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books-2826380__340-300x200One of the areas which counterintuitively generates among the most questions in New Jersey employment law is teachers’ tenure.  Although teacher tenure dates  back over a century, tenure is still an area of the law which generates much controversy and litigation.  The Appellate Division of New Jersey’s Superior Court recently issued a decision in one such area of contention in the case of Zimmerman v. Sussex County Educational Services Commission.

In that case,  Beryl Zimmerman and Judy Comment were tenured, part-time teachers for the Sussex County Educational Services Commission.  They provided remedial instruction to eligible students.  For reasons that were unclear, the Commission reduced their hours, but not their rate of pay.  During the 2013-2014 school year, Comment worked approximately 1117 hours, and earned a gross salary of $36,838.74.  The following year, however, the Commission reduced Comment’s teaching to only 305 hours, a reduction of 784 hours and $26,507.61.  Zimmerman’s hours were reduced from 954 during the 2013-2014 school year to 658 the next, reducing her gross earnings from $27,668.81 to $19,603.42, a reduction of $8,065.39.

Zimmerman and Comment appealed to the New Jersey Commissioner of Education claiming that the reduction violated their tenure rights.  The Commission argued that it did not violate the teachers’ tenure because their hourly rate not reduced (and in fact they received an annual incremental raise in their hourly rate), and their individual contracts and collective negotiations agreement contained no guaranteed minimum number of hours they would work.  After proceedings before an administrative law judge, the Commissioner of Education agreed with the Commission and rejected Zimmerman’s and Comment’s appeal.  The Commission of Education found that because the hourly rate was not reduced, and because the union and individual contracts did not guarantee Zimmerman and Comment a certain number of hours, the reduction in their hours did not violate their tenure protections.  Zimmerman and Comment then appealed the Commissioner’s decision to the Appellate Division, which reversed the Commissioner’s decision.

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signature-3113182__340-300x200What is a Restrictive Covenant?

A restrictive covenant is a contractual agreement in which one party receives something of value in exchange for a promise not to engage in a particular type of behavior.  Restrictive covenants can bind people or businesses.

What Types of Restrictive Covenants Are There?

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The Fair Labor Standards Act (“FLSA”) is a federal statute enacted in 1938 with the goal of setting national minimum requirements for employee compensation.  It covers areas such as minimum wage and overtime, among other things.

On February 9, 2017, the Third Circuit Court of Appeals was the first  United States Federal Circuit Court to address an area of the FLSA which is invoked relatively rarely in civil lawsuits involving compensation disputes.  In a case captioned: Secretary, United States Department of Labor v. American Future Systems, Inc., the Department of Labor (“DOL”) sued on behalf of the employees of American Future Systems, Inc., claiming that the employer was violating the FLSA by not paying employees for time that they were logged off of their computers over 90 seconds.

The employer did not deny that it was not paying employees for  “breaks” in excess of 90 seconds.  The dispute was whether that non-payment violated the FLSA.  Two different sections of the FLSA  were evaluated.

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By typography-2858715__340-300x150enacting the Law Against Discrimination, New Jersey has provided its workers with some of the strongest anti-discrimination laws in the United States.  New Jersey’s Law Against Discrimination protects against employment discrimination, including harassment, because of these protected categories

  • race
  • creed
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partnership-2750197__340-300x200The United States Supreme Court issued a major decision on tolling the statute of limitations on state law claims while the case is in federal court which has significant impact on New Jersey employment litigation.  In the case of Artis v. District of Columbia, the Supreme Court answered a major procedural question regarding the interplay of federal and state claims being heard together in federal district court and state statutes of limitations.  While the case involved an employment case in District of Columbia, it would be equally applicable to cases brought under New Jersey employment law.

Background

Stephanie Artis worked as a health inspector for the city government of the District of Columbia.  She was fired.  Thereafter, she filed suit in the United States District Court for the District of Columbia. She alleged a federal claim under Title VII of the Civil Rights Act of 1964 (known as “Title VII”).  She also sued under District of Columbia law for whistleblower retaliations, false claims and gender discrimination.

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bar-2832543__340-259x300When you purchase a liquor license in New Jersey, as a Buyer you must be approved by the State of New Jersey Alcoholic Beverage Commission and the Municipality where the business operates.  This process is detailed and time consuming.  it must be started as soon as possible by the Buyer.  You will need to obtain a Person to Person Transfer of the liquor license.  Unless and until the municipality issues a resolution approving of the transfer of the liquor license, the current license holder must operate the business.

In order to be approved, the applicant must meet the following requirements:

a)      18 years of age or older;

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votive-candles-2903933__340-300x200Both New Jersey’s Law Against Discrimination and the Federal Title VII of the Civil Rights Act of 1964 expressly prohibit employers from discriminating against employees because of their religious practices if they can be reasonably accommodated.  In many cases the most difficult question is whether an accommodation which the employer could have provided was “reasonable.”  However, the Third Circuit Court of Appeals recently issued an important decision on the unusual question of whether an employee’s honestly and strongly held beliefs could be considered “religious” under Title VII.

Paul Fallon had been an employee of Mercy Medical Center since 1994.  In 2012, Mercy instituted a rule that all employees had to receive a flu vaccination each year.  Mercy allowed for religious exemptions.  Fallon requested and was granted exemptions in 2012 and 2013.  However, she  was denied in 2014 because Mercy had changed its definition of religious exemption.  There was no question that Fallon’s objection was because of his sincerely held belief that the vaccination did more harm than good.  However, he cited no religious source, just his belief that it is wrong to cause harm to your own body.  Mercy decided that this reason was not “religious” under its policy, and ordered Fallon to get the shot or provide a letter from clergy explaining why he could not get the vaccination for religious reasons.  He failed to provide the letter and refused to be vaccinated.  Mercy therefore fired him.

Fallon filed suit in Federal District Court alleging that Mercy had fired him because of his religious beliefs, and therefore committed religious discrimination in violation of Title VII.  The trial judge disagreed and dismissed his suit.  Fallon appealed to the United States Court of Appeals for the Third Circuit.  The Third Circuit agreed with the trial judge’s opinion and upheld the decision.

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whistle-2496555__340-300x200In the case of DiFiore v. CSL Behring, LLC, a former pharmaceutical employee brought an action in the District Court for the Eastern District of Pennsylvania against her former employer for retaliation in the form of a wrongful, constructive discharge.  In that case, the employee specifically brought claims under the federal False Claims Act (“FCA”)  https://www.law.cornell.edu/uscode/text/31/3729 and Pennsylvania’s common law wrongful discharge cause of action. She claimed that she had raised concerns about off-label marketing of products which caused her employer to retaliate.

In that case, the District Court instructed the jury that, in order to prove retaliation under the FCA, the employee had to prove that the whistleblowing by the employee was the sole cause for the adverse action (firing or other retaliatory action).  However, the plaintiff-employee argued that she need only provide that the whistleblower action was a motivating factor for the wrongful discharge – not that it was the only reason for the adverse employment action.  The plaintiff was relying on a prior Third Circuit case, Hutchins v. ABC Corp. However, the Court determined that the “motivating factor” language in the Hutchins case was merely dicta – meaning that the language was extraneous to the decision and does not act as precedential.

The Court also decided that the United States Supreme Court decisions in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v Nassar indicate that a “motivating factor” test is inappropriate.  (The Gross case considered a claim under the Age Discrimination in Employment Act (“ADEA”) and the Nassar case considered a claim under Title VII of the Civil Rights Act.)  In both cases, the Supreme Court found that the language “because of” in those laws, equated to the requirement of “but-for” causation.  In other words, the adverse action would not have happened “but for” the improper motivation, requiring that to be the exclusive motivation.   The ADEA, Title VII, and the FCA all contain that same language.

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pawn-2430046_960_720-300x209 Our employment lawyers represent many honorable New Jersey employees in disputes with their governmental employers.

The Winters Doctrine

As I wrote in a previous post, in 2012 the New Jersey Supreme Court created a serious hurdle for public employees.  In the case of Winters v. North Hudson Regional Fire and Rescue, the Supreme Court held that an adjudication by the Civil Service Commission of allegations that a termination was illegal retaliation (even raised tangentially) barred subsequent litigation for violation of New Jersey’s Conscientious Employee Protection Act (known as “CEPA”) based on the same facts in a lawsuit in New Jersey Superior Court.  The Appellate Division of New Jersey’s Superior Court subsequently held that such a bar applied to claims of retaliation raised in disciplinary appeals under both CEPA and New Jersey’s Law Against Discrimination (known as the “LAD”).

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police-2122373__340-300x200In 2014, New Jersey’s Governor Christie signed The Opportunity to Compete Act which limited an employer’s ability to ask a potential employee about criminal records in many circumstances. The State passed this law based upon several findings, including:

  • Criminal background checks by employers have increased dramatically with an estimated ninety percent of employers in the country conducting such checks as a matter of course during the hiring process;
  • Barriers to employment based upon a criminal record could affect approximately sixty five million people in the United States;