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In a recent employment law case, New Jersey’s Appellate Division ruled that an employer had waived its right to compel arbitration by waiting 10 months before it sought to do so.

Tevin Welcome worked as a van driver for Huffmaster, Inc.  Before Huffmaster hired him, Mr. Welcome completed an online application.  The application included an arbitration provision, which indicated that if he accepted a job with the company, then he would have to resolve any dispute with the company, including claims of discrimination or retaliation, through arbitration instead of in court.

Van driver fired after objecting to violations of COVID-19 mask mandateWhen Huffmaster hired Mr. Welcome, he moved from Texas to New Jersey for the job.  However, he quickly discovered that few of his coworkers and the clients who rode in the van he drove complied with New Jersey’s COVID-19 mask mandate.  Mr. Welcome was particularly concerned that he could get COVID and give it to his six-year-old son who has health problems.

Starting soon, most job advertisements in New York City will be required to list the salary range for the job.

NYC job ads will need to include salary range informationMore specifically, the failure to include salary range information in a job posting will be unlawful discrimination in violation of the New York City Human Rights Law (“NYCHRL”).  To comply with the law, the salary range must not go beyond what the employer believes, in good faith, is the range it would pay someone for the job at the time of the job posting.

In most respects, the law will apply only to employers of at least four employees during the prior year, including independent contractors who are working “in furtherance of an employer’s business enterprise.”  However, when there is a claim of gender harassment, then the requirement will apply to employers of all sizes.

Discriminator hiring decisionThe New Jersey Supreme Court recently recognized that an employer can be held liable for discrimination in violation of the New Jersey Law Against Discrimination (“LAD”) based on an employment decision that was influenced by a subordinate’s discriminatory animus, whether or not the subordinate intended to get the employee fired.

Michele Meade was the Township Manager for Livingston Township.  She was involved in disciplining Police Chief Craig Handschuch and Police Sergeant Kenneth Hanna for their failure to alert the Livingston Community Center about training exercises being conducted in the Center’s parking lot by the Emergency Services Unit (“ESU”).  As a result, when someone spotted a man wearing camouflage and carrying a rifle bag in the parking lot, the Community Center locked down three preschool classes, and the Police Department dispatched two detectives to the scene.

Following the incident, Sergeant Hanna filed a criminal complaint against Ms. Meade, claiming she violated the law by using “unreasonably loud and offensive coarse or abusive language” when she publicly addressed him about the incident, including by asking him “what kind of f—ing operation are you running here?”  Sgt. Hanna filed a second criminal complaint in which he alleged Ms. Meade had “purposely com[e] into physical contact with officers and civilians in an attempt to obstruct and stop an authorized ESU training exercise.”  Ms. Meade eventually was acquitted of both charges.

New York expands whistleblower lawOn October 28, 2021, New York Governor Kathy Hochul signed in law an amendment to New York’s Whistleblower law, Labor Law Sections 740 and 741.

Prior to this amendment, New York’s Whistleblower Law has been very narrow and provided very limited protection.  That will change when the amendment goes into effect on January 26, 2022.

New Protected Activities

sexual harassment violates New Jersey lawA recent decision by New Jersey’s Appellate Division makes it clear that a court must have clear proof an employee agreed to arbitration before an employer can force an employee to arbitrate her case.

Nikki Cordero applied for a job with Fitness International, LLC, also known as LA Fitness International.  A few days later, LA Fitness interviewed Ms. Cordero and offered her the position.

On Ms. Cordero’s first day of work, the Gym’s General Manager, Ryan Farley, had her electronically sign a series of documents that he said she needed to sign before she could start her training.  According to Ms. Cordero, she did so without seeing what she was signing.

New Hiring Preference

A recent amendment to the New Jersey Workers’ Compensation statute now requires many employers to give a hiring preference to employees who lose their jobs as a result of a workplace injury.

New protections for employees fired due to workplace injuryMore specifically, the worker’s compensation statute now requires employers to provide a “hiring preference” to employees who have reached “maximum medical improvement” after a work-related injury and cannot return to their former job, for “any existing, unfilled position offered by the employer for which the employee can perform the essential duties of the position.”

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Older worked forced to retire

New Jersey has an extremely broad anti-discrimination law, the New Jersey Law Against Discrimination (“LAD”).  The LAD became even broader last Tuesday, October 5, 2021, when Governor Phil Murphy signed into law a new amendment that increases the statute’s protections against age discrimination by removing several loop holes and exceptions.

More specifically, the amendment makes four changes to the LAD:

Earlier this month, in Pritchett v. State, the New Jersey Supreme Court confirmed that the state of New Jersey and municipalities remain subject to punitive damages under the New Jersey Law Against Discrimination (“LAD”).

Shelley Pritchett worked for the State of New Jersey as a Senior Corrections Officer at the Juvenile Justice Center (“JJC”).  In 2011, Officer Pritchett suffered back, knee and neck injuries when she broke up a fight between two inmates.  She went on a workers’ compensation leave as a result.  Her doctor subsequently diagnosed her with multiple sclerosis. As a result, she sought to extend her medical leave by approximately 4 ½ months.  However, the JJC denied her request, and instead offered to extend her leave by only about a month and told her that if she was not medically cleared to return to work by then she would have to resign.

Female Correction Officer Disability Discrimination AppealOfficer Pritchett was unable to return to work within the additional time JJC had granted.  However, she told the JJC she did not want to resign.  In response, JJC told her that if she did not resign by the end of the week, it would initiate disciplinary proceedings to fire her, and she would lose her pension.  In response, Officer Pritchett applied for a disability retirement.

A recent District of New Jersey opinion emphasizes the importance of recertifying an intermittent Family & Medical Leave Act (“FMLA”) leave when your employer asks you to do so. An intermittent leave is when you seek permission to take time off, as needed in the future.

Son Comforting MotherMatthew Calio is a corrections officer for the Camden County Board of Chosen Freeholders, which does business as the Camden County Department of Corrections (“DOC”). Mr. Calio alleges the DOC violated the FMLA and the New Jersey Family Leave Act (“NJFLA”) when it suspended him after he took time off to help care for his mother who suffers from dementia.

On several previous occasions, Mr. Calio asked the DOC for an intermittent family leave so he could help care for his mother, and the DOC granted his request. His most recent request was in 2018, which he sought due to his mother’s intermittent flare ups that caused her to be incapacitated once per month for up to five days. The DOC granted Mr. Calio permission to take up to one week off every four weeks between December 12, 2018 and June 12, 2019.

One potential defense an employer has in a sexual harassment case is that the employee unreasonably failed to make use of the employer’s anti-harassment policy.  A recent New Jersey Appellate Division opinion highlights the fact that this defense does not apply if the harassment led to an adverse employment action, such as the employee being fired, demoted, or suspended without pay.

Supervisor sexually harassing an employeeRamona McBride worked as a sales trainee for a car dealership, Foulke Management Corp., dba Atlantic Jeep Chrysler Fiat.  She alleges her immediate supervisor, sales manager Jack Dellafave, made sexual advances toward her and fired her because she rejected his advances.

The harassment started with Mr. Dellafave sending Ms. McBride text messages in which he told her that he was “attracted” to her, invited her to his hotel room, and offered to pay for her cab ride to his hotel.  Ms. McBride declined each of those offers.

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