On July 26, 2019, New Jersey’s Appellate Division issued a detailed ruling regarding the non-compete and non-solicitation provisions in ADP, LLC’s stock option plan.  In the process, the court provided a detailed explanation of how New Jersey courts should analyze restrictive covenants.

The appeal stems from separate cases ADP filed against six of its former sales representatives, Erik Kusins, Ryan Hopper, Anthony M. Karamitas, Nick LeNoble, Michael DeMarco and Daniel Hobaica.  They had mixed results at the trial court level.  Those cases were consolidated in a single appeal.

ADP has restrictive covenants with most of its sales force.  Specifically, most of its sales employees are required to sign agreements that include non-compete and non-solicitation provisions that prohibit them from soliciting any ADP clients who they had contact with at ADP, for 12 months after they stop working for ADP, in the geographical territory in which they worked for ADP.

Today, New Jersey passed new law impoving wage and hour law protectionsNew Jersey’s Acting Governor Sheila Oliver signed an amendment to New Jersey’s  wage and hour laws that makes several extremely important improvements.

The amendment impacts several New Jersey laws, most importantly the Wage & Hour Law (“WHL”) and the Wage Payment Act (“WPA”).  The WHL is a statute that requires employers to pay employees who do not fall within an exemption minimum wage (currently $10 per hour) and time-and-half when they work more than 40 hours in any particular workweek.  The WPA is a law that requires employers to pay employees on time, and typically at least twice per month.

The amendment includes numerous new provisions, all of which go into effect immediately.  We have summarized some of the most significant changes below:

US Supreme Court Allows Title VII Discrimination Lawsuit to ProceedEarlier this month, the United States Supreme Court ruled that filing a Charge of Discrimination is not required for a court to have jurisdiction over a lawsuit under Title VII of the Civil of Rights Act of 1964.

Title VII is a federal law that prohibits discrimination based on race, color, religion, sex and national origin.  It requires employees to file a Charge of Discrimination with the United States Equal Opportunity Commission (“EEOC”), wait at least 180 days for the EEOC to investigate the claim, and then receive a “Right to Sue” letter before they can file a lawsuit.

Lois Davis worked for Fort Bend County, Texas.  She made an internal sexual harassment complaint to the County’s human resources department.  After Fort Bend subsequently reduced her job responsibilities, she filed a Charge of Discrimination with the EEOC claiming she was the victim of retaliation for reporting the sexual harassment.

The New Jersey Law Against Discrimination (“LAD”) requires employers to provide reasonable accommodations to disabled employees to permit them to be able to continue to perform their jobs.

Ordinarily, an employee who brings a discrimination case under the LAD has to prove the discrimination led to an adverse employment action such as being fired, demoted, or passed up for a promotion.  However, in a recent published opinion, Richter v. Oakland Board of Education, New Jersey’s Appellate Division ruled that an employee can recover damages for a physical injury caused by the employer’s failure to accommodate her disability without having to prove she suffered an adverse employment action.

Mary Richter is a science teacher for the Oakland Board of Education at Valley Middle School.  During the first marking period of the 2012/2013 school year, her lunch period was scheduled to begin at 1:05 p.m.  Ms. Richter has Type I diabetes and believed eating her lunch that late in the day would negatively impact her blood sugar levels.  Accordingly, she asked her school’s principal, Gregg Desiderio, to allow her to eat her lunch earlier in the day.

A recent decision by New Jersey’s Appellate Division recognizes that, under the doctrine of apparent authority, a company’s attorney can bind it to a settlement whether or not the employer actually authorized him to settle the case.

Employment Lawsuit Settles in CourtJesus Gonzalez filed an employment discrimination lawsuit against his former employer, Electronic Integration Services, LLC, also known as Panurgy OEM.  More specifically, he claimed Panurgy fired him in violation of the New Jersey Law Against Discrimination (“LAD”), the Family & Medical Leave Act (“FLMA”) and the New Jersey Family Leave Act (“NJFLA”).

Shortly before a trial, Panurgy’s lawyer conveyed an offer to settle the case for $175,000.  Mr. Gonzalez accepted the offer, and the judge placed the terms of the settlement on the record.

A recent decision by New Jersey’s Appellate Division demonstrates that under the right circumstances an employee can prove disability discrimination from the fact that her employer fired her shortly after she had surgery.

Employee prvails in age and disability discrimination appealAda Caballero worked for Cablevision Systems Corporation for 15 years.  In 2013, she was divorced.  A few months after her divorce was finalized, Ms. Caballero submitted a copy of the divorce judgment to the company’s human resources department.  However, Cablevision did not remove her ex-husband from its health insurance plan.

On Ms. Caballero’s 2014 performance evaluation, Cablevision gave her a rating of “strong performance.”

A recent decision by the Third Circuit Court of Appeals helps clarify who is a “similarly situated” employee in discrimination cases under the New Jersey Law Against Discrimination (“LAD”).  This is important since one way to prove discrimination is by showing the employer treated other similarly situated employees more favorably than the employee who is claiming he or she was the victim of discrimination.

Age discrimination at work.Santos Andujar worked for General Nutrition Corporation (“GNC”) as a store manager for 13 years. After failing the company’s Critical Point Audits four years in a row, he received a failing score through the company’s Performance Evaluation Process (“PEP”).  On the day Mr. Andujar received his failing PEP score, GNC placed him on a “Red Store Action Plan” which gave him days to improve his job performance. Approximately one month later, the company fired him for failing to meet the Action Plan.  GNC replaced Mr. Andujar, who was 57 years old, with someone in his twenties.  Mr. Andujar then filed a lawsuit alleging that GNC had engaged in age discrimination in violation of the LAD.

The case went to trial.  GNC argued that it fired Mr. Andujar because of his poor performance and not because of his age.  However, Mr. Andujar presented evidence that five other store managers between 25 and 34 years old had failing PEP score, but GNC did not put any of them on an Action Plan, let alone fire them.

A recent decision by New Jersey’s Appellate Division recognizes that an employer can violate the New Jersey Law Against Discrimination (“LAD”) if it discriminates against a disabled employee because he uses medically prescribed marijuana to treat a disability outside of the workplace.

Law Prohibits Discrimination for Medical Marijuana Use Outside of WorkJustin Wild worked as a licensed funeral director for Carriage Funeral Holdings, Inc. (“Carriage”).  Mr. Wild has cancer.  Pursuant to New Jersey’s Compassionate Use of Medical Marijuana Act, Mr. Wild has been prescribed marijuana to help with the associated pain.  The Compassionate Use Act decriminalizes the use of marijuana for certain medical reasons including pain relief for individuals with cancer.

In 2016, while working for Carriage, Mr. Wild was in a car accident and had to be taken to the emergency room.  He was prescribed pain medication and released from the hospital the same day.  At home, Mr. Wild took the pain medication and used medical marijuana.

Female employee on family leave for newborn childLast month, New Jersey amended its Family Leave Act to expand the protections it offers to employees in several key ways.  The Family Leave Act is a law that entitles covered employees to take up to 12 weeks off from work over a 24 month period to care for a family member with a serious illness, for childbirth or adoption, or to care for a newborn or newly adopted child.  It requires employers to reinstate employees at the end of a covered family leave, and prohibits employers from retaliating against employees because they took time off pursuant to the Act.

Some of the new protections of the Family Leave Act went into effect immediately, but others do not go into effect until June 1, 2019.  For example, the Family Leave Act currently only applies to employees who work for employers with 50 or more employees.  Starting on June 1, 2019, it will apply to employers that have at least 30 employees.  As a result, many more employees will be covered by the Act.

Similarly, the term “family member” currently includes only children, parents, spouses and civil union partner.  Effective June 1, 2019, family member also will include parents-in-law, siblings, grandparents, grandchildren, domestic partners, “any other individual related by blood to the employee” and anyone else with whom the employee can show he or she has a “close association . . . which is the equivalent of a family relationship.”

Yesterday, Governor Phil Murphy signed into law a very important amendment to the New Jersey Law Against Discrimination (“LAD”).

Employees Cannot Waive Anti-Discrimination Rights in Advance

Waivers of discrimination rights in employment contracts are void.Under the amendment, any provision in an employment contract that requires employees to waive in advance any “substantive or procedural right or remedy relating to a claim of employment discrimination, retaliation, or harassment” violates New Jersey’s public policy and is unenforceable.  Similarly, employers no longer can require employees to prospectively waive any of their rights or remedies under the LAD, “or any other statute or case law.”  However, this provision does not apply to the terms of union collective bargaining agreements.

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