New Jersey Employment Lawyer Blog

On December 16, 2008, in the case of Tartaglia v. UBS PaineWebber, the New Jersey Supreme Court expanded the scope of the claim of wrongful discharge in violation of public policy.

Before explaining the significance of the Tartaglia decision, it is important to understand the claim of wrongful discharge in violation of public policy. The New Jersey Supreme Court first recognized that claim in 1980, when it ruled that it is unlawful to fire a New Jersey employee in if the termination violates a clear mandate of public policy. Specifically, that prohibits a company from firing an employee for objecting to an illegal corporate policy or practice, or for refusing to engage in an illegal activity. It also prohibits companies from firing an employee for blowing the whistle on, or refusing to engage in, acts that are not illegal but violate a clear mandate of public.

A few years later, in 1986, the New Jersey legislature passed the Conscientious Employee Protection Act (CEPA). CEPA prohibits a broad range of retaliatory employment actions, such as making it unlawful to fire an employee for objecting to or refusing to participate in an activity he or she reasonably believed was fraudulent, criminal, violated the law, or was incompatible with a clear mandate of public policy concerning public health, safety or welfare, or the protection of the environment.

While CEPA is extremely broad, the claim of wrongful discharge in violation of public policy is still important because not all wrongful discharge claims are necessarily covered by CEPA. In addition, employees have at least two years to bring a claim of wrongful discharge (and possibly as long as six years), but only one year to bring file a claim under CEPA.

The New Jersey Appellate Division has twice ruled that employees are not protected by the claim of wrongful discharge in violation of public policy if they make their objection to another employee at their company. Both of those cases conclude that employees must blow the whistle to a government agency to be legally protected by that claim.

However, Tartaglia overrules those cases. It concludes that New Jersey employees are protected from being wrongfully discharged in violation of public policy even if they made only internal complaints. However, to be protected an employee's internal complaint has to have been made to an individual with authority to correct the problem. Accordingly, an objection to a coworker or even to the employee's immediate supervisor is usually insufficient.

Whistleblower claims and other retaliation claims of wrongful discharge in violation of New Jersey's public policy can be complicated. If you believe you have experienced unlawful retaliation at work, you should contact an experienced employment lawyer to discuss your employment law rights.

Earlier this year, New Jersey became the third state in the country to pass a law entitling employees to be paid during family leaves. New Jersey's Family Leave Insurance law is set to go into effect in just a few weeks. Since the law is brand new, many employees and employers do not fully understand what the law means or what it requires. This article will answer many of the most frequently asked questions about the New Jersey Family Leave Insurance law.

Q. When Does the Family Leave Insurance Law Go Into Effect?

A. On January 1, 2009, New Jersey companies will begin withholding taxes from employee salaries to fund family leave insurance benefits. Starting on July 1, 2009, qualified employees will be entitled to receive state insurance benefits during covered family leaves.

Q. Who is Qualified to Receive Family Leave Insurance Benefits?

A. The New Jersey Family Leave Insurance law applies to all employees who are covered by the New Jersey Unemployment Compensation law. To be qualified for benefits, an employee needs to have worked for at least 20 calendar weeks in New Jersey and either earned at least $143 per week or a total of $7,200 during the 12 months immediately before he or she made a claim for family leave insurance benefits.

Q. For How Many Weeks Can an Employee Receive Family Leave Insurance Benefits?

A. An employee can receive up to six weeks of family leave insurance benefits during a 12 month period. The 12 month period begins on the first day after the employee's initial claim for family leave insurance benefits.

Q. How Much Money Will I Receive If I Qualify For Family Leave Insurance Benefits?

A. An employee's weekly benefits are normally two-thirds of the employee's average weekly income over the eight weeks before the family leave, up to a maximum of $546 per week.

Q. How Much is Family Leave Insurance Going to Cost Me?

A. The cost of Family Leave Insurance is minimal, especially when compared to other taxes. The total withholding for each employee is less than a tenth of a percent of their wages. There is also a maximum annual contribution per person, which will be $26.01 in 2009.

Q. What Types of Leaves Qualify for Family Leave Insurance Benefits?

A. Leaves to bond with a child and leaves to care for a family member with a serious health condition.

Q. What Types of Leaves to Bond With a Child Are Covered by the Paid Family Leave Act?

A. A qualified employee can receive family leave insurance benefits during a leave to bond with a child during the first 12 months after a child is born if the employee is the child's biological parent or the domestic partner or civil union partner of the child's biological parent. Likewise, a qualified employee who adopts a child can use his or her six weeks of family leave insurance benefits to bond with a child during the first 12 months after the adoption.

An employee can use family leave insurance benefits during an intermittent leave to bond with a newborn or newly adopted child, but to qualify for benefits the employee must take the leave in periods of at least seven days at a time, and the employer must agree to the employee's intermittent leave schedule.

Q. What Kinds of Leaves to Care for Family Members with Serious Health Conditions Are Covered by the Paid Family Leave Act?

A. A qualified employee is entitled to use family leave insurance benefits during a leave to care for his or her immediate family member, meaning a parent, child, spouse, domestic partner, or civil union partner who has a serious health condition. Those benefits can be used for six consecutive weeks, six intermittent weeks, or for 42 intermittent days during the 12 months after the claim.

Q. What Notice Must I Give Before I Can Receive Family Leave Insurance Benefits?

A. An employee who plans to seek family leave insurance benefits must give his or her employer reasonable advanced notice of the leave. Exactly how much notice is required varies based on the circumstances. For example, an employee who intends to seek benefits during an intermittent family leave must give a minimum of 15 days notice before the leave, and an employee who plans to seek benefits during a leave to bond with a newborn or newly adopted child must give his or her employer thirty days notice before the leave.

Q. Does the Family Leave Insurance Law Entitle Me to Take a Family Leave

A. No. The New Jersey Family Leave Insurance law only provides monetary benefits. It does not entitle employees to take family leaves. However, many employees are already legally entitled to those rights under the New Jersey Family Leave Act (NJFLA) or the Family and Medical Leave Act (FMLA).

Q. Does the Family Leave Insurance Law Entitle Employees to Return to Their Job?

A. No. However, some employees are guaranteed to be returned to their job or an equivalent one under the New Jersey Family Leave Act (NJFLA) or the Family and Medical Leave Act (FMLA).

Q. Are There Any Other Limits on an Employee's Right to Receive Family Leave Insurance Benefits?

A. Yes. There are many other limits to an employee's rights to receive family leave insurance benefits. For example, employees ordinarily do not receive family leave insurance benefits during the first seven days of a family leave. In addition, among other limitations, an employee cannot receive family leave insurance benefits:

• While receiving disability benefits or paid sick leave;
• While the employee is receiving unemployment insurance benefits;
• While the employee is receiving full salary or paid time off;
• When the employee is working;
• During the first 14 days after the employee's last day of work, unless the family leave started while the employee was still employed.
• While the family member for whom the employee is caring is not under the care or supervision of a health care provider;
• While the employee is out of work due to a labor work stoppage, such as a union strike; or
• After the employee is fired for gross misconduct related to a crime under New Jersey law.

A. Yes. Employers can require employees to use up to two weeks of paid sick leave, vacation time, or other paid leave time toward their annual family leave insurance benefits entitlement.

The employment lawyers at The Nirenberg Law Firm are dedicated to enforcing the employment law and civil rights of employees in New York and New Jersey.

The New York Department of Labor recently issued guidelines for employee blood donation leave under New York State Labor Law Section 202-j. That law, which went to effect late last year, requires companies with twenty or more employees to allow employees to take time off to donate blood. Those companies must choose either to allow employees at least one leave of absence of up to 3 hours each year to donate blood (off-premises blood donation leave), or allow employees to donate blood during work hours at least twice a year at a "convenient time and place set by the employer," such as allowing employees to participate in a blood drive at their place of employment, without having to use accumulated leave time (on-premises blood donation leave).

The New York Department of Labor's new guidelines provide additional detail regarding the rights and requirements of New York's blood donation leave law. For example, they indicate that:

• Employers are not required to pay employees during off-premises blood donation leaves.
• The right to take off-premises blood donation leave is based on a calendar year, meaning that covered employers that elect off-premises blood donation leave must permit employees to take at least one such leave during each calendar.

• Employers cannot require employees to use accumulated vacation, personal, sick, or other leave time for on-premises blood donation leave.
• The right to take leave is based on a calendar year, meaning that covered employers that elect on-premises blood donation leave must offer employees two on-premises blood donation leaves during each calendar year.
• The requirement that on-premises blood donation leave must be at a "convenient time" means during an employees' normal scheduled work hours.
• The requirement that on-premises blood donation leave must be at a "convenient place" means employers cannot require employees to travel an unreasonable distance.
• Covered employers must offer an alternative option for employees who are unable to participate in an on-premises blood donation leave, such as when an employee is sick or on vacation during a scheduled company blood drive.
• Covered companies must give employees who donate blood at an on-premises blood donation leave enough time off to donate blood, recover (including eating something after donating blood), and return to work.
• Covered employers must prominently post notice of any on-premises blood donation leave at least two weeks in advance.
• Companies cannot schedule an on-premises blood donation leave when a significant number of employees are out of the office, such as during the last week of December or around other major holidays.

• Employers must notify employees in writing of their right to take blood donation leave in a place that ensures employees will see it, such as by posting the information prominently in a place where employees gather, or including the information with employees' paychecks or in the employee handbook.
• Employers can require employees to give advance notice of when they plan to take a blood donation leave. Ordinarily, employers can require employees to give up to 3 workday's notice before taking an off-premises blood donation leave, or 2 days notice before an employee participates in an on-premises blood donation leave. However, employers can require up to 10 working days advance notice if necessary because the employee's position is essential to the company's operation, and employees can give less than 3 day's notice if they are donating blood because of an emergency surgery of the employee him or his or her family member.

The employment lawyers at The Nirenberg Law Firm are dedicated to enforcing the employment law and civil rights of employees in New York and New Jersey.