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The numbers are deeply troubling. Even though the Center for Disease Control (CDC) has repeatedly made clear that COVID-19 vaccines are overwhelming safe and effective and continue to undergo the most intensive safety monitoring in U.S. history, New Jersey employers are left to confront the reality of a large segment of their workforce who are either unwilling to vaccinate or hesitant to do so. As of August 1, 2021, 11.1 million COVID-19 vaccines have been administered in New Jersey of which 5 million are fully vaccinated residents, or 58.5% of our total state population. This means over 40% of our state population remains unvaccinated. The low rate of vaccination among young adults is particularly concerning with U.S. News & World Report reporting the vaccination rate for those 18-24 is only 50% and 41%, respectively. Unvaccinated workers pose a threat of spreading COVID-19 in their respective workplaces by risking the health of their coworkers (including their coworkers’ families and others they may come into contact with) and undermining the safe and efficient operation of the businesses they work for.  To combat this, New Jersey employers can legally require their workers to vaccinate so long as they do not violate laws prohibiting workplace discrimination.

On May 28, 2021, the federal Equal Employment Opportunity Commission (EEOC) issued a press release proclaiming that federal equal employment opportunity laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964…” The EEOC’s May 28^th guidance should prove persuasive on our New Jersey courts when applying New Jersey’s Law Against Discrimination (LAD) because our state courts look to federal law when interpreting the LAD.  Victor v. State, 203 N.J. 383 (2010); see also Raspa v. Office of Sheriff of County of Gloucester, 191 N.J. 323 (2007).

Under the LAD, employers are required to reasonably accommodate an employee’s disability or sincerely held religious beliefs so long as doing so does not create an undue hardship on the employer’s business, for the company, or a coworker(s). N.J.S.A., 10:5-12; N.J.A.C., 13:13-2.5. A caveat to this is that New Jersey health care facility workers cannot refuse to vaccinate unless they qualify for a medical exemption. N.J.S.A., 26:2H-18.79. See http://www.nj.gov/health/forms/imm-53.pdf. Employer provided reasonable accommodations for those workers who cannot vaccinate due to a medical condition or sincerely held religious belief may include, but are not limited to, being required to wear a mask, presenting proof of periodic negative COVID-19 test results, working at social distance form coworkers, teleworking remotely from home, and/or working a modified shift or reassignment.

The United States Supreme Court unanimously held that the National Collegiate Athletic Association (“NCAA”) cannot restrict education-related benefits provided by its member schools to student-athletes.  The decision in NCAA v. Alston, 141 S. Ct. 2141 (2021) arises out of a class-action lawsuit filed by current and former Division I student-athletes against the NCAA alleging anti-trust violations that restrict student-athletes from receiving a fair market rate for their labor. Anti-trust laws operate to promote competition between businesses and organizations to prevent monopolies by creating an even playing field among similar businesses.

The appeal to the Supreme Court stems from a federal district court ruling that permitted the NCAA to continue restricting benefits unrelated to education like cash payments to student-athletes in the form of salaries but prohibited the NCAA from restricting education-related benefits such as graduate school scholarships, post-graduate internships, and free laptops. The 9th Circuit Court of Appeals affirmed the decision of the district court, and the decision was appealed to the Supreme Court. The scope of the decision pertained only to the subset of NCAA rules restricting education-related benefits enjoined by the district court, not an across-the-board challenge to the NCAA’s rules restricting student-athlete compensation.

The NCAA urged the Court to overrule the 9th Circuit, arguing the lower courts misapplied the anti-trust standard of review, endorsing a less stringent examination to preserve the institution and integrity of American collegiate sports. Adding to this, the NCAA advanced the argument that because the NCAA is a joint venture offering its customers a unique product of intercollegiate athletic competition, the Association and its member schools are not a commercial enterprise, but are institutions advancing the societal objective of undergraduate education. In response, the athletes argue that the NCAA is asking for a complete exemption from federal anti-trust laws based on the NCAA’s reliance on a loose and inconsistent concept of “amateurism” and its importance in the realm of higher education. Pointing to the rapid ascension of college sports into the mainstream, the athletes underscore that the NCAA is a multi-billion-dollar business with television contracts in the billions per year that is only made possible by maintaining monopsony power – monopoly control on the buyer side – over the labor market for college athletes and price-fixing the ceiling on those labor costs.

Attorneys who violate the “Golden Rule” when providing a closing summation to a jury at trial risk losing a verdict for their clients, so says the New Jersey Superior Court, Appellate Division in Morgan v. Willie Maxwell II, et. al., 2021 N.J. Super. Unpub. LEXIS 718 (decided April 26, 2021). Plaintiff Shawna Morgan (Morgan) was an administrative assistant for musical rap artist Willie Maxwell, II a/k/a “Fetty Wap”, his touring company Fetty Wap Touring, Inc (collectively the Fetty Wap Defendants), and Goodfella4life Ent., d/b/a RGF Productions, Inc. (RGF), his recording label. Prior to the trial, the Fetty Wap Defendants settled Morgan’s claims alleging breach of contract damages and defamation.  Following a 5-day trial the jury entered a verdict in favor of Morgan and against RGF, the remaining defendant, in the sum of $1,167,065.63, representing an award of $980,000 for RGF’s alleged defamation of plaintiff, breach of contract damages totaling $66,294.42, and pre-judgment interest in the sum of $120,771.21. RGF appealed the verdict.

In addition to claims for unreimbursed expenses and unpaid commissions, Morgan’s lawsuit alleged the defendants defamed her when subsequent to her firing in April 2017, TMZ, a gossip website, published an article based on falsehoods propagated by the defendants alleging Morgan was fired for stealing money, and then RPG maliciously double-downed when it falsely alleged Morgan had misrepresented herself as a booking agent and illegally charged outside fees for her services.

At the close of trial, Morgan’s attorney argued to the jury:

Vincent Hager suffered serious work-related back injuries on a construction job while working for M&K Construction. He underwent surgeries and was prescribed opioid medication for his chronic pain which did not provide him adequate relief. Hager then enrolled in New Jersey’s medical marijuana program for pain management and to overcome his opioid addiction. He requested his M&K’s workers compensation carrier to reimburse him for the ongoing cost of his prescription marijuana.  Following a trial, the workers compensation court ordered M&K to reimburse Hager for the cost of his prescribed marijuana use. The Appellate Division affirmed, and the case was appealed by M&K to the New Jersey Supreme Court. On appeal, M&K argued: 1) that New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act (the Compassionate Use Act) was preempted by the federal Controlled Substances Act, 2) medical marijuana is not reimbursable under the New Jersey Workers’ Compensation Act (WCA) as a reasonable or necessary treatment, and 3) that medical marijuana use fits within an action to the Compassionate Use Act and therefore is not a reimbursable expense. The New Jersey Supreme Court in affirming the courts below, rejected M&K’s arguments. Hager v. M&K Construction, 2021 N.J. LEXIS 332 (decided April 13, 2021).

The Court began its analysis by explaining how the Compassionate Use Act, N.J.S.A. 24:6I-1 to -30, was enacted in 2010 in recognition of the beneficial uses of marijuana and to protect authorized individuals from criminal and civil penalties. Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416, 427 (App. Div. 2019) aff’d 241 N.J. 285 (2020). (See Mashel Law’s blog article posted on March 29, 2019 discussing the Appellate Division opinion in Wild). The Compassionate Use Act articulates legislative findings that, “[m]odern medical research has discovered a beneficial use for cannabis in treating or alleviating the pain or other symptoms associated with certain medical conditions”. The Court recognized that although the selling and distribution of medical marijuana is prohibited under federal law, many states like New Jersey have legalized it, and states are not required to enforce federal law. Id. at *14.

As to M&K’s argument that it need not reimburse Hager for his medical marijuana costs because under the Compassionate Use Act reimbursement for medical marijuana costs is not required of “a government medical assistance program or private health insurer,” the Court concluded that the Legislature did not intend for workers’ compensation insurers to be treated as private health insurers or government medical assistance programs under the Compassionate Use Act. Therefore, M&K is not exempt from its reimbursement obligation. Id. at *18 -*19.

Following a trial at the Law Division and an appeal to the Appellate Division, the New Jersey Supreme Court was asked to resolve whether a plaintiff could recover damages under a promissory estoppel theory of liability because he relied on defendant’s promise in quitting his prior employment. Goldfarb v. Solimine, 2021 N.J. LEXIS 161, 245 A.3d 570, 2021 WL 626991 (decided February 18, 2021). In Goldfarb, Plaintiff Jed Goldfarb claimed defendant David Solimine reneged on a promise of employment after Goldfarb quit his job to accept the promised position. Although an employment agreement and its terms were never reduced to writing, plaintiff asserts that he received specific promises of a base salary and return on investments for managing in-house the sizeable investment portfolio of defendant’s family. In response, Solimine argued that because an employment contract was never reduced to writing as required by New Jersey’s Uniform Securities Law of 1997 (the Securities Law) Goldfarb was barred from pursing an action against him. The Securities Law intends to forbid the enforcement of an investment advisory contract that has not been reduced to writing. In resolving the issue before it in favor of plaintiff Goldfarb, the Court distinguished between a breach of contract claim where the Court found Goldfarb could not pursue a claim because of the Securities Law’s requirement that contracts be writing, and the reliance-based doctrine promissory estoppel open to Goldfarb because it had no such requisite.

To begin its analysis, the Court pointed to well established case law instructing that “[a] contract is an agreement resulting in obligation enforceable at law.” Borough of West Caldwell v. Borough of Caldwell, 26 N.J. 9, 24 (1958). “[T]he basic features of a contract” are “offer, acceptance, consideration, and performance by both parties.” Shelton v. Restaurant.com, Inc., 214 N.J. 419, 439 (2013). “A contract arises from offer and acceptance, and must be sufficiently definite ‘that the performance to be rendered by each party can be ascertained with reasonable certainty.'” Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435  (1992) (quoting Caldwell, 26 N.J. at 24-25).  For a viable breach of contact claim a party may pursue benefit-of-the-bargain or expectation damages, that is, damages that plaintiff would have earned had the contact not been breached.  See Coyle v. Englander’s, 199 N.J. Super. 212, 214 (App. Div. 1985) (characterizing expectation damages, “i.e., loss of  the benefit of the bargain,” as the “traditional” form of damages for breach of contract). The purpose of such compensating damages “is to put the injured party in as good a position as if performance had been rendered.” Totaro, Duffy, Cannova & Co., L.L.C. v. Lane, Middleton & Co., L.L.C., 191 N.J. 1, 13 (2007) (ellipsis omitted) (quoting Donovan v. Bachstadt, 91 N.J. 434, 444 (1982)). [*23]

A promissory estoppel claim is different than a breach of contract claim. Promissory estoppel is made up of four elements: (1) a clear and definite promise; (2) made with the expectation that the promisee will rely on it; (3) reasonable reliance; and (4) definite and substantial detriment.” Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 253 (2008); see Model Jury Charges (Civil), 4.10K “Promissory Estoppel” (approved May 1998). It has been long recognized that promissory estoppel is “a departure from the classic doctrine of consideration that the promise and the consideration must purport to be the  motive each for the other,” providing instead that the operative “reliance is on a promise.”  [*24], Friedman v. Tappan Dev. Corp., 22 N.J. 523, 536 (1956).  Under promissory estoppel a successful plaintiff is entitled to reliance damages. In contrast to contract-based expectation damages, reliance damages look backward.

The American Rescue Plan (ARP) signed into law by President Joe Biden provides plenty of benefits for those eligible including:

a) $242 billion in relief payments such as Economic Impact Payment of up to $1,400 for individuals or $2,800 for married couples, plus $1,400 for each dependent;

b) expansion of the Child Tax Credit from $2,000 to $3,600 for children under age 6, and $3,000 for other children under age 18;

Dr. Zeferino Martinez, a 70-year-old orthopedic surgeon, was fired in 2017 by UPMC Susquehanna, a Pennsylvania located hospital where he worked.  UPMC claimed Dr. Martinez was let go not because of his work performance, but rather because the hospital was “moving in a different direction and his services were no longer needed.”  UPMC replaced Dr. Martinez with two younger doctors, although their ages were not known by Dr. Martinez at the time. Thereafter, Dr. Martinez filed a lawsuit in federal court alleging his firing was unlawfully motivated by his age in violation of, inter. alia., the federal Age Discrimination in Employment Act (ADEA).  The District Court granted UPMC’s motion to dismiss holding that a plaintiff cannot just allege that his replacement was “substantially younger” because that is a legal conclusion, not a factual allegation that must be taken as true. Martinez c. UPMC Susquehanna, 2019 U.S. Dist. LEXIS 135176, WL 3776587 (M.D. P.A. Aug. 12, 2019) at *3. Because the complaint did not allege the replacement doctors’ ages, the Court thought it could not infer age discrimination. at *4.  Dr. Martinez appealed the dismissal to the United State Court of the Appeals for the Third Circuit.

A motion to dismiss brought in federal court must be denied if the complaint, on its face, contains sufficient factual matter to show that a claim to relief is “plausible.”  Ashcroft v. lgbal, U.S., 129 S. Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). The “plausibility standard” does not require the Plaintiff to establish a probability of liability, only more than a mere possibility. Id. (citing Twombly, 550 U.S. at 556-57, 570). This analysis requires the reviewing court to “draw upon its judicial experience and common sense” in making this determination, and to consider the complaint as a whole and in context. Iqbal, at 1950. The court must “‘accept all factual allegations as true, construe the complaint in the light most favorable to the Plaintiff, and determine whether, under any reasonable reading of the complaint, the Plaintiff may be entitled to relief.”‘ Phillips v. County of Allegheny, 515 F.3d 224,231 (3^rd Cir. 2008) (quoting Pinker v. Roche Holding Ltd., 292 F.3d 361, 374 n.7 (3rd Cir. 2002)). However, “[t]his standard does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its fact.” Litras v. PVM Intern. Corp., No.  11-cv-5695 (JFB) (AKT), 2013 WL 4118482 (E.D.N.Y.  Aug.  15, 2013) (citing Twombly, 550 U.S. at 556-57, 570). Thus, the court determines whether the plaintiff is entitled to offer evidence in support of the allegations, and not whether the plaintiff will ultimately prevail. Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3rd Cir. 1997) (citing Scheuer v. Rhodes, 416 U.S. 232,236 (1974)).

The Third Circuit in reversing the District Court below, viewed Dr. Martinez’s allegation that his replacement doctor comparators were “significantly younger” as a factual allegation and not a conclusion of law. Martinez c. UPMC Susquehanna, 986 F.3d. 261, 265 (3^rd Cir. 2021).  In doing so, the Third Circuit opined:

Back on January 13, 2020 this blog site discussed a New Jersey Appellate Division decision interpreting the New Jersey Pregnant Workers’ Fairness Act (PWFA) which amended existing provisions of the New Jersey Law Against Discrimination (LAD) at N.J.S.A., 10:5-12(s) thereby requiring employers to provide pregnant (and breast feeding) workers with reasonable accommodations – such as temporary transfers to less strenuous or hazardous work – to allow them to continue working.  Delanoy v. Twp. of Ocean, 462 N.J. Super. 78 (App. Div. 2020). This decision was appealed by the employer to the New Jersey Supreme Court who this week issued an opinion affirming the Appellate Division while making clear that three distinct causes of action are provided under N.J.S.A., 10:5-12(s) to aggrieved pregnant (and breast feeding) employees: (1) “unequal” or “unfavorable” treatment of a pregnant or breastfeeding employee; (2) failure to provide a reasonable accommodation to a pregnant or breastfeeding employee (subject to the employer’s claim of undue hardship, separately explained in the subsection); and (3) illegal penalization of a pregnant or breastfeeding employee for requesting an accommodation. Delanoy v. Twp. of Ocean, 2021 N.J. LEXIS 173 at *16 (decided March 9, 2021).

In Delanoy, plaintiff, a pregnant police officer, notified her employer, the Ocean Township Police Department (OTPD) 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 OTPD assigned plaintiff to a non-patrol position pursuant to its “Maternity Assignment Standard Operating Procedure” (‘Maternity SOP’) allowing 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.” The OTPD 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 OTPD 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 OTPD 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. The New Jersey Appellate Division disagreed.

In an opinion authored by Justice LaVecchia, the New Jersey Supreme Court in affirming the Appellate Division below declared the OTPD’s Maternity SOP facially invalid because it plainly treated pregnant employees differently and less favorably than non-pregnant employees who were similar in their ability or inability to work. The Light Duty SOP provided for a waiver of the accumulated-leave condition, and the Maternity SOP did not. Therefore, on its face, the Maternity SOP constituted a per se violation of the PWFA’s prohibition of unfavorable treatment of pregnant employees. The Court accordingly affirmed the Appellate Division’s reversal of the trial court’s denial of partial summary judgment to Delanoy on her facial challenge. The Court remanded for a jury trial only on the issues of causation and damages.

An employee who is terminated for alleged sexual harassment based on a consensual out-of-work romantic relationship with a coworker, where no complaint of sexual harassment was ever made and where the employer’s investigation revealed no good-faith basis for concluding sexual harassment had occurred, can serve as the basis for a public-policy wrongful discharge claim pursuant to Pierce v. Ortho Pharmaceutical Corp, 84 NJ. 58 (1980) (holding that it is unlawful to discharge an employee in violation of a clear mandate of public policy) and Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993) (requiring employers to conduct fair and thorough investigations of sexual harassment allegations). Both the New Jersey Supreme Court and the Appellate Division have held that consensual romantic relationships between coworkers do not constitute sexual harassment, even if one of the parties to the relationship is favored by the other to the detriment of third parties in the workplace.

In Erickson v. March & McLennan Co., Inc., 117 N.J. 539 (1990), a unanimous New Jersey Supreme Court held that (1) there was “no reason to extend the protection of the LAD to sex-discrimination claims based on voluntary personal relations in the workplace” and (2) “favoritism in the workplace, based solely on personal romantic preference as opposed to coercion, does not constitute discrimination on the basis of gender.” Id. at 557. Similarly, while addressing the discoverability of consensual sexual relationships between partners and employees at a law firm in a case in which the plaintiff associate alleged that she had been raped by one of the partners, the Appellate Division relied upon the distinction between sex in the workplace and sexual harassment in the workplace to bar discovery of such consensual sexual relationships. K.S. v. ABC Professional Corp., 330 N.J. Super. 288 (App. Div. 2000). The Appellate Division noted that “[s]ex is not congruent with sexual misconduct” in holding that “whether any partner ever had a consensual and welcomed relationship with an employee is irrelevant to plaintiffs’ claim that a hostile work environment was created or tolerated by defendants.”  Id. at 297. Hence, in New Jersey consensual sexual relationships in the workplace, even between superiors and subordinates, do not constitute sexual harassment, and therefore cannot be used as a predicate for firing an employee for sexual harassment. Given this, it may be gainsaid that an employer violates a clear mandate of New Jersey public policy by firing an employee for alleged sexual harassment based on the employee’s consensual romantic relationship with a coworker. Such a discharge violates a clear mandate of public policy and therefore is unlawful Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980).

In Grasser v. United Healthcare Corporation, MID-L-12026-99, the company fired plaintiff Grasser after learning he had been involved in a romantic relationship with a female coworker even though no one (including the female coworker) had complained plaintiff Grasser had done anything inappropriate and despite the female coworker’s clear statement the relationship was entirely consensual. Moreover, the employer’s investigation uncovered absolutely no evidence that either plaintiff or the female coworker had done anything inappropriate in the workplace. Notwithstanding this, defendant-employer fired plaintiff anyway, asserting his relationship with the female coworker violated the company’s sexual harassment policy. In denying the defendant corporation’s motion for summary judgment, New Jersey Superior Court Judge Yolanda Ciccone, J.S.C. stated in part:

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).