employment law

Working Through Independent Business Not Enough to Make Employees into Independent Contractors

August 3, 2022 | by Jonathan I. Nirenberg

Yesterday, the New Jersey Supreme Court clarified the “ABC test” used to determine if a worker is an employee or an independent contractor. Specifically, it made it clear that just because someone works through their business is not enough to make them an independent contractor.

The case began with a random audit by the New Jersey Department of Labor (“DOL”). The DOL found 16 employees had been misclassified as independent contractors. On appeal, East Bay Drywall (“East Bay”) contested that 11 of them were employees.

The ABC test applies to determine if a worker is an employee or an independent contractor for purpose of several specific laws, including New Jersey’s unemployment compensation law, Wage Payment Act, Wage and Hour Law. Under it, a worker is an employee unless the company he or she worked proves all three of the following:

No Protection to Employee Fired for Racist Remarks on Facebook

May 24, 2022 | by Jonathan I. Nirenberg

A recent opinion by New Jersey’s Appellate Division finds that an employee cannot bring a retaliation claim against a private employer for firing her for posting racially insensitive statements on Facebook.

Heather J. McVey was a Corporate Director of Customer Service for AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated. Ms. McVey was an employee at-will, meaning AtlantiCare had the right to fire her for any reason, or for no reason at all, as long as it did not violate the law.

During the protests following the murder of George Floyd, Ms. McVey engaged in a discussion on Facebook about the Black Lives Matter movement. She expressed her opinion that Black Lives Matter is “racist” and “causes segregation,” and that Black citizens were “not dying” but rather “killing themselves.” Ms. McVey identified herself on her Facebook profile as a Corporate Director at AtlantiCare.

Police Captain Can Pursue Harassment in Retaliation for Objection to Illegal Arrest Quota System

April 14, 2022 | by Jonathan I. Nirenberg

A recent decision from New Jersey’s Appellate Division recognizes it can be retaliation in violation of the Conscientious Employee Protection Act (“CEPA”) for a police department to harass one of its members because he objected to a new policy he reasonably believed is an illegal arrest quota system.

Calvin Anderson has been a member of the East Orange Police Department for over 20 years. His supervisor, Anthony Cook, instituted a “productivity improvement system” that Anderson believed violated a New Jersey law that prohibits police departments from instituting arrest quota systems. Anderson, who was a lieutenant at the time, complained about the productivity improvement system and refused to implement it.

Anderson filed a lawsuit against the Department and Cook, alleging they retaliated against him in violation of CEPA. He claims Cook retaliated against him by investigating him for neglect-of-duty regarding his supposed failure to complete an accident-reconstruction report. Even though the investigating officer concluded Anderson did nothing wrong, Cook then filed a complaint to the Internal Affairs Department about the same incident. In addition, Cook required Anderson to increase his productivity in terms of stops and arrests in a crime zone, and issued him a written warning notice for failing to do so. Cook also threatened to bring neglect-of-duty charges against Anderson for failing to file an incident report about another officer, even though doing so was the responsibility of a sergeant. In addition, Cook ordered another captain to investigate Anderson, and threatened to issue a written warning to Anderson, for failing to report to a lineup for a July Fourth celebration. Likewise, Cook berated Anderson in front of the mayor for supposedly neglecting his duty and wasting taxpayer dollars, and frequently assigned him to the midnight shift, which prevented him from working traffic details, which Anderson claims caused him to lose $10,000 to $12,000 in compensation.

New Law Bans Forced Arbitration of Sexual Harassment and Assault Claims

March 4, 2022 | by Jonathan I. Nirenberg

Arbitration is widely believed to favor big business over individuals. I have written numerous articles about forced arbitration, including cases that enforced arbitration of employment law claims, and ones that overturned such provisions. In my law practice, I have fought against forced arbitration on many occasions.

Yesterday, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 into law. As its name suggest, this law now prohibits forced arbitration of sexual harassment and sexual assault claims. The law received bipartisan support in Congress, a rare feat in the current political climate.

The new statute deems that a person who files a case in which he or she alleges sexual harassment or sexual assault cannot be forced to be bound by an arbitration agreement or class or collective action waiver that he or she entered into before the dispute arose. However, the person asserting the sexual harassment or assault still can chose to enforce an arbitration agreement. Likewise, parties still can agree to enter into arbitration agreements after a dispute involving sexual harassment or sexual assault if that is their preference, and either party can enforce such an agreement.

New York State Finally Enacts Broad Whistleblower Law

November 22, 2021 | by Jonathan I. Nirenberg

On 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

Court Must Reconsider Whether Sexual Harassment Victim Agreed to Arbitration

November 12, 2021 | by Jonathan I. Nirenberg

A 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 Jersey Law Amended to Increase Protection Against Age Discrimination

October 14, 2021 | by Jonathan I. Nirenberg

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:

Pregnant Workers Fairness Act Explained by New Jersey Supreme Court

April 30, 2021 | by Jonathan I. Nirenberg

Last month, the New Jersey Supreme Court addressed the New Jersey Pregnant Workers Fairness Act (“PWFA”) for the first time. The PWFA is an amendment to the New Jersey Law Against Discrimination (“LAD”) that prohibits pregnancy discrimination.

Kathleen Delanoy is a police officer. She filed a lawsuit in which she alleged her employer, the Township of Ocean, discriminated against her because she was pregnant. However, the trial court dismissed her case on a motion for summary judgment.

As discussed in my previous article, Appellate Court Recognizes Employers Must Accommodate Pregnancy, the Appellate Division subsequently reversed that ruling. Ocean Township asked the New Jersey Supreme Court to review that decision.

Arbitration Agreements Do Not Need to Designate Rules or Forum

September 16, 2020 | by Jonathan I. Nirenberg

Last week, the New Jersey Supreme Court ruled that, to be enforceable, an arbitration agreement does not necessarily have to set forth the rules or procedures that will apply in arbitration or to select a forum for the arbitration.

The case involved Marilyn Flanzman, who worked for Jenny Craig as a weight maintenance counselor in Paramus, New Jersey, for almost 27 years. In 2011, she signed an Arbitration Agreement with Jenny Craig. That agreement states that all disputes, including discrimination claims, must be resolved through “final and binding arbitration” rather than a jury or other civil trial.

In February 2017, Jenny Craig reduced Ms. Flanzman from thirty-five hours per week to nineteen hours per week. At the time, Ms. Flanzman was 82 years old. In April 2017, Jenny Craig further reduced Ms. Flanzman’s hours, to approximately thirteen hours per week. In June 2017, the company reduced her to only three hours per week. When Ms. Flanzman complained to her supervisors, they told her: “That is just the way it is,” and that if she did not accept her new schedule she would be fired. Ms. Flanzman, who apparently was the only employee in Paramus whose hours were reduced so dramatically, rejected the three-hour-per-week schedule.

Discrimination and Retaliation Claims During the COVID-19 Pandemic

April 6, 2020 | by Jonathan I. Nirenberg

Our New Jersey employment lawyers understand that times are extremely difficult for pretty much everyone right now. But, fortunately, you still have significant rights in the workplace.

Being sheltered in place or quarantined and having to engage in social distancing have become the new normal. The economy has taken an enormous hit, and things that used to be simple like buying groceries and finding supplies like toilet paper and paper towels suddenly have become challenging.

Your Employment Law Rights Are Not on Hold