must "prevent" or "severely restrict" activities that are of "central importance to most people's daily lives." Similarly, the EEOC's regulations defined "substantially limits" as meaning "significantly restricted." The ADAAA criticizes the Court and the EEOC for articulating "too high a standard" and requiring "a greater degree of limitation" than Congress intended. Without providing its own definition of "substantially limits," the ADAAA simply directs the EEOC to revise its definitions to be consistent with the findings and purposes of the amendments, which favor a broad scope of protection for people with impairments. Consequently, an area of law that had been settled for several years by Supreme Court precedent has been essentially undone pending revised regulations from the EEOC and new judicial decisions interpreting the ADAAA's intent.

Expanded and Clarified "Regarded As" Coverage

In another change that will facilitate increased claims against employers, the ADAAA broadens the definition of "disability" to include individuals who are "regarded as" having a physical or mental impairment, whether or not the impairment limits or is perceived as limiting a major life activity. The ADAAA tempers this expansion somewhat by stating that an impairment with an actual or expected duration of six months or less does not qualify for the "regarded as" definition. Congress also clarified that employers are not required to provide reasonable accommodations to individuals who are only "regarded as" having (but do not actually have) a physical or mental impairment.

Consequences to Employers as of January 1, 2009

The overall consequence of these amendments is that many more individuals will be considered disabled under the ADA and, concomitantly, employers will be faced with increased obligations to consider reasonable accommodations for the larger pool of employees and applicants who will qualify as disabled. For example, under the ADAAA's broadened definitions, individuals with insomnia, epilepsy, diabetes, muscular dystrophy, multiple sclerosis, learning disabilities such as dyslexia, attention deficit disorder, and cancer, whether or not in remission, may be considered "disabled." In addition, the ADAAA's inclusion of reproductive functions within the definition of "major life activities" could mean that employees undergoing infertility treatments are protected by the ADA.

Given the breadth of coverage mandated by the ADAAA, employers -- even those who have been operating under state or local laws providing greater employee protections than the pre-amendment ADA -- should review their policies and guidelines for evaluating reasonable accommodation requests and should exercise greater care in making adverse employment decisions involving any employee who has an impairment or perceived impairment.

Employers also can expect to defend more disability discrimination lawsuits under the ADA, and it will be more difficult for employers to obtain summary judgment in ADA cases on the basis that a plaintiff is not "disabled" within the meaning of the statute. Indeed, Congress has expressly stated that the "primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis."

__________________________________

Thomas F. Doherty and Marisa J. Steel are attorneys in the McCarter & English Labor & Employment Group. If you have any questions regarding the impact of the ADAAA or are interested in updating your personnel policies or conducting supervisor training programs that cover the new amendment's expanded scope of coverage, please contact Tom Doherty or Marisa Steel in the Newark office of McCarter & English. 

NJCCA Profiles - Joseph Aronds

A profile of Joe Aronds, our "official" cartoonist, and much more.

1. Tell us a little bit about your personal background.
I’ve lived almost my entire life in Westfield.  I obtained my undergraduate degree at Rutgers University – New Brunswick, where I majored in French and Political Science and minored in Philosophy.  I spent my Junior Year studying abroad in Tours, France at the Faculte des Lettres – Universite de Francois Rabelais.  I received my J.D. from Georgetown in 1988.  I joined the Legal Department of Hartz Mountain Industries, Inc. in 1998.

2. What was your first job?
I had a summer job during high school driving a Penguin Italian Ice Truck.  I got paid on a straight commission basis, so the more ice I sold, the more money I made.  One time, I happened upon a walk-a-thon followed by a baseball tournament and sold out the entire truck before noon, which, I’m certain, is a record that still stands to this day.  Many years later, my wife met a woman who remembered me from when she was a kid because (apparently) I used to let her ride in the truck.  So, my legacy as an ice truck driver lives on.

3. What motivated you to become a lawyer?
I was inspired to become a lawyer when I went to see “The Verdict” starring Paul Newman during high school.  I identified with Newman’s crusading plaintiff’s lawyer, but I also was intrigued by the behind-the-scenes machinations of the defense attorneys and the judge, and wondered if that was how the world actually works.  Fortunately, that has not been my experience.

4. Tell us about your in-house experience.
I litigate and try cases for Hartz and its related or affiliated entities.  I love standing on my feet in a courtroom arguing a motion or trying a case.  I’m fortunate to work with extremely bright and highly qualified attorneys who are tops in their field.  It’s a very professional atmosphere.

5. Tell us about your position with NJCCA.
I currently serve as a member of the Executive Committee and as the Vice President – Program Chair.  I’m also the NJCCA’s “official” cartoonist.

6. When did you become interested in cartooning and who are your influences?
I’ve been doodling since I was a little kid.  I began by copying Chester Gould’s Dick Tracy characters.  The Blank was easiest to draw because he didn’t have a face.  Some of my childhood cartooning influences were Jack Kirby (his 1960’s-era Fantastic Four period), Don Martin of Mad Magazine, and the artwork from the Beatles’ Yellow Submarine movie.   More recently, I’ve admired the skills of Berke Breathed (Bloom County), Darby Conley (I love Bucky and Satchel), and New Jersey’s own Patrick McDonnell (Mutts).

7. How do you come up with your ideas for your cartoons?
The hardest part of cartooning is thinking of a funny idea that doesn’t offend anyone.  I find that if I actively try to think of an idea, none will come to me.  This month’s cartoon idea popped into my head out of nowhere as I was driving to work.

8. What do you like to do in your spare time?
I spend as much quality time as possible with my wife and children.  I also try to work out at a local health club several times a week to maintain my physical and mental health.  My parents instilled a love of reading in me from childhood.  I enjoy reading about obscure figures from American history.  For example, I recently finished reading a biography of Gouverneur Morris, who, it turns out, actually wrote most of the Constitution, including the Preamble.  My favorite novel is “On the Road” by Jack Kerouac.   On a lark last year, I read every novel by Kurt Vonnegut that I could find in the public library.

9. What advice do you have for young lawyers?
My primary advice is to make as many friends, colleagues, and contacts as possible in the legal and business communities.  A person you befriend today might be the person who brings a job opportunity or a good case to you sometime down the road.  Additionally, always take pride in your work and try to do the best job you possibly can.

Master Class on Renegotiating Complex IT Outsourcing & Related Workouts

NJCCA Technology Law Committee

Explore the current trend in managing large scale IT outsourcing contracts.

Upcoming NJCCA Events

Register today for these relevant and insightful events.

NJCCA Annual Dinner
Date: November 20, 2008
Location: Hanover Marriott on Route 10 in Parsippany, (Directions).
Description: Save the date for our gala Annual Meeting, featuring music and political satire by The Capitol Steps, whose motto is "We put the MOCK in Democracy." Also on the program will be Installation of 2009 officers and board members. Chapter Contact: Gail Girard, Executive Director
RSVP Phone: (973) 706-5027, by Fax (973) 706-5027 (call first) or via Email njcca@comcast.net
Cost: NJCCA Member & their guest: $35 p.p. Wine Tasting; $75 p.p. Cocktail Reception & Dinner received before November 7th, $100 p.p. after November 7th
Non-member & their guest: $45 p.p. Wine Tasting; $100 p.p. Cocktail Reception & Dinner received before November 7th, $125 p.p. after November 7th

OVERRULED! by Aronds

As far as we know, still the only Chapter Newsletter with its own in-house cartoonist!