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Protests ignited by the killing of George Floyd put a spotlight on the legal doctrine of qualified immunity. To successfully sue a police officer for excessive or abusive conduct, or to sue some other government official for violating your civil rights, a Plaintiff must demonstrate the offending public employee knew or should have known their alleged misconduct violated established law. “The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal.” Morgan v. Swanson, 659 F.3d 359, 370–71 (5th Cir. 2011). Officials are entitled to qualified immunity “unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

The purpose of qualified immunity is to “balance two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Whether an official is covered by qualified immunity is a matter of law to be decided by a court, “preferably on a properly supported motion for summary judgment or dismissal.” Wildoner v. Borough of Ramsey, 162 N.J. 375, 387 (2000).

The overly broad and vexing protections afforded rogue public actors by qualified immunity was well framed by Fifth Circuit Judge Don R. Willett in his concurring opinion in Zadeh v. Robinson, 928 F. 3d 457 (5th Cir. 2018):

On July 8, 2020, the United States Supreme Court narrowed employment protections from state and federal anti-discrimination laws for religious schoolteachers. In Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267, the Court held that the First Amendment’s religion clauses foreclose courts from hearing employment-discrimination claims from teachers at religious schools who have at least some role in teaching the faith.

In 2012, the Supreme Court ruled, in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012), that the “ministerial exception,” which bars ministers from suing churches and other religious institutions for employment discrimination, prohibited a lawsuit filed by a teacher at a Lutheran school who was also an ordained minister. By a vote of 7-2, the Court held that the exception also forecloses lawsuits by two teachers at Catholic elementary schools in southern California. Although the teachers were not ordained ministers, the schools had argued that the exception nonetheless applied because they played a key role in teaching religion to their students, and the Court – in an opinion by Justice Samuel Alito – agreed.

The decision came in a pair of cases, against parish schools in the Los Angeles area. Agnes Morrissey-Berru taught at Our Lady of Guadalupe School in Hermosa Beach for nearly two decades before she was told that her contract would not be renewed. Morrissey-Berru went to federal court, where she claimed that she had been the victim of age discrimination. The district court threw out the lawsuit, agreeing with the school that the ministerial exception applied. The second plaintiff, Kristen Biel, sued St. James School in Torrance when – not long after she disclosed that she was being treated for breast cancer – the school failed to renew her contract. Biel claimed that the school had discriminated against her because she had cancer, but the district court agreed with the school that Biel’s lawsuit was barred by the ministerial exception. The United States Court of Appeals for the 9th Circuit reinstated both teachers’ lawsuits. It reasoned that the ministerial exception normally applies when an employee plays a “religious leadership” role, but that Biel and Morrissey-Berru played a more limited role, mostly “teaching religion from a book.” The schools went to the Supreme Court, which reversed.

One cannot fix what is not recognized to exist, nor fix

which is not understood to be broken.

Assimilation for Black Americans is near impossible. Skin color cannot be escaped and keeping quiet does not hide racial identity. The blackness of an African American’s skin makes their basic human and constitutional right to be treated with equanimity and fairness dependent on how white Americans choose to treat them, consciously or unconsciously.

When Donald J. Trump was elected president in 2016, gay and lesbian leaders feared their far-reaching civil rights victories of recent years would be in peril because of the imminent arrival of scores of conservative judges and full Republican control of the federal government. But on Monday, June 15, 2020, Trump appointee Justice Neil Gorsuch authored an historic 6-3 majority opinion by the Supreme Court of the United States providing nationwide protections for the LGBTQ community against workplace discrimination. In Bostock v. Clayton County, Georgia 2020 WL 3146686, Justice Gorsuch wrote, “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. *** We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” Prior to Bostock, it was legal in more than half of the states of our country to fire or not hire workers for being gay, bisexual, or transgender.

The decision in Bostock covering three cases was the Court’s first on LGBTQ rights since the retirement in 2018 of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions including the seminal case of  Obergefell v. Hodges, 576 U.S. 135 (2015) legalizing gay marriage in the country. The first of these cases concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation: Bostock and Altitude Express Inc. v. Zarda, No. 17-1623.  The third was a gender identity case entitled R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107. R.G. & G.R., was brought by a transgender woman named Aimee Stephens who was fired from a Michigan funeral home after making it known in 2013 that she was a transgender woman and would start working in women’s clothing. When describing the 3 cases, Justice Gorsuch wrote, “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.”

Justice Gorsuch began his opinion in Bostock by explaining that the Supreme Court generally interprets a law by looking at how the public would have understood the law when it was passed — “the ordinary public meaning” of the law. Here, he reasoned, the word “sex” means either male or female. Under the plain terms of Title VII, then, an employer violates Title VII “when it intentionally fires an individual employee based in part on sex,” even if “other factors besides the plaintiff’s sex contributed to the decision” and even if “the employer treated women as a group the same when compared to men as a group.” Justice Gorsuch stressed that what matters is whether “changing the employee’s sex would have yielded a different choice by the employer.” Discrimination against LGBTQ employees, Justice Gorsuch and the rest of the majority made clear, “necessarily entails discrimination based on sex; the first cannot happen without the second.”

By passing and signing into law the New Jersey Equal Pay Act (EPA), our state legislature and Governor Murphy made clear that unequal pay practices based on a person’s gender, race, national origin, disability or other protected class characteristic, for employees performing same or similar work, will not be tolerated in New Jersey. A powerful remedy found in the EPA allows an aggrieved employee to seek back pay damages for discriminatory pay practices going back 6-years!

The passage of the EPA meant that the statute of limitations for claims based on discriminatory pay was expanded from 2-years under the existing New Jersey Law Against Discrimination (NJLAD) to a period of 6-years. Specifically, this  look-back provision of the EPA found at  N.J.S.A. 10:5-12A, , states that, “…liability shall accrue and an aggrieved person may obtain relief for back pay for the entire period of time, except not more than six years, in which the violation with regard to discrimination in compensation or in the financial terms or conditions of employment has been continuous, if the violation continues to occur within the statute of limitations…” (emphasis added).

A plain reading of the EPA makes clear that a victimized employee is permitted to recover damages for 6-years of unequal pay so long as it is shown to the satisfaction of a court that the complained of unequal pay practices continued to take place one or more times after the EPA took effect on July 1, 2018. Despite the apparent clarity of the EPA, some employers sought to challenge this 6-year claw back period arguing that by giving effect to the 6-year statute of limitation as of its effective date would mean the law was being given a manifestly unfair retrospective application. Retrospective application of a new law or rule depends on whether there has been a departure from existing law. State v. G.E.P., 458 N.J. Super. 436, 444-445 (App. Div. 2019). If there is a departure from exiting a law, the new law or rule is only given prospective effect. Id.  A new rule or law exists if “‘it breaks new ground or imposes a new obligation ….  [or] if the result was not dictated by precedent existing at the time the defendant’s conviction became final.'” Id. quoting State v. Lark,  117 N.J. 331, 339 (1989) (quoting Teague v. Lane,  489 U.S. 288, 301 (1989)).

The unemployment rate in the United States has soared to 14.7%, the highest since the Great Depression of the 1930s, and is expected to continue to increase. In just the past few weeks alone, more than 1 million people have filed unemployment claims in New Jersey. In response to this pandemic caused economic crisis, the United States Congress created the Payroll Protection Program (PPP), a loan program originating from the Coronavirus Aid, Relief and Economic Security (CARES) Act. PPP is designed to provide a direct incentive for small businesses to keep their employees on payroll. Under PPP, loans granted by the Small Business Administration (SBA) to businesses will be forgiven if all employees are kept on the payroll for eight weeks and the money is used for payroll, rent, mortgage interest, or utilities.

More specifically, PPP requires the employer to pay out at least 75% of the monies loaned in payroll. Because of this, many employers believe they can recall furloughed employees back to work at only 75% of the employees’ prior wage. This is very pleasant news for workers who while on unemployment have been receiving supplemental CARES Act unemployment insurance stimulus monies of $600.00 per week together with traditional unemployment insurance benefits. The maximum unemployment insurance benefit rate in New Jersey is currently $713.00 per week. This means many in New Jersey are collecting $1,313.00 per week (this comes to a yearly wage rate of $68,276) while home on unemployment. It is fair to state that this is likely more money than many of these workers have ever earned in wages during their adult life. Against this backdrop, consider the reaction of these same unemployed workers when notified they must return to work and accept a 25% pay cut because their employer who just received their PPP loan monies has no financial means other than the PPP loan to make payroll. Consequently, many furloughed employees called back to work face the ugly prospect of not only having to give up their traditional unemployment insurance benefits plus the $600 in weekly stimulus monies they’ve been receiving, but also must now endure a 25% cut in pay upon returning to work. Such a horrifying turn of events would leave an affected New Jersey worker to wonder whether they can refuse to return to work under such circumstance and continue to receive his/her unemployment benefits.  As is often the case, the answer depends on the controlling facts.

Generally, an individual will be disqualified from benefits if he or she fails to accept suitable work. N.J.A.C. 12:17-11.5(a). However, suitability of work in terms of wages means 80% of the individual’s average weekly wage, including the value of the individual’s benefits, during the base year of pay. Id. Moreover, no work may be deemed suitable, and an individual will not be disqualified for benefits because of his or her refusal to accept work if the wages, hours, or other conditions of work offered are substantially less favorable than those prevailing for similar work in the labor market area. N.J.A.C. 12:17-11.5(b).

As discussed in Mashel Law’s last blog posting, when a worker stricken with the coronavirus disease (COVID-19), or likely exposed to same, needs to take time off to recover from the effects of the virus or to quarantine themselves from spreading it to family and coworkers, he or she may find job protections under the New Jersey Law Against Discrimination (NJLAD), federal Family and Medical Leave Act, the New Jersey Family Leave Act and the New Jersey Paid Sick Leave Act.  Adding to this arsenal of legal relief against an employer who chooses not to provide a worker with medical leave in such a circumstance is the New Jersey Department of Labor and Workforce Development’s (“NJDOL”) recent adoption of temporary emergency new rules to be found at N.J.A.C. 12:70 which will codify New Jersey Governor Phil Murphy’s Executive Order No. 103 (2020) a/k/a the New Jersey COVID 19 Anti-Retaliation Law. These new rules prohibit an employer from terminating or otherwise penalizing an employee for requesting or taking time off from work based on the written or electronically transmitted recommendation of a medical professional licensed in New Jersey stating the employee needs time off for a specified period of time because the employee has, or is likely to have, COVID-19 or any other infectious disease, which may infect others in the workplace.

Proposed new rule N.J.A.C. 12:70-1.3 states that upon the expiration of a period of protected leave, an employee must be restored to the position the employee held immediately prior to the start of the protected leave, with no reduction in seniority, status, employment benefits, pay, or other terms and conditions of employment.  Additionally, this new section states that if the employee’s position has been filled, the employer must reinstate the employee returning from protected leave to an equivalent position of like seniority, status, employment benefits, pay, and other terms and conditions of employment.

Proposed new rule N.J.A.C. 12:70-1.4 prohibits an employer from discharging or in any way retaliating against or penalizing any employee because the employee requests or takes protected leave. Concurrently, the rule also addresses situations where failure of an employer not to reinstate an employee would not be deemed retaliatory if: (1) the employer conducts a reduction in force that would have affected the employee had that person been at work; or (2) the employee would have been impacted by the good faith operation of a bona fide layoff and recall system, including a system under a collective bargaining agreement that would not entitle the employee to reinstatement to the former or an equivalent position.  The remedies available for a violation of the New Jersey COVID 19 Anti-Retaliation Law is limited to the commencement of an administrative action before the NJDOL seeking reinstatement to the same or equivalent position.  A potential fine of up to $2,500 can also be assessed against a violating employer.

As the COVID-19 pandemic spreads its fear and pestilence throughout our communities, it is important for New Jersey workers to be aware there are many employment laws available to protect their jobs should they need time off from work because they or a family member becomes sick from the virus. This article will discuss job protections provided by New Jersey Law Against Discrimination, the American With Disabilities Act, the federal Family and Medical Leave Act, the New Jersey Family Leave Act, and New Jersey’s Paid Sick Leave Act.

Protections Provided By the New Jersey’s Law Against Discrimination (LAD) and the federal American With Disabilities Act (ADA)

An employee suffering the temporary disabling effects of a virus induced disability may find protection under the “reasonable accommodation” requirements of the New Jersey’s Law Against Discrimination (LAD) and the federal American With Disabilities Act (ADA). Failla v. City of Passaic, 146 F.3d. 149 (3rd Cir 1998); Clowes v. Terminix Int’l, Inc., 109 N.J. 575 (1988).

As this blog previously informed, back on April 24, 2018, New Jersey Governor Phil Murphy signed into law the Diane B. Allen Equal Pay Act (the EPA). The EPA prohibits an employer from paying an employee who is deemed a member of a class protected under New Jersey’s Law Against Discrimination (the LAD) less than what it pays an employee who is not a member of that LAD-protected class who performs  substantially similar work. Protected class characteristics under the EPA remain the same as they are  under the LAD, that is, it is against the law to treat someone hostilely, unfairly or differently because of their, “race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, etc.” N.J.S.A., 10:5-12(a). This article will discuss the official enforcement guidance recently issued by the New Jersey Division of Civil Rights addressing the nature and scope of the EPA.

The EPA expands the remedies available to a victim of pay discrimination. Prior to the passage of the EPA, the LAD already prohibited employers from discriminating “in compensation or in terms, conditions or privileges of employment” based on many protected characteristics. Historically under the LAD, a person protected under the LAD could recover up to two years of back pay for a successful pay discrimination case. Now under the EPA, an employee who establishes pay discrimination can recover up to six years of back pay if the discrimination was continuous, and the most recent violation occurred within the LAD’s two-year statute of limitations. The EPA also makes clear that a violation of the LAD occurs each time an employee is “affected by application of a discriminatory compensation decision or other practice,” including each time an employee receives a paycheck. N.J.S.A. ,10:5-12(a).

The EPA requires equal pay for substantially similar work.  The EPA prohibits an employer from paying any employee “who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility.” N.J.S.A., 10:5-12(t). The EPA specifies that “[c]omparisons of wage rates shall be based on wage rates in all of an employer’s operations or facilities.” Id. It also prevents employers from reducing anyone’s compensation to cure a violation of the Equal Pay Act. Id.

In 2014, the New Jersey Pregnant Workers’ Fairness Act (“NJPWFA”) was signed into law to strengthen protections afforded pregnant employees. Under the NJPWFA, employers must provide pregnant workers reasonable accommodations that would allow them to continue working in their positions. The NJPWFA forbids employers from treating pregnant workers in a “manner less favorable than the treatment of other persons not affected by pregnancy.” N.J.S.A. 10:5-12(s). However, the statute does not require employers to afford pregnant employees with the same reasonable accommodations it gives to nonpregnant injured workers similar in their ability or inability to work.

The NJPWFA provides examples of reasonable accommodations, “such as…temporary transfers to less strenuous or hazardous work.” This means that if a pregnant worker requested a temporary transfer to a light-duty position made available to a similarly situated nonpregnant injured worker, then the pregnant employee should be entitled to such an accommodation under the NJPWFA. Our New Jersey Appellate Division recently addressed this very issue in Delanoy v. Twp. of Ocean, 2020 N.J. Super. LEXIS 1, *2 (Decided January 3, 2020)

In Delanoy, plaintiff, a pregnant police officer, notified her employer of her doctor’s order prohibiting her from performing certain essential patrol officer functions (e.g. carrying a gun) during the later stages of  her pregnancy, and in turn recommended she be removed from patrol duty and transferred to a “light-duty” position during such time. The employer police department (the “Department”) assigned plaintiff to a non-patrol position pursuant to its “Maternity Assignment Standard Operating Procedure” (‘Maternity SOP’)…which allows pregnant officers to work a maternity assignment, but on the condition that the officer use all her accumulated paid leave time e.g., vacation, personal, and holiday time) before going on that different assignment.” Id. at *3. The Department also maintained an almost identical “Light-Duty SOP” for nonpregnant injured officers, but unlike the Maternity SOP, it expressly granted the Chief of Police authority to waive the paid leave time requirement. When the Department refused to waive the paid leave requirement for plaintiff’s transfer as it did for those receiving Light-Duty SOP transfers, plaintiff filed a failure to accommodate discrimination claim against them under the NJPWFA. The Department argued that plaintiff’s transfer to a fundamentally different assignment did not constitute an accommodation as defined by the LAD because plaintiff was not entitled to a reasonable accommodation since none existed that would allow her to continue performing the essential functions of a patrol officer while pregnant.

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