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Recently the United States Senate amended the Federal Arbitration Act (the “FAA”) by passing S. 2342, known as “The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (the “Amendment”). The Amendment was passed with bipartisan approval and is expected to be signed into law by President Biden. Senate Judiciary Chair Dick Durbin (D-IL), stated the overall purpose of the Amendment:

“Forced arbitration clauses requires disputes to be decided in secret proceedings where the deck is often stacked in favor of corporations and repeat players. For Americans who have been sexually assaulted or harassed, forced arbitration clauses not only deny survivors a day in court, they require the misconduct be concealed from public view. And that allows the abusers to commit more abuse… The bill before us today would give survivors of sexual assault and harassment a choice to go to court instead of being forced into arbitration under the fine print of contracts signed before the dispute arose…” 

Employers often require their workers to sign arbitration agreement where workers are forced to waive their right to sue in court when legal rights provided them by employment laws are violated in the workplace. Instead, the worker must resolve legal disputes through a private binding arbitration process. Arbitration requires parties to use a secretive confidential process where a privately person, typically a practicing lawyer or retired judge, is retained to serve as an arbitrator who functions like a judge outside of court. Critics of arbitration argue the process stacks the odds against the employee because professional arbitrators typically get repeat business from big business employers as compared to individual employee claimant who will typically use an arbitrator on only one occasion during their life. Common sense dictates that that if an arbitrator wants repeat business from an employer, then he or she must avoid hurting that same employer in their corporate pocketbook. According to an article published in May 2017 on the site populardemocracy.org, “Workers in mandatory arbitration win about one fifth of the time (about 21 percent), which is 59 percent as often as they win in federal courts and 38 percent as often as they win in state courts. In other words, employees are 1.7 times more likely to win in federal courts than in arbitration and 2.6 times more likely to win in state courts than in arbitration. Median damage awards in forced employment arbitration are $36,500, compared to $176,400 in federal court employment discrimination cases and $85,600 in state court non-civil rights cases.”

This past January 2022, Brian Flores was terminated by the Miami Dolphins after what objectively should be considered three successful seasons as its Head Coach. Initially, after Flores was first fired, Mike Tomlin of the Pittsburgh Steelers remained as the sole Black head coach in the NFL.  Recently, in just this last week, the Miami Dolphins hired Mike McDaniel (bi-racial) and the Houston Texans hired Lovie Smith, who is Black. Naturally, this begs the question: why are there only three Black head coaches in a league where over 70 percent of its players are Black?

According to a recent federal class action complaint filed by Flores in the Southern District of New York against the NFL, with the New York Giants, Miami Dolphins, and Denver Broncos named as co-defendants, the answer lies in statistics which appear to point to the NFL and its 32 white team owners engaging in racially disparate hiring practices. However, Flores’ portrayal of the NFL as a particularly egregious offender of laws promoting equal opportunity hiring practices may not hold under closer scrutiny.

On February 1, 2022, former Miami Dolphin Head Coach Brian Flores filed a federal class action, claiming the clubs failed to hire him based on his Black race. Flores alleges in the complaint violations of both Federal law, Title VII of the 1964 Civil Rights act as well as State law, New Jerseys Law Against Discrimination (the “LAD”). More specifically, Flores claims that the Denver Broncos in 2019 and New York Giants in 2022 held or scheduled “sham” interviews in order to appear compliant with the NFL’s “Rooney Rule.”

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) signed into law by Governor Phil Murphy on February 22, 2021 brought new employment protections for job applicants and employees who lawfully use cannabis recreationally while not at work, namely, employees cannot be subject to an adverse employment action simply because a blood or urine test comes back positive for marijuana use.  Prior to enactment of CREAMMA, protections in the workplace for those using marijuana was limited to those possessing a medical marijuana card pursuant to the Jake Honig Compassionate Use Medical Cannabis Act (the Honig Act). Under the Honig Act, it is “unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant with the Cannabis Regulatory Commission” (“Commission”). An “adverse employment action” is defined as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.” N.J.S.A., 24:61-3. Now that CREAMMA is the law, employees in New Jersey can no longer be denied employment or otherwise subject to an adverse employment action solely for using marijuana recreationally outside of work. Put differently, a failed drug test for marijuana by itself is an insufficient reason under CREAMMA for taking an adverse employment action against an employee. This means an employer would have to establish that the employee engaged in some conduct prohibited under the law, such as using marijuana at work, or being under the influence of marijuana at work, or otherwise unlawfully possessing selling or transporting marijuana in the workplace or during work hours.

Importantly the protections provided by CREAMMA apply with respect to all employees regardless of their job classifications or the nature of their job duties and responsibilities, including employees who work in safety-sensitive job positions. Furthermore, while CREAMMA preserves an employer’s right to conduct drug testing of its workforce it places a new obligation on employers to have employees suspected of using cannabis to undergo a physical evaluation by a person who has successfully attained certification as a Workplace Impairment Recognition Expert (WIRE) permitting him/her to determine the employee’s level of impairment while engaged in performing job duties. However, because the Commission has yet to adopt standards for a WIRE certification program no physical evaluation of an employee being drug tested in accordance with CREAMMA is currently permitted.

A major failing of CREAMMA is found in the fact that it does not expressly provide a private right of action for violations of the law. This means it appears an employee subjected to an adverse employment action for testing positive for marijuana use would have to claim a violation of another employment law which does permit an employee to sue in court.  For example, if an employee objected to being suspended by their employer for testing positive for marijuana because there was no evidence the employee used marijuana on the job or was under the influence of marijuana in the workplace, and then was fired for having done so, the employee maybe able to pursue a claim as a whistleblower under the New Jersey Conscientious Employee Protection Act (“CEPA”). CEPA is remedial legislation that, in relevant part, protects an employee from retaliation if he “[d]iscloses or threatens to disclose” to a supervisor or a public body an employer’s “activity, policy or practice” that the employee “reasonably believes” “is in violation of a law, or a rule or regulation promulgated pursuant to the law…” N.J.S.A. 34:19-3. A plaintiff in a CEPA case may receive compensation for lost pay and benefits, as well as mental distress damages. They can also win costs for the suit and attorney’s fees. Additionally, punitive damages, which are meant to punish the wrongdoer and deter them from any similar action in the future, are available when the employer has acted especially egregiously and/or outrageously. Damages available under CEPA are not capped by statute.

If you have notified your employer of your disability and are then terminated, your employer may be obligated to engage in an interactive dialogue to determine if they can accommodate you even after you are terminated. Put plainly, employers can be held liable for failing to accommodate an employee even if the employer learns of the employee’s accommodation request after the employee is terminated.

Generally, the LAD prohibits employers from subjecting employees, either perceived to be or who are in fact injured, sick, or disabled, to adverse employment actions, because the employee appears less useful than the employer would like them to be. More specifically, LAD requires employers to “make a reasonable accommodation to the limitations of an employee . . . who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” Clarke v. Atl. City Bd. of Educ., No. A-5344-07T4, 2010 N.J. Super. Unpub. LEXIS 1801, at *11 (App. Div. July 28, 2010).

To establish a prima facie case for failure to accommodate under the LAD, the plaintiff is required to demonstrate that:

On October 28, 2021, New York State Governor Kathy Hochul signed Senate Bill S4394A (the “NY Amendments”) into law amending New York Labor Law Section 740: Retaliatory Personnel Action by Employers; Prohibition (the “Labor Law”) N.Y.L.L. 740, dramatically expanding the legal protections afforded to whistleblowing employees. The NY Amendments are set to take effect on January 26, 2022 and will make New York the latest state to follow New Jersey’s historic lead in enacting the most pro-employee whistleblower statutes in the United States.

In 1986, the New Jersey State Legislature enacted the Conscientious Employee Protection Act (“CEPA”) N.J.S.A. 34:19(1)-(8), considered at the time to be “the most far reaching ‘whistleblower statute’ in the nation.” Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179 (1998) (citing John H. Dorsey, Protecting Whistleblowers, N.Y. TIMES, Nov. 2, 1986, at 34). Specifically, “[T]he essential purpose behind CEPA” is to protect ‘whistleblowing’” activities that “benefit the health, safety, and welfare of the public,” by encouraging employees to report, or object to their employers’ unlawful misconduct. Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228, 239 (2006). Additionally, CEPA protects all employees working in either the public or private sector, as well as independent contractors. D’Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 114 (2007).

The New Jersey State Legislature broadly intended for CEPA to effectuate preventative measures to deter companies from taking “retaliatory action” against employees who engage in conduct constituting “whistleblowing activity” as defined by the statutory language. Higgins v. Pascack Valley Hosp., 158 N.J. 404, 420 (1999). CEPA defines protected “whistleblowing activity” to occur when an employee:

As general matter the federal Fair Labor Standards Act (the “FLSA”) requires employers to compensate employees for all the time employees have worked no matter where and when the work is done. However, an exception exists called the De Minimis Doctrine which permits employers not to pay employees when employees spend a small amount of time on tasks that by their nature are difficult for the employer to track or record. Specifically, the Department of Labor (“DOL”) codified the De Minimis defense in 29 C.F.R. § 785.47 which in pertinent part reads:

In recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him. Glenn L. Martin Nebraska Co. v. Culkin, 197 F. 2d 981, 987, (C.A. 8, 1952)

(emphasis added)

On October 5, 2021, Governor Phil Murphy signed Assembly Bill No. 681 (the “Amendment”) into law amending New Jerey’s Law Against Discrimination (LAD) to prohibiting New Jersey government employers from implementing workplace policies mandating employees over the age of 70 to retire. Specifically, the Amendment reads:

Deleting the provision of section 1 of P.L.1938, c.295 (C.10:3- 1) that permits a governmental employer to require retirement when an employee attains a particular age if the employer can show “that the retirement age bears a manifest relationship to the employment in question”.

N.J.S.A. 10:3-1. (emphasis added)

On September 24, 2021, Governor Phil Murphy signed into law Legislative Bill A-2617/S-2998 requiring employers with at least 50 employees to provide a hiring preference to an employee injured in a work-related injury who has reached maximum medical improvement and cannot return to the employee’s former position with that employer (hereafter the “WC Reinstatement Law”) Specifically, WC Reinstatement Law’s addition to Title 34 of the New Jersey Workers Compensation Laws (WCL) requires that:

Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential duties of the position.

The reference to “maximum medical improvement” (MMI) is a term that is used when additional treatment will no longer improve the medical condition of the injured worker. Under the WCL a worker injured on the job is entitled to receive all necessary and reasonable medical treatment, prescriptions and hospitalization services related to the work injury are paid by the employer’s insurance carrier or directly by the employer if they are self-insured. The employer has the right to designate the authorized treating physician for all work-related injuries. The worker, in some cases, may be left with either partial permanent injuries or total permanent injuries.  Workers compensation authorized medical treatment, and temporary total disability benefits if applicable, are terminated when the worker is released to return to work in some capacity or if he or she has reached MMI.

An employer’s leaking of an employee’s confidential medical information may give rise to a violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d).  “The purpose of the ADA is to ‘invoke the sweep of Congressional authority . . . in order to address the major areas of discrimination faced day-to-day by people with disabilities,’ . . . .” Carparts Distrib. Ctr. v. Automotive Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994), quoting 42 U.S.C § 12101(b). Congress enacted the statute to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). “Given the remedial purpose underlying the ADA, courts should resolve doubts about such questions in favor of disabled individuals.” Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003).

The ADA sets strict rules to maintain the confidentiality of the medical information of job applicants, persons who have been offered jobs, and employees. 42 U.S.C. § 12112(d). The statute also restricts what employers may ask employees and prospective employees about their health, when, and for what purpose that information may be used. Id. With respect to an employee, an employer may not, without limitation, “require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). An employer may make inquiries into an employee’s ability to perform job- related functions. 29 C.F.R. § 1630.14(c). However, an employer’s medical inquiries (and examinations) of employees are unlawful, except to the extent that they are explicitly authorized by the ADA. 29 C.F.R. § 1630.13(b). An employer who oversteps their bounds and makes an overbroad inquiry into an employee’s medical information commits a stand-alone violation of the statute. See Downs v. Massachusetts Bay Transp. Auth, 13 F. Supp. 2d 130, 138 (D. Mass. 1998).

Information garnered in response to an employer’s medical inquiries must be maintained in a separate medical record, which must be treated as confidential, and may be disclosed only to a narrow subset of people. 29 C.F.R. § 1630.14(c)(1). “Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations . . . .” 29 C.F.R. § 1630.14(c)(1)(I). Information obtained as part of an employer’s medical inquiry may not be used for any purpose inconsistent with a legitimate medical inquiry. 29 C.F.R. § 1630.14(c)(2). A violation of the ADA’s confidentiality mandate is also a stand-alone violation of the statute as well. See Stark v. Hartt Transp. Sys., 37 F. Supp. 3d 445, 473 (D. Me. 2014).  See also Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190 (E.D. Pa. 1994) (employer conducted unlawful medical inquiry when it searched the office of an employee whom it knew was sick and discovered a letter indicating the employee had AIDS).

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. https://www.state.nj.us/dca/divisions/ 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:

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