Articles Tagged with employment law

Today, in Wild v. Carriage Funeral Holdings, Inc., the New Jersey Supreme Court ruled that employers cannot discriminate against employees for using prescribed medical marijuana while off-duty.  Rather, doing so constitutes disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”).

The New Jersey Supreme Court affirms a March 17, 2019 Appellate Division opinion.  The Supreme Court’s opinion makes it clear that the Compassionate Use Act does not require employers to accommodate the use of medical marijuana in the workplace.  It also noted that the Compassionate Use Act does not permit anyone to operate or control any “vehicle, aircraft, railroad train, stationary heavy equipment or vessel while under the influence of marijuana.”  But the Supreme Court’s opinion holds that the LAD prohibits employers from discriminating against employees for using prescribed medical marijuana outside of work.

For more information about the case, please see my previous article:  New Jersey Employers Can’t Discriminate for Medical Marijuana Use Outside of Work.

The New Jersey Pregnant Workers Fairness Act

Last month, New Jersey’s Appellate Division analyzed the New Jersey Pregnant Workers Fairness Act (“PWFA”).  The PWFA is an amendment to the New Jersey Law Against Discrimination (“LAD”) that prohibits pregnancy discrimination in the workplace.

Among other things, the PWFA requires employers to provide reasonable accommodations to women who are pregnant.  For example, this can include providing bathroom breaks, rest breaks, assistance with manual labor, job restructuring, and temporary assignment to less strenuous or less hazardous work.  However, employers do not have to provide an accommodation if it would impose an undue hardship on it.

Rumored affair can be sexual harassment in New JerseyA recent opinion by New Jersey’s Appellate Division recognizes that false rumors of a sexual relationship between a female employee and a male superior can create a legally actionable hostile work environment.

Jennifer Schiavone is a senior corrections officer for the New Jersey Department of Corrections (“DOC”).  In 2013, the DOC assigned Officer Schiavone to work in the Central Control Unit (“Central Control”), which is a desirable job because it does not involve direct contact with inmates.

Shortly after the DOC transferred Officer Schiavone to Central Control, rumors began to spread that she was having an extra-marital affair with a high-level DOC official, “S.D.”  Even though Officer Schiavone denied that she was having an affair with S.D., their supposed relationship became the subject of nearly daily conversation at work.  For example, on one occasion Officer Julie Houseworth asked Officer Schiavone if she planned to “blow” S.D.  Another time, Lieutenant Zsuzsanna Rogoshewski said: “That’s her over there, that’s who’s sleeping with the [high-ranking official],” referring to Officer Schiavone and S.D.

The Third Circuit recently addressed when a bonus an employee receives from someone other than his or her employer counts toward the employee’s “regular hourly rate” of pay under the Fair Labor Standards Act (“FLSA”).

When Must Payments from Third Parties be Counted Toward Overtime Pay?The FLSA is a federal law that, among other things, requires employers to pay most non-exempt employees time-and-a-half when they work more than 40 hours in a workweek.  As a result, the higher the employee’s regular hourly rate, the higher the overtime pay premium the employee is entitled to receive.

The case involves employees of Bristol Excavating Inc., an excavation contractor, who work at sites owned by another company, Talisman Energy Inc.  Since the employees work 12 ½ hour shifts every day for two straight weeks, followed by a week off, they routinely work substantial overtime hours.

On July 26, 2019, New Jersey’s Appellate Division issued a detailed ruling regarding the non-compete and non-solicitation provisions in ADP, LLC’s stock option plan.  In the process, the court provided a detailed explanation of how New Jersey courts should analyze restrictive covenants.

The appeal stems from separate cases ADP filed against six of its former sales representatives, Erik Kusins, Ryan Hopper, Anthony M. Karamitas, Nick LeNoble, Michael DeMarco and Daniel Hobaica.  They had mixed results at the trial court level.  Those cases were consolidated in a single appeal.

ADP has restrictive covenants with most of its sales force.  Specifically, most of its sales employees are required to sign agreements that include non-compete and non-solicitation provisions that prohibit them from soliciting any ADP clients who they had contact with at ADP, for 12 months after they stop working for ADP, in the geographical territory in which they worked for ADP.

A recent decision by New Jersey’s Appellate Division recognizes that an employer can violate the New Jersey Law Against Discrimination (“LAD”) if it discriminates against a disabled employee because he uses medically prescribed marijuana to treat a disability outside of the workplace.

Law Prohibits Discrimination for Medical Marijuana Use Outside of WorkJustin Wild worked as a licensed funeral director for Carriage Funeral Holdings, Inc. (“Carriage”).  Mr. Wild has cancer.  Pursuant to New Jersey’s Compassionate Use of Medical Marijuana Act, Mr. Wild has been prescribed marijuana to help with the associated pain.  The Compassionate Use Act decriminalizes the use of marijuana for certain medical reasons including pain relief for individuals with cancer.

In 2016, while working for Carriage, Mr. Wild was in a car accident and had to be taken to the emergency room.  He was prescribed pain medication and released from the hospital the same day.  At home, Mr. Wild took the pain medication and used medical marijuana.

Workplace bullying can violate employee handbookUnder 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’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;
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