The Supreme Court of New Jersey held that individuals have a reasonable expectation of privacy in their cell phone location data under the NJ state constitution and that “cell-phone location information, which users must provide to receive service, can reveal a great deal of personal information about an individual.” In a turn that is becoming less and less surprising given the trailblazing nature of the New Jersey Supreme Court, the Court recently ruled in State v. Thomas W. Earls that police must obtain search warrants before obtaining the personal tracking information for alleged perpetrators from cell phone providers. While this ruling has obvious implications for law enforcement professionals, from a broader perspective, the decision impacts — and, most importantly, protects — the privacy of individuals (and related businesses) who conduct business and their personal lives on cell phones throughout the nation. The decision underscores a continuing battle between government intrusion into personal privacy which is increasingly in tension with the advancement of the digital age vis a vis the use of smartphones to conduct day-to-day business. While various states throughout the country have been toying with the idea of passing legislation which would require probable cause warrants to issue before access to cell phone data is granted, the New Jersey Supreme Court’s ruling puts New Jersey at the forefront of addressing this issue. While the facts of the case are not specifically relevant and pale in impact when compared to the implications of the decision, for completeness, the case involved burglaries in Middletown, New Jersey. In investigating the burglaries, law enforcement officials used the data received from T-Mobile to track the stolen merchandise including a cellular phone which ultimately led to arrests of Mr. Earls. In protecting the rights of Mr. Earls and overturning the decision of the lower courts, the New Jersey Supreme Court matter-of-factly ruled that individuals can and should “reasonably expect that their personal information will remain private” when entering into a contract with a cell phone carrier. In explicitly recognizing a Constitutionally-based right to privacy as to the location of his or her cell phone, this decision builds on last year’s ruling by the United States Supreme Court in United States v. Jones, 615 F.3d 544 (2012). In that case the United States Supreme Court said that the State’s/Government’s attachment of a GPS device to a vehicle and the use of that device and data to monitor a vehicle’s movements constitutes a search under the Fourth Amendment and, as such, is protected under the laws related thereto. Given the capabilities of cell phones, the New Jersey Supreme Court declared that, in essence, a cell phone was a GPS device. In fact, the Court went as far as to say that using a cell phone for locational purposes can “be far more revealing than acquiring toll billing, bank, or Internet subscriber records. It is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources” Interestingly enough, the Court’s decision also raises the possible impact of use of the data on access to PHI (protected health information). The suggestion is that that cell phone tracking could theoretically be used to determine when and who a patient is treating with given that the location of a medical facility is easily discernible. This is only the tip of the iceberg. While the Court does a reasonable job at spinning out possible scenarios where the privacy of the cell phone owner could be impacted due to intrusions on privacy without a warrant, the Court speaks in a targeted and hypothetical manner. Though the Court attempts to temper things legally by placing an “emergency aid” exception to the use of a warrant and ultimately the fruits of the search, the possibility of mining this data should be recognized by individuals who continue to use cell phones for every aspect of their daily lives. As cell phone (and data) use naturally increases, it will be crucial to provide tight restrictions on third-party use of cell phone information because not only will companies likely try to monetize the same, in using data in any unauthorized way, the rights and interests of privacy as a whole come into play. OlenderFeldman LLP has significant experience dealing with privacy and business related issues which are implicated in the decision discussed above. If you have any questions about the legal or practical implications of this case, please contact Christian Jensen, Esq. (cjensen@olenderfeldman.com) at (908) 964-2485.

Effective April 1, 2014, businesses with a New York City office that have 20 or more employees working out of such office are required to provide five paid sick days per calendar year to their employees. (The law will expand to employers with 15 or more employees starting October 1, 2015.) Businesses with fewer employees working out of an office in New York City do not have to provide paid sick time, but must allow their employees five unpaid sick days. The purpose of this Client Alert is to address some of the Frequently Asked Questions we have received from our clients about the new employment law. As we often stress, simple employment mistakes are often quite costly to fix: Q. Does the law apply only to full-time employees? No. The law applies to all employees whether full-time, part-time, temporary or seasonal, as long as they work more than 80 hours in a calendar year. Q. Does it matter whether the principal location of the business is in New York City? No. The law applies to any business as long as the business has employees based out of a location in New York City. Employers with offices in different states need only accommodate employees working in New York City with the leave time required under this law. Q. Are there any limitations to the use of sick time? Almost none. Employees may use sick time for absences due to their own illness, injury or health condition or the illness, injury or health condition of a family member. In addition, the law allows sick time if the place of business is closed due to a health emergency or the employee must take care of a child whose school or care provider has been closed under similar circumstances. Q. Do the five days need to be provided automatically to new employees? No. New employees can be required to work at least four months before they can use the sick days. Q. How are the sick days accrued per year? Employees will accrue one hour of sick time for every 30 hours worked, and are entitled to 40 hours per calendar year. Q. Can the employer insist on documentation if the employee uses multiple days on a consecutive basis? Yes. The law permits employers to require reasonable documentation for sick time lasting more than three consecutive work days. Q. Does the law require businesses to extend any existing sick leave policy by the five days covered under the law? No. Employers who already provide at least five days of leave time (40 hours per calendar year) for the same paid leave usage and under the same conditions as leave time required under the new law are not required to provide additional sick time. Q. Do the five days carry over from year to year? Yes. But the business may cap usage of accrued unused sick days to a maximum of 40 hours in a calendar year. Q. Are businesses required to notify the employees about this change in the law? Yes. Written notice of rights must be provided to the employee at commencement of employment. If you have any questions, please feel free to contact Howard A. Matalon, Esq. at 908-964-2424.

Sharing is Caring, but Not Always in the Case of Cookies – CA Governor Signs the Country’s First “Do Not Track” Disclosure Bill by Angelina Bruno-Metzger On September 27, 2013, bill AB370, now known as the “Do Not Track” disclosure law (“DNT”), was officially signed into law by Governor Jerry Brown. This law will impose new and additional disclosure requirements on commercial websites and online services that collect personally identifiable information (“PII”) on users. “Do Not Track,” is an amendment to the California Online Privacy Protection Act (“CalOPPA”), which originally required that websites, as well as mobile applications, to explicitly and conspicuously post their privacy policies. This posted privacy policy must include what categories of PII are being collected and what third parties will also have access to that information. Under this latest amendment, website operators (or mobile applications) need to: (1) disclose and explain their privacy policies and how they respond to DNT signals, and (2) disclose applicable third-party data collection and use policies. It should, however, be noted that this law does not explicitly prohibit tracking or affirmatively require a website operator to honor a consumer’s do not track request. It simply mandates that operators disclose their privacy policies. Additionally, the lack of a clear definition of “do not track” could be equally problematic when it comes to enforcement – since this new law does not define what it is regulating. A clear definition will most likely emerge through enforcement and adjudication of the law, as well as policy statements. This “Do Not Track” law mandates that all companies have a complete technical understanding of their websites, as well as the third parties that are allowed to operate on the site, so that each company can fully disclose its data collection practices. While technically speaking this law would only require companies to make the disclosures to California residents, it will likely have a national, if not international, effect, as most companies usually do not craft different policies for specific states, and cannot know whether a user is a California resident. This new law will go into effect on January 1, 2014, and any operator that fails to provide the required disclosures will be given a warning and 30 days to comply or else be found in violation of the new law. Failure to comply, whether that failure is knowing and willful or negligent and material, could result in a $2,500 fine under California’s Unfair Competition Law. Recently California has been boldly breaking ground in the nation in the area of online data privacy, and the “Do Not Track” law is no exception; it is the first of its kind in the country. For a more complete understanding of what online tracking is

California Expands Existing Data Privacy Breach Law By Angelina Bruno-Metzger Governor Jerry Brown recently signed bill SB46 into law, which amends California’s data breach notification law by expanding the definition of “personal information.” The current law requires alerts to be sent to consumers when a database has been breached in a way that could expose a consumer’s social security number, driver license number, credit card number(s), or medical/health insurance information. Under this new amendment, website operators will be obligated to send out privacy notifications after the breach of a “user name or email address, in combination with a password or security question and answer that would permit access to an online account.” Additionally this law requires notifications, even when no other personal information has been breached, in cases when a breach of a user name or email address used in combination with a password or security question could permit access to an online account. Currently, as with the new “Do Not Track” law, California is the only state whose breach notification statute incorporates breaches solely by the loss of a user name or email address. This law will go into effect on January 1, 2014 and a company’s notification obligations under this new law are different depending on the type of personal data that has been breached. When the security breach does not involve login credentials for an email account, the operator is allowed to notify affected customers through the use of a “security breach electronic form”. This form would direct the person whose personal information has been compromised to immediately change his/her password and security question(s) or answer(s) – as well as direct the user to take appropriate precautionary measures with all other virtual accounts that use the same user name or email address and password. However, when the security breach does involve login credentials for an email account the operator, logically, may not provide notification to that email address. Alternatively, the operator may provide “clear and conspicuous notice delivered to the resident online when the resident is connected to the online account from an IP address or online location from which the person or business knows the resident customarily accesses the account.” As with the other recently passed cyber laws, the implications of this new data privacy breach law will likely be felt nationally and internationally, as almost every company that offers online personalized services requires a consumer to create a username and password. While there remains some uncertainty about exactly what businesses must abide by this new regulation, as not all companies can readily, if at all, confirm affected users are California residents, since sharing of home addresses is often optional, it is best for businesses to abide by the old “better safe than sorry” adage. The two best ways companies can come into compliance with this regulation are to: (1) ensure that all usernames, passwords, security questions and answers are stored in an encrypted form, and (2) update existing protocols, or create new internal protocols that are consistent with this law’s reporting requirements. See OlenderFeldman LLP’s predictions for what should happen in 2013 within the data privacy field and compare it with this new data privacy breach law in California.

JK! LOL! I Did Not Mean to Post That – California Now Requires That Children Be Provided With a “Cyber Eraser” By Angelina Bruno-Metzger Of the new cyber laws signed by California Governor Jerry Brown, by far the most publicized and debated has been bill SB568, which provides minors with greater cyber privacy rights. There are two main components of this new law: (1) it requires website operators and mobile application owners to allow minors to remove their postings, and (2) it places stronger restrictions on the type of products website operators can market and advertise to minors. The main sentiment and policy initiative behind this new law is clearly well-intentioned: to allow minors who are prone to posting rash and often emotionally charged content online without any awareness or concern of the future implications of that decision, to remove the harmful and offending content whether the regret comes five minutes later, or years later. The first part of this law, the “internet eraser”, applies to two main categories of web providers; those that operate web sites, provide online services, or have mobile applications that are directed at minors and the second category applies to those same providers that have actual knowledge that a minor is using their site, services or mobile application. This eraser however, does not require the website operator to delete the information from its server. Instead, an operator will be deemed to have complied with this removal requirement by simply ensuring that the content is no longer visible to other users. As with many laws there are several notable exceptions, and this new internet eraser law is no different. In fact, there are multiple scenarios in which a web site operator is not under a removal obligation. Examples of these exceptions include: posts made anonymously by minors, as well as any content posted by a minor for which the minor received compensation (or other consideration) and only minors that are registered users of a site, service or application may seek to have their content removed. The second part of this law involves the limitation of marketing and advertising of specified products to minors on websites and mobile devices. Predictably, those specified products include certain dietary supplements, permanent tattoos, alcohol, firearms, fireworks, lottery tickets and e-cigarettes. A website operator will be deemed to be in compliance with this new law if it has properly notified its advertising services that its site, service or application is directed towards minors. Essentially, if a company could not sell a product face-to-face to a minor, under this new law a company cannot solicit or sell that same product to a minor online. This law will become effective on January 1, 2015, and already legal experts from around the country are debating whether or not this is a direct collision of privacy law and the First Amendment. Additionally, as with all cyber laws, there remains an enormous amount of ambiguity to address. For example, does the person need to be a minor when they request removal or can an adult retroactively ask for removal of a posting made while a minor? Will this law apply to all websites in the country or just to those based in California? As currently written, this new law does not included a time frame in which the operator needs to delete the requested content. Moreover, the scope of the content to be deleted remains unclear, and there is no penalty for an operator that does not comply with a request. Stay tuned to see how the implementation and enforcement of this law plays out. For now, review our prior postings about the best ways to navigate the social media and the workplace, as well as understand the limitations of privacy on Facebook.

The Original vs. The Copy – Does It Really Matter From An Evidentiary Perspective? While there are many hurdles a business document needs to overcome in order to be admitted as evidence in court, there is one hurdle that many clients routinely inquire about – the legality and admissibility of digital image copies, in lieu of original documents. While lawyers recognize this as a best evidence issue, a legal doctrine that states an original piece of evidence is superior to a copy, for clients this is a matter of whether they need to retain an original signed contract or could they save space in their file cabinets and rely on a scanned copy on their hard drive. Although state laws concerning admissibility of evidence vary, states have generally adopted the language, in whole or part, of the Uniform Rules of Evidence (“URE”) and/or the Uniform Photographic Copies of Business and Public Records as Evidence Act (“UPA”). For the purpose of this article the differences between the URE and the UPA are not important or relevant. Accordingly there is a nationwide consensus that a digital image copy can generally overcome a best evidence challenge and be admitted as the original document. The fundamental basis for states admission of digital duplicates can found in the URE, which allows copies that are established as business records to be admitted into evidence “to the same extent as the original.” Duplication is permitted by any technique that “accurately reproduces the original.” Similarly under the UPA, duplicate records are admissible as the original, in judicial or administrative proceedings, provided that the duplicate was generated by a “process which accurately reproduces the original.” The UPA permits the destruction of original documents, unless preservation is required by law (i.e. wills, negotiability documents and copyrights). Hence, the law permits the destruction of original documents subject to certain evidentiary requirements. When read together and interpreted by the majority of states, the URE and the UPA allow duplicate copies to be given the same evidentiary weight as originals, so long as those copies are properly generated, maintained and authenticated. Therefore, clients are encouraged to adopt certain practices when copying their business documents: The copies should be produced and relied upon during the regular course of business. The business should have a written policy specifying the process of duplication, as well as where and how copies will be stored. This written policy should be made available to the business’s custodian(s) of records. The business’s written policy should include a requirement that at least one witness be present at the time of duplication that would be available to testify under oath that the generated duplicate accurately and completely represents the original. The business’s written policy should be subject to regular review in order to ensure the stated compliance procedures are satisfied. Ultimately, clients should feel free to indulge their desire to “save the space” and dispose of an original contract, so as long as the above duplication practices are adhered to and all other relevant evidentiary and other legal requirements are satisfied. Clients should also be aware that since the medium for storing electronic records must meet certain legal standards, their choice of hardware is critical when it comes to admissibility of a duplicated record. Given the variety of legal and technological nuances that need to be taken into consideration, when in doubt it is always best to seek the guidance of a qualified and experienced attorney to avoid any potential legal pitfalls. The above article reflects the national trend in the United States and so to ensure that your business has complied with state and/or country specific regulations it is once again best to contact a qualified and experienced attorney who practices in your jurisdiction.

The drafting of the Framework was fueled by former Head of Homeland Security, Janet Napolitano’s warning that a “cyber 9/11 could happen imminently.” In recent years cyberattacks on this country’s financial industry and resource infrastructure, as well as on private banks and companies, have dramatically increased in frequency and severity. The National Institute of Standards and Technology (“NIST”) recently released a draft of its Preliminary Cybersecurity Framework (the “Framework”), which was initially proposed in President Obama’s executive order from February. 2013. The purpose of the Framework is to provide guidelines to companies on how to best protect their networks against hackers, and if necessary, quickly respond to cybersecurity breaches. Ultimately, the Framework seeks to turn today’s best cybersecurity practices into standard practice. The Framework seeks to encourage companies to prioritize cyberthreats in the same way they prioritize financial and safety risks. The Framework is divided into five core functions: identify, protect, detect, respond and recover. Companies are encouraged to identify the potential cyber risks they may face, establish protective measures against those threats and to create methods that will allow the company to efficiently detect, respond to and recover from cyberattacks if and when they occur. The Framework is intended to complement, not replace, any existing cybersecurity programs. This Framework is applicable to public and private companies, particularly those that are vital to U.S. security, though its adoption is purely voluntary. Since the Framework is not mandatory, it is not legally binding. Nevertheless it may raise the bar for in-house counsel, preventing claims of deniable plausibility. Historically, cybersecurity was an issue that CEOs left exclusively to IT workers and so consequently if a company suffered a cyberattack CEOs were able to point the finger at the IT department. However, the implementation of the Framework will likely prevent CEOs’ ability to shield themselves from liability. The Framework sets a minimum standard of care when it comes to cybersecurity, which means that board members and chief information officers (CIOs) will need to collaborate in order to ensure a company is in full compliance. Furthermore, adoption of the Framework could become a federal contracting requirement. Additional incentives being offered by the government to encourage adoption of the Framework include lower cybersecurity insurance rates, priority consideration for grants, and optional public recognition. Overall, the pros of the Framework are that it is the result of a collaborative approach to drafting and that it provides companies considerable flexibility when it comes to implementation. This flexibility is necessary as cybersecurity is often industry sector and business specific. Unfortunately, compliance with the Framework will likely generate an enormous amount of paperwork for CIOs since the proposed rules provides minimal clarity as to priorities. The Framework also includes liability shields that many consider to be controversial, such as reduced tort liability, limited indemnity and the creation of a federal legal privilege that would preempt state disclosure requirements. The final Framework will be issued this month, so stay tuned.

Jordan Kovnot, an attorney with OlenderFeldman, LLP and adjunct professor at Fordham Law School, was quoted extensively in this article in Tablet Magazine about a new wave of Internet laws that target the perpetrators of so-called “revenge porn.” The term “revenge porn” refers to the practice of maliciously posting sexually explicit images of an individual without their consent. The practice most commonly involves jilted former lovers who were either sent the images or actively participated in their creation (sometimes with the knowledge of the subjects, and sometimes secretly, using hidden cameras). After these relationships sour, the angry exes post the images online, often in tandem with links to the victims’ names, addresses, places of work, and social media accounts. In addition to humiliation and mental anguish, victims of revenge porn have been subsequently targeted by stalkers and extortionists who find their pictures and contact information online. New Jersey’s invasion of privacy law prohibits making secret recordings of individuals engaged in sexual conduct. That law was used to prosecute of a Rutgers student who surreptitiously recorded his roommate, Tyler Clementi, whose subsequent suicide brought national attention to the case. Last year California passed a law that criminalizes the posting of explicit photographs of an individual without his/her consent, though it is limited to instances in which the perpetrator was also the photographer. Recently a bill was put forth in the New York State Senate to outlaw the posting of revenge porn regardless of who created the images and regardless of whether they were created in secret. Such a law would go as far as to punish the unauthorized publication of so-called “selfies” (explicit self-portraits willingly shared by the photographer) where the publication was done with an intent to cause distress. As Kovnot discusses in the interview, the images at the heart of these violations are often taken in the context of intimate, trusting relationships. As those relationships fall apart, angry, jealous or spiteful individuals sometimes exploit those pictures and videos in order to inflict pain. Existing privacy laws often offer little help to victims, particularly in instances in which the victim willingly shared (or assisted in the creation of) the image. In those cases the victim is often deemed to have no expectation of privacy. These new laws are intended help serve as deterrents and to provide victims with new avenues for relief.

Collection of Location Data Enables Personalized Recommendations; Creates Privacy Concerns Location data is becoming increasing valuable to companies, who can use this information to build detailed profiles of individual’s preferences and activities, including where they live, work and shop. Location data can be collected from all Wifi-enabled smartphones, which have a persistent identifier that can be tracked without notifying the user. Companies can also determine which Wi-Fi networks a phone has logged into. Although this information can enable companies to provide individually tailored services and products, many have raised concerns about the privacy implications of this type of tracking. For example, a company could infer that an individual has a medical condition based on trips to health care providers. Additionally, companies are increasingly able to connect online and offline behaviors into a composite profile. Please click here to see our interview with Fox News concerning location privacy.

Insider threats, hackers and cyber criminals are all after your data, and despite your best precautions, they may breach your systems. How should small and medium sized businesses prepare for a cyber incident or data breach? Cyber attacks are becoming more frequent, are more sophisticated, and can have devastating consequences. It is not enough for organizations to merely defend themselves against cyber security threats. Determined hackers have proven that with enough commitment, planning and persistence to breaching an organization’s data they will inevitably find a way to access that information. Organizations need to either develop cyber incident response plans or update existing disaster recovery plans in order to quickly mitigate the effects of a cyber attack and/or prevent and remediate a data breach. Small businesses are perhaps the most vulnerable organizations, as they are often unable to dedicate the necessary resources to protect themselves go to this website. Some studies have found that nearly 60% of small businesses will close within six months following a cyber attack. Today, risk management requires that you plan ahead to prepare, protect and recover from a cyber attack. Protect Against Internal Threats First, most organizations focus their cyber security systems on external threats and as a result they often fail to protect against internal threats, which by some estimates account for nearly 80% of security issues. Common insider threats include abuse of confidential or proprietary information and disruption of security measures and protocols. As internal threats can result in just as much damage as an outside attack, it is essential that organizations protect themselves from threats posed by their own employees. Limiting access to information is the primary way businesses can protect themselves. Specifically, businesses can best protect themselves by granting access to information, particularly sensitive data, on a need-to-know basis. Logging events and backing up information, along with educating employees on safe emailing and Internet practices are all crucial to an organization’s protection against and recovery from a breach. Involve Your Team In Attack Mitigation Plans Next, just as every employee can pose a cyber security threat, every employee can, and should, be a part of the post-attack process. All departments, not just the IT team, should be trained on how to communicate with clients after a cyber attack, and be prepared to work with the legal team to address the repercussions of such an attack. The most effective cyber response plans are customized to their organization and these plans should involve all employees and identify their specific role in the organization’s cyber security. Draft, Implement and Update Your Cyber Security Plans Finally, cyber security, just like technology, evolves on daily basis, making it crucial for an organization to predict and prevent potential attacks before they happen. Organizations need to be proactive in the drafting, implementing and updating of their cyber security plans. The best way for an organization to test their cyber security plan is to simulate a breach or conduct an internal audit which will help identify strengths and weaknesses in the plan, as well as build confidence that in the event of an actual cyber attack the organization is fully prepared. If you have questions regarding creating or updating a disaster or cyber incident recovery plan, please feel free to contact us using our contact form.

OlenderFeldman LLP Data Protection and Privacy lawyers Michael Feldman and Jordan Kovnot will attend the International Association of Privacy Professionals (IAPP) Global Privacy Summit, to be held March 5-7 in Washington, D.C. The event will feature thousands of privacy industry professionals participating in dozens of educational sessions ranging from FTC compliance, cloud computing, big data privacy, cybersecurity, data breach response, the NIST Cybersecurity Framerwork, COPPA and more. If you would like to meetup with Michael or Jordan, please send them an email or contact us using the contact form. We hope to see you there.

Effective immediately, all New Jersey employers are required to treat pregnancy as a protected characteristic under the New Jersey Law Against Discrimination (“NJLAD”), as well as to provide reasonable accommodations when a pregnant employee requests an accommodation based upon advice of her physician, unless it would cause an undue hardship to the employer. The purpose of this Client Alert is to address some of the Frequently Asked Questions we have received from our clients about the new amendment to the New Jersey Law Against Discrimination. What types of reasonable accommodations must be afforded pregnant employees? Reasonable accommodations include, among other things, bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, modified work schedules and temporary transfers to less strenuous or hazardous work. What are the variables that determine whether a request for a reasonable accommodation would cause an undue hardship upon an employer? There are a number of factors that are evaluated under the NJLAD as to whether a reasonable accommodation actually causes an undue hardship, including, among other things, the size of the business, number of employees, type of operations, the composition of the work force, the nature and cost of the accommodation required, and whether the accommodation would require the employer to ignore or waive the employee’s essential job functions in order to provide the accommodation. When is leave required? Pregnant employees are entitled to paid or unpaid leave as a reasonable accommodation in the same manner provided to other employees not affected by pregnancy. So, for example, if the employer has a disability leave policy, that policy must be adhered to for any pregnant employee. We recommend that all employers consider the implementation of a disability leave policy, even if they are not required to provide leave under the Federal Family and Medical Leave Act (“FMLA”) or New Jersey Family Leave Act (“NJFLA”) due to the size of their business. Such policy can flexibly permit employers to provide reasonable accommodations while at the same time meet their business needs and objectives. For example, employers can create an unprotected disability leave policy (assuming they do not have 50 or more employees, in which case they must provide leave under the FMLA or NJFLA) that requires their employees to exhaust their sick, vacation and personal days (paid time off) as a condition of taking such leave. Where an employee requires additional time off beyond paid time off, the employee is placed on unpaid leave with no assurances of being returned to the position they held with the employer prior to taking such leave. The employee’s ability to return to work following the end of his or her disability leave can be evaluated based upon on the employer’s business needs when the employee is in fact capable of returning to work. Is a separate notice regarding reasonable accommodations or pregnancy discrimination required to be posted under the NJLAD? No. The Division on Civil Rights requires employers to display the Division’s official poster in a place where it will be visible to employees and applicants. We anticipate that the Division will amend its official poster and employers will be advised to display the new poster as soon as practicable thereafter.