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Having a new baby is an exciting time of life but can bring many anxieties regarding the logistics of coming back to work after delivery. New mothers coming back to work after giving birth are faced with a multitude of questions, concerns, and uncertainties, including how they will continue breastfeeding their infant. Although a very personal parenting and health decision, the medical benefits of breastfeeding have been shown to cause fewer illnesses in children, reduced risk of asthma or allergies.  After new moms decide they want to continue the breastfeeding relationship with their babies after going back to work, they may wonder what their rights are to do so in the workplace.

For employees considered “nonexempt” under the Fair Labor Standards Act (“FLSA”), meaning they are entitled to earn overtime pay, federal law requires a break time for mothers to express milk, and a location shielded from view other than a bathroom. Since the Affordable Care Act (“ACA”) was signed into law on March 23, 2010, section 7 of the FLSA was amended to require employers provide reasonable break time for an employee to express breast milk for one year after childbirth.  See 29 C.F.R. 207(r).  This law is also known as the “Break Time for Nursing Mothers Law.” Employers are also required to provide a place other than a bathroom that is shielded from view and free from intrusion from coworkers and the public.  All employers are subject to the FLSA break requirement unless the employer can show that (1) they have 50 or fewer employees, and (2) compliance would pose an undue hardship.

In New Jersey breastfeeding is a protected act under the New Jersey Law Against Discrimination (“LAD”) (N.J.S.A. 10:5-2 et. seq.). On January 8, 2018, the LAD was amended to include all breastfeeding mothers (with no one-year time limitation as in the FLSA).  It is now illegal for employers to refuse to hire, take adverse employment action and discriminate against an employee because of breastfeeding. Employers must also make available to the employee reasonable accommodations including reasonable break time each day and a suitable private location other than a toilet stall, in close proximity to the work area to allow the employee to express milk. N.J.S.A. 10:5-2(s). There is an exception if the employer can demonstrate that providing the accommodation would be an undue hardship on their business operations. Courts will examine the overall size of the business, number of employees, number and type of facilities, budget, type of operations, structure of workforce, cost of the accommodation needed, and the essential requirements of the job.  Id.

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On May 2, 2018, New Jersey Governor Phil Murphy signed into law the Paid Sick Leave Act requiring all public and private employers in the State of New Jersey, regardless of their size, to offer paid sick leave. The law is scheduled to go into effect on October 29, 2018.

Under the Paid Sick Leave Act, an employee shall be permitted to paid sick leave as follows:

(a) Diagnosis, care, treatment, recovery and/or preventive care for the employee’s own mental or physical illness or injury or the employee’s family member’s mental or physical illness or injury;

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After overwhelming support and passage through the New Jersey Senate and Assembly, New Jersey Governor Phil Murphy signed into law a historic and sweeping equal pay legislation that is being deemed the strongest equal pay law in America.  The new law affords equal pay protections to all minorities and protected classes, not just women.

 
Although New Jersey already has a law prohibiting discrimination in pay based on sex under N.J.S.A. 34:11-56.2, the new Equal Pay Act goes even further and extends to equal pay protections to all protected classifications of sex, race/ color, national origin/ancestry, religion/creed, disability, age, pregnancy, marital status, sexual orientation, gender identity,  N.J.S.A. 10:5-12(a).  The Equal Pay Act also has a six (6) year statute of limitations, where LAD only has a two (2) year statute of limitations. Under the new law a discriminatory compensation decision or other employment practice that is unlawful under the New Jersey Law Against Discrimination (LAD) occurs each time that compensation is paid in furtherance of that discriminatory decision or practice – effectively making each paycheck another instance of discrimination.

 
When the Equal Pay Act takes effect on July 1, 2018, it will be an unlawful employment practice for employers to pay less in wages, benefits, or compensation to members of a protected class for “substantially similar work, when viewed as a composite of skill, effort and responsibility” as those not in a protected class. In other words, if an employer pays one employee more than another who falls under a protected classification, the employer will have to show permissible exceptions for the pay disparities.  Such exceptions include a seniority system, a merit system or a bona fide factor other than the characteristics of the members of the protected class.  “Bona fide factors” can include training, education, experience, performance, productivity, and skill sets.

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Discrimination based on age is as pervasive a problem for the American workforce as it is tricky to prove. Employers’ efforts to avoid litigation have driven the development of a multitude of sneaky strategies to avoid liability under federal and state anti-discrimination laws. In fact, one of the largest technology firms in the world – IBM Corp. – recently demonstrated some of these tactics when they pushed out experienced, older employees to make way for younger, less-experienced hires. In just the last five years, IBM has eliminated 20,000 American employees aged 40 and over. This represents a whopping 60 percent of the company’s total job cuts during that time. A confidential company document obtained by the press explained explicitly that these cuts were made in order to achieve the “correct seniority mix” of its employees. To achieve this, IBM: (1) denied older workers information the company was legally required to disclose informing employees of their rights, (2) required workers to sign away their rights to have any complaints heard in a court of law, (3) used techniques in rating employee performance that punished those who had worked for IBM the longest, and (4) encouraged employees IBM had laid-off to seek another position within the company while simultaneously instructing managers not to hire them, and (5) laid-off older employees only to hire some back as independent contractors to do the same work at a greatly reduced paycheck, among other malevolent behaviors.

In New Jersey, an age discrimination claim is brought under the state’s Law Against Discrimination (NJLAD). The right to be free from discrimination is a civil right, and NJLAD covers employees and prospective employees from discrimination in the hiring and employment processes. A plaintiff bringing a claim of age discrimination will have to prove their prima facie case, consisting of four parts. First, the employee is a member of a protected class. In age discrimination, this typically means the employee is of an advanced age. However, the NJLAD also protects young workers from discrimination. Second, the employee was preforming their job at a level that met the employer’s legitimate expectations. Third, some adverse action was taken against the employee. This may include being fired, demoted, failing to promote, bad performance review or reference, among others. Finally, a plaintiff must have proof of causation. Meaning the adverse action was taken because of the employee’s age.

Causation can be established in many ways. The above example at IBM is an extreme one because it is unusual for there to be a paper trail, or even an explicit reference to age. Most age discrimination is more subtle. Employers have no doubt been warned not to call a worker “old” outright. Instead, comments made are somewhat nuanced and could be taken in more than one way. Consider “lacking in energy,” “not being up to date,” or “set in in his [or her] ways,” each of these phrases has been judged to be coded language or ‘dog whistles’ for ageism by New Jersey courts. Other ways to establish causation include: being replaced by someone substantially younger or older than oneself; suddenly receiving bad performance reviews after a long track record of good performance; the cutting of job duties or hours; attempts to force retirement such as threats to employee benefits or pension; and many more. Once the facts of the prima facie are shown to be plausible, the defendant gets the opportunity to offer a legitimate, non-discriminatory reason for the adverse employment action such as bad performance. The plaintiff may then bring proof that the reason given by the employer is actually pretext for discrimination, and not the true reason for the employer’s action.

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Officers from the Sacramento Police Department in California were investigating a report of vandalism when they encountered Stephon Clark, an unarmed 22-year-old African American male in the backyard of his grandmother’s house. For reasons which defy logic and basic humanity, Stephon died in a hail of 20 rounds fired from police revolvers, 8 of the bullets hit Stephon; 6 of the bullets tore into his back from behind. Whether the officers responsible for executing Stephon are ever indicted on criminal charges is uncertain, but most certainly his family will have the right to pursue civil rights violation claims against the Sacramento Police Department and its responsible officers. This is because the Constitution of the United States of America guarantees freedom from overreaching and abusive conduct by our police and other public employees of federal, state, and local government. These same rights exist here in New Jersey.

 I. Constitutional Guarantees Against Police Abuse

The 4th Amendment and 14th Amendments of the U.S. Constitution promise, respectively:

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     Most people are familiar with school yard bullies either because they were a bully, been bullied, and/or witnessed bullying. Bullying has always been prevalent in our schools such that some nostalgically view it as a ‘rite of passage.’  This old-school way of thinking has given away over time to a zero tolerance to bullying approach based on empirical studies evidencing the severe psychological damage caused to children by childhood bullying, as well as highly publicized cases where bullying had fatal consequences. In New Jersey, the suicide of Rutgers University student named Tyler Clementi served as a clarion call to do something about bullying in our schools.  Tyler was just 18 years old when he jumped from the George Washington Bridge to his death after being cyber-bullied by his roommate due to Tyler being a gay man. Statistics from the National Bullying Prevention Center show that about 20% of students report being bullied. However, that number increases drastically when a student has a ‘distinguishing characteristic,’ such as African American students (25%), those with a disability (35.3%), or identify as LGBTQ+ (74.1%). Bullying has been shown to lead to feelings of depression, anxiety and isolation, and victims of bullying are 2.6 times more likely to attempt suicide.

     In response to these stomach churning statistics, and stories like Tyler’s, New Jersey passed what has been deemed by many as the strongest anti-bullying law in the nation, The Anti-Bullying Bill of Rights Act, N.J.S.A., 18A:37-13 (“ABBRA”). ABBRA prohibits ‘Harassment, Intimidation and Bullying’ (HIB) in school, on school buses, at school sanctioned events, and even off school grounds in certain circumstances. The law also mandates procedures to investigate and report HIB, requires consequences and remedial responses where HIB has been found, and an appeals process for any decision. It creates at least three new roles within each school district to handle investigations, oversite, and HIB education. ABBRA gives a broad definition of what constitutes HIB. It can be a gesture, physical act or inaction (such as isolation). It can be communicated verbally; in writing; or electronically through telephone, cell phone, email or social networking websites. HIB can be ongoing or a single incident. For a school district to find HIB under ABBRA, the incident must be reasonably perceived or actually be motivated by some specific characteristic such as, race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability or by any other distinguishing characteristic. This can include characteristics such as obesity, scrawniness, or having lice – much broader protections than those provided by most civil rights laws.

     ABBRA provides a remedy for students who have been bullied due to a protected class characteristic (e.g., race/color, sex/gender, national origin/ancestry, religion/creed, disability, or sexual orientation), and the school has not taken adequate action to address the problem. ABBRA specifically permits a student, parent, guardian, or organization to file a complaint with the New Jersey Division of Civil Rights under the New Jersey Law Against Discrimination (NJLAD) against a school district that does not follow the ABBRA’s intensive procedure to deal with an accusation of HIB.

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Employers enjoy tremendous freedom to impose restrictions on their employees. Employment contracts, company handbooks, company policies, and even oral communications, are all mechanisms an employer may use to restrict the actions of their employees. This control may extend even after an employee leaves a company through the employer’s use of restrictive covenants. Merriam-Webster defines a “covenant” to mean a contract or agreement entered by two or more parties. A “restrictive covenant” in the employment context refers to an agreement between an employer and an employee under which the employee agrees not to engage in certain specified activities deemed competitive with the employer after the employment relationship has ended. The most common, and commonly problematic restrictive covenants, are those that impose non-compete, non-solicitation, and non-disclosure of trade secrets or proprietary information restrictions on the employee. A restrictive covenant will typically specify the duration and geographic limits of the restrictions imposed, as well as the scope of the activities prohibited by the agreement.

Although disfavored in the law, post-employment restrictive covenants may be enforceable. Strong public policy interests in fostering competition, creativity, and ingenuity, as well as the importance of not inhibiting employee mobility or consumer freedom, are the chief reasons that restrictive covenants are disfavored by the courts. Maw v. Advanced Clinical Communications, Inc., 197 N.J. 439, 447 (2004). However, the courts will consider a restrictive covenant to be reasonable and enforceable when it, “simply [1.] protects the legitimate interests of the employer, [2.] imposes no undue hardship on the employee, and [3.] is not injurious to the public.” Solari Industries, Inc. v. Malady, 55 N.J. 571, 576 (170).

In addressing the validity of a post-employment restriction preventing an employee from competing against his former employer for a period of 5 years and covering a geographic area encompassing every state “east of the Mississippi”, the New Jersey Supreme Court in Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25 (1971), declared that although, “The employer has no legitimate interest in preventing competition as such … the employer has a patently legitimate interest in protecting his trade secrets as well as his confidential business information and he has an equally legitimate interest in protecting his customer relationships.” 58 N.J. at 33. In reversing the trial court’s imposition of preliminary restraints on the employee, the Court found the employer, Whitmyer Bros., had failed to show the extensive restraints it sought to impose on employee Doyle were, “necessary to protect its legitimate interests and that it would not impose undue hardship on the employee or injure the public.” Id. at 37.

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A person infected with HIV or AIDS cannot be denied medical treatment in a hospital or clinic, nor denied treatment by a medical practice or physical therapy group. HIV or AIDS under New Jersey’s Law Against Discrimination (NJLAD), N.J.S.A., 10:5-1 to 10:5-42, and its accompanying regulations have evolved to provide ever greater levels of protection for the disabled victimized by discrimination. Before a discussion of the law, let’s dispel any misconceptions about how HIV or AIDS is spread. HIV or AIDS is not spread through touch, tears, saliva, or urine. www.webmd.com/hiv-aids/top-10-myths-misconceptions-about-hiv-aids#1. You cannot catch it by: breathing the same air; touching a toilet seat or door knob or handle; drinking from a water fountain; hugging, kissing, or shaking hands; sharing eating utensils; or using exercise equipment at a gym. Id.  However, HIV or AIDS can be spread from infected blood, semen, vaginal fluid, or breast milk. Id.

The NJLAD provides in N.J.S.A., 10:5-4: All persons shall have the opportunity to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation without discrimination because of disability, subject only to conditions and limitations applicable alike to all persons. That opportunity is recognized as and declared to be a civil right. It is unlawful discrimination to refuse, withhold, or deny that opportunity, or to discriminate in furnishing it, because of disability. N.J.S.A.,10:5-12(f)(1); N.J.A.C. 13:13-4.3.

The NJLAD forbids “any owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof, or to discriminate against any person in the furnishing thereof. . . .” N.J.S.A., 10:5-12(f).  To prove a claim of unlawful discrimination under the NJLAD, a claimant must show that he or she (1) had a disability; (2) was otherwise qualified to participate in the activity or program at issue; and (3) was denied the benefits of the program or otherwise discriminated against because of his or her disability.

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Many mid-level to large companies use an attorney handbook or direct employees during the new hire onboarding process to an employee intranet site where the employer communicates its  company philosophy, policies, procedures, behavioral expectations, and worker benefits. The question often raised by employees is whether the employer is legally bound to fulfill the representations made in the handbook. Typically, not so long as the employer prominently displays a disclaimer in the handbook making clear the relationship between employer and employee is strictly a noncontractual at-will relationship, meaning the company has the right to terminate the employment relationship at any time, for any reason, or for no reason whatsoever. See generally Woolley v. Hoffman-La Roche, 99 N.J. 284 (1985). However, a recent unpublished New Jersey Appellate Division decision states that depending on the wording of the handbook disclaimer, an inroad may exist for employees to argue that the handbook disclaimer does not serve to waive an employee’s right to claim that the employer violated its policies or code of conduct by failing to put a stop to the employee being harassed or bullied in the workplace. Maselli v. Valley National Bancorp., No. A-0440-16T1, Super. Ct. N.J. slip op. (Oct. 2, 2017)

Most employees in the country are hired on an “at-will” basis. This means an employee can be fired for any reason (or no reason) so long as the reason does not violate, law, public policy, or a valid contract. English v. College of Medicine & Dentistry, 73 N.J. 20, 23 (1977). Prior to 1985, a handbook was viewed as not creating either an express or implied contractual promise whether a disclaimer was placed in the handbook or not. In Woolley, supra., the New Jersey Supreme Court held that a provision contained in the employee handbook converted the plaintiff’s employment from at-will employment to for-cause, and was enforceable against the employer. 99 N.J. 284, 289. The Court looked to the reasonable expectations of the employee and found that the handbook constituted a unilateral contract, the consideration being continued employment after receiving the handbook. Id. at 295. Woolley opened the door for various contract claims regarding different provisions of employee handbooks. However, Woolley also made clear that an employer could avoid liability for the representations and promises if it placed in the handbook a “clear” and “prominent” disclaimer explaining the policies in the handbook do not constitute a contract. Id. at 285.

In Maselli, supra., the plaintiff on appeal of a motion dismissing her complaint, argued that her former employer’ s handbook disclaimer was not worded in a manner sufficient to prevent her from pursuing a breach of contract claim stemming from her employer’s repeated failure to enforce anti-harassment provisions contained within its Code of Ethics. Although the appellate court agreed with the former employer that its disclaimer was sufficient to bar breach of contract claims related to a termination of employment (i.e., security of employment), the court found the disclaimer language sufficiently ambiguous as to make the employee’s interpretation of the disclaimer plausible, that is, the disclaimer did not bar claims for failure to enforce an anti-harassment policy established by the Bank’s Code of Ethics during her employment. Id. at * 3.  An ambiguity in a contract should be resolved against the party drafting the contract, and in favor of the employee’s interpretation of the disclaimer language. In Re Miller, 90 N.J. 210, 221 (1982). A lesson to be drawn from Maselli is that when an employee claims he or she has been bullied and harassed on the job by their boss, but the harassment was not motivated by a discriminatory animus or whistleblowing retaliation, the employer’s handbook, code of ethics, and/or conduct needs to be closely read to determine whether the disclaimer language contained within it provides an opening to allege in good faith a breach of contract claim.

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In New Jersey an employer cannot recover damages from their employee caused by the employee’s negligent errors or omissions.  Incredibly, this was not always the case. At one time, our New Jersey courts permitted employers to sue their employees to recover monies it the employer had to pay to third parties for damages caused by the employee’s negligence.  Frank Martz Coach Co. v. Hudson Bus Transportation Co, 23 N.J. Misc. 342 (N.J. Sup. Ct. 1945).  However, 16 years later in Eule v. Eule Motor Sales, 34 N.J. 537 (1961), the New Jersey Supreme Court found the proposition that an employer could seek indemnification from its employees to be “anachronistic”:

“The theoretical liability of an employee to reimburse the employer is quite anachronistic. The rule would surprise the modern employer no less than his employee. Both expect the employer to save harmless the employee rather than the other way round, the employer routinely purchasing insurance which protects the employee as well. ***”

The change in law articulated in Eule, has been applied by our New Jersey courts since then.  See e.g., Fried v. Aftec, Inc., 246 N.J. Super. 245 (App. Div. 1991) (New Jersey does not permit an employer to seek indemnity from an employee for acts of negligence causing the employer losses); Brown v. United Cerebal Palsy/Atlantic & Cape May, Inc., 278 N.J. Super. 208, (N.J. Law Div.  1994) (“The employee should not, therefore, be required to bear that cost by way of indemnification to the employer.”)