New Jersey Employment Lawyer Blog
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Yesterday, Governor Christie signed a law that prohibits pregnancy discrimination in New Jersey. The Act, which is an amendment to the New Jersey Law Against Discrimination (“LAD”), adds pregnancy to the list of legally protected categories. Importantly, it defines “pregnancy” broadly to include not only pregnancy itself but also childbirth, medical conditions related to pregnancy or childbirth, and recovery from childbirth.

Thumbnail image for Thumbnail image for Thumbnail image for New Jersey Passes Law Prohibiting Pregnancy Discrimination.jpgThe new law is expressly premised on the fact that “pregnant women are vulnerable to discrimination in the workplace in New Jersey.” It notes that “women who request an accommodation that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth, are being removed from their positions, placed on unpaid leave, or fired.” Its goal is to eliminate those forms of discrimination from the workplace.

In the past, many court opinions have found pregnancy discrimination to be a form of unlawful gender discrimination. However, not every court has agreed, leaving some uncertainty in the law. This new law removes any doubt that it is unlawful for an employer to treat a woman worse because of her pregnancy or childbirth, and makes it clear that employers cannot treat pregnant women less favorably than their similarly situated coworkers.

This amendment to the LAD also requires employers to provide reasonable accommodations to pregnant employees based on the advice of their physician, irrespective of whether the employee is disabled. It lists examples of potential accommodations as including “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.” It also makes it clear that companies must offer their pregnant employees at least as much paid and unpaid time off as it provides to comparable employees who are not pregnant.

However, the law makes it clear that employers do not have to provide an accommodation if it can show it would impose an undue hardship on its business. It lists factors to determine whether a particular accommodation would impose an undue hardship as including (1) the overall size of the employer’s business including the number of employees, the number and type of facilities, and the size of budget; (2) the nature of the employer’s operations, including the composition and structure of its workforce; (3) the nature and cost of the accommodation; and (4) the extent to which the company would need to waive an essential job requirement to provide the accommodation. This final consideration seems to imply that, at least under certain circumstances an employer might be required to waive an essential job requirement to accommodate a pregnant employee. If so, this would be significant since employers are not required to waive essential job functions, even temporarily, when providing reasonable accommodations for an employee’s disability or religious belief.

Since the LAD already included a broad anti-retaliation provision, it now prohibits employers from retaliating against employees who complain about pregnancy discrimination in the workplace. In addition, it includes a new provision forbidding employers for penalizing an employee for requesting or using an accommodation for a pregnancy-related condition.

The amendment also includes a provision that makes it unlawful for individuals and companies to refuse to enter into or renew contracts or otherwise do business with someone because she is pregnant. As a result, in addition to protecting employees it also protects independent contractors.
The new law and all of its requirements went into effect on January 16, 2014. You can read the full text online.

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Age discrimination occurs frequently but often is subtle. You may be certain you were fired because of your age, but not have any direct proof or “smoking gun” evidence. Fortunately, that does not necessarily mean you cannot prove your claim.

Employees who want to prove they were fired because of their age frequently try to show their employers replaced them with someone significantly younger. However, as a recent case demonstrates, this is not difficult to do and is not necessarily required.

Marion Cohen worked for the University of Medicine & Dentistry of New Jersey (UMDNJ) as an associate professor of anatomy and cell biology and injury sciences pursuant to a series of one, two and three-year employment contracts. In late 2008 or early 2009 UMDNJ informed her it was not going to renew her contract, supposedly due to budget cuts. At the time, Ms. Cohen was 69 years old.

Ms. Cohen subsequently sued UMDNJ for age discrimination under the New Jersey Law Against Discrimination (LAD). However, the trial judge dismissed her case on a motion for summary judgment, finding she did not have sufficient evidence to prove UMDNJ either sought to or in fact replaced her with someone younger, and had no evidence that her employer disproportionately terminated older employees. Ms. Cohen appealed.

In Cohen v. UMDNJ the Appellate Division reversed the trial court’s ruling. As the court explained, an employee does not necessarily need to show a significant difference in age to support a finding of discrimination. It quoted Bergen Commercial Bank v. Sisler, a 1999 New Jersey Supreme Court opinion which recognizes it is unusual for a company to replace a sixty-year-old employee with someone in his or her twenties. Rather, “the sixty-year-old will be replaced by a fifty-five-year-old, who, in turn, is succeeded by a person in the forties, who also will be replaced by a younger person.”

The Appellate Court found evidence that Ms. Cohen’s former job duties were redistributed to a number of coworkers who ranged between seven and twenty-two years younger than Ms. Cohen. It found this was enough to support an inference of age discrimination. The appellate court also noted additional evidence suggesting UMDNJ’s explanation for it decision not to renew her contract, rather than terminating one of her replacements, was a pretext (or excuse to cover up) for age discrimination.

The Appellate Division also noted it is not always necessary to compare the age of the employee bringing a discrimination lawsuit to the age of her replacement. For example, other factors supporting an inference of age discrimination can include discriminatory actions or comments by someone involved in the termination decision (or another adverse employment action at issue in the case), favoritism toward younger employees, or a pattern of recommending the older worker for positions for which she is not qualified or failing to consider her for positions for which she is qualified. Likewise, depending on the circumstances, the timing or sequence of events leading up to the decision to fire the employee also can support a finding of discrimination.

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Last week, New Jersey’s Appellate Division refused to dismiss a criminal indictment against an employee who took documents from her employer in an attempt to support her employment discrimination claims. While it is a criminal case, it undoubtedly has implications for employment lawyers and individuals with employment law claims.

Ivonne Saavedra worked for the North Bergen Board of Education in Hudson County, New Jersey. She is being prosecuted for taking 367 documents from her employer, including 69 original documents. According to the prosecutor, many of those documents are “highly confidential” and contain “very sensitive” information. A grand jury indicted Ms. Saavedra for second-degree official misconduct and third-degree theft.

According to Ms. Saavedra, she took the documents to help prove she was a victim of gender and ethnic discrimination at her job. She is arguing she had the legal right to take the documents based on a previous New Jersey Supreme Court case, Quinlan v. Curtiss-Wright Corp. Quinlan establishes a balancing test to determine if an employee is protected from retaliation when she takes documents from her employer to help prove an employment discrimination case. I discussed Quinlan in a previous article, Can You Be Fired For Giving Confidential Company Documents to Your Employment Lawyer?

In <a href="" target="_blank"State v. Saavedra, the Appellate Division concluded that a judge does not have to conduct an analysis under Quinlan to determine if an employee can be prosecuted for taking documents from her employer, even if she took them in an effort to prove her discrimination claim. The Court concluded that since there is evidence to support each of the elements of the relevant crimes, the criminal indictment should stand.

Female office worker taking documents to prove discrimination lawsuit.jpgHowever, the Appellate Court recognized that at her trial Ms. Saavedra will have the opportunity to prove she had an honest belief that she had the right to take the documents to support prove her discrimination case. The appellate court referred to this as an “honest error” defense.

The decision notes that if Hudson County prosecuted Ms. Saavedra to retaliate against her for pursuing a discrimination case against the Board of Education, she can bring a civil claim against it for malicious prosecution. She also presumably could bring a retaliation claim under the New Jersey Law Against Discrimination (LAD). Of course, that is likely to be of little solace to Ms. Saavedra while she is facing a criminal prosecution.

The ruling also includes a very strong dissenting opinion from one of the three appellate judges. That judge takes the position that prosecuting Ms. Saavedra would be fundamentally unfair. In doing so, the dissent relies on the strong public policy embodied by the LAD and the Conscientious Employee Protection Act (CEPA) to protect employees against unlawful discrimination and retaliation. It explains that employees in Ms. Saavedra’s shoes are not on fair notice that they are not permitted to take confidential documents from their employers to try to support their discrimination or retaliation lawsuits, especially in light of the protection provided by the New Jersey Supreme Court in Quinlan.

Fortunately, since there is a dissenting opinion in the Appellate Division, there is a good chance the New Jersey Supreme Court will review the case. In the meantime, employees who are considering taking documents from their companies to try to prove discrimination or retaliation claims should act with extreme caution, and should strongly consider talking to an employment lawyer before deciding what to do.

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Earlier this month, a federal judge in New Jersey ruled that Bryan Maher can proceed with numerous employment law claims against his former employer, Abbott Laboratories.

Mr. Maher began working for Abbott in June 2008 as a Senior Distribution Specialist. In 2009, his sales numbers declined. By June the company began requiring him to participate in weekly one-on-one telephone coaching sessions. It also received several complaints from Mr. Maher’s customers. By late August 2009, the company placed Mr. Maher on an informal coaching plan and warned him he could be fired if his sales did not improve.

Disability discrimination -heart issue.jpgIn October 2009, Mr. Maher was diagnosed with atrial fibrillation (an irregular heartbeat) which was exacerbated by workplace stress. The company granted his request to take four days off from work for testing.

Mr. Maher continued to receive complaints from his customers, and his sales results did not improve. Eventually, the company began to prepare a Performance Improvement Plan (PIP).

On approximately February 10, 2010, Mr. Maher requested a short medical leave because he was feeling ill due to stress at work. He also reminded his boss that his son is autistic. According to Mr. Maher, his boss responded by saying “I don’t give a sh*t about your stress, your heart, and I hate to say it but your son either. We need sales and we need numbers.” As a result, Mr. Maher did not take a medical leave. Shortly thereafter, Abbott formally placed him on a Performance Improvement Plan (PIP).

In March 2010, Mr. Maher took two weeks off from work because he needed to care for his autistic son and his own health issues. In the meantime, Abbott received several additional complaints from his customers. Ultimately, on May 11, 2010, the company fired him for “poor performance.”

Mr. Maher then filed a lawsuit, claiming Abbott discriminated against him because he is disabled and because of his association with his disabled son, in violation of the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (LAD). He also alleged Abbott failed to provide him a reasonable accommodation for his disability and retaliated against him because he requested one.

Abbott eventually filed a motion for summary judgment, seeking to dismiss Mr. Maher’s case. In Maher v. Abbott Laboratories, the Court dismissed portions of Mr. Maher’s claim that Abbott failed to accommodate his disability. For example, it dismissed a claim relating to his request for vacation time in June 2009 because Mr. Maher did not indicate he needed the time off because of a disability. It also dismissed his claim related to his request to transfer his New Jersey sales territory to another salesperson because (1) he did not tell anyone at Abbott he wanted this change because of his disability, (2) employers are not required to provide accommodations that would waive an essential job function, and (3) the accommodation would have imposed an undue hardship on Abbott’s business. The Court also dismissed Mr. Maher’s allegation that he was entitled to take two weeks off in February 2010 as a reasonable accommodation for his son’s autism since neither the ADA nor the LAD requires employers to provide reasonable accommodations for a family member’s disability.

However, the Judge permitted Mr. Maher to proceed with his claim that Abbott failed to accommodate his disability when he asked for time off for his own medical condition in February 2010. The Court found Mr. Maher requested a reasonable accommodation when he made this request since the company knew he had a heart condition and knew he wanted the time off because of it. The Judge concluded his boss’s hostile reaction could lead a jury to conclude Abbot refused to even consider accommodating Mr. Maher’s disability, in violation of the ADA and the LAD.

Further, the Court found the same evidence could support the conclusion that Abbott fired Mr. Maher because he requested an accommodation for his disability. Although the company claims it fired him for poor job performance, a jury could find this was a pretext (excuse) for disability discrimination. The Judge explained this conclusion is further supported by the fact that the company fired Mr. Maher only three months after his boss’s hostile reaction to his request for time off. It also pointed to evidence that many of the performance issues the company used to justify firing Mr. Maher may have been caused by the company’s poor policies and procedures rather than by anything he did wrong.

Ultimately, the Court ruled a reasonable jury could find the company had exaggerated Mr. Maher’s performance deficiencies to justify firing him. Accordingly, it permitted him to proceed with his disability discrimination claims under both the ADA and the LAD.

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Last month, in Gomez v. Town of West New York, the United States District Judge William Martini denied a motion to dismiss a civil rights lawsuit against the Town of West New York, New Jersey.

Alain Gomez worked for West New York as its Urban Enterprise Zone Coordinator. According to Mr. Gomez’s allegations, when Mayor Felix Roque ordered him to seek contributions to a private charitable not-for-profit organization the Mayor was running, Mr. Gomez refused because it was illegal to work for a private organization during his working hours for the Town. The Mayor then retaliated against Mr. Gomez by moving him into a small office without proper ventilation.

New Jersey Appellate Court Permits Whistleblower Lawsuit to Proceed.jpgIn response, Mr. Gomez filed a complaint under the New Jersey Public Employees Occupational Safety and Health Act (“PEOSHA”). The state eventually ordered West New York to provide Mr. Gomez safe working conditions. Around the same time Mr. Gomez also contributed information to a website called, and publicly accused Mayor Roque of misusing public resources.

Mr. Gomez eventually told West New York’s Town Administrator that the Mayor had illegally instructed him to spend working hours performing fundraising for the Mayor’s charity. The Town Administrator then scheduled a meeting between Mr. Gomez and the Town Commissioner to discuss this issue. Soon thereafter, the Mayor told Mr. Gomez he was unhappy about his meeting with the Commissioner and threatened to fire him. True to the Mayor’s threat, West New York fired Mr. Gomez two days later.

Mr. Gomez claims the Mayor and Commissioner continued to harass him after they fired him, including by threatening him, intimidating him, calling him names, making disparaging comments about him to the media, offering to rehire him as the Deputy Director of the Parks Department only to demote him to the position of garbage collector the next day, and threatening to fire his father who also works for the Town.

Mr. Gomez sued West New York, Mayor Roque and three other individuals under the First Amendment, the New Jersey Civil Rights Act (NJCRA) and the Conscientious Employee Protection Act (CEPA). West New York asked the Court to dismiss Mr. Gomez’s First Amendment and NJCRA, arguing his claims did not relate to a matter of public concern. To be protected by the First Amendment speech has to relate to a matter of public concern. The Court found this requirement was met since Mr. Gomez was attempting to “bring to light actual or potential wrongdoing or breach of public trust on the part of government officials.”

The Town also argued Mr. Gomez’s speech was not constitutionally protected because he supposedly was speaking as part of his official duties. The United State Supreme Court has ruled the First Amendment does not protect speech if it is made as part of a public employee’s job duties. However, the Appellate Division found this did not bar Mr. Gomez’s claims because his point was he should not be spending time fundraising for the Mayor’s private charity during his working hours, and thus he was speaking in his capacity as a private citizen rather than as part of his official duties.

Finally, the Court found Mr. Gomez’s lawsuit sets forth a valid claim under CEPA. It explain that to prove a CEPA claim, an employee must show he (1) reasonably believed his employer “was violating a law, rule, or regulation or a clear mandate of public policy concerning the public health or safety;” (2) performed a whistle-blowing activity listed in CEPA; (3) experienced an adverse employment action; and (4) the employee’s whistle-blowing activity caused the adverse employment action. It found Mr. Gomez’s allegations could support each of these requirements. Accordingly, it ruled that Mr. Gomez can proceed with his case.

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A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that she is forced to resign. This type of forced resignation is legally actionable if it caused by an illegal factor, such as unlawful discrimination or retaliation. Last week, New Jersey’s Appellate Division explained that when deciding if an employee has enough evidence to support this type of claim, a court has to view the evidence collectively rather than looking at each piece of evidence separately.

The woman who filed the case, Cheryl Smith, worked for New Jersey’s Department of Health and Senior Services (DHSS) as a Public Health Consultant II. Ms. Smith took on additional job duties, hoping she eventually would receive a promotion and raise. When it became clear that was not going to happen, Ms. Smith asked the New Jersey Department of Personnel (DOP) to determine if she either was entitled to a promotion, or was performing job duties above her salary grade.

Constructive Discharge Claims in New Jersey.jpgThe DOP concluded Ms. Smith was performing work outside of her job title and should be promoted to an Education Program Specialist II with a corresponding raise. However, it found she was ineligible for the promotion because she did not have the required educational background. Accordingly, Ms. Smith asked DHSS to take away her extra job duties. When the DHSS refused, Ms. Smith went back to the DOP, which instructed her employer to remove certain job duties.

In her lawsuit, Ms. Smith claims DHSS retaliated against her because of her complaints to the DOP by intimidating her when it reprimanded her and by assigning her a smaller workstation that, unlike her peers, did not have a privacy door.

Approximately 8 months later, Ms. Smith’s doctor diagnosed her with severe major depressive disorder caused in part by workplace stress. He doctor found she had “a 90 percent permanent of total psychiatric disability.” Shortly thereafter, Ms. Smith resigned.

The trial court dismissed Ms. Smith’s constructive discharge claim, finding the circumstances were not intolerable since she initially wanted the additional job duties to strengthen her resume, and the other alleged acts of retaliation were not so unbearable that a reasonable person who experienced them would have resigned.

But in Smith v. New Jersey Department of Health & Senior Services, the Appellate Division disagreed. It noted that receiving an intimidating reprimand from a supervisor and being assigned a smaller workstation might not be enough to support a constructive discharge claim on their own. But when those actions are considered together with the fact that DHSS required Ms. Smith to perform additional job duties for an extended period of time without promoting her or giving her a raise, and refused to remove her extra job duties even after the DOP found they were above her pay grade, the totality of the circumstances could support her claim. Accordingly, the Appellate Division permitted Ms. Smith to proceed with her wrongful termination claim.

Since the Appellate Division’s opinion is unpublished, it is not a binding precedent. Still, it is noteworthy because it seems to lower the bar on constructive discharge claims, which historically have been difficult to prove. At a minimum, it seems to set a relatively low threshold before an employee is entitled to have a jury decide her forced resignation claim.

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Earlier this year, the Second Circuit Court of Appeals ruled that a company’s Chief Executive Officer can be held personally liable for a company’s overtime violations even if he had no personal involvement in violating the law.

In Irizarry v. Catsimatidis, a group of employees filed a class action overtime claim against Gristede’s Foods, Inc. They brought federal claims under the Fair Labor Standards Act (FLSA) as well as claims under the New York Labor Law. They also named the company’s Chief Executive Officer, its District Manager, and its Vice President as individual defendants in the lawsuit.

Eventually, the court ruled in favor of the employees, finding Gristede’s failed to pay them time-and-a-half for their overtime hours, in violation of the FLSA and New York State law. At the time the court did not decide whether any of the individual defendants were personally liable.

Employee working overtime class action lawsuit.jpgGristede’s and the employees subsequently agreed to settle the case. However, Gristede’s failed to pay the employees the money they were owed under the settlement agreement. As a result, the employees asked the court to hold the company’s Chief Executive Officer, John Catsimatidis, personally liable for failing to properly pay them for their overtime work. The Court granted the motion, finding Mr. Catsimatidis was an “employer” under both the FLSA and state law. Mr. Catsimatidis appealed.

As explained by the appellate court, when determining whether an individual is an “employer” under the FLSA, the key question is whether he or she had “operational control” over the company. Relevant factor to make that determination include whether the individual (1) had the authority to hire and fire workers; (2) supervised the employee’s work; (3) made decisions about employee compensation; or (4) maintained employment records.

The court further explained that to be held personally liable, an individual’s operation control has to include some personal involvement in decisions about the company’s working conditions, business operations, personnel, or compensation, and has to have some relationship to the employee’s job. However, the individual does not necessarily need have to have been personally involved in the violation of the FLSA and does not have to have been involved in supervising the employees on a day-to-day basis as long as he has to have the authority to do so.

The court found Mr. Catsimatidis had sufficient authority and control over Gristede’s to be held personally liable for its violations of the FLSA. He was responsible for the company’s major long-term decisions, and had the right to close the business if he wanted. He regularly visited stores, made suggestions to managers, addressed individual problems, and reviewed customer complaints. He had the authority to hire and fire employees, even though he rarely exercised it. In addition, his name was electronically signed to all employee paychecks. He had ultimate financial control over the company, and kept track of its total payroll. Accordingly, the court found Mr. Catsimatidis was personally liable for the company’s violation of the FLSA.

Having found Mr. Catsimatidis personally liable, the Second Circuit Court of Appeals chose not to rule whether he also was personally liable under New York State law. Instead, it sent the case back to the District Court to consider that issue.

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Earlier this month, a federal judge ruled that neither the New York Human Rights Law (NYHRL) nor the New York City Human Rights Law (NYCHRL) protect unpaid interns from a sexually hostile work environment.

New York Law Does Not Protect Unpaid Interns from Sexual Harassment.jpgLihuan Wang worked as an unpaid intern for Phoenix Satellite TV US, a company that produces Chinese language television news programs in the United States. She alleges one of the company’s bureau chiefs, Zhengzhu Liu, invited her to talk to him about her job performance after a group lunch meeting, and then convinced her to go to his hotel room based on the excuse he needed to drop off some personal belongings. During the car ride to the hotel Mr. Liu made Ms. Wang extremely uncomfortable by discussing the sexual prowess of a black man who had dated a woman he knew. In the hotel he complemented Ms. Liu’s eyes before bringing her to his room. Once in his hotel room he asked her why she is so beautiful, threw his arms around her, attempted to kiss her, and squeezed her buttocks before she left.

After Ms. Wang rejected Mr. Liu’s advances, he suddenly stopped showing any interest in hiring her as an employee, and claimed Phoenix could not hire her because of a supposed “visa quota.” When Ms. Wang subsequently asked Mr. Liu about a potential job with Phoenix, he invited her to go to Atlantic City with him for the weekend, supposedly to discuss job opportunities. Ms. Wang declined his invitation and gave up on the possibility of a paid position with Phoenix.

Ms. Wang eventually filed a lawsuit in federal court alleging sexual harassment and retaliation in violation of both the NYHRL and the NYCHRL. However, in Wang v. Phoenix Satellite TV US the United States District Court for the Southern District of New York dismissed her hostile work environment claim.

Ms. Wang acknowledged the NYHRL applies only to “employees,” rather than unpaid interns. However, she argued the NYCHRL is much broader and applies to all individuals whose work is controlled by the company, whether or not they are paid. She relied on a previous case which recognizes the company’s right to control the individual’s work is the primary factor to determine whether she is an employee of a particular employer. The court rejected her argument, finding the right of control is used to determine which entity is an individual’s employer, not to determine whether someone is an employee at all.

However, the court did not dismiss Ms. Wang’s claim that Phoenix failed to hire her as an employee. It is, of course, unnecessary to prove you are an employee to establish a failure to hire claim since those claims are always brought by potential employees rather than actual employees. The court found there was enough evidence to support the conclusion that the company refused to hire Ms. Wang for a vacant position in violation of both the NYHRL and the NYCHRL. While the ruling is not entirely clear, it appears Ms. Wang’s remaining claims assert that Phoenix did not hire her because she refused to give into Mr. Liu’s sexual advances, and allege this constitutes quid pro quo sexual harassment claim and unlawfully retaliation.

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The City of Jersey City recently passed a law that will require private employers to provide their employees 5 paid sick days per year. The law, which is the first of its kind in New Jersey, is scheduled to go into effect on January 24, 2014. New York City Passed a Paid Sick Leave Law earlier this year.

Jersey City Requires Employers to Provide Paid Sick Leave.jpgEmployers are required to permit employees to use their paid time off for mental or physical health needs, including diagnosis, care, treatment and preventive care. Employees can use this time off to care for their own health needs, the health needs of their spouse, civil union partner, domestic partner, children, grandchildren, parents, grandparents and siblings; as well as for the health needs of the children, grandchildren, parents and grandparents of their spouses, domestic partners, or civil union partners.

In a statement released before the law was passed, Jersey City’s Mayor Steven M. Fulop explained that the right to take time paid medical leave time is “an issue that impacts the most vulnerable in our society and it is the right thing to do.” He further indicated that “[i]n New Jersey, some 1.2 million workers – that’s more than 1 in 3 of us – do not earn paid sick days.”

Under the law, covered employees will be entitled to earn one hour of paid sick leave for every 30 hours they work, up to a maximum of 40 hours of paid sick leave per year. As a result, it will apply to both part-time and full-time employees. Employees will begin earning sick time as soon as they are hired. However, they cannot begin using the time until they have worked for the employer for 90 days.

Although covered employers will be required to provide a minimum of 5 paid sick days per year to full time employees, companies can count any other paid time off, such as vacation time or personal time off toward this requirement as long as employees can use the paid time off for sick leave.

The new law applies to all companies with at least 10 employees in Jersey City, whether or not they work at the same physical location. However, it does not apply government employees, including employees of Jersey City itself.

Employees are entitled to carry over up to 40 hours of unused paid sick time from one year to the next. However, employers are not required to permit their employees to use more than 40 hours of paid sick leave per year, and are not required to pay employees for their unused sick leave time.

The law permits employers to seek proof of the medical condition when an employee takes off more than 3 consecutive sick leave days.

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Mayor Michael Bloomberg recently signed a new law amending the New York City Human Rights Law (NYCHRL) to provide additional protections for women who are pregnant or giving birth. Specifically, the Pregnant Workers Fairness Act requires employers with at least four employees or independent contractors working for them to provide reasonable accommodations for pregnancy, childbirth, or related conditions even if the employee is not disabled. A reasonable accommodation is either a modification to the way a job is performed, or a change to a job duty, that permits the employee to perform the essential functions of her job. The new law goes into effect on January 30, 2014.

Under the NYCHRL, an employer can deny a reasonable accommodation if the employee still would not be able to perform the essential functions of her job, or if providing it would impose an undue hardship on its business. The employer has the burden to prove either of these defenses. In determining whether an accommodation would impose an undue hardship, a company can consider (1) the nature of the accommodation and its cost; (2) the financial and personnel resources of the location at which the accommodation would be provided; (3) the financial and other resources of the entire company; or (4) the composition of the company in terms of the workforce, geographic locations and other similar factors.

New Rights for Pregnant Employees In NYC.1.jpgUnder the Act, an employer must provide reasonable accommodations for pregnancy or child birth if it knows or should know the employee is pregnant. This suggests it is not necessary for an employee to request an accommodation for the employer to be obligated to provide one. Of course, the easiest way to ensure your employer knows you need an accommodation is to request it so there is no doubt your employer knows you need it. The same provision raises the question of what would happen if an employer tries to provide an unnecessary or unwanted accommodation. Presumably this should be addressed in a discussion between the employer and the employee (the “interactive process”), but there still could be issues if the employer believes it is legally obligated to provide an accommodation that the employee does not want.

The Act lists several examples of possible accommodations for pregnancy, including additional bathroom breaks and other breaks and rest time during the workday, leaves of absence, and assistance with manual labor. These are only examples, and other accommodations can be required when they are reasonable.

New York City employers also are required to provide written notice to employees about their right not to experience discrimination based on pregnancy, childbirth, or related medical conditions. Companies have to provide this notice to current employees within 120 after the law goes into effect, meaning by May 30, 2014. They also have to provide this information to any new employees when they are hired, and to conspicuously post it in the workplace in a location where it can be seen by all employees.

The Pregnant Workers Fairness Act is similar to the Religious Freedom Act, another amendment to the NYCHLR that was passed late last year regarding reasonable accommodations for religious beliefs. For more information about the Religious Freedom Act, please see our article: New York City Clarifies Right to Reasonable Accommodations for Religious Beliefs.

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