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.

In a recent published opinion, New Jersey’s Appellate Division reversed a trial court’s rulings that an employee had waived his right to a jury trial under New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Court Rules Employee Entitled to Jury TrialGreg Noren worked as a Relationship Manager for Heartland Payment Systems, Inc. for more than seven years.  During that time, he signed two employment agreements that indicated he waived “any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement.”  Both contracts also included provisions stating that, in any lawsuit “arising out of or related to this Agreement, the successful party shall be awarded . . . costs of suit, fees of experts and reasonable attorneys’ fees against the unsuccessful party.”

After Heartland fired him, Mr. Noren filed a lawsuit in which he claimed the company had breached his employment agreement and retaliated against him in violation of CEPA.

Last week, the Third Circuit Court of Appeals ruled that an employee cannot establish a retaliation claim under the Family & Medical Leave Act (“FMLA”) if his employer honestly believed he abused his right to take time off under the FMLA.

Employer's Mistaken Belief Defeats FMLA Retaliation ClaimFrederick Capps worked as a mixer for Mondelez Global, LLC.  Mr. Capps suffers from Avascular Necrosis, a condition involving a “loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially  suffocating and causing death of those cells.”  As a result, Mr. Capps has arthritis in both hips and had double hip replacement surgery in 2004.  He also periodically experiences severe pain that can last for weeks.  Accordingly, he requested and Mondelez granted him an intermittent FMLA leave, meaning he could take time off when it was medically necessary.

On February 14, 2013, while he was on an FMLA leave, Mr. Capps went to a local pub for dinner and drinks.  On his way home, he was arrested for drunk driving.  He was released from jail the next morning, Friday, February 15, and took that day off as FMLA leave.  He returned to work on Monday, February 18.

A recent published opinion from the New Jersey Appellate Division recognizes that although the New Jersey Law Against Discrimination (“LAD”) requires employers to provide reasonable accommodations for employees’ sincerely held religious belief, that requirement does not apply when the accommodation would impose an undue hardship on the employer.

Camden County Correctional FacilityLinda Tisby began working for the Camden County Correctional Facility (“Camden”) in 2002.  In 2015, she began practicing the Sunni Muslim faith.  In May 2015, she came to work wearing a Muslim khimar, which is a tight fitting head covering, but without a veil.  However, Camden has a policy regarding uniforms which prohibits employees from wearing any hats other than the ones issued by their departments.  Accordingly, Ms. Tisby’s supervisor told her she was violating Camden’s uniform policy, and could not work unless she removed her khimar.  When Ms. Tisby refused, her supervisor sent her home.  After this happened three more times, Camden suspended her for two days.

Camden then told Ms. Tisby that it considered her to have requested an accommodation for her religious belief pursuant to the LAD.  But while the employer recognized Ms. Tisby had a sincerely held religious belief, it denied her request on the basis that it would “constitute an undue hardship to the Department to allow an officer to wear head-coverings or other non-uniform clothing.”  Since Ms. Tisby refused to work without wearing her khimar, Camden fired her.

According to a recent report in the New Jersey Law Journal, New Jersey State Assemblyman Reed Gusciora is planning to propose legislation to improve paid family leave benefits.

New Jersey employees entitled to paid family leavesThe New Jersey Paid Family Leave Act, which was passed in 2009, permits eligible employees to take up to 6 weeks of paid family leave per year.  Employees who take family leave receive up to two-thirds of their compensation, with a maximum benefit of $615 per week.

Assemblyman Gusciora is seeking to add protection against retaliation for employees who take time off under the Paid Family Leave Act.  Although there are many other statutes that protect employees against retaliation under certain circumstances, currently there is no such protection in the Act.

Minimum wage increases in NJ and NYStarting on January 1, 2017, the minimum wage has increased in New York State, New York City and New Jersey.  Specifically:

New Jersey

The minimum wage has increased from $8.38 to $8.44 per hour as a cost of living increase.  Under New Jersey law, there will be additional cost of living increases in future years.

Contact Information