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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.

Winter brings the onset of flu season. According to the Centers for Disease Control (CDC), the flu, short for influenza, is a contagious respiratory illness that effects on average 8% of the population every flu season, or between 9.2 million and 35.6 million flu-related illnesses each year in the United States. The best way to prevent the flu is by getting a flu vaccine. Most employers not in the healthcare field do not require employees to receive compulsory vaccines of any kind, including those for the flu. However, because healthcare employees are likely to be in contact with patients with compromised immune systems, healthcare providers often require their employees to submit to mandatory vaccinations, including forced flu shots. Refusing to do so has cost many healthcare workers their jobs. For example, in November 2017, Minnesota-based Essentia Health fired 69 employees who refused to get the flu vaccine, and in 2012, Cincinnati-based TriHealth fired 150 employees for not getting the flu shot

Terminating an employee when they refuse a flu shot on religious grounds (or because of illness or disability) may give rise to a claim of unlawful discrimination in violation of New Jersey’s Law Against Discrimination (LAD). The LAD prohibits employers from “discharg[ing]” or “discriminat[ing] against [an employee] in compensation or in terms, conditions or privileges of employment” due to, among other reasons, the employee’s religion. N.J.S.A. 10:5-12(a); see also El-Sioufi v. St. Peter’s Univ. Hosp., 382 N.J. Super. 145, 167 (App. Div. 2005). Under LAD an employer may accommodate sincerely held religious practices that may conflict with workplace rules, so long as the religious practices does not impose an undue hardship. Id.

Few reported court cases in New Jersey have been found addressing the refusal on nonreligious secular grounds to comply with a company’s compulsory flu vaccine policy. One case found is Valent v. Board of Review, Dept. of Labor, 436 N.J. Super. 41 (App. Div. 2014), where nurse Valent, an employee of Hackettstown Community Hospital (“HCH”), refused to take a flu vaccine for purely secular and personal reasons. Valent did not allege a medical or religious reason, which were the only exemptions permitted under HCH’s flu vaccination directive.  Id. at 44. Despite Valent agreeing to wear a mask during flu season, HCH proceeded to terminate her employment based on Valent’s refusal to take a flu shot. Thereafter, Valent applied for state unemployment insurance benefits, and HCH contested her application claiming Valent’s refusal to take a flu shot was an act of misconduct disqualifying her from receiving full benefits. The Appellate Division disagreed with HCH by concluding that Valent was not disqualified from unemployment benefits because she did not commit any misconduct under the law.  The appellate court held that Valent was within her rights to refuse to be vaccinated on purely secular reasons and was not required to show she qualified for a religion-based exemption.  Id. at 48.

The Family and Medical Leave Act (“FMLA”) allows eligible employees to take up to twelve (12) workweeks of leave in any twelve-month period if a “serious health condition . . . makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). Therefore, it is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right” that the FMLA affords. 29 U.S.C. § 2615(a)(1). However, for an employee to invoke their right to FMLA leave, he or she must first show they provided their employer with legally sufficient notice of their need for FMLA leave. Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401 (3d Cir. 2007). Furthermore, while “[t]he regulations provide some guidance as to what sort of notice is sufficient[,] [i]t is clear that an employee need not give his employer a formal written request for anticipated leave.” Id. at 402. “[T]he employee need not use any magic words… [only] reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA.” Id.; 29 C.F.R. § 825.302(c); See also Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir. 1999) (employees don’t need to specifically mention FMLA leave, only that leave is needed or may be needed).

Recently, the United States District Court of New Jersey in Cipully v. Lacey Twp. Sch. Dist., 2019 U.S. Dist. LEXIS 206442, (Decided Nov. 27, 2019), was presented with the question of whether an employee is entitled to FMLA benefits if they inform their employer of their serious health condition, but never explicitly request or state a need for time off, but rather continue to report to work. In Cipully, plaintiff was a school district employee who gave her supervisor advance notice that she was scheduled for spine surgery and would need some time off for the surgery and to convalesce. Her supervisor permitted Cipully to take leave “so long as [she] return[s] before school starts.” Even though her doctor did not release her to return to work by the time school started, Cipully returned any way, claiming she felt intimidated by her employer to do so.

After returning to work, Cipully informed her employer on numerous occasions that she was still in pain and that her doctor had not approved her return to work. Id. at *2.  However, she never made another request to take off from work or stated that she needed or may need to take time off from work because of her back condition. Soon after, Cipully’s employment was terminated for alleged “poor performance and inappropriate conduct.” Cipully sued the Lacey Twp. Board of Education (LBOE) alleging, amongst others, that her firing was in retaliation for her attempting to take FMLA leave. The LBOE immediately moved to dismiss her complaint arguing, “that because the Complaint contains no allegations that Plaintiff unequivocally requested and was denied FMLA leave, Plaintiff’s allegations are insufficient to establish proper notice of her intention to take such leave.” Id. at *4.

New Jersey’s whistleblowing law is known as the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. (“CEPA”).  To prove a CEPA case, an employee must show that because they disclosed, objected, and/or or refused to participate in activities engaged in by their employer or their coworker(s) that they reasonably believed to be a violation of law, were fraudulent or were contrary to public policy, they suffered an adverse employment action.  CEPA defines an adverse employment action, i.e., to be a “discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.” N.J.S.A. 34:19-2(e). Although our courts in New Jersey recognize that retaliatory action can take the form of “many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct.” Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003), the question of whether the issuance of poor performance evaluations may be viewed as an adverse employment action under CEPA is not so clear.

The courts in New Jersey did not always consider an employee who received poor performance evaluations to have suffered retaliation under CEPA.  See Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366 (2002) (finding negative performance evaluations were not an adverse employment action where plaintiff was told her job was safe). However, for repeated negative performance evaluations to qualify as an adverse employment action under CEPA, our historically an employee to either 1) prove that the evaluation(s) were used as the direct basis for their termination, suspension, demotion or reduction in pay/benefits; or 2) show that the evaluation(s) was so harsh, unjust, and offensive that it caused them to suffer severe physical or psychological symptoms which forced them to take a leave of absence or resign. Id.; See also  Green v. Jersey City Bd. of Educ., 177 N.J. 434 (2003); Donelson v. DuPont Chambers Works, 206 N.J. 243 (2011)

Recently, however, the Unites District Court of New Jersey in Goode v. Camden City Sch. Dist., U.S. Dist. 2019 LEXIS 203303 (November 22, 2019), held that negative performance reviews alone may be enough to constitute an adverse employment action under CEPA. In Goode, the plaintiffs were teachers who sued their school district, as well as their respective individual principals, for violations of CEPA and other statutes. They alleged that the superintendent implemented a policy to use a new evaluation system as pretext to pressure teachers over the age of forty (40) to retire. Id. at *4. Under the new evaluation method, superintendents were required to forward tenure charges of inefficiency to the Commissioner of Education if they received consecutive annual teacher performance evaluations with scores of “partially effective” or “ineffective.” The teacher as then subject to being terminated, suspended, demoted, or receive a deduction in pay/benefits if the Commissioner sustained the tenure charges.

In New Jersey, the difference between being classified by an employer as an employee as opposed to being classified as an independent contractor can make a world of difference regarding the scope of a person’s legal rights. Unlike independent contractors whose rights are established by mutually agreed terms contained in a contract, those who qualify for employment status are entitled by operation of law to a host of benefits and rights not available to an independent contractor, including, but not limited to, unemployment compensation benefits, temporary disability benefits, workers compensation benefits, and wage and hour rights. See generally for example New Jersey’s: Unemployment Compensation Law, N.J.S.A. 43:21-1 et. seq.; Temporary Disability Benefits Law, N.J.S.A. 43:21-25 et. seq.; Workers Compensation Laws, N.J.S.A., 34:15-1, et. seq., Wage and Hour Law, N.J.S.A. 34:11-56a et. seq. and Prevailing Wage Act, N.J.S.A. 34:11-56.25 et. seq. Therefore, it is of paramount importance for workers to qualify as an employee under state law in order to receive these benefits.

Under New Jersey’s current law, individuals will be considered independent contractors if (1) free from control or direction over the performance of services; (2) they provide a service that is either outside the usual course of that employer’s business or the service is performed outside the employer’s places of business; or (3) the individual is customarily engaged in an independently established trade, occupation, profession or business. This law, found at N.J.S.A., 43:21-1 to 24.4, deems individuals eligible for unemployment compensation benefits unless all of the criteria of the so-called “ABC test” set forth in N.J.S.A. 43:21-19(i)(6)(A),(B),(C) is satisfied. All three parts of the test must be met for a person to be disqualified and the failure to establish any one of the three elements renders the claimant eligible for benefits. Philadelphia Newspapers, Inc. v Board of Review, 397 N.J. Super. 309 (App. Div. 2007).

For example, as the law stands now, an entertainer employed by a hardware store to perform and sing for its customers at their annual holiday party would be considered an independent contractor. Similarly, if a fast food burger restaurant hired a caterer to provide food and services for all their parties outside of its restaurants, that caterer would be considered an independent contractor. This is true even if the caterer was too busy catering these parties to be able to provide services to any other customer. Moreover, if a bank frequently hires an IT specialist to conduct software updates and repairs specifically relating to its buildings’ security systems but could provide the same services to other types of businesses, that individual would be considered an independent contractor.

America takes pride in its history of being a beacon for the labor class. Throughout its history, America has attracted waves of immigrants believing they could start a better and more prosperous life working in a thriving economy. Many of America’s greatest success stories began as a result of people getting an opportunity to work in a job providing a fair wage.  Fortunately for those who work in New Jersey, the New Jersey Wage and Hour Law (NJWHL) exists to “protect employees from unfair wages and excessive hours.” In re Raymour & Flanigan Furniture, 405 N.J. Super. 367, 376 (App. Div. 2009). The NJWHL expressly states that, “[t]he employment of an employee in any occupation in this State at an oppressive and unreasonable wage is hereby declared to be contrary to public policy and any contract, agreement or understanding for or in relation to such employment shall be void.”  N.J.S.A., 34:11-56a3. “Oppressive and unreasonable wage” is defined as “a wage which is both less than the fair and reasonably value of the service rendered and less than sufficient to meet the minimum cost of living necessary for health.” N.J.A.C. 12:56-2.1. A prime example of the NJWHL wage protections is found in our State’s overtime law which requires, “Every employer shall pay to each of his employees’ wages … for 40 hours of working time in any week and 1 1/2 times such employee’s regular hourly wage for each hour of working time in excess of 40 hours in any week …”  N.J.S.A., 34:11-56a4.

Unfortunately, due to insufficient budgeting, the New Jersey Department of Labor and Workforce Development (“NJDOL”) is currently experiencing a shortage of enforcement staff capable of charging those who violate the State’s NJWHL. Consequently, companies too often believe they can get away with violating New Jersey’s labor laws regarding wages, classification, and benefits. In turn, the NJDOL’s over-extension comes at a cost to those legitimate companies who are unwilling to take advantage of the situation by paying workers less or providing them less benefits. As New Jersey Senate Republican Leader Tom Kean recently stated, “[i]t’s hard for honest firms that follow the rule to compete for work when they’re paying the full wages, taxes, and insurance that their shady competitors often dodge.” However, to address this untenable situation, New Jersey State Senators Oroho [R], Kean [R], Troy Singleton [D] and Joe Pennacchio [R] are calling for the swift passage of Bill S-3954, establishing the creation of the Office of Labor Law Enforcement (“OLLE”) within the New Jersey Department of Labor and Workforce Development.

Hoping to foster fairer economic competition among businesses in the labor sector and “level the playing field,” the proposed legislation seeks to grant the OLLE referee-like authority to “oversee, evaluate, and coordinate enforcement activities of the department regarding violations of the provisions of labor laws, including provisions regarding wages and other terms and conditions of employment…the misclassification of employees, made by employers, employees, or other persons to wrongfully obtain or wrongfully deny or delay the full payment of wages and benefits, or pay less than the premiums, contributions, or taxes which are required by the provisions of State labor laws.” To ensure such enforcement, “[t]he bill directs the Attorney General, upon a request by the Commissioner of Labor and Workforce Development, to assign one or more deputy attorneys general to represent the department in proceedings regarding State labor law violations…”

Employer dress codes aimed toward the legitimate business interests of professionalism, safety, hygiene and neatness are legal. However, natural hair or hairstyles associated with African Americans, such as dreadlocks, have been historically stereotyped and perceived as unprofessional against Euro-centric standards of beauty. A simple google search of “unprofessional hairstyles” reveals many images of African Americans in natural hair or braids. This sort of discrimination has subjected people across the United States to “dignitary, psychological, physiological, and financial harm.” Federal, state and local government entities have long recognized that policies which “discriminate against traditionally Black hairstyles… qualify as discrimination on the basis of race.” See EEOC Dec. No. 71-2444, 1971 WL 3898, (1971) (“the wearing of an Afro-American hair style by a Negro has been so appropriated as a cultural symbol by members of the Negro race as to make its suppression either an automatic badge of racial prejudice or a necessary abridgment of first amendment rights.”).

Recent increased incidents of discriminatory hair-grooming policies and practices directed towards people of color in schools and the workplace has brought renewed attention on this issue. For example, a white New Jersey referee forced a black high school wrestler to cut his dreadlocks before a match or face disqualification; a 6 year boy in Florida was barred from attending a private Christian academy on his first day of school because his hair extended below his ears; and an 11 year old black girl was sent home from a private Roman catholic school in Louisiana because she broke a rule on wearing hair extensions. In 2018, “54 percent of reported bias incidents in New Jersey were motivated by the victim’s race, ethnicity, or national origin. Of those, approximately 72 percent were anti-Black.” See DCR Guidance

As a consequence of this uptick in hair based discriminatory conduct, a growing movement has developed to better protect Black employees from discrimination in the workplace based on hairstyle thereby recognizing the importance of hair to cultural identity and the historically discriminatory treatment people of color have received because of their natural hair. Indeed, this past summer Governor Gavin Newsom of California signed the Crown Act into law making it illegal in California to enforce dress code or grooming policies against hairstyles such as afros, braids, twists and locks.

If you are a frequent reader of this blog, you may know we have written several times in the past about the scourge of forced arbitration.  Forced arbitration prevents workers from being able to sue their employers in court for violating wage and hour, discrimination, whistleblower and other employment laws. Public Citizen, a not-for-profit consumer advocacy group, says that, “Corporations use forced arbitration clauses in contracts as a get-out-of jail free card” and point out how corporate apologists for arbitration argue it is a cheaper alternative to lawsuits when in practice it serves as a tool used to cheat employees out of their day in court. And according to Public Citizen, more than 60 million workers are subject to forced arbitration; by 2024 it is expected that more than 80% of private sector, nonunion workers will be subject to forced arbitration. Likewise, forced arbitration stops consumers from being able to vindicate their rights and recover damages before an impartial judge and jury. Indeed, the Economic Policy Institute reports that individual consumers seeking relief in arbitration win just 9% percent of the time.

The Federal Arbitration Act (FAA) was enacted in 1925 with the goal of ensuring the enforcement of arbitration agreements in any “maritime transaction or … contract evidencing a transaction involving commerce[.]” 9 U.S.C. § 2. The U.S. Supreme Court (Court) has recognized the FAA as evidencing “a national policy favoring arbitration.” Southland Corp. v. Keating, 465 U.S. 1, 10 (1984). New Jersey not only follows the FAA; it has also enacted its own state legislation endorsing a public policy favoring arbitration agreements.  The New Jersey Arbitration Act, N.J.S.A., 2A:23B-1 to 32,  is similar to the federal statute in many respects, and provides that “[a]n agreement … to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.”

While giving full force and effect to the FAA and the New Jersey Arbitration Act, New Jersey courts have repeatedly demonstrated their discomfort with the lack of opportunity for meaningful consent afforded to workers who are often faced with a choiceless “take it or leave it” job scenario when it comes to consenting to arbitration. In Skuse v. Pfizer, Inc., 457 N.J. Super. 539 (App. Div. 2019), our Appellate Division required clauses purporting to indicate agreement to arbitration be clearly received and acknowledged by employees, especially when the forced agreement is part of a “training” web video.  In  Kernahan v. Home Warranty Admin. of Fla., Inc., 236 N.J. 301 (2019), the New Jersey Supreme Court found that using the heading “Mediation” for an arbitration clause might cause the average reader some confusion, especially when the clause said the arbitration would be governed by the designated forum’s non-existent “Commercial Mediation Rules.” An appellate court in Alexander Defina v. Go Ahead and Jump 1, LLC, 2019 N.J. Super. Unpub. LEXIS 1404 (App. Div. 2019), held that language waiving a “trial” in favor of arbitration did not sufficiently inform a consumer or employee that arbitration is different from having his or her claim determined by a court or jury which is the test required by Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014).