New Jersey Employment Lawyer Blog

In June 2009, I discussed the New Jersey Appellate Division's age discrimination ruling that it is illegal for an employer not to renew an employment contract because the employee is over 70 years old. The New Jersey Supreme Court recently agreed, and affirmed the Appellate Division's decision.

Specifically, in Nini v. Mercer County Community College, New Jersey's highest court ruled that a company's decision not to renew an employment contract is more like firing a current employee than deciding not to hire a job candidate. As a result, the Court concluded that even though the New Jersey Law Against Discrimination (LAD) allows employers to refuse to hire employees because they are over 70 years old, that exception does not apply when a company decides not to renew an employee's contract after he or she turns 70.

In explaining its decision, the New Jersey Supreme Court stated that the purpose of the LAD is to protect New Jersey citizens "from all forms of discrimination in employment and, in particular, to protect our older citizens from being forced out of the workplace based solely on age." It also indicated that the over 70 exception is meant to allow employers to avoid the cost of training new employees who have "limited long-term prospects." However, that does not apply to an employee who already has been working for the company and does not need training.

If you are interested in more information about the facts of Nini, then please read my previous article, New Jersey Law Prohibits Refusal to Renew Contract Because Employee is Over 70 Years Old. If you work in New York or New Jersey, and you have been fired, harassed, or experienced any other discrimination because of your age, then you should consider contacting one of our experienced age discrimination lawyers.

On July 2, 2010, Governor Christopher Christie signed into law an amendment to the New Jersey Unemployment Compensation Act, which makes it more difficult for employees fired for work-related misconduct to receive unemployment benefits. Specifically, the amended law creates a new category of disqualification for "severe misconduct." It also extends the period of disqualification for employees fired for misconduct that was not severe by two weeks, bringing the disqualifiaction up to eight weeks in total. Both changes were originally proposed by Governor Christie but not included in the Senate Bill. The Governor subsequently conditionally vetoed the unemployment insurance Bill unless the Senate accepted his revisions.

The first of these changes is likely to have a substantial impact on employees in New Jersey. Before, employees who were fired from their jobs would be completely disqualified from collecting unemployment benefits only only if they committed a crime connected with the work. Now, a complete disqualification also applies to employees who lost their jobs as a result of:

• repeated violations of an employer's rule or policy;
• repeated lateness or absences after a written warning by the employer;
• falsification of records;
• physical assault or threats;
• misuse of benefits;
• misuse of sick time;
• abuse of leave;
• theft of company property;
• excessive use of drugs or alcohol on work premises;
• theft of time; and
• other malicious and deliberate conduct.

Given this broad definition of "severe misconduct," employees engaging in misconduct at work are risking not only their job security, but also their ability to collect unemployment benefits if they get fired. Employees disqualified for severe misconduct remain ineligible for unemployment benefits until after they have worked in a new job for four weeks. In the current economic climate, this is a very harsh penalty.

It is not uncommon for employers to use misconduct as an excuse to fire an employee for an unlawful reason. If you believe you lost your job because your employer discriminated or retaliated against you, please consider contacting an experienced New Jersey discrimination attorney.

In an article I wrote last May, Employees Working in Other States Can Sue Under New York's Anti-Discrimination Laws, I discussed Hoffman v. Parade Publications. In that age discrimination case, New York's mid-level appellate court ruled that the New York City Human Rights Law (NYCHRL) applies to non-residents of NYC if the discriminatory decision was made in NYC. It also ruled that the New York State Human Rights Law (NYSHRL) applies to non-residents of NYC if the discriminatory employment decision was made in New York State. However, last month New York's highest court, the Court of Appeals, reversed that decision and set a new standard.

The Court of Appeals ruled that for the NYSHRL to apply, the employee bringing the discrimination lawsuit must either be a resident of New York State, or show that the impact of the discrimination was felt within New York State. Likewise, it ruled the NYCHRL applies only if the victim of discrimination is a resident of New York City, or the impact of the discrimination was felt in New York City.

The Court of Appeals did not explain what kind of "impact" is necessary for the NYCHRL or the NYSHRL to apply to a non-resident. Presumably, New York law protects employees who primarily work in New York, no matter where they live. However, the Court of Appeals found Mr. Hoffman, who lived and worked in Georgia, was not protected by the NYSHRL or the NYCHRL even though his boss supervised him, made the decision to fire him, and called to fire him, all from the company's headquarters in New York City. In other words, the court found those facts were not enough to show the discriminatory employment decision had an "impact" on New York.

So what is the practical meaning of this ruling for employees working for companies based in New York, but living in New Jersey? Fortunately, New Jersey residents are protected by the New Jersey Law Against Discrimination (NJLAD), which usually provides equal or greater protection against discrimination than New York State law. However, fewer employees working for New York City companies will be able to take advantage of the even broader protections of the NYCHRL. For example, as I discussed in a previous article, Extended Medical Leave Can Be Reasonable Accommodation Under New York Law, this includes the fact that under the NYCHRL employers are required to provide accommodations to their disabled employees even if the accommodations are not reasonable.

A copy of the Court of Appeal's Decision in Hoffman v. Parade Publications is available here.

Among other things, the Family & Medical Leave Act (FMLA) allows covered employees to take off up to 12 weeks from work per year to care a newborn, newly adopted or placed child, or to care for a son or daughter with a serious health condition. However, the FMLA does not indicate whether someone who provides care for a child, but is not the child's biological or legal parent. Among other situations, this arises in same sex marriage and civil union in which only one person is the child's legal parent or guardian.

To answer this question, on June 22, 2010 the United States Department of Labor (DOL)'s Deputy Administrator issued a formal interpretation of the term "son or daughter" under the FMLA. The DOL indicated that someone is an employee's son or daughter if they provide either financial support or day-to-day care for the child.

The DOL reached this conclusion because the FMLA defines "parent" to include someone who acts "in Loco parentis." Someone acts in Loco parentis if they fill the normal obligations of a parent, but are not the child's biological or adoptive parent. Someone who acts in Loco parentis is entitled to take an FMLA to take care of the child.

The DOL provided an example that an individual who provides day-to-day care for his or her partner's child could be considered the child's parent under the FMLA, even if he or she has no legal or biological relationship to the child. It also indicates that this can be true irrespective of whether the child has a biological parent in their home, or already has both a mother and a father.

Continue reading "Department of Labor Says FMLA Covers Non-Traditional Parents" »