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.

Crime LabThe 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.

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 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:

  1. New Jersey Enacts Strong Paid Sick Leave LawThe employee’s diagnosis, care, treatment, or recovery from a mental or physical illness or injury, or preventive medical care;

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.

New Jersey passes strong equal pay lawThe 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.

US Supreme Court rules in employment law caseLast 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.

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.

New Jersey expands ban-the-box protection in employment applicationsThe 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.

Mothers can breastfeed at work in New JerseyLast 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.

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.

Employees entitled to be paid for short breaksIn 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.

New Jersey’s Appellate Division recently ruled that volunteer firefighters are not protected by New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), because they are not “employees.”

NJ Whistleblower Law Does Not Protect Volunteer Firefightersot Protected by Whistleblower LawFor 20 years, Jeffrey Sauter served as a volunteer firefighter for the Township of Colts Neck, Fire Company No. 2.  Although he was not paid any wages for his services, he earned between $400 and $1,500 in deferred compensation benefits per year under the Emergency Services Volunteer Length of Service Award Program (“LOSAP”).

In 2004, Mr. Sauter filed another CEPA lawsuit against his fire company, claiming it suspended him for 18 months in retaliation for complaints he made about the bidding process relating to renovations of the fire hall.  He eventually settled that case for $10,000, including attorney’s fees.  Nonetheless, Mr. Sauter believed the fire company owed him another $8,000 for his legal fees.

A recent Third Circuit opinion, Moody v. Atlantic City Board of Education, reversed a District Court’s order which had dismissed an employee’s sexual harassment and retaliation lawsuit.

Sexual Harassment Complaint FormMichelle Moody worked as a substitute custodian for the Atlantic City Board of Education.  She claims the custodial foreman of the New York Avenue School, Maurice Marshall, sexually harassed her.  For example, she claims he made sexual comments to her, grabbed her breasts and buttocks, and offered to give her more hours of work if she performed sexual favors for him. She also alleges that on one occasion Mr. Marshall called her into his office and tried to take off her shirt, and on another occasion had her to come into his office while he was naked.

Mr. Marshall subsequently sent Ms. Moody a series of text messages implying he would offer her a full time job if she had sex with him.  According to Ms. Moody, Mr. Marshall showed up at her home that evening and told her she would receive an employment contract if she had sex with him. Mr. Marshall then grabbed Ms. Moody and began to kiss her. Ms. Moody claims she gave into Mr. Marshall’s advances because she was afraid she would lose her job.

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