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The law in New Jersey is clear that actual or constructive discharge is not a required element for recovery of economic losses due to employer’s retaliatory actions under New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14; Donelson v. DuPont Chambers Works, 206 N.J. 243 (2011). Under CEPA, any retaliatory action on the part of the employer is a violation and therefore recoverable if the action(s) have proximately caused the injury to employee.  Donelson, 206 N.J.at 249 (referencing N.J.S.A. 34:19-5).  Also, where appropriate, “the court shall order compensation for all lost wages, benefits and other remuneration to the fullest extent possible.Id. (emphasis added).  Such damage can include adverse employment capabilities due to mental unfitness for duty.  IdThese protections exist to encourage whistleblowing on the part of employees and to protect those whistleblowers from any retaliation taken by their employers regardless of their employment status.  CEPA protects equally those who are discharged, who suffer a retaliatory hostile work environment, who suffer psychiatric distress forcing early retirement, and even those currently employed by the retaliating company who were retaliated against in some fashion for their whistleblowing actions.

In Donelson, the plaintiff Seddon, was a long-term employee of DuPont Chambers Works, who after approximately 30 years of employment, reported concerns regarding the inadequate procedures the company employed in handling a particular hazardous substance.  After filing an OSHA complaint, DuPont subjected Seddon to disparate and hostile treatment. Seddon eventually suffered an emotional breakdown, was placed on disability and he eventually resigned from his job. Seddon did not claim nor was he found to have suffered a constructive discharge at the hands of his employer, yet nonetheless was entitled by the Court to the full spectrum of tort recovery. This is because “other adverse employment actions taken against an employee” may lead to the proximate causation of economic loss, and any such event may lead to the full spectrum of tort recovery.  Donelson, 206 N.J. at 257.  Seddon’s psychologist recommended time away from work and even filed the papers for disability leave. Hence, the court in Donelson held that in the circumstance where an employer’s retaliatory action proximately causes employee to suffer a documented mental incapacitation, that employee has a right to recover lost wages even in the absence of a constructive discharge.  Id. at 263.

Herbe v. Rutgers, 2020 N.J. Super. Unpub. LEXIS 2563 (App. Div. decided December 29, 2020) is a recently decided Appellate Division case which is a progeny of Donelson. Nurse Herbe was a Clinical Nurse Coordinator for University of Medicine and Dentistry of New Jersey. Herbe was assigned with her supervisor and a coworker to audit medical charts, but they refused to help her with the audit because they were busy writing an essay for the supervisor’s graduate school application. In fact, they had the temerity to ask Herbe to help them author the essay, but rather than do so, Herbe left the room they were all in without comment. Thereafter, Nurse Herbe reported her supervisor and her coworker to the employer, believing they were guilty of theft of time, plagiarism, fraud, and ethics rules. Almost immediately after reporting the misconduct, Plaintiff’s supervisor and coworker began to harass Herbe at work, calling her a “mole,” undermining Plaintiff’s supervisory authority of a new employee, and making demeaning comments about her weight, clothing, and jewelry. The harassment Herbe was forced to endure at work eventually placed her under the care of a psychologist who placed her on disability leave for an indefinite period of time. In response, the employer fired her.

Although less frequently invoked than other provisions contained within the New Jersey Law Against Discrimination (LAD), the statute prohibits discriminatory refusal to do business with independent contractors because they or their family members possess one or more protected class characteristics. Specifically, N.J.S.A. § 10:5-12(l) provides:

“It shall be…an unlawful discrimination…For any person to refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person on the basis of the race, creed, color, national origin, ancestry, age, pregnancy or breastfeeding, sex, gender identity or expression, affectional or sexual orientation, marital status, civil union status, domestic partnership status, liability for service in the Armed Forces of the United States, disability, nationality, or source of lawful income used for rental or mortgage payments of such other person or of such other person’s family members, partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers.…”

Similarly, the LAD prohibits discriminatory terminations of contracts. Rubin v. Chilton, 359 N.J. Super. 105 (App. Div. 2003).

Underscoring the paramount need to put in place comprehensive health and safety standards designed to mitigate the spread of the COVID-19 virus in our state, New Jersey Governor Phil Murphy recently issued Executive Order No. 192, requiring employers with employees physically present at worksites to adhere to strict COVID-19 safety requirements. Executive Order No. 192 provides in part:

1. Effective at 6:00 a.m. on Thursday, November 5, 2020, every business, non-profit and governmental or educational entity (hereinafter collectively referred to as “employers” or “employer”) that requires or permits its workforce to be physically present at a worksite to perform work is required to abide by the following requirements to protect employees, customers and all others who come into physical contact with its operations:

a. Require that individuals at the worksite maintain at least 6 feet of distance from one another to the maximum extent possible, including but not limited to during worksite meetings, orientations and similar activities, in common areas such as restrooms and break rooms, and when individuals are entering and exiting the workplace. Where the nature of an employee’s work or the work area does not allow for 6 feet of distance maintained at all times, employers shall ensure that each such employee wears a mask and shall install physical barriers between workstations wherever possible.

In 1945 New Jersey became the first state since the Reconstruction era to pass comprehensive anti-discrimination legislation with its enactment of the Law Against Discrimination, or as it is more commonly called, the “LAD.”  In enacting the LAD, the NJ Legislature declared “that practices of discrimination against any of its inhabitants…are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.” N.J.S.A. 10:5-3. While the LAD expressly states that “inhabitants” or residents of New Jersey are protected from discrimination, no mention is made as to whether its protections extend to victims of discrimination who reside or work outside of New Jersey. Fortunately, in Calabotta v. Phibro Animal Health Corp., 460 N.J. Super. 38 (App. Div. 2019) the New Jersey Superior Court, Appellate Division concluded the LAD could extend in appropriate circumstances to plaintiffs who reside or work outside of New Jersey.

In Calabotta, the plaintiff, an Illinois resident, sued his New Jersey-based former employer, alleging that it wrongfully denied him a promotion to a position in New Jersey and thereafter wrongfully terminated him from his job with its subsidiary in Illinois.  Specifically, plaintiff Calabotta claimed that the company engaged in “associational” discrimination against him in violation of LAD based on the fact that his wife was then terminally ill with cancer.  As an initial matter the Appellate Division in Calabotta found there to be a conflict between New Jersey law and Illinois law when it came to recognizing “associational” discrimination as a viable cause of action.  It was recognized in New Jersey. O’Lone v. N.J. Dep’t of Corr., 313 N.J. Super. 249, 255 (App. Div. 1998) (where a plaintiff is wrongfully discharged for associating with a member of a protected group under the LAD, it is the functional equivalent of being a member of that same protected group). By contrast, Illinois law had not recognized a cause of action for associational discrimination.

In deciding whether LAD covered plaintiff Calabotta’s failure to promote and wrongful discharge claims, the Court decided the factors spelled out in the Restatement (Second) of Conflicts of Laws (the “Second Restatement”) were applicable:

New Jersey health care facility workers cannot refuse to receive a flu shot.  On January 13, 2020, Governor Phil Murphy enacted N.J.S.A. § 26:2H-18.79, concerning influenza vaccination in New Jersey health care facilities.  The statute first provides that, beginning with the onset of the first flu season next following the effective date of the legislation, each health care facility (i.e., general or special hospital, nursing home or home health care agency) must establish and implement an annual flu vaccine program in accordance with the recommendations of the federal Centers for Disease Control and Prevention (CDC) and any rules and regulations adopted in accordance with the statute.

For the purposes of its annual flu vaccine program, each health care facility must annually provide a flu shot to each of its employees and require that each employee at the facility receive a flu shot annually no later than December 31 of the current flu season, which flu shot must be provided by the facility.

A health care facility employee who does not wish to have a flu shot must prove that he or she has a medical exemption, which must be submitted using a form designated by the Department of Health, stating that the flu shot is “medically contraindicated, as enumerated by the Advisory Committee on Immunization Practices of the federal Centers for Disease Control and Prevention.”  An attestation of a medical exemption is subject to approval by the facility following the facility’s review to confirm that the exemption is consistent with CDC standards.  A health care facility must not discharge or reduce the pay of any employee who receives a medical exemption from the annual flu shot requirement.

With the passing of United States Supreme Court Justice Ruth Bader Ginsburg (March 15, 1933 – September 18, 2020) this country lost an irreplaceable and implacable advocate for the bedrock notion that every person regardless of their sex, race, national origin, disability or sexual orientation, or other unique or protected characteristic, should be treated equally under the law. In the employment context, a great example of Justice Ginsburg’s spirited pursuit of equality for all is found in her dissenting opinion in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).  This dissent helped to galvanize the later passage and signing into law of the Lilly Ledbetter Fair Pay Act which makes clear that pay discrimination claims on the basis of sex, race, national origin, age, religion and disability, accrue whenever a discriminatory pay decision or practice is adopted, or when a person becomes subject to the decision or practice, or when a person is affected by the disparate pay decision or practice, including whenever s/he receives a discriminatory paycheck

Lilly Ledbetter was one of a few female supervisors at the Goodyear plant in Gadsden, Alabama.  She suspected she was getting fewer and lower pay raises than similarly situated male supervisors but had no proof until she received an anonymous note revealing the salaries of three of the male managers. After she filed a complaint with the EEOC, her case went to trial, and the jury awarded her back-pay and approximately $3.3 million in compensatory and punitive damages for the extreme nature of the pay discrimination.

The Court of Appeals for the Eleventh Circuit reversed the jury verdict, holding that her case was filed too late – even though Ms. Ledbetter continued to receive discriminatory pay – because the company’s original decision on her pay had been made years earlier. In a 5-4 decision authored by Justice Alito, the Supreme Court upheld the Eleventh Circuit decision and ruled that employees cannot challenge ongoing pay discrimination if the employer’s original discriminatory pay decision occurred outside of the statute of limitations period – which in Alabama was a mere 180- day period – even when the employee continues to receive paychecks that have been discriminatorily reduced.

It is possible to certify discrimination claims brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”) as class action claims. In Alleyne v. NJ Transit 2020 N.J. Super. Unpub. LEXIS 1686 (Law Div., decided Aug. 28, 2020) a New Jersey trial court certified a class action for disability discrimination. In 2018, Plaintiff Anthony Alleyne filed a class action lawsuit against his employer, the New Jersey Transit Corporation (NJ Transit), alleging that NJ Transit violated the LAD by discriminating against him based on his disability, sleep apnea. The court granted Alleyne’s motion to certify the following class: “individuals who were removed from service with NJ Transit and required to submit to sleep apnea testing while employed by NJ Transit at any time from September 19, 2016 to present.”

On October 5, 2016, Alleyne attended his routine physical examination. During the exam, Alleyne’s body mass index and neck circumference were measured. The doctor conducting the examination informed Alleyne that he believed Alleyne may have sleep apnea. Based on the doctor’s suspicions, NJ Transit removed Alleyne from service that same day. At that time, Alleyne was employed as a locomotive engineer.

Once removed, Alleyne was required by NJ Transit to undergo further testing and was diagnosed with mild to moderate sleep apnea. He was informed that, based on the results of his tests, NJ Transit required him to wear a Continuous Positive Airway Pressure (CPAP) machine and maintain a certain level of compliance before he could return to work. He paid out of pocket for the costs of tests incurred from the treatments and examinations required by NJ Transit. NJ Transit did not reimburse him for the costs and did not compensate him for the time he spent out of service.

Federal and state disability discrimination laws do not currently address whether COVID-19 is a covered disability under their respective statutory schemes. However, given the liberality by which New Jersey’s Law Against Discrimination, N.J.S.A., 10:5-1, et. seq. (the “LAD”) is to be applied and considering the recent enactment of a New Jersey law  prohibiting employer’s from taking adverse employment actions against employees who take or request time off due to an infectious disease such as COVID-19, it is likely our New Jersey courts will conclude that contraction and/or documented exposure to COVID-19 will be deemed a covered disability under the LAD.

In Tihara Worthy v. Wellington Estates LLC, et. al., filed in the New Jersey Superior Court on June 15, 2020, Plaintiff Tihara Worthy sued her former employer, Wellington Estates LLC, for wrongful termination, alleging the employer terminated her employment because she had contracted coronavirus disease 2019 (“COVID-19”). Ms. Worthy alleged her termination violated the New Jersey Law Against Discrimination (“LAD”) and common law.  According to her complaint, Ms. Worthy worked as a Certified Medical Assistant in Wellington Estates LLC’s senior living and assisted living community in Spring Lake, New Jersey.  On or about April 19, 2020, she learned she had tested positive for COVID-19.  She immediately notified her employer and commenced a leave of absence.  On or about May 11, 2020, after a month-long leave of absence, Ms. Worthy tested negative for COVID-19 and was given a return-to-work date of May 16, 2020.  However, before she was scheduled to return to work, her employer’s Executive Director telephoned her and told her she was not welcome to return to work because she had contracted COVID-19 and “could have gotten everyone sick.”

The Americans with Disabilities Act (ADA) defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities.”  42 U.S.C.S. § 12102. The LAD defines “disability” as “physical or sensory disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, or illness…resulting from anatomical, psychological, physiological, or neurological conditions which prevents the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.”  N.J.S.A., 10:5-5(q). Hence, as compared to the ADA, the LAD does not contain a requirement that a disability substantially limit a major life activity, as the ADA definition does; thus, an employee who contracts COVID-19 but is not substantially limited in a major life activity may be disabled under the LAD even if found not to be so under the ADA.

Good news for New Jersey workers!  New Jersey Governor Phil Murphy enacted amendments to the New Jersey Wage and Hour Law, effective August 6, 2019, and New Jersey Family Leave Insurance (FLI), effective July 1, 2020, and the New Jersey Department of Labor and Workforce Development recently offered extended benefits to unemployed workers.  Among other changes to the Wage and Hour Law, the recent legislation increases the statute of limitations from two years to six years and provides for liquidated damages up to 200% of the amount of wages lost.  The major amendments to New Jersey FLI are a doubling of the leave period from 6 weeks to 12 weeks and an increase in the benefit rate from 66 2/3% to 85% of a claimant’s average weekly wage.  Unemployment benefits have been extended from 26 to 46 weeks.

New Jersey Wage and Hour Law

  • Statute of Limitations: Employees now have six years, instead of two years, to bring a claim for unpaid minimum wages or unpaid overtime compensation. N.J.S.A., 34:11-56a25.1.
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