A recent decision from the New Jersey Appellate Division decision recognizes that, under the right circumstances an employee can be protected by the Conscientious Employee Protection Act (“CEPA”) when she resigns because she is not willing to participate in her employer’s illegal conduct.  CEPA is New Jersey’s whistleblower law, which many courts have described to be the broadest such law in the nation.

Hope Moser worked for the Streamwood Company as the assistant property manager at the Madison Court apartments. Her immediate supervisor, Scott Leonard, was Streamwood’s regional manager and the son of Streamwood’s owner.

Employee protected by CEPA after refusing to provide false information on housing application formIn January 2021, Mr. Leonard told Ms. Moser that she should check “no” on all housing screening forms in response to the question whether the form was being completed as a Section 8 housing application. Ms. Moster objected because she believed doing so would violate the New Jersey Law Against Discrimination (“LAD”), which prohibits housing discrimination against prospective Section 8 tenants.

Reasonable Accommodations for Pregnancy and Childbirth

On June 27, 2023, a new federal employment law, the Pregnant Workers Fairness Act, went into effect.  The Act prohibits employers from:

  • Pregnant woman needs a reasonable accommodation.Denying an employee a reasonable accommodations for pregnancy, childbirth, and related medical conditions unless the employer can show the accommodation would impose an undue hardship on the operation of its business;

Evangelical christian postal worker wins in Supreme CourtLast month, the United States Supreme Court made it easier for employees to prove a claim that their employer failed to accommodate an employee’s religious beliefs under Title VII of the Civil Rights Act of 1964.

Gerald Groff worked for the United States Postal Service (“USPS”). Mr. Groff is an Evangelical Christian whose religious belief is that Sunday should be a day for worship and rest, rather than for work or transporting worldly goods.

Initially, Mr. Groff’s job as a Rural Carrier Associate generally did not require him to work on Sundays.  However, in 2013, after USPS entered into an agreement with Amazon, it began requiring employees to make Sunday deliveries. Accordingly, Mr. Groff requested a transfer to another location that did not make deliveries on Sundays.

A recent decision by the Appellate Division recognizes that, under the right circumstance, an employee can establish an employment discrimination claim under the New Jersey Law Against Discrimination (“LAD”) after her employer was acquired by another company, even though she did not apply for a job with the acquiring business.

Rosemary Beneduci worked as a bookkeeper for a law firm, Graham Curtin, P.A., for almost 30 years.  In 2017, when she was 66 years old, Ms. Beneduci took two medical leaves due to problems with her knees.

Bookkeeper not hired while on medical leave.In the meantime, Graham Curtin began the process of closing the firm. The firm’s managing partner, Peter Laughlin, eventually reached an agreement to merge with another law firm, McElroy, Deutsch, Mulvaney & Carpenter, LLC (“McElroy”).  McElroy agreed to make Mr. Laughlin a partner as part of the merger.

New Jersey law will begin requiring some employers to pay severance payBeginning on April 11, 2023, an important new employment law will go into effect pursuant to which many employees who lose their jobs in New Jersey will be legally entitled to receive severance pay.  Specifically, covered employees will be entitled to at least one week of severance per year they worked for their employer.

This new severance pay requirement does not apply to every employee who loses his or her job.  For example, it applies only to individuals who lose their jobs as a result of a mass layoff or a transfer or termination of operations that results in at least 50 employees who report to work at a single facility (including employees who work remotely and report to that facility) losing their jobs within a 30 day period (or, sometimes within a 90 day period).  A facility can be a single location, a group of locations that form a single office or industrial park, or separate locations across the street from each other.

In addition, companies that have at least 100 employees must provide covered employees at least 90 days of notice before their layoff becomes effective.  There is a penalty when an employer fails to provide an employee that notice, namely that the employees is entitled to an extra four weeks of severance pay.

Employee entitled to overtime payLast week, the United States Supreme Court ruled that, no matter how much an employee earns per year, the primary exemptions to federal overtime pay requirement do not apply unless the employee is guaranteed to receive at least $455 per week for any week in which he or she performed any work for the employer.

Michael Hewitt worked for Helix Energy Solutions Group as a “toolpusher” on an offshore rig.  Helix paid him a flat fee for each day he worked.  Mr. Hewitt worked for Helix for four consecutive weeks, typically 12 hours per day for seven days per week, followed by four weeks off.  Although Helix did not pay him for the four week periods when he was not working, Mr. Hewitt earned over $200,000 per year.  Even though Mr. Hewitt regularly worked more than 40 hours per week, Helix never paid him an overtime premium.

Mr. Hewitt sued Helix under the Fair Labor Standards Act of 1938 (“FLSA”), a federal law that requires employers to pay covered employees receive overtime pay if they work more than 40 hours per week.

A decision from New Jersey’s Appellate Division recognizes that New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), can apply to employees who work in other states.

Stephanie Halliday worked for Bioreference Laboratories, Inc., a company that provides diagnostic testing and related services.  Bioreference’s headquarters is in Elmwood Park, New Jersey.  However, Ms. Halliday worked for it at a laboratory in Houston, Texas.

Employee working remotely for company in New JerseyLaboratory employee working remotely for NJ companyMs. Halliday objected to her supervisors that Bioreference was violating federal safety and health regulations and the Clinical Laboratory Improvement Amendments of 1988 (“CLIA”) in Texas.  Specifically, she emailed an employee in the company’s Quality Systems (“QS”) Department in New Jersey to report significant deficiencies with the performance of the staff in the Houston laboratory that caused her to lack confidence that patients’ test results would be valid.

We Have Moved to Bergen County

Rabner Baumgart Ben-Asher & Nirenberg is pleased to announce the opening of our new modern office in Bergen County, New Jersey.  Effective immediately, we have moved to our beautiful new home:

Bergen County Main OfficeRabner Baumgart has moved to Bergen County.

Employer retaliates by searching employee's cellphoneA recent decision by the Third Circuit Court of Appeals allows an employee to proceed with his retaliation claim based on evidence suggesting his employer’s decision to search his cellphone was an excuse to try to find support to fire him in retaliation for asserting claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”) and the Family & Medical Leave Act (“FMLA”).

Joseph Canada is Black and suffers from serious back problems including herniated discs and arthritis.  He worked for Samuel Grossi and Sons, Inc. for 10 years.  Mr. Canada claims Grossi’s management prevented him from accessing FMLA leave forms, and harassed him when he tried to take time off for his back issues.  He eventually obtained the forms on his own, and took FMLA leave. 

In March 2019, Grossi had a temporary layoff during which it laid off Mr. Canada for a day.  In response, Mr. Canada filed a claim of race and disability discrimination with the United States Equal Opportunity Commission (“EEOC”).  In June 2019, Mr. Canada filed a discrimination and retaliation lawsuit against Grossi under Title VII, the ADA and the FMLA.

A new ruling from the Appellate Division addresses when an employer can be liable for unlawful harassment by one of its employees toward a customer or patron.

The case was brought by Darien Cooper, who is gay.  Mr. Cooper received a massage at Rogo Brothers, Inc., which does business under the name Elements Massage (“Elements”).  The masseuse, Justine Middleton, asked Mr. Cooper about a tattoo on his arm.  During their ensuing conversation, Ms. Middleton told Mr. Cooper that she is Christian.  When Mr. Cooper later referred to his boyfriend, Ms. Middleton made demeaning and discriminatory comments about homosexuality.  For example, she told Mr. Cooper that gays “do not follow God’s design,” compared being gay with pedophilia, and implied she believes being gay is a choice.  Mr. Cooper found these comments humiliating.

Mr. Cooper sued Elements, alleging it engaged in sexual orientation discrimination against him in a “place of public accommodation,” in violation of the New Jersey Law Against Discrimination (“LAD”).  In addition to prohibiting workplace discrimination, the LAD also prohibits discrimination in places of public accommodation, such as a “retail shop, store, establishment, or concession dealing with goods or services of any kind.”  As a result, places like Elements cannot discriminate against their customers based on their sexual orientation (or, for that matter, based on their race, creed, color, national origin, ancestry, marital status, civil union status, domestic partnership status, sex, gender identity or expression, disability or nationality).

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