Four at Rabner Baumbart Named to 2017 Super Lawyers ListRabner Baumgart Ben-Asher & Nirenberg, P.C. is pleased to announce that four of our employment lawyers once again have been selected to be included on the New Jersey Super Lawyers list in 2017.

Specifically, Elliot M. Baumgart (Alternative Dispute Resolution), David H. Ben-Asher (Employment & Labor Attorney), Jonathan I. Nirenberg (Employment Litigation Attorney) and Teresa Boyle-Vellucci (Employment & Labor Attorney) have received this honor.

Thomson Reuters selects individuals to be included on each of these lists based on peer nominations, evaluation of candidates and independent research.  No more than 5% of attorneys practicing in New Jersey are selected to the Super Lawyers list each year.  Information about the selection process is available on the Super Lawyers website.

A recent employment discrimination case makes it clear that the primary factor to determine who is an “employer” under the New York State Human Rights Law (“NYSHRL”) law is whether the party has the power to control how the worker conducts his or her job.

The case was decided in the context of the NYSHRL’s prohibition against employers discriminating against individuals who have been criminally convicted in the past.  Specifically, with limited exceptions, the NYSHRL makes it unlawful for an employer to discriminate against an employee or job candidate because he previously was convicted of committing a crime.  The statute also prohibits any person or entity, whether or not an employer, from aiding or abetting a violation of the NYSHRL.

Delivery Workers Allege Employment DiscriminationTrathony Griffin and Michael Godwin worked for Astro Moving and Storage Co.  Astro has a contract with Allied Van Lines, Inc. pursuant to which Astro provides moving and storage services to Allied.  That contract prohibits Astro from using any workers who have been convicted of a crime on any assignment for Allied.

New Jersey’s Appellate Division recently ruled that federal labor law does not preempt an employee’s disability discrimination claim under the New Jersey Law Against Discrimination (“LAD”) or retaliation claim under the Workers’ Compensation Law (“WCL”).  Federal labor law preempts state law claims that require an interpretation of a collective bargaining agreement (“CBA”) between an employer and a union, meaning any such state law claims cannot proceed.

Truck driver alleges disability discriminationBrian Hejda, a union member, worked as a commercial truck driver for Bell Container Corporation.  In August 2012, he suffered a knee injury at work.  Mr. Hejda’s doctor placed him on restrictions and required him to work “light duty.”  Bell did not return him to work because it did not have a light duty position for him.  An orthopedist subsequently cleared Mr. Hejda to return to work in late September, but indicated he needed the same restrictions and could not drive a commercial truck.

In February 2013, another orthopedist cleared Mr. Hejda to return to work without any restrictions.  Several weeks later, Bell sent a letter to the union indicating that under a Department of Transportation (“DOT”) Federal Motor Carrier Safety Regulation, Mr. Hejda could not return to driving a commercial truck until a Certified Medical Examiner medically examined and certified him “physically qualified to operate a commercial motor vehicle.”

In a recent unpublished opinion, New Jersey’s Appellate Division ruled that a jury should have the opportunity to decide whether the Jersey City Police Department harassed Shakeem Malik Holmes because he is transgender, in violation of the New Jersey Law Against Discrimination (“LAD”).

Transgender-man-harassed-while-in-jail-300x200Mr. Holmes was arrested by members of the Jersey City Police Department for allegedly shoplifting (a charge the department apparently subsequently dropped).  Mr. Holmes claims that while he was imprisoned members of the police department subjected him to demeaning and insulting comments, including several police officers referring to him as “it,” saying “so that’s a fucking girl?” and calling his transgender status “bullsh-t,” as well as one police officer threatening to put his fist down Mr. Holmes’ throat “like a f-cking man.”

Mr. Holmes sued Jersey City, claiming it had harassed him because he is transgender in violation of the LAD.  The LAD expressly prohibits gender identity or expression discrimination, including the fact that an individual is transgender.

On May 4, 2017, New York City Mayor Bill DeBlasio signed into law an amendment to the New York City Human Rights Law (“NYCHRL”).  Under this new law, which is intended to reduce pay discrimination, New York City employers cannot ask or say anything to job applicants or the applicant’s current or former employers to try to learn about the applicant’s salary history.  However, they are permitted to tell job applicants about the anticipated salary or salary range for the position.

Candidate offered job at end of interviewThe new law also prohibits New York City employers and employment agencies from relying on a job applicant’s salary history when they make decisions about salary, benefits or other compensation during the hiring process.  That expressly includes prohibiting using such information when negotiation an employment contract with a new employee.  However, the prohibition does not apply to: (1) job transfers and promotions within the same employer; (2) instances where there is another federal, state or local law that specifically permits or requires salary history to be disclosed or verified to determine an employee’s compensation; or (3) public employees whose salary, benefits or compensation is determined by a collective bargaining.

In addition, this amendment to the NYCHRL prohibits employers and employment agencies from searching public records to try to find out about a job applicant’s salary history.  But they can obtain background checks on job candidates, even if the background check includes salary history information, as long as they do not use that information when making decisions about salary, benefits or compensation during the hiring process.

The Third Circuit Court of Appeals recently ruled that the mixed-motive proof pattern can apply to cases under the Family & Medical Leave Act (“FMLA”) even if there is no direct evidence of retaliation.  Under that proof pattern, the employer has the ultimate burden to prove it did not engage in unlawful discrimination or retaliation.

Employee with migraine headache needs FMLA leave.
Joseph Egan began working for the Delaware River Port Authority in July 2008 as a Project Manager for Special Projects.  In March 2012, the Port Authority transferred him to its Engineering Department on a special assignment for an unspecified period of time.

Mr. Egan suffers from migraine headaches, which became much more frequent after he started working in the Port Authority’s Engineering Department.  As a result, he requested an intermittent FMLA leave.  The Port Authority granted his request.

On May 15, 2017, a new law will go into effect in New York City to protect “freelance workers,” which is broadly defined to include all independent contractors other than sales representatives (who already are protected by another NYC law), lawyers and doctors.

The Freelance Workers Protection Law will apply only to new contracts entered into after May 15, 2017.  It applies if the hiring party is either an individual or a business, but does not apply to contracts with the state, federal, or local government.

Some of the law’s key provisions and requirements are described below.

A recent ruling from the District of New Jersey holds that an employer can violate the New Jersey Family Leave Act (“NJFLA”) by firing an employee for submitting a deficient medical certification to support her need for a family leave without giving her an opportunity to correct the deficiency.

Mary Hall-Dingle worked for Geodis Wilson USA, Inc.  In April 2013, she took a medical leave due to severe shoulder pain.  Although she submitted several doctor’s notes, Geodis sent her a letter warning her that if she did not submit documentation supporting her need for a leave, the company would consider her to have abandoned her job and terminate her employment.  In response, Ms. Hall-Dingle submitted additional paperwork to Geodis and the company granted her medical leave under the Family & Medical Leave Act (“FMLA”).

On July 28, 2013, one week before she was scheduled to return from her medical leave, Ms. Hall-Dingle’s son was in a severe car accident.  She left a voice message for her supervisor requesting additional time off so she could stay with her son at the hospital.  She continued to follow up with emails and messages to the company, but never received a response.  Eventually, she told the company she would be ready to return to work on September 9, 2013.

Unemployment Insurance BenefitsEarlier this month, in a precedent-setting opinion, New Jersey’s Appellate Division ruled that the unemployment insurance benefits a former employee receives after being fired do not reduce the amount of lost wages the employee can recover in an employment discrimination lawsuit.

Rex Fornaro worked as a flight instructor for Flightsafety International, Inc.  After Flightsafety fired him, he brought a disability discrimination and retaliation lawsuit against it under the New Jersey Law Against Discrimination (“LAD”).

After a trial, a jury concluded that Flightsafety had discriminated against Mr. Fornaro because he is disabled and because he requested a reasonable accommodation for his disability.  The jury awarded him $83,000 in past economic damages (“back pay”), but did not award him anything for his alleged emotional distress.  A judge subsequently awarded Mr. Fornaro’s lawyers a total of approximately $380,000 in attorneys’ fees and costs.

Non-Compete Agreement in Online FormTerms Agreement ConceptLast October, I discussed a case in which the District of New Jersey issued an injunction which enforced ADP, LLC’s non-compete agreement with two of its former employees.  Earlier this month, the Third Circuit Court of Appeals affirmed that ruling.

Non-Compete Agreement in Online FormTerms Agreement ConceptADP claims that Jordan Lynch and John Halpin violated the non-compete agreements they entered into when they accepted stock awards from the company.  Specifically, ADP provided the stock awards, its stock award plan and a non-compete agreement to Mr. Lynch and Mr. Halpin online.  Before they could accept their stock awards, they had to check a box simply confirming they had read all three documents, although it did not explicitly state that they were agreeing to the terms of those documents.

The non-compete agreement indicates that an employee cannot work for a competitor of ADP, or solicit business from any of its current and prospective clients, for 12 months after he stops working for the company.  Nonetheless, when Mr. Lynch and Mr. Halpin left ADP they began working for one of its competitors, Ultimate Software.

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