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Mask, Surgical Mask, Virus, Protection
In September of 2021, President Biden announced a new mandate for all employers with 100 or more employees to require either vaccination or weekly testing and use of face masks for all of their employees.  The mandate was issued under the authority of the United States Occupational Safety and Health Administration’s (“OSHA”) right to take certain actions in emergency situations.

As a result, dozens of lawsuits have already been filed seeking to delay and/or overturn the mandate. At least one court   has already issued a stay on the enforcement of the mandate pending a final determination.

On November 4, 2021, OSHA issued an Emergency Temporary Standard (ETS”) which sets forth rules and requirements related to this mandate. The ETS specifies that the mandate applies to employers with 100 or more employees total – meaning, that even if the employer has 10 employees at 10 different locations, the rules still apply to them.  Part-time, seasonal, and full-time employees all get counted towards the total number of employees. Staffing agencies would still count all jointly-employed employees. However, independent contractors are not counted towards this total.

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Government employees receive significant due process rights to challenge employer discipline which private sector employees and employees in non-civil service jurisdictions do not enjoy.  However, because New Jersey employment law recognizes the great responsibility placed onhttps://www.newjerseylawyersblog.com/wp-content/uploads/sites/195/2018/07/police-officer-sil.-300x254.png law enforcement officers, the Legislature has enacted robust procedures for police officers not covered by civil service to appeal discipline to the Superior Court.  Nonetheless, in the case of Miller vs. Borough of Berlin Police, the Appellate Division reminds us that the burden of proof remains on the officer and evidence is king.

Background

Jason Miller was a police officer with the Borough of Berlin Police Department, a non-civil service jurisdiction.  He was dispatched to a banquet hall because of a report of the theft of a purse.  Surveillance video showed an employee taking the purse, the manager gave Officer Miller the employee’s name and address, and Miller took a victim statement.  Miller told the victim that the employee was clearly identifiable and would be charged with a crime (as the victim told him she wished), and that the case was a “slam dunk.”  However, Miller did not follow up or press charges, and stated in the incident report that the victim did not wish to pursue criminal charges.  Several days later the victim called the Department to follow up.  Another officer took the call, and eventually other officers arrested the employee, who confessed.

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New Jersey construction law involves many complex issues.  However, one of the most common is also the most basic: Contractors and subcontractors getting paid for their work.  The Appellate Division recently issued a published opinion on this topic in the case of JHC Industrial Services, Inc. vs. Centurion Companies, Inc., exploring one of the most potent tools which contractors and subcontractors can useconstruction to get paid: New Jersey’s Prompt Payment Act.

Background: The JHC Case

JHC Industrial Services, Inc. subcontracted to do demolition work on a project for Centurion Companies, Inc., which had in turn subcontracted with the general contractor to perform the work.  JHC performed the work in full, and the general contractor accepted the work and paid Centurion in full.  However, Centurion withheld $30,500 from JHC for no apparent reason other than not wanting to pay.  JHC therefore filed a construction lien against the property and sued Centurion in the Superior Court of New Jersey for violation of the New Jersey Prompt Payment Act.  The matter took two years reach conclusion.  A trial was held, and JHC prevailed on all its claims.  JHC won and received judgment against Centurion for $30,500, the full amount it claimed was owed.  JHC requested $104,670.51 in “reasonable costs and attorney fees” pursuant to the fee shifting provisions of the Prompt Payment Act.  The trial judge, however, awarded only $12,250.40 in attorneys fees and $4,125.33 in litigations costs for a total award of $16,375.73.  The judge explained that he did not believe he could “grant over $100,000 in fees on a judgment that could not have exceeded $30,500.”

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The Appellate Division recently issued an employment law decision in the case of Matter of City of Newark and Newark Police Superior Officers’ Association, et al., concerning the ability of public employee unions to challenge the City of Newark’s COVID-19 vaccinationus-supreme-court-300x200 requirement.  The Court expressly held that the City has the right to require these vaccines as a requirement of continued employment.  Moreover, it held that not only does it have that right, but it has no concurrent duty to negotiate with unions over the requirement.

Although this case was decided in the context of whether the vaccine requirement was a matter which needed to be negotiated between the City and its law enforcement employee unions, it appears to slam the door on objections by public employees to employer COVID vaccine mandates, and it probably shuts the door for private sector employees to make that argument as well.

The Appellate Division explained: “When a public health emergency exists, governmental entities, including local authorities, have a recognized right to require vaccinations.”  The Appellate Division explained that this right exists even in the absence of a statute giving the City that authority.

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In an important New Jersey employment law decision, the Appellate Division of the State Superior Court examined exceptions to the 90 day limit for challenging a board of education’s decision regarding a teacher’s tenure status.  In that case, Frayne v. Board of Education of the Borough of Highland Park, the Appellate Division demonstrated that the limitation period is a “hard” deadline, and missing it will likelycolumns-round-300x201 mean the teacher’s appeal will be rejected.

Background

Deana Frayne was a non-tenure track maternity leave replacement teacher for the Highland Park Board of Education from the 2008-2009 though 2011-2012 school years; thereafter she was employed as a full-time, tenure track teacher.  She signed her fourth contract as a tenure track first grade teacher for the 2015-2016 school year on May 15, 2015.   However, on June 25, 2015, she was served with a letter advising that the Board believed that she did not have tenure and that her employment would be terminated effective August 23, 2015 based on performance, behavior and attendance.  The Board offered her an agreement ending her tenure track employment, giving her sixty days health benefits and salary in exchange for a release.  She did not sign.  She then received a Rice Notice, and on August 23, 2015, the Board voted unanimously to terminate Frayne’s employment.

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The Appellate Division recently issued a decision exploring the limits of progressive discipline in New Jersey civil service discipline in thepolice-officer-829628_640-300x199 case of Matter of Collins.

Background

Darius Collins was a senior corrections officer at Norther State Prison.  He had been a corrections officer for more than two years and had no prior discipline.  On January 6, 2019, he was the patrolling supervisor of prisoners in a high security unit.  Collins admitted that he left a gate between two floors open.  This allowed two prisoners to leave their tier to take unauthorized showers.  When they got back the contents of their cells had been destroyed.  The prisoners then became out of control and a ten man extraction team was required to get the two inmates back under control.

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Background: Disability Discrimination and the Requirement of Reasonable Accommodation

New Jersey’s Law Against Discrimination bars employers from discriminating against employee’s because of a disability, provided they can perform the job with “reasonable accommodation.”  Because no two employees or workplaces are the same, no accommodations will be the same for two employees, or reasonable for different employers.  Thus, the regulations interpreting this requirement in the Law Againstwheelchair-1595794__340-300x200 Discrimination require that employers must engage in an “interactive process” with a disabled employee to explore whether there are accommodations which the employer could implement to assist her in performing her duties without imposing an undue hardship on the employer.

The New Jersey Supreme Court recently explored these issues in the case of Richter vs. Oakland Board of Education.

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The State Supreme Court recently issued an important decision concerning New Jersey employment law.  In the case of Pritchett v. State, the Court confirmed that punitive damages are available against public employers under the New Jersey Law Against Discrimination andjustice-2060093_960_720-300x200 whistleblower protection laws, and defined the heightened standard under which trial judges must review such awards.

Background

Shelly Pritchett was a New Jersey State corrections officer.  She suffered injuries breaking up a fight between two inmates.  She received medical treatment and went on workers compensation leave.  She recovered from the injuries, but during her treatment it was discovered that she might be in the early stages of multiple sclerosis (MS).  She requested unpaid leave.  Her captain wanted to deny the leave, but was advised by human resources, her supervisor and the facility’s deputy executive director of operations that the leave should be approved.  While the captain remained adamantly against it, the leave was approved.  However, Pritchett was told that no further extensions would be granted.

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The Kengerski Case

The United State Court of Appeals for the Third Circuit recently issued an important employment law decision interpreting Title VII of the Federal Civil Rights Act of 1964 in the case of Kengerski v. Harper.

Kengerski filed a lawsuit alleging that he objected to racially offensive comments by a supervisor, and that he was fined in retaliation.  This isdc-court-appeals-district-columbia-building-abraham-lincoln-statue-74985350 not a novel issue as Title VII, like New Jersey’s Law Against Discrimination, prohibits retaliation against employees who make complaints about discrimination. The novel question in this case was whether an employee could maintain a claim for retaliation when the complained of racially offensive conduct was not aimed at or about the employee himself.  The court ruled emphatically that he could.

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The law invests law enforcement officers with significant authority.  New Jersey employment law therefore imposes on them a high standard of conduct. stone-judge-778488-m-thumb-240x320-71245-thumb-220x293-71246-thumb-220x293-71247 And while progressive discipline governs the review of disciplinary infractions, particularly in the civil service context, serious offenses can result in termination even for a first offense.  Sometimes these cases are close calls; some are not.  A New Jersey appeals court recently examined these principles in the case of In the Matter of Ruiz, City of Perth Amboy, Department of Public Safety.  The case is a good examination of some of these legal principles, even though the court found that it wasn’t a close call.

Background

Benjamin Ruiz was police chief for Perth Amboy, New Jersey, a civil service jurisdiction.  After being charged in 2014, he was indicted on February 6, 2015 for official misconduct, theft of services and witness tampering.  He was suspended with pay and required to turn in his badge and gun.  He was acquitted by a jury of all charges on September 20, 2016.

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