New Jersey Employment Lawyer Blog

Last week, the United States Equal Employment (EEOC) answered questions about when requiring a high school diploma violates the Americans with Disabilities Act. The EEOC provided this information because it created confusion last November when it issued an informal letter discussing how the ADA applies to standards for job qualifications.

Specifically, in November 2011 the EEOC issued a letter which indicates that an employer would violate the ADA if it rejected a job candidate because he does not have a high school diploma if a disability prevented the job candidate from graduating from high school, unless the employer proves the diploma requirement "is job related and consistent with business necessity." The letter also indicates that an employer would "not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma." The EEOC received substantial backlash to its position, including many who claimed it had created a disincentive to graduate from high school.

The EEOC's article last week clarifies that the ADA does not prohibit employers from requiring job applicants to have high school diplomas. Rather, under limited circumstances a company might have to allow a job candidate to show he is qualified for the job if a disability made prevented him from graduating from high school. For example, an individual who could not graduate from high school because of a disability might prove he is qualified for a job by showing his work experience in similar jobs.

The EEOC's article also makes it clear that employers are not necessarily required to hire a job candidate who is disabled. Companies have the right to select the job candidate who is best qualified for the job.

What is still unclear is whether the employer or the employee has the burden of proof when a company rejects a job candidate whose disability prevented him from graduating from high school. The EEOC's November letter indicates that employers must demonstrate that a high school diploma is necessary for the job. However, its February article indicates that the disabled employee has to prove he is qualified for the job even though he did not graduate from high school. It seems likely the EEOC originally intended to place the burden on the employer, but changed its mind in response to the backlash it received last November.

Continue reading "EEOC Explains When Employers Violate ADA By Requiring High School Diploma" »

Yesterday, the United States Equal Employment Opportunity Commission (EEOC) issued a Press Release regarding pregnancy discrimination in the workplace. The EEOC is a federal agency that helps enforce laws prohibiting employment discrimination claims based on race, color, religion, sex, pregnancy, national origin, age, and disability, as well as related retaliation claims.

The EEOC's Press Release recognizes that "employers should not make decisions based on stereotypes and presumptions about the competence" of pregnant employees. But even though the federal Pregnancy Discrimination Act was passed more than 30 years ago, and "most pregnant women want and need to work," pregnancy discrimination continues to be a major problem in the workplace.

The EEOC indicates that women make up 47% of today's workforce, and are either the primary or co-primary breadwinners in almost two out of every three families. As a result, in the words of the Senior Advisor for the National Partnership for Women & Families, Judith Lichtman, "women cannot afford to lose their jobs or income due to pregnancy or childbirth."

The Press Release notes that in addition to pregnancy discrimination, both male and female caregivers experience significant discrimination in the workplace. It recognizes that these forms of employment discrimination are becoming bigger problems, and that parents are struggling to balance their obligations at work with their obligations to their families. As I discussed in a previous article, in 2009 the EEOC issued guidelines regarding Discrimination Against Caregivers. The EEOC's Press Release promises to "vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers."

Continue reading "EEOC Recognizes Pregnancy Discrimination Remains Widespread" »

Last week, the Third Circuit Court of Appeals< (the federal appellate court that covers New Jersey) ruled that supervisors can be held personally liable under the Family & Medical Leave Act of 1993 ("FMLA"). Employees who are covered by the FMLA have the right to take up to a total of 12 weeks off per year for their own serious health condition; for a serious health condition of their spouse, parent or child; for childbirth, adoption, or foster care; or to bond with a new child.

In Haybarger v. Lawrence County Adult Probation and Parole, the Third Circuit ruled that individuals who have sufficient control over an employee can be held personally liable if they violate the employee's rights under the FMLA. The Court indicated that relevant factors a court should consider when determining whether an employee can be held personally liable under the FMLA include whether the individual (1) had the power to hire and fire the employee, (2) supervised and controlled the employee's work, (3) set the employee's compensation, or (4) maintained employment records for the employee. In addition to these factors, courts must consider any evidence that is relevant to determine the "economic realities" of the relationship between the employer and the employee. The Third Circuit also rule that this test applies to both public and private employers.

The plaintiff in the case, Debora Haybarger, worked as an office manager for Lawrence County Adult Probation and Parole. She frequently needed to take time off because of medical conditions including Type II diabetes, heart disease, and kidney problems. Her supervisor, William Mancino, made it clear he was unhappy that she was taking so much time off from work. He eventually placed Ms. Mancino on probation for six-months before he convinced his boss, Judge Dominick Motto, to fire her.

The District Court dismissed Ms. Haybarger's claims against Mr. Mancino. It primarily relied on the fact that Mr. Mancino did not have the ultimate authority to fire Ms. Haybarger. But, applying its new test, the Third Circuit concluded that there is enough evidence for a jury to conclude that Mr. Mancino can be held personally liable under the FMLA. Among other things, it noted that he supervised Ms. Haybarger's work, prepared her performance reviews, disciplined her, and influenced Judge Motto's decision to fire her. Accordingly, it reversed the District Court's decision so a jury can decide whether Mr. Mancino can be held personally liable for violating Ms. Haybarger's rights under the FMLA.

Continue reading "Supervisors Can Be Held Liable Under Family & Medical Leave Act" »

Last week, in Walker v. Guiffre and Humphries v. Powder Mill Shopping Plaza, the New Jersey Supreme Court upheld the longstanding rule that a plaintiff can receive an enhanced attorney fee award under New Jersey laws that allow a prevailing plaintiff to recover his attorneys' fees from the defendant. This applies to many New Jersey employment laws, including the New Jersey Law Against Discrimination (LAD), the Conscientious Employee Protection Act (CEPA), and the New Jersey Family Leave Act (FLA).

This right to a contingency fee enhancement dates back to Rendine v. Pantzer, a 1995 New Jersey Supreme Court case which discusses an employee's right to recover his reasonable attorney's fees if he wins a case under the LAD. After the court calculates the attorneys' reasonable fee, it must determine whether and how much of an enhancement he should receive. The fee enhancement is intended to make up for the risk a lawyer takes when taking a case on a contingency fee basis. Contingency fee enhancements generally should range between five and fifty percent, and typically range between twenty and thirty-five percent. The maximum possible fee enhancement under New Jersey law is 100 percent, but such a high enhancement is available only in a "rare and exceptional case."

In contrast, in April 2010, in Perdue v. Kenny A., the United States Supreme Court recognized that, under federal law, an attorney fee enhancement is permitted only in "rare" and "exceptional" circumstances. Fortunately, in Walker and Humphries the New Jersey Supreme Court decided not to follow Perdue, and instead continued to follow Rendine. As a result, employees who bring claims under New Jersey fee-shifting statutes such as the LAD, CEPA and the FLA are entitled to seek enhanced attorney fees. However, employees bringing claims under federal employment laws such as the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Family & Medical Leave Act (FMLA), are rarely entitled to fee enhancements.

Continue reading "New Jersey Supreme Court Reaffirms Lower Threshhold for Attorneys' Fees Enhancements" »