New Jersey Employment Lawyer Blog

On May 5, 2011, New Jersey's Appellate Division ruled that employers do not have the right to force employees to complete Family Medical Leave Act (FMLA) medical certifications, or to require employees to take FMLA leaves. The FMLA is a federal law that permits qualified employees to take up to 12 weeks off per year for (1) their own serious health condition, (2) the serious health condition of their spouse, son, daughter, or parent, (3) their own pregnancy, or (4) the adoption, or placement of a child in foster care.

The case, In the Matter of Township of Parsippany-Troy Hills, involves an employee who wanted to use paid sick leave instead of taking an unpaid FMLA leave when he took a family leave to care for a sick relative. His employer, the Township of Parsippany-Troy Hills, asked him to submit a FMLA certification form from his health care provider, and threatened to suspend him after he refused to submit the form.

The Appellate Division concluded that the FMLA does not permit an employer to force an employee to submit an FMLA medical certification, and therefore it is improper for an employer to discipline an employee because he refuses to submit one. Furthermore, if the employee is entitled to take the same time off under another employment policy or a union collective bargaining agreement, then the employer must grant the employee but the employee will not be protected by the FMLA.

The Appellate Division also ruled that if an employee refuses to provide enough information for the employer to determine whether his leave qualifies under the FMLA, then the company can deny the employee's request for an FMLA leave on that basis. That is because the employer does not have enough information to determine whether the leave qualifies under the FMLA due to the employee's refusal to provide enough information. So, for example, if the employer asks the employee to submit an FMLA medical certification, and the employee refuses to do so, then the employer can deny the employee's request for an FMLA leave.

In reaching those conclusions, the Appellate Division explained that companies covered by the FMLA must give employees four different forms of notice about their rights under the FMLA:

1. General Notice: Employers must post general notice of the FMLA's provisions and the procedures for filing a complaint for a violation of the FMLA in a conspicuous location, and include it in any employee handbooks or other written policies provided to employees;


2. Eligibility Notice: When the employer becomes aware that an employee's time off might qualify under the FMLA, the employer must tell the employee whether he is eligible to take an FMLA leave based on his length of employment and the size of the company;


3. Rights and Responsibilities Notice: When an employee requests an FMLA-qualifying leave, or the employer has enough information to know the employee's leave might qualify under the FMLA, the employer must tell the employee about his rights and responsibilities under the FMLA, and the potential consequence if he fails to meet those obligations; and


4. Designation Notice: Once an employer has enough information to determine whether an employee's requested leave qualifies under the FMLA, it must inform him whether it qualifies.

Continue reading "New Jersey Court Rules Employers Cannot Force Employees to Take FMLA Leave" »

Often, companies offer money or other benefits to employees who they have laid off or fired, as part of a severance agreement or separation package. Most severance agreements require you to waive your employment law rights before you can receive those benefits. In a recent case, Gregory v. Derry Township School District, the Court of Appeals for the Third Circuit ruled that an employee waived her right to bring a discrimination claim against her employer because she signed a Separation Agreement and General Release, even though she only had 15 minutes to review it before she signed it.

The Third Circuit is the federal appellate court that handles appeals from the District of New Jersey. It ruled that when deciding whether an employee had waived his legal rights, a Court should look at the totality of the circumstances including:

1. How clear and specific the language of the release is;
   
2. The employee's education and business experience;
   
3. How much time the employee had to consider the release before signing it;
   
4. Whether the employee knew or should have known his legal rights when he signed the release;
   
5. Whether the employee was encouraged to or actually received advice from a lawyer;
   
6. Whether the employee had an opportunity to negotiate the terms of the separation agreement; and
   
7. Whether the employee received any additional benefits for signing the release.

Applying those factors, the court found that public school teacher Rhauni Gregory could not bring a race discrimination claim against her former employer because the Separation Agreement and General Release she signed included a waiver of all claims arising out of her employment. Ms. Gregory claimed she was forced to resign from her job after her supervisor gave her unfavorable performance evaluations and placed her on an oppressive "intensive assistance track" because she is African-American. However, the Third Circuit found Ms. Gregory had waived the right to bring her national origin discrimination claim because she signed a valid release. It found that the release Ms. Gregory signed was valid even though she signed it within 15 minutes after it was provided to her.

In reaching that conclusion, the court considered the fact that Ms. Gregory's union representative had negotiated the terms of the resignation with the school district. It also considered the fact that, under the separation agreement Ms. Gregory is entitled to receive medical benefits for herself and her family through the end of the year, and a positive job reference letter. She would not have been entitled to either of those benefits if she had not signed the separation agreement.

The Third Circuit's opinion in Gregory is unpublished, meaning it is not a binding legal precedent. However, it is an excellent example of why it can be critical to have an experienced employment lawyer review your severance agreement before you sign it. If you have been offered a severance package from your employer in New Jersey or New York, you should consider meeting with an employment attorney before you sign away important employment law rights.

Last November, I wrote about a potential new law that would make it illegal for companies in New Jersey to say that unemployed job candidates need not apply for job openings. Governor Christopher Christie conditionally vetoed the bill, and recommended several changes to it. The Legislature passed an amended version of the bill, which Governor Christopher Christie signed it into law on March 29, 2011. The new law goes into effect on June 1, 2011.

Under the new unemployment discrimination law, it is illegal for employers to knowingly or purposefully publish or print on the internet a job advertisement that states that (1) being currently employed is a job requirement; (2) the employer will not consider job applicants who are currently unemployed; or (3) the employee will only consider job applicants who are currently employed. However, the law does not apply if it would conflict New Jersey civil service laws. It also does not prevent companies from advertising that only job applicants who are currently working for the employer will be considered.

The new employment law statute also makes it clear that it does not prohibit employers from advertising any other qualifications for a job permitted by law, such as requiring a valid professional or occupational license, certificate, registration, permit or other credential, or a minimum level of education, training, or experience.

The new law makes it clear that it does not give individuals who have been impacted the right to bring a private lawsuit. Instead, employers who violate the law are subject to fines of up to $1,000 for a first violation, and up to $5,000 for any subsequent violations. This is significantly lower than the originally proposed fines of up to $5,000 for a first violation and up to $10,000 for any subsequent violations.

Continue reading "New Jersey Makes it Illegal to Discriminate Against Unemployed Job Candidates" »