New Jersey Employment Lawyer Blog

Court Finds Bullying Could Violate Employee Handbook

June 19, 2018 | by Jonathan I. Nirenberg

Under New Jersey law it is unlawful for an employer to harass an employee because she belongs to a legally-protected category, such as because of her gender, age, race or disability. But the law does not necessarily prohibit a boss from bullying or indiscriminately harassing other employees.

Nonetheless, earlier this year, in Maselli v. Valley National Bankcorp., New Jersey’s Appellate Division recognized that under certain circumstances an employee can sue her employer for bullying in violation of a company’s anti-harassment policy.

By way of background, almost 25 years ago the New Jersey Supreme Court established that employee handbooks and other similar policies are presumed to be binding contracts. However, the Court created an exception for policies that include prominent disclaimers that make it clear they document is not an enforceable contract. As a result, most employee handbooks now include bold disclaimers stating that they are not contracts.

New Jersey Anti-Discrimination Law Prohibits Firing Employee for Refusing to Sign Arbitration Agreement

June 6, 2018 | by Jonathan I. Nirenberg

Arbitration is widely considered to be less favorable to employees and more favorable to businesses than jury trials. As a result, many employers require their employees to sign arbitration agreements as a condition of getting hired or keeping their jobs. In other words, employers try to force employees to give up their right to sue in court and have their cases decided by a jury.

But a recent trial court opinion concludes that firing an employee because she refused to sign an arbitration agreement since she did not want to give up her right to a jury trial in any future discrimination lawsuit against her employer was an act of retaliation in violation of the New Jersey Law Against Discrimination (“LAD”). The LAD prohibits employers from retaliating against an employee because she has “opposed any practice” protected by the LAD, or from coercing, intimidating or threatening anyone’s right pursuant to the LAD.

Jorvia Cator, an African American woman, began working for WRDC Corp. as a hotel reservation agent in March 2016. Approximately one month later, WRDH implemented a new policy which required all employees to sign arbitration agreements that forced them to bring virtually any claim against the company in arbitration rather than in court. Those agreements expressly stated that the employee is waiving her right to a jury trial.

New Jersey’s Whistleblower Law Prohibits Retaliatory Transfer to Less Desirable Job

June 1, 2018 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently recognized that a transfer to a less desirable job can be actionable retaliation in violation of the state’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Jeffrey Scozzafava worked as a detective in the Somerset County Prosecutor’s Office as an instructor and trainer in the Crime Scene Investigation Unit. He objected about members of the unit improperly collecting evidence. After he made those objections, Somerset County transferred him to its fugitive squad. Det. Scozzafava filed a lawsuit, claiming the County’s decision to transfer him was an act of retaliation in violation of CEPA.

The trial court dismissed Det. Scozzafava’s case, finding the transfer was not an “adverse employment action” because it did not result in any reduction in his position, rank, pay or benefits. Accordingly, it found the transfer was not legally actionable under CEPA, and dismissed the case. Det. Scozzafava appealed.

Are Telecommuters Protected by the New Jersey Law Against Discrimination?

May 22, 2018 | by Jonathan I. Nirenberg

The New Jersey Law Against Discrimination (“LAD”) prohibits discrimination in the workplace. But does it protect employees who work for New Jersey companies remotely, such as telecommuters? A recent ruling by New Jersey’s Appellate Division makes it clear that an employee does not have to physically live or work in New Jersey to be protected by the LAD.

Susan Trevejo worked for Legal Cost Control (“LCC”) for 12 years. After LCC fired her, Ms. Trevejo sued for age discrimination in violation of the LAD. LCC is a New Jersey company which has its headquarters in Haddonfield, New Jersey. However, Ms. Trevejo is a resident of Massachusetts who has never lived in New Jersey or worked in LCC’s office in New Jersey aside from a few meetings she attended earlier in her tenure with the company. Rather, she worked remotely from her home.

Early into the case, LCC filed a motion for summary judgment, claiming that the LAD does not apply to Ms. Trevejo because she is not an “inhabitant” of New Jersey. The trial court denied LCC’s motion, and instead permitted the parties to engage in some limited discovery (the process of exchanging information in a lawsuit) about Ms. Trevejo’s right to bring a claim under the LAD.

New Jersey Enacts New Sick Leave Law

May 11, 2018 | by Jonathan I. Nirenberg

New Sick Leave Requirements

Earlier this month, Governor Phil Murphy signed an important new employment law that requires employers to provide paid sick leave to their employees. Specifically, New Jersey’s new paid sick leave law requires employers to provide most employees one hour of paid sick leave for every 30 hours they work. Employers must permit employees to use this earned sick leave for:

The employee’s diagnosis, care, treatment, or recovery from a mental or physical illness or injury, or preventive medical care;

New Jersey Enacts Stronger Equal Pay Law

April 25, 2018 | by David Ben-Asher

Governor Murphy signed into law on April 24, 2018 a law known as the Diane B. Allen Equal Pay Act. It amends the New Jersey Law Against Discrimination (“LAD”) to expand and strengthen the rights of employees to be paid equally for their work without regard to their gender, pregnancy, race, age, national origin, ancestry, age, disability, marital status, civil union and domestic partnership status, and sexual orientation—which are known as protected classes. As a result, New Jersey may have the strongest state law in the country which prohibits discrimination in pay.

The new law, which goes into effect on July 1, 2018, makes it unlawful for an employer to pay an employee lower compensation than it pays employees for substantially similar work because of the employee’s membership in a protected class. The judgment whether work is substantial similar is based on looking at the skill, effort and responsibility which the jobs involve. The comparison of wage rates will be based on rates in all of the employer’s operations and facilities.

Employers are prohibited from correcting unequal compensation by reducing the pay rate of any employee. Instead, the employer must increase the pay of the lower paid employee to the level of the higher paid employees who performs substantially similar work.

Supreme Court Allows More Time to Refile Cases in State Court

February 1, 2018 | by Jonathan I. Nirenberg

Last week, the United States Supreme Court issued an interesting ruling in an employment law case that impacts the statute of limitations.

By way of background, when a case is filed in (or removed to) federal court based on the fact that the plaintiff has asserted a federal claim, the plaintiff can bring related state law claims in the same case. For example, if an employee brings a claim under Title VII of the Civil Rights Act (“Title VII”), a federal anti-discrimination law, he also can assert related claims under the New Jersey Law Against Discrimination (“LAD”). This is called “supplemental jurisdiction.”

Under the Supplemental Jurisdiction Statute, if you bring state law claims in federal court, and all of your federal claims are dismissed, then the Court has the option to let you continue to pursue your state law claims in federal court. However, if the federal court chooses not to hear your state law claims, then you have the right to re-file your state law claims in state court.

New Jersey Expands “Ban-the-Box” Protection

January 24, 2018 | by Jonathan I. Nirenberg

Last month, Governor Christie signed into law an amendment to the New Jersey Opportunity to Compete Act (“OTCA”). The OTCA, more commonly known as the “ban-the-box” law, restricts employers from inquiring about a job candidate’s criminal record during the initial job application process.

The amendment to the OTCA went into effect on December 20, 2017. It makes it clear that the OTCA applies to expunged criminal records. As noted in the Senate’s statement about the amendment, an expungement is the “removal and isolation of all records on file within any court, detention or correctional facility, law enforcement agency, criminal justice agency, or juvenile justice agency” about an individual’s “apprehension, arrest, detention, trial, or disposition of an offense” in the criminal or juvenile justice system. Ordinarily, once an expungement has been granted, the person’s arrested, conviction, and other related proceedings are considered not to have occurred.

The amendment also makes it clear that the Act prohibits online inquiries about an individual’s criminal history. The law initially only referred to “written” inquiries, presumably leaving it unclear whether it applies to online inquiries.

New Jersey Law Against Discrimination Protects Breastfeeding

January 18, 2018 | by Jonathan I. Nirenberg

Last week, the New Jersey Law Against Discrimination (“LAD”) was expanded to prohibit discrimination and harassment on the basis of breastfeeding and to require employers to provide certain reasonable accommodations for nursing.

The LAD is New Jersey’s anti-discrimination law. It prohibits discrimination and harassment based on age, color, disability, gender (sex), marital status, national origin, pregnancy, race, religion, sexual orientation, veteran or military status.

On January 8, 2018, Governor Christie signed into law an amendment to the LAD to include breastfeeding as a new legally-protected category. As a result, now employers, unions, landlords, real estate agents, banks, and places of public accommodations, among others, cannot discriminate against women because they are breastfeeding.

Hourly Employees Must be Paid for Short Breaks

January 12, 2018 | by Jonathan I. Nirenberg

The Third Circuit Court of Appeals recently ruled that the Fair Labor Standards Act (“FLSA”) requires employers to pay employees for breaks during the workday that are no longer than 20 minutes long.

American Future Systems, which does business as Progressive Business Publications, publishes and sells business publications. Progressive pays its sales representatives by the hour, plus bonuses based on how much they sell, for the time they are logged onto their work computers. Most of Progressive’s employees are paid minimum wage.

In the past, Progressive allowed its employees to take two paid fifteen-minute breaks per day. But in 2009, the company implemented what it called a “flex time” policy. Under this policy, employees were permitted to log off of their computers whenever they wanted, for as long as they wanted, as long as they worked the agreed-upon total number of hours per week. But under this new policy, Progressive did not pay employees if they logged off of their computers for more than 90 seconds. In other words, it stopped paying them for breaks that lasted more than 90 seconds.