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In a case of first impression, Judge O’Hearn of the United Stated District Court of the District of New Jersey (USDNJ) concluded that there is neither an express or implied cause of action under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”), N.J.S.A. 24:6I-52. Judge O’Hearn likewise held that New Jersey common law does not recognize a cause of action based on an employer’s failure to hire.  These decisions resulted in a putative class action lawsuit entitled Zanetich v. Wal-Mart being dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a cause of action upon which relief could be granted.

Plaintiff Zanetich brought his lawsuit on behalf of himself, and others similarly situated, after a job offer to work for Walmart in its Asset Protection Department was rescinded after he failed a pre-employment drug test due to positive findings of marijuana.  Zanetich argued in opposition to Walmart’s Motion to Dismiss that even though CREAMMA did not expressly provide for a private right to sue for violations of the statute, an implied private cause of action existed, and further, that his common law cause of action was also cognizable as both a wrongful termination and failure to hire claim. Zanetich made these arguments premised in part on the fact that the language of CREAMMA states, “No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items …”

In determining that CREAMMA did not create an implied cause of action for violations of the statute, Judge O’Hearn applied the three-part test established by the United States Supreme Court in Cort v. Ash, 422 U.S. 66 (1975).  This was required because the language of CREAMMA is silent as to whether it permits a person the right to sue for violations of the statute. Prior thereto, no court had considered whether CREAMMA creates an implied cause of action. After finding Zanetich had established the first Cort factor of being a member of the class for whose special benefit the CREAMMA statute was enacted, Judge O’Hearn went on to conclude that Zanetich had failed to establish the other two Cort factors, that is, he failed to establish that the New Jersey Legislature in passing CREAMMA intended the statute to provide for a private cause of action, and relatedly, failed to establish the legislative scheme embodied within CREAMMA supported an inference that an implied private cause of action existed under the statute. In making these findings Judge O’Hearn heavily weighed the fact that the State Legislature in drafting CREAMMA empowered the Cannabis Regulatory Commission (CRC) to regulate, investigate, and prosecute all violations of the statute.  Considering this wide encompassing role of the CRC and given the lack of any provision in CREAMMA as to how its employment provision can be enforced, by whom, and what remedies, if any, are available under the statute as written, “in and of itself, negates the argument that the Legislature intended for an individual to bring a private cause of action under CREAMMA.”

Recently the New Jersey Appellate Division held that a 60-year-old electronics systems engineer and computer programmer with a Ph.D. did not make out a case for age or disability discrimination under New Jersey’s Law Against Discrimination (LAD) after refusing a temporary assignment as a field telephone pole lineman. In Estate of Zoto v. Cellco Parternship, 2023 N.J. Super. Unpub. Lexis 466 (App. Div. decided March 29, 2023), Plaintiff Zoto was working his job for Cellco, which is owned by Verizon, “managing computer systems and data” when he, and other Cellco employees, were given so-called emergency work assignments (EWA) outside their usual job assignments to cover for Verizon union employees who were on strike. According to Verizon, EWAs are mandatory and may only be avoided if a form is completed and submitted through an online portal and an exception is found by the company which may be based on medical and non-medical reasons.  Although Zoto admitted he did not request through the portal an exception for his EWA assignment conceded during discovery he was in relatively good health, he nonetheless argued that at age 60 he could not safely perform the vigorous physical functions performed by a field telephone pole lineman. The Motion Court granted the defendants summary judgment and Zoto appealed.

In concluding that Zoto could not prove a LAD disability discrimination claim as a matter of law the Appellate Division discussed how our state courts have consistently held that the LAD “requires an employer to reasonably accommodate an employee’s handicap.” Tynan v. Vicinage 13 of Superior Ct., 351 N.J. Super. 385, 396 (App. Div. 2002); see also Viscik v. Fowler Equp. Co., 173 N.J. 1, 11 (2002). A failure to accommodate claim is a subset of a NJLAD discrimination claim. Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 90-91 (App. Div. 2001). To prove a failure to accommodate claim against an employer, a plaintiff must demonstrate that they: (1) “had a LAD handicap; (2 [were] qualified to perform the essential functions of the job, with our without accommodation; and (3) suffered an adverse employment action because of the handicap.” Id. at 91. “An employer’s duty to accommodate extends only so far as necessary to allow ‘a disabled employee to perform the essential functions of [their] job. It does not require acquiescence to the employee’s every demand.'” Tynan, 351 N.J. Super. at 397 (quoting Vande Zande v. State of Wis. Dep’t of Admin., 851 F. Supp. 353, 362 (W.D. Wis. 1994)).

Furthermore, an employee’s request for accommodation need not be in writing or even use the phrase “reasonable accommodation.” Tynan  at 400 (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (1999)). The employee is not required to use magic words or expressly state they are seeking accommodation, but they “must make clear that . . . assistance [is desired] for [their] . . . disability.” Ibid. (first alteration in original) (quoting Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000)). The employer must engage in “an informal interactive process with the employee.” Ibid. (citing 29 C.F.R. § 1630.2(o)(3)). This requires the employer to identify the potential reasonable accommodations that could be adopted to overcome the employee’s precise limitations resulting from the disability.  Once a handicapped employee has requested assistance, it is the employer who must make the reasonable effort to determine the appropriate accommodation. Ibid. *15 -*16  (internal citations omitted).]

The New Jersey Wage and Hour Law (WHL) and the New Jersey Wage Payment Law (WPL) require that New Jersey workers be timely paid for all wages earned including, but not limited to, being paid an overtime rate of 1½ times their regular rate of pay for all hours worked in excess of 40 during a workweek. On August 9, 2019 New Jersey adopted the Wage Theft Act (WFT) which effectively amended the WHL and WPL to permit recovery of unpaid wages from two (2) years to a six (6) year prior to the commencement of a lawsuit seeking to recover such unpaid wages and stated that employees are permitted to recover of all wages due “… plus an amount of liquidated damages equal to not more than 200 percent of the wages lost or of the wages due, together with costs and reasonable attorney’s fees as are allowed by the court …” (emphasis added).

While employed by IEW Construction Group (IEW) as laborers Mashel Law’s clients Christopher Maia and Sean Howarth complained to the company that they were not being paid for pre-shit and post-shift work they were directed to perform. Their complaints were ignored, and therefore, Messrs. Maia and Howarth continued to perform pre-shift and post-shift duties without pay until their employment with IEW ended.

On April 13, 2022, over two and a half years after the WTA amendments of August 6, 2019, Mashel Law filed a Class Action Complaint and Jury Demand in the Superior Court of New Jersey, Middlesex County against IEW on behalf of Messrs. Maia and Howarth and those similarly situated workers alleging, among others, that IEW violated the WHL and WPL by failing to pay Plaintiffs Maia and Howarth and the putative class members for pre-shift and post-shift work. Even though Plaintiffs filed their Complaint after the WTA was enacted, IEW filed a motion to partially dismiss Plaintiffs’ Complaint alleging Plaintiffs could not recover damages prior to the August 6, 2019 and cannot use the six-year look back period provided by the WTA.

In New Jersey an employee can prove they were the victim of workplace discrimination in violation of New Jersey’s Law Against Discrimination (LAD) or unlawful whistleblowing retaliation in violation of New Jersey’s Conscientious Employee Protection Act (CEPA) by presenting evidence that an equal or subordinate coworker influenced the employer to fire [or use another form of adverse employment action] him/her.  Indeed, the recent updated version of the New Jersey Model Civil Jury Charge recognizes that “unlawful employment discrimination … can be predicated on claims that a non­-decisionmaker’s discriminatory views impermissibly influenced the decisionmaker to take an adverse employment action against an employee.” (emphasis added) quoting Meade v. Twp. of Livingston, 249 N.J. 310, 336 (2021).

Our New Jersey Supreme Court first addressed this issue of indirect influence causing the claimed unlawful workplace discrimination or retaliation in its 1998 decision in Spencer v. Bristol-Meyers Squibb Co., 156 N.J. 455 (1998). In Spencer, the Court affirmed an employee’s introduction of her supervisor’s statement into evidence to show that an outside individual’s racial animus influenced her employer’s decision not to hire her. Id. at 456-58, 466. The employee alleged that she was denied the position because — according to what the company’s Director of Human Resources had allegedly told her — a person who was “very influential in the company” had expressed concern that the plaintiff would be his daughter’s supervisor if hired because he “would be a little concerned about the idea of having a black female of your age as her role model.” Id. at 457-58. Although the Court’s focus was on the admissibility of the statement attributed to the director under the Rules of Evidence, it is significant for our discussion because the Court affirmed the admission of the statement, which was proffered to show that the outside individual’s racial animus influenced the decision not to hire the employee Id. at 466.

In its 2013 decision in Battaglia v. United Parcel Serv., Inc., 214 N.J. 518 (2013), our State Supreme Court concluded that evidence of indirect influence could support a CEPA claim. Battaglia involved an employee who was demoted after complaining about his supervisor’s misuse of credit cards and inappropriate remarks about women in the workplace. Following his complaint, the employee was reprimanded for poor performance, placed on paid leave, and demoted. The employee brought a claim against his employer alleging that the employer violated CEPA and the LAD. In its decision the Court that when determining whether a plaintiff had established the necessary causal link between the employee’s protected conduct and the employer’s adverse employment action a jury could find that the employee had demonstrated the requisite causal link indirectly by showing proof that a supervisor who did not have the authority to subject the complaining employee  to a  retaliatory employment action but who prepared a biased evaluation because of the employee’s CEPA-protected complaints, might have sufficiently tainted the view of the actual decision maker to support relief.” Id. at 559.

If you are a New Jersey employee and you overhear or learn secondhand that someone is using offensive language to disparage you or others based on protected class characteristics such as race, age, sex, disability, sexual orientation, etc., you may qualify as a victim of a discriminatory based hostile work environment under New Jersey’s Law Against Discrimination (the “LAD”).  This may be true even if the prejudiced language is not directed at a protected class you are a member of.

Generally, when a Plaintiff-Employee alleges a hostile work environment under the LAD based on a legally protected class characteristic (i.e., age, race, sex, national origin, etc.) The Plaintiff-Employee must demonstrate that the Defendant-Employer’s conduct,

(1) would not have occurred “but-for” the Plaintiff-Employee’s protected characteristic,

New Jersey law prohibiting discrimination is not limited to the workplace. For example, under the New Jersey Law Against Discrimination (LAD) townhouse/condominium Homeowner Associations (HOAs) and Landlords must reasonably accommodate the disabilities of those who reside within their properties or make use of their common areas Specifically, they are required to make, “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.” N.J.A.C. 13:13-3.4(f)(2).  A landlord, board, association, or other housing provider may deny a request for a reasonable accommodation for a disability request only if it can prove following an individualized fact sensitive assessment, that the request is unreasonable under the particular circumstances. Factors to be considered in determining whether an accommodation request is unreasonable include, but are not limited to, whether the accommodation or modification would impose an undue administrative or financial burden on the board or association or would fundamentally alter the nature of the board or association’s operations. codes/publications/ pdf_lti/guidance.pdf

In Mauro v. Penwal Affordable Corp., the New Jersey Division of Civil Rights found probable cause of discrimination when Penwal Affordable Corp (“Penwal”), a housing provider for senior citizens, failed to reasonably accommodate resident Madonna Mauro (“Mauro”) with a handicap parking space. DCR Docket No. HB60HW-64910 (Div. on Civil Rights 2015). Mauro requested Penwal to reasonably accommodate her need for accessible parking by specifically reserving an extra handicap parking space for her. Id. Penwal denied Mauro’s accommodation, arguing that such an accommodation would lead to further requests resulting in disruptions of parking effecting all residents. Id. The court disagreed with Penwal stating, “the housing provider must evaluate each request on an individual basis and not merely speculate that a suggested accommodation is not feasible based on an imagined parade of horribles.” Id. Ultimately, Penwal’s failure to engage in an interactive dialogue with Mauro about the parking situation constituted a failure to reasonably accommodate Mauro’s physical disability in violation of the LAD. Id.

Another example under LAD of HOAs, boards, and landlords being required to provide reasonable accommodations is found when residents or tenants are need of service dogs to assist with their disabilities. Specifically, N.J.S.A. § 10:5-29.2 provides in part:

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 28th 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 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.

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