New Jersey Employment Lawyer Blog
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Recently, the New Jersey Appellate Division ruled that an employee who brought a discrimination lawsuit is entitled to obtain evidence about the facts of another employment discrimination lawsuit against one of the individuals he claims discriminated against him. The Court reached this conclusion even though the alleged discrimination in the previous case was based on completely different legally-protected categories.

Discrimination or Fired for Failing to Report Shoplifting?Harold Hansen brought a discrimination lawsuit against his former employer, Rite Aid Corporation, and its Loss Prevention Manager, Craig Mauriello, among others. Rite Aid fired Mr. Hansen in May 2008. Although the company did not give Mr. Hansen any explanation when it fired him, it subsequently claimed it fired him because he violated company policy by failing to report to management that several other store employees had reported to him that they believed the daughter of another employee was shoplifting from the store.

In his lawsuit, Mr. Hansen claims the decision to fire him was based on his age, gender and sexual orientation in violation of the New Jersey Law Against Discrimination (“LAD”).

During his case, Mr. Hansen sought to take the depositions of four former Rite Aid employees who claimed Mr. Mauriello had discriminated against them based on their race, national origin and religion. Mr. Hansen also sought to take the deposition of a retired New York City police captain who apparently was a key witness in that case.

However, the judge did not permit Mr. Hansen to take any of these depositions. He noted that the prior case involved “completely different” allegations, and compared Mr. Hansen’s discovery requests to a “fishing expedition” seeking information that was “incredibly irrelevant” to his case. Another judge subsequently ruled that the four former employees could not testify on behalf of Mr. Hansen and Mr. Hansen could not use documents from their lawsuit at his trial. Ultimately, a jury found Mr. Hansen failed to prove his discrimination claims.

On appeal, Mr. Hansen argued it was improper for the trial judge to deny him discovery about the other discrimination lawsuit. The Appellate Division agreed. In Hansen v. Rite Aid Corp., an unpublished opinion, it ruled that evidence which might show Mr. Mauriello had discriminated against other employees is potentially relevant to whether Rite Aid knew about the prior discrimination and failed to take appropriate action as a result of it, which could be relevant to whether the company has an effective anti-discrimination policy. It also found this evidence could be relevant to Mr. Hansen’s claim for punitive damages.

On a separate issue, the Appellate Division ruled the trial judge improperly prohibited Mr. Hansen from reading portions of Mr. Mauriello’s deposition testimony to the jury. The trial judge made this ruling on the basis that Mr. Mauriello was available to testify in person. However, as the appellate court explained, the Rules of Evidence permit a party to use the deposition of another party at trial whether or not the witness is available to testify in person.

The Appellate Division further explained that Mr. Mauriello at least arguably admitted at his deposition that Rite Aid’s policy did not require Mr. Hansen to report the second-hand information he had about the alleged shoplifting. Accordingly, it recognized a jury could find this admission was relevant to whether Rite Aid actually fired Mr. Hansen for violating its policy, as it claimed, or fired him because of his age, gender or sexual orientation. The appellate court concluded that Mr. Hansen was “clearly prejudiced” by being denied the right to present this evidence to the jury, and therefore ruled that he is entitled to a new trial.

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Jonathan Nirenberg Settles employment law case with Bogota Police DepartmentI am pleased to report that I recently settled an employment law case against the Borough of Bogota, New Jersey for $2.25 million on behalf of my client, Police Officer Regina Tasca. I handled the case with my co-counsel, Catherine M. Elston, Esq.

Our client was the first and only female police officer in the history of the Bogota Police Department. She began working for Bogota in January 2001. Until April 2011 she had a virtually unblemished record.

In May 2011, Bogota suspended her, claiming she was unfit for duty based on an unspecified psychological disability. Bogota subsequently brought disciplinary charges against her, claiming she was not fit for duty and had engaged in misconduct during two incidents in April 2011. Following a 12 day internal disciplinary hearing, the Borough Council voted to terminate her employment, effective October 18, 2012.

Our client filed a lawsuit in federal court in which she claimed she had been harassed by members of the Police Department, suspended, and ultimately wrongfully terminated because of her gender, sexual orientation and Bogota’s perception that she had a disability, and in retaliation for her objections to the harassment. She brought claims under the New Jersey Law Against Discrimination (“LAD”), the Conscientious Employee Protection (“CEPA”), the New Civil Rights Act (“NJCRA”), the New Jersey Constitution, and the First Amendment (free speech) and Fourteenth Amendment (equal protection of law) to the United States Constitution. She named the Borough, the Police Chief, the Police Captain, the Mayor and each of the Borough Councilmembers, among others, as individual defendants. Her lawsuit also included a claim in which she appealed Bogota’s decision to discipline her, and sought a new disciplinary hearing in the Superior Court.

After Bogota terminated our client, it filed its own lawsuit in state court seeking to require her to return the salary she had received during her 17 month suspension. Our client eventually agreed to withdraw her federal case, and instead asserted her claims as counterclaims in the state court action.

In May 2015, Bergen County Superior Court Judge Rachelle Harz ordered Bogota to reinstate our client to the payroll because the Borough Council’s vote to fire her was the result of conflicts of interest on the part of Bogota’s former Mayor and several Councilmembers. As a result, our client received a little over $300,000 in back pay and was restored to the payroll. However, she did not return to active duty.

The Borough has now agreed to pay an additional $2.25 million in exchange for our client agreeing to end the lawsuit and resign from the Police Department. As a result, the four-and-a-half year legal battle is finally over.

The litigation was incredibly hard fought. It include a prolonged jurisdictional battle over whether the case would be decided in state or federal court, approximately 8 depositions over the course of 14 days, countless discovery motions, an appeal to the New Jersey Appellate Division, and motions for summary judgment filed by both sides.

The case also generated significant attention from the press, most recently including an article about the settlement in the Bergen Record: Bogota deal with cop will cost $2.25M.

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Employee Handbook Contiaining Unenforceable Arbitration ProvisionLast week, New Jersey’s Appellate Division ruled that Raymours Furniture Company cannot enforce the arbitration policy in its employee handbook because the handbook expressly states that it is not a contract. As a result, former Raymours & Flanigan employee Grant Morgan can proceed with his age discrimination claim in court rather than in arbitration.

Mr. Morgan alleges he experienced age discrimination in the workplace, and when he complained about it the company instructed him to sign an arbitration agreement or it would fire him. When Mr. Morgan refused to sign the agreement, the company followed through with its threat and fired him.

After Mr. Morgan filed a lawsuit, Raymours asked the court to enforce the arbitration provision in its employee handbook. The trial court denied its motion, and Raymours appealed.

Like most companies, Raymours’ employee handbook contains a prominent disclaimer declaring that it is not a contract. Specifically, it states that:

Nothing in this Handbook or any other Company practice or communication or document, including benefit plan descriptions, creates a promise of continued employment, [an] employment contract, term or obligation of any kind on the part of the Company.

These types of disclaimers are common because of Woolley v. Hoffman-La Roche, a 1985 New Jersey Supreme Court opinion. Woolley recognizes that employees generally can bring claims when their employers violate promises in their employee handbooks unless the handbook includes a prominent disclaimer making it clear it is not an enforceable contract. As a result, most employers include disclaimers in their handbooks so they cannot be sued for violating their own internal policies.

The Appellate Division ruled it would be unfair and improper for an employer to enforce an arbitration provision in an employee handbook that contains such a disclaimer. Specifically, it ruled that Mr. Morgan did not “clearly and unambiguously waive his right to sue [Raymours] in court.” The court explained that allowing Raymours to enforce the arbitration provision under the circumstances would run counter to the old English proverb, “wolde ye bothe eate your cake, and haue your cake?” In other words, Raymours cannot eat its cake and have it too.

The appellate court further noted that although Mr. Morgan signed a rider to the employee handbook, it merely states that he received and understood the handbook. It did not state that he agreed to be bound by its terms. As a result, the court ruled that Raymours “cannot fairly contend the employee ‘agreed’ to a waiver of the right to sue that might be found within those materials.”

Thus, in the published opinion of Morgan v. Raymours Furniture Company, Inc., the Appellate Division affirmed the trial court’s ruling that Raymours cannot enforce the arbitration provision against Mr. Morgan. Instead, he will be able to proceed with his case in a New Jersey state court.

This decision is one in a growing trend of opinions which are careful to enforce arbitration agreements between employers and employees only when the employees clearly and unambiguously agreed to waive their right to pursue their disputes in court. For more information about limitations on enforcing arbitration agreements, please read our previous article: Arbitration Agreement Unenforceable Unless Clearly Indicates Waiving Right to Go to Court.

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Earlier today, New Jersey’s Appellate Division ruled that an employee is entitled to a trial to determine whether her employer fired her because it incorrectly perceived she was unable to perform her job due to an actual or perceived disability, obesity. The case largely turns on whether the employer’s physician relied on an accurate description of the physical requirements of her job.

New Jersey school sued for disability discriminationBarbara Sheridan worked as a custodian for the Egg Harbor Township Board of Education. Egg Harbor was concerned whether Ms. Sheridan could perform her job based on the fact that she was short of breath and her face was flushed after she performed certain more strenuous job duties. The school district also was concerned that Ms. Sheridan was unable to climb ladders, had trouble climbing stairs, and was a risk that she would injure herself or otherwise performing her job duties.

The school district sent Ms. Sheridan for a fitness for duty exam with an independent physician, who concluded she physically was incapable of performing all of her job duties. Relying on those conclusions, the school board fired Ms. Sheridan.

Ms. Sheridan sued. In her lawsuit, she alleges she adequately performed her job duties for more than 8 years, and asserts that Egg Harbor’s decision to fire her constitutes perceived disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”).

Egg Harbor filed a motion for summary judgment, asking the trial court to dismiss her case. The court granted the motion, finding the physician’s fitness for duty report provided the school board a non-discriminatory reason to fire Ms. Sheridan, and Ms. Sheridan could not show it true motive for firing her related to a discriminatory animus against obese workers.

On appeal, New Jersey’s Appellate Division reversed. In Sheridan v Egg Harbor Township Board of Educ., the court concluded that the school district had a legitimate basis to require Ms. Sheridan to attend the fitness for duty exam. However, it found a factual dispute about the accuracy of the job description that the physician relied upon in concluding Ms. Sheridan was unfit for duty. For example, although the job description indicated that custodians must be able to lift more than 75 pounds for 50 yards, an earlier version of the job description for the same position set the requirement at 50 pounds. The appellate court also noted that Ms. Sheridan’s supervisor testified that custodians need to lift objects weighing 75 pounds only twice per year. The court recognized that a reasonable juror could find the 75 pound requirement “is not a fair or realistic physical expectation to have for a school custodian,” and that the job description the physician relied upon may not have accurately reflected the actual requirements of her job.

The Appellate Division also observed that the fitness for duty exam did not test whether Ms. Sheridan was able to climb ladders, even though that was one of the primary concerns that led Egg Harbor to request the exam. Moreover, it explained that the basis for the district’s belief that Ms. Sheridan could not climb a ladder may have been based on her supervisor’s statement that she “would break the ladder so [she] should stay off [of] it.”

In short, the Appellate Division found there were numerous reasons to question whether Ms. Sheridan’s failure to meet certain aspects of the fitness-for-duty exam “fairly and accurately reflected an inability to perform her daily work tasks capably.” Accordingly, it concluded there are factual disputes that need to be resolved by a jury, and remanded the case for a trial.

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The Third Circuit Court of Appeals recently recognized that an employee can bring a lawsuit under Title VII against the company where he works, even though he was hired and paid through a staffing firm. Title VII is a federal anti-discrimination law that prohibits employment discrimination based on gender, race, national origin, and religion.

Retail employee experiences race discriminationMatthew Faush was an employee of Labor Ready, a staffing firm. Labor Ready assigned Mr. Faush to work at Tuesday Morning, Inc., a retail business, at one of its stores. His job was to set up display shelves, unload and stock merchandise, remove garbage, and perform other similar tasks. Mr. Faush, who is African-American, claims Tuesday Morning made a racially-motivated accusation that he stole merchandise, subjected him to racial slurs, and fired him because of his race.

Mr. Faush filed a lawsuit against Tuesday Morning, claiming it discriminated against him because of his race in violation of Title VII. The District Court granted summary judgment to Tuesday Morning, finding Mr. Faush was not an employee of the store. Unlike the New Jersey Law Against Discrimination, Title VII protects only employees and not independent contractors.

On appeal, applying a previous United States Supreme Court case, the Third Circuit explained that when determining whether someone is an employee for purposes of Title VII a court should consider factors such as:

  • Whether the business can give additional assignments to the worker;
  • How much discretion the business has over the worker’s hours;
  • The way the worker is paid;
  • Whether the individual’s job is part of the company’s regular business;
  • The skill required;
  • Who provides the tools and equipment;
  • The length of the relationship between the worker and the business;
  • The work location;
  • Whether the business provides the worker employee benefits; and
  • The tax treatment of the hired party.

Under this test, it is possible an individual can be an “employee” of more than one entity, as either “co-employers” or “joint employers.”

Applying this test, in Faush v. Tuesday Morning, Inc., the Third Circuit ruled that a jury could conclude that Mr. Faush is an employee of Tuesday Morning. Among other things, the Court considered evidence that under Labor Ready’s Agreement to Supply Temporary Employees to Tuesday Morning, Tuesday Morning:

  • Was responsible for supervising and training Mr. Faush;
  • Had the right to reject Mr. Faush as its temporary employee for any reason;
  • Was required to provide Mr. Faush any equipment he needed;
  • Paid Labor Ready based on the number of hours Mr. Faush worked, and had to ensure he was paid in accordance with applicable wage and hour laws;
  • Agreed to comply with all applicable federal, state and local employment laws, including Title VII, and to “provide a workplace free from discrimination”; and
  • Referred to Mr. Faush as a “temporary employee,” rather than as an “independent contractor.”

Based on these and other facts, the Third Circuit concluded that a rational jury could find Mr. Faush was Tuesday Morning’s employee. Accordingly, it reversed the ruling granting summary judgment to Tuesday Morning, and remanded the case to the District Court.

The Court recognized its ruling means Mr. Faush and other temporary employees working for Tuesday Morning can be counted to determine the number of employees who work for Tuesday Morning. This is significant, since Title VII applies only to companies that have 15 or more employees. Tuesday Morning apparently only has 15 employees if you count its temporary employees.

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A New Jersey court recently ruled that a company can be liable for breach of contract, among other claims, when it withdraws a job offer after an employee resigns from his current job based on the new job.

The job offer was made by Onward Search, a staffing company, to an individual named John Kenny. In August 2014, Onward contacted Mr. Kenny to see if he was interested in freelance work for a company called Tandem Seven. Mr. Kenny, a “user experience architect,” indicated he was interested in working on an eight to twelve month project for Tandem at an hourly rate of at least $85 per hour. He subsequently had multiple job interviews with Tandem.

On Thursday, September 17, 2014, Justin Court, a representative of Onward Search, asked Mr. Kenny whether he could accept a job offer on Mr. Kenny’s behalf if Tandem made him an offer. Mr. Kenny told Mr. Court he could do so as long as “everything we discussed was still in place.” They confirmed that Mr. Kenny agreed to a rate of $85 per hour and needed to give his current employer two weeks’ notice of his resignation.

Employee upset after job offer rescindedApproximately 12 minutes later, Mr. Court called Mr. Kenny back and told him he had accepted an offer from Tandem on his behalf. In response, Mr. Kenny confirmed he was available to start working for Tandem on Monday, October 6, 2014.

On September 18, 2014, Mr. Kenny resigned from his current job. The next day, September 19, 2014, Mr. Court informed Mr. Kenny that Tandem had withdrawn its job offer because Mr. Kenny could not start working for it for two weeks. According to Mr. Kenny, this was the first time anyone told him the job offer was conditioned on his immediate availability.

Mr. Kenny filed a lawsuit against both Onward and Tandem. He asserted numerous claims, including breach of contract, negligent misrepresentation, promissory estoppel and violations of the New Jersey Private Employment Agency Act and the New Jersey Consumer Fraud Act. The companies filed a motion asking the court to dismiss the case.

In Kenny v. Onward Search, the United States District Court for the District of New Jersey refused to dismiss most of Mr. Kenny’s claims. For example, it did not dismiss his breach of contract claim, finding Mr. Kenny’s allegations could support a claim of breach of an oral contract. Although the companies argued they could fire an employee at-will at any time and for virtually any reason, the Court recognized this did not prohibit Mr. Kenny’s claim since his contract was for a specified period, namely 8 to 12 months.

Similarly, the Court declined to dismiss Mr. Kenny’s negligent misrepresentation claim. It explained that Mr. Kenny alleged that Onboard and Tandem made an incorrect statement that he could start working two weeks after he gave notice to his former employer, he relied on that incorrect statement by resigning from his job, and he lost income as a result. It also did not dismiss his promissory estoppel claim, finding he alleged that he reasonably relied on Onboard and Tandem’s clear and definite promise that he would be paid $85 per hour for at least 8 months, and did so to his detriment by resigning from his job.

However, the Court dismissed Mr. Kenny’s claim under the New Jersey Private Employment Agency Act Claim, finding there is no right for individuals to bring claims under it. Likewise, it dismissed his claim under the New Jersey Consumer Fraud Act Claim because he is not a “consumer” of Onboard since he did not seek to purchase goods or services from it.

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New Jersey’s Appellate Division recently recognized the significance of the “blue wall of silence” to a whistleblower case involving a New Jersey police officer.

The plaintiff, identified as “T.D.,” is a police officer in the Tinton Falls Police Department. In 2008, one of T.D.’s fellow officers reported to the Monmouth County Prosecutor’s Office that a police sergeant had installed a device called a diverter at his home so his personal water use would not be recorded. Instead of investigating the sergeant, the Police Department began an Internal Affairs (“IA”) investigation to determine who had contacted the prosecutor, and then brought disciplinary charges against that officer. When T.D. learned about this he objected to the Department’s decision to discipline the officer who complained, but not to even investigate the sergeant’s apparent crime.

Police Officer whistleblowerIn March 2009, T.D.’s sergeant asked to meet with him outside a local dumpsite, where he told T.D. he should have warned him about the prosecutor’s investigation. T.D. indicated he believed doing so would have unlawfully interfered with the prosecutor’s criminal investigation. During the meeting, the sergeant also made disparaging comments about the officer who initially reported the water diverter, and told T.D. that “everyone should watch their backs.”

After this meeting, T.D. asked his union’s lawyer to send a letter to the prosecutor’s office about the sergeant’s warnings. T.D. subsequently submitted a formal statement to the prosecutor.

T.D. alleges he experienced retaliation because of his objections. For instance, he was removed him from the K–9 unit in January 2010 and denied a promotion in December 2010. The Department failed to promote him again approximately 5 months after he filed his lawsuit. It subsequently assigned him to patrol the local mall, which is considered a “punishment post.”

The trial court granted Tinton Falls’ motion for summary judgment. It concluded T.D. did not engage in any whistleblowing conduct protected by New Jersey’s Conscientious Employee Protection Act (“CEPA”). It found CEPA  protects only employees who object about the employer’s illegal activities, and T.D. merely objected about a sergeant diverting water at his home.

In an unpublished opinion, T.D. v. Borough of Tinton Falls, the Appellate Division reversed. It noted that, at least under certain circumstances, CEPA prohibits employers from retaliating against employees because they object about a coworker’s illegal activity. The court concluded that T.D.’s objection about his sergeant’s statement that he should have tipped him off about the prosecutor’s investigation is protected by CEPA.

The Court found it significant that instead of investigating the sergeant’s criminal conduct, the Department improperly used an IA investigation to learn who made the report to the prosecutor; brought disciplinary charges against that officer; and referred to officers who spoke to the prosecutor about the sergeant’s conduct as “rats.” It concluded that this evidence reinforces the inference that the Department did not tolerate employees who failed “to keep quiet about illicit conduct engaged in by fellow officers,” or who failed to warn fellow officers about legal proceedings against them.

The Court also ruled that T.D.’s objection about the fact that Tinton Falls was aware of the sergeant’s crime, but failed to investigate it because he is a member of the Police Department, is protected by CEPA. Specifically, it found that objection falls within CEPA’s protection for employees who provide information to a public body that is investigating a violation of law by their employers. In doing so, the Court recognized that T.D.’s objection implicates the “blue wall” of silence, referring to the fact that police officers often are reluctant to incriminate their fellow officers. As the Court explained, “[p]olice officers take an oath to uphold the law and their position ‘require[s] a high level of honesty, integrity, sensitivity, and fairness in dealing with members of the public, knowledge of the law, and a pattern and exhibition of law-abiding conduct.’” Accordingly, the Court remanded the case to the trial court.

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In my previous article, Employer Must Provide Job Description So Employee Can Assess Need for Reasonable Accommodation, I discussed a case which addresses an employee’s right to a reasonable accommodation for a disability. The same case also demonstrates the power of direct evidence of discrimination.

Judge Ruling in Disability Discrimination CaseDirect evidence is evidence that directly reflects the employer’s discriminatory motive. For example, it can include a statement by the employer that it fired the employee for a discriminatory reason.

Ordinarily, at a trial the employee has the ultimate burden to prove that a discriminatory factor such as age, race, gender or disability made a difference in the employer’s decision to fire her. However, if the employee can present direct evidence of discrimination, then the employer has the burden to prove it did not discriminate against her.

As I previously discussed, Bertolotti v. Autozone, Inc. involves Penelope Bertolotti, a Regional Human Resources Manager for AutoZone, Inc. Ms. Bertolotti requested a medical leave for her disability, gastroparesis. As a result of her medical condition Ms. Bertolotti took two weeks’ off in October 2012, returned to work for a week, and then requested an additional month off. Her doctor subsequently extended her return to work date to February 1, 2013.

In the meantime, on December 12, 2012, AutoZone sent Ms. Bertolotti a letter which indicates that her leave of absence was not covered by the Family Medical Leave Act. The same letter stated that AutoZone was replacing her, but would “attempt to place [her] in an available position” when she is ready to return to work.

In his opinion, the judge found this letter is direct evidence of disability discrimination. He explained that, based on the letter “a reasonable jury could find that Defendants’ decision to remove [Ms. Bertolotti] from her position as Regional HR Manager was motivated by [her] inability to return to work because of her medical condition.”

Accordingly, the Court ruled that at a trial Ms. Bertolotti will not have to prove AutoZone fired her because of her disability. Rather, AutoZone will have to prove its decision to replace her was legally justified. More specifically, AutoZone will have to prove Ms. Bertolotti’s disability prevented her from adequately performing her job duties, thereby justifying its decision to fire her.

The United States District Court for the District of New Jersey explained that when a jury decides whether AutoZone reasonable believed Ms. Bertolotti’s disability prevented her from performing her job, the relevant question is what AutoZone knew and expected at the time it decided to remove her from her job, not what it subsequently learned. In other words, AutoZone violated the law unless, when it made the decision to replace her in December 2012, it had a reasonable belief that she would be unable to perform her job duties by February 1, 2013. In making that determination it is irrelevant whether, in hindsight, Ms. Bertolotti actually would have been able to return to work in February, or at any subsequent date, since that could not possibly have been something AutoZone considered when it made the decision to replace her.

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A recent case out of the District of New Jersey provides a good example both of an employee’s right to a reasonable accommodation for her disability, and the employer’s obligations once an employee requests one.

Penelope Bertolotti worked for AutoZone, Inc. in its human resources department. Ms. Bertolotti suffers from a disability, gastroparesis, an incurable disease that impacts her ability to digest food and beverages. As a result, she wears a pacemaker to help with her digestion.

In October 2012, Ms. Bertolotti took a two week medical leave due to her illness. She returned to work for approximately one week, but then needed to go out on another medical leave.

By February 1, 2013, Ms. Bertolotti still was unable to return to work. On February 7, she asked to extend her medical leave through March 28. At the time, her doctor indicated she had several permanent medical restrictions, including that she could be near a battery charging station or a theft detector like the ones at the front of AutoZone Stores, and could not engage in “excessive or repetitive bending, twisting or stretching.”

Employee working at autoparts storeIn an email, Ms. Bertolotti asked her supervisor if the company would accommodate her medical restrictions. She also asked what type of positions AutoZone would consider for when she was cleared to return to work, so her doctor could evaluate her ability to return. In response, her supervisor indicated he could not discuss her new job duties until her doctor cleared her to return to work. This left Ms. Bertolotti and AutoZone at a stalemate, with Ms. Bertolotti wanting to know her job duties so her doctor could evaluate if and when she could return to work, and AutoZone wanting to know when she could return to work so it could assess what jobs would be available.

By November 2013, Ms. Bertolotti’s doctor still had not cleared her to return to work. Since she had been out of work for a year, AutoZone administratively terminated her employment.

Ms. Bertolotti sued. Among her claims, she alleged AutoZone failed to accommodate her disability in violation of the New Jersey Law Against Discrimination (“LAD”).

AutoZone eventually filed a motion for summary judgment, seeking to dismiss her claims. With respect to Ms. Bertolotti’s failure to accommodate claim, in Bertolotti v. Autozone, Inc. the Court found the company failed to meet its obligation to “engage the employee in the interactive process of finding accommodations” that would have permitted her to perform her job. Rather, the company refused to even identify potential jobs for her until her doctor cleared her to return to work. The Court ruled that the company was required to engage in the interactive process before Ms. Bertolotti was cleared to return to work.

The Court further explained that although AutoZone failed to engage in the interactive process, to prevail on her claim Ms. Bertolotti still needs to identify a reasonable accommodation that would have allowed her to return to work. The Court recognized that Ms. Bertolotti had told her supervisor that, as an accommodation for the restriction that prohibited her from passing the theft detection device at the main entrance to AutoZone’s stores, she could have entered through the fire exit or delivery entrances.

Further, the judge recognized a jury could conclude that Ms. Bertolotti would have been able to return to work by March 28. Ms. Bertolotti claims she could have returned by then, but AutoZone refused to provide her job duties, which made it impossible for her doctor to confirm she could have perform her job despite her medical restrictions. In contrast, the company argues it could not identify a job for her until it knew when she was able to return to work. The Court concluded that a jury eventually will need to resolve this factual dispute.

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The United States Department of Labor recently released a formal Interpretation explaining how to determine whether a worker is an employee or an independent contractor under Fair Labor Standards Act (“FLSA”). The FLSA is a federal law which sets minimum wage and overtime pay requirements.

Determining if worker is employee or independent contractorThe Interpretation was written by David Weil, the Administrator of the DOL’s Wage and Hour Division. He explains that an increasing number of employers are misclassifying employees as independent contractors. As a result, many workers are unfairly denied minimum wage, overtime pay, unemployment insurance and other benefits.

As Mr. Weil indicates, the FLSA defines “employer” extremely broadly. It includes anyone the employer “suffers” or “permits” to work for it. Accordingly, “most workers are employees under the FLSA.”

As the Interpretation recognizes, to determine whether someone is an employee or a contractor under the FLSA, a court should look at the “economic realities” of their relationship. The ultimate question is the extent to which the worker has “economic dependence” on the employer. In making this assessment, courts should consider the following six factors:

1.   The extent to which the work performed is an integral part of the employer’s business

The more important the job is to the employer’s business, the more likely the worker is an employee.

2.  The extent the worker’s opportunity for profit or loss depends on his/her managerial skill

In contrast to employees, independent contractors typically are able to earn more money by, for example, hiring their own workers, purchasing equipment and materials, advertising, and completing projects more quickly. As a result, unlike employees, contractors often risk losing money on projects and assignments.

3.  The relative investments of the employer and the worker

Independent contractors typically make significantly greater financial investments into their businesses, such as purchasing equipment and tools, than employees. But even individuals who make substantial investments toward their work are not necessarily contractors, especially if the employer invests even more toward their work.

4.  Whether the work performed requires special skills and initiative

An individual who does not have any special skills generally is not an independent contractor. However, individuals such as electricians, carpenters and construction workers who do have such skills are independent contractors only if they operate independently from the employer’s business.

5.  The permanency of the relationship

The fact that a job is expected to be permanent or last indefinitely suggests the worker is an employee, since working for the same employer for a prolonged period ordinarily is inconsistent with independence. However, the fact that a job is short-term or temporary does not necessarily indicate the worker is an independent contractor.

6. The degree of control exercised or retained by the employer

To be independent contractors, individuals must have actual control over “meaningful aspects” of the work they are performing. But, for instance, the mere fact that employees who work from home may have the right to set their own hours and may not have anyone directly supervising their job performance generally is not enough to make them independent contractors.

In a footnote, the Interpretation notes that the Family & Medical Leave Act (“FMLA”) expressly use the FLSA’s definition of “employ.” As a result, it concludes that the same test applies to determine whether an individual is an employee or an independent contractor under the FMLA. The FMLA is a federal law which, among other things, requires employers to allow qualified employees to take up to 12 weeks off from work for (1) their own serious health condition, (2) the serious health condition of their spouse, parent, or child, or (3) pregnancy, adoption, or to bond with a new child.

As I discussed in my article, New Jersey Supreme Court Broadens Definition of ‘Employee’ Under Wage and Hour Law, New Jersey has adopted an even broader definition of who is an employee under its state wage and hour laws.

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