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Employee Choices for Challenging Discipline

In a recent unpublished decision, the Appellate Division of the Superior Court addressed the employment law issue of jurisdiction for appealing discipline of tenured school employees.

When a New Jersey government employee faces discipline, there are several avenues for relief depending on the nature of the alleged wrong by the employer and the relief sought.  If the alleged violation is one of constitutional rights, discrimination, or whistleblowing retaliation, the employee can sue in New Jersey state or federal court, or appeal in an administrative forum.  Tschool-bus-1-300x200he choice will depend on the relief sought.  If the employee does not want to continue working for the employer or does not care about correcting the discipline, but rather only cares about collecting money damages, then she would sue in court (New Jersey state courts and New Jersey law provide greater procedural and substantive advantages for employees, so they usually file in the Superior Court rather than federal court).  If the employee is more concerned about getting her job back or correcting the discipline, often the administrative route (which can also provide back pay) is the best choice.  When there are no issues of constitutional rights, or discrimination or retaliation, then the administrative route is the only option.

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New Jersey’s Law Against Discrimination and the Pregnant Workers Fairness Act

New Jersey employment law has long been in the forefront of protecting employees’ civil rights baby-feetand prohibiting discrimination in the workplace.  While Congress did not pass Title VII until 1964, the Legislature passed the New Jersey Law Against Discrimination in 1945.  Since then the LAD has been expanded to protect more types of workers from discrimination because of who they are and give them a wider array of rights and protections.  Most recently, in 2014 the Legislature passed the New Jersey Pregnant Workers Fairness Act, again which amended the New Jersey Law Against Discrimination, this time to prohibit discrimination against pregnant workers, and to require reasonable accommodation for physical arising from pregnancy, recovery from childbirth, and breastfeeding.  It prohibited employers from penalizing employees for being pregnant.

The Appellate Division of New Jersey’s Superior Court recently issued the first published opinion interpreting the New Jersey Pregnant Workers Fairness Act in the case of Kathleen J. Delanoy v. Township of Ocean.

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Police Car, White Male, 3D Model
On December 6, 2019, the New Jersey Civil Service Commission recently reviewed and rescinded its September 5, 2018 decision which removed an applicant’s name from an eligible list for Jersey City police officer. The case was argued by Maurice W. McLaughlin, Esq., and Robert K. Chewning, Esq.

After the Civil Service Commission made its September 5, 2018 decision, the applicant was required to file an appeal in the Appellate Division of the Superior Court of New Jersey. On appeal, the applicant argued that the Civil Service Commission’s decision was arbitrary, capricious, and constituted an abuse of discretion based on the evidence which established the applicant’s Jersey City residence prior to the August 31, 2016 announced closing date through the date until the present.

The Appellate Division remanded the case to the Civil Service Commission to review the factual record and reconsider its prior decision. On remand, the Civil Service Commission found: (1) that appellant had established by a preponderance of the evidence that he had lived in Jersey City as of the August 31, 2016 closing date; and (2) that the Civil Service Commission had previously erred in reviewing relevant documents including applicant’s motor vehicle address change form, driver’s license, and lease agreement. A copy of the New Jersey Civil Service Commission’s decision can be found here.

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Senior, Elderly, People, Couple, PersonsMany financial accounts provide the account holder with the option to designate beneficiaries.  If a beneficiary is designated on a financial account, upon the death of the account holder, the assets to the account do not pass according to the provisions of the decedent’s Last Will and Testament, but instead will pass to the designated beneficiary.   Therefore, such designations are a crucial part of estate planning, and can significantly change the distribution of an estate.  Yet beneficiary designations are over overlooked during the estate planning process.  Accounts with designated beneficiaries must be considered when structuring your estate plan and when estate planning documents are being drafted.  You must ensure your beneficiary designations are consistent with the rest of your estate plan and together with your estate planning documents accomplish your estate planning goals.   I have met with many clients who needed significant revisions to their Will because their beneficiary designations were not considered when the Will was drafted.  Beneficiary designations which are not considered during the consultations and drafting of estate planning documents often skew or even completely override the intent of the decedent.

Often, people do not consider the effect a beneficiary designation will have on their estate plan.  Instead, believing it to be a simple decision, they just pick someone when asked by a financial advisor or when completing account paperwork.   Sometimes, they don’t want to “bother” their attorney with questions about their accounts, which people often think of as separate from their estate plan.   It is routine and expected for a life insurance agent or retirement account professional to ask for beneficiary designations, but it is also a common option now for brokerage and bank accounts.  Clients often think they “named the same beneficiaries” on all of their accounts, but when documentation is obtained and reviewed, the beneficiaries designated often undermine their estate planning intentions.

It is always a good idea to consult with your various professionals – you lawyer, financial advisor, and insurance broker – to confirm that you have named beneficiaries where necessary, and that these designations are carefully considered to effectuate your estate plan.

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Whistleblower, Clock, Read, Hours
When facing claims of retaliation for reports on objections about discrimination under the New Jersey Law Against Discrimination or Title VII of the Federal Civil Rights Act of 1964 (or for whistleblowing under New Jersey Conscientious Employee Protection Act), courts are often faced with the situation where there is no direct evidence in the form of an admission, document, email or tape recording.  Therefore, when examining whether an employer took an action because of retaliation, employees are often forced to rely upon circumstantial evidence.  One of the strongest types of circumstantial evidence in cases where the employee alleges she was retaliated against because of her objections about discrimination is the amount of time which elapsed between the objection and the employer’s adverse action.  However, this is not the sole element which courts will consider – nothing happens in a vacuum.

The United States Court of Appeals for the Third Circuit recently examined just such a situation in a case about Title VII retaliation allegation in the case of Jessica Harrison-Harper v. Nike, Inc., d/b/a/ Converse, Inc. (The Third Circuit hears Federal appeals from the courts of New Jersey, Pennsylvania, Delaware and the United States Virgin Islands).

In that case, Jessica Harrison-Harper was an employee of Nike and manager at a Converse retail store.  She was hired in July 2014.  During the first several months of her employment numerous complaints were received about Harisson-Harper.  For example, a customer complained about her refusal to accept the return of a pair of shoes bought at the store.  Nike received multiple complaints about Harrison-Harper from her employees about her mismanagement and demeanor, and also from a neighboring Nike store.  There was a complaint that Harrison-Harper violated a family discount policy.  She was counseled regarding failure to document employee time and attendance issues, and about her plan to rehire an employee she had previously fired for calling a subordinate a “bitch.”

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Construction, Building, Build, IndustrySmall business and contractors often hire independent contractors rather than employees for certain projects and services. Generally, this allows the business to avoid responsibility and expense related to withholding and paying taxes, and obtaining insurance for those workers. However, case law in New Jersey over the years has slowly been narrowing the definition of who may qualify as an independent contractor.

In 2015 for example, the New Jersey Supreme Court decided the case of Hargrove v. Sleepy’s LLC.  In that case, the Court found that, when defining a worker as an employee or independent contractor in relation to wage and hour or wage payment claims. The courts will consider the factors set forth in the “ABC” Test. The ABC test considers: (1) the control exercised by the employer of the worker’s work, (2) whether the services performed by the worker were outside the usual course of the employer’s business or performed outside the employer’s place of business, and (3) whether the individual worked in an independently-established business or occupation. So, in order to be an independent contractor, the worker had to be: (1) free from the employer’s control, (2) working away from the employer’s place or business OR working in an area outside the area of work generally conducted by the employer, AND (3) customarily engaged in his/her own established business or profession.

In November of 2019, a new bill was introduced in the New Jersey Senate proposing to limit the use of the independent contractor classification for workers even more. In relation to the second prong, workers could not qualify as independent contractors by physically working outside of the place of business of the employer; the worker would have to provide a service to the employer which is outside the usual course of the employer’s type of business.

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New Home, Construction, For Sale, Buy
In October 2019, the Appellate Division of the Superior Court of New Jersey issued an opinion in the case of Becker v. Ollie Solcum & Son, Inc., examining the enforceability of an arbitration clause in a construction project.  The decision continued the trend in New Jersey of limiting enforcement of arbitration agreements, particularly where one party is a customer.

The case arose from a dispute over a residential construction project. Robert and Catherine Becker entered into a contract with Ollie Slocum & Son, Inc. (“Slocum”) to build a new home for them for $1,850,000.  Under the contract, the project was to be completed in no more than 52 weeks after excavation work started.  Substantial completion was actually about one and a half years late.  The Beckers sued Slocum in the Law Division of the Superior Court of New Jersey over the delay and alleged construction defects including water penetration and deterioration of the outdoor decking, siding, and finishing.

The contract, which contained a clause requiring arbitration of disputes, stated:

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American, Bills, Business, Cheque
In the case of Secretary of United States Department of Labor vs. Bristol Excavating, Inc., the United States Court of Appeals for the Third Circuit, recently issued an important, precedential opinion on when payments by third-parties need to be included by employers in the calculation of their employees’ overtime pay rates.

Bristol Excavating, Inc. (Bristol) is a small excavation contractor.  Bristol was a subcontract for Talisman Energy, Inc., a large producer of natural gas.  Bristol provided Talisman with equipment, labor and services at Talisman’s drilling sites.  Bristol’s employees often worked more than 40 hours per week, and Bristol paid them “overtime,” or one and a half times the regular hourly rate which Bristol normally paid them (“time and a half”) for all the hours they worked over 40 hours in one week.

Talisman offered workers at its sites – not just its own employees – separate bonuses rewarding them for safety, efficiency and productively measured by completion of work.  Bristol’s employees asked Bristol if they could participate.  Bristol agreed, and also agreed to do the administrative work.  This administrative work included paying the bonuses through Bristol’s payroll, and taking out all applicable tax withholdings.  Bristol did not include these bonuses in its calculation for overtime pay for its employees because it was not Bristol’s money with which the employees were being paid.

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Both New Jersey’s tenure laws in Title 18A, which govern employees in New Jersey’s public schools, and the New Jersey Civil Service Act in Title 11A and Civil Service regulations are designed to ensure that government employment decisions, such as hiring, firing, promotion, etc., are made based on merit rather than nepotism, cronyism, racism, sexism, favoritism or politics.  Of course, these factors still come into play, and employers seek ways around these laws.  The New Jersey Supreme Court recently rejected such an attempt by the Newark School District to terminate a tenured secretary.

Brenda Miller was an employee of the Newark School District, which had been taken over and operated by the State of New Jersey.  The District had adopted the Civil Service Act, Title 11A of New Jersey Statutes, to govern its employees.  As public school employees, however, their employment was also governed by Title 18A, which governs New Jersey’s public grammar schools, middle schools, high schools and state colleges.

Brenda was hired in 1998 and held clerical and secretarial positions through 2012.  By virtue of this service she had acquired tenure under Title 18A.  These positions were also governed by the Civil Service System, and were considered “classified” titles.  In 2012, however, the District reclassified Brenda’s current position to an “unclassified” confidential assistant, which as an unclassified title did not have the same civil service protections as classified positions – indeed, unclassified positions have little more protection than an employment at will job in the private sector.  In 2014, citing the unclassified status of Brenda’s title, the District terminated her.  It did not provide her with notice or a hearing.

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Refugees, Economic Migrants

Governor Murphy signed New Jersey’s Equal Pay Act into law in 2018.  The NJEPA  takes a necessary step in making pay discrepancies in the workplace more transparent with the hopes that this will address the pay differential between white men minorities, and women.  Essentially, it bars any penalty to any employee for requesting or disclosing information regarding any employee’s job title, rate of compensation, benefits, race, gender, ethnicity, or other protected characteristic when the purpose of the inquiry or disclosure to investigate the possibility of discriminatory treatment.  (While the NJEPA was originally intended to address inequitable pay for women, it was expanded to cover all protected classes of people.)

This allows for employees to obtain information which previously (and even now) is largely safeguarded by employers as “private” in order to determine whether they are being discriminated against based upon a protected classification.   Any employer “policy” which forbids discussing compensation in the workplace could be considered void by the law.

The NJEPA amended New Jersey’s Laws Against Discrimination to enable the use of the protections of that statute. The NJEPA also specifically makes it unlawful to pay employees in protected classes a different rate of compensation when performing substantially similar work considering skill, effort, and responsibilities. Differentials may still exist when based on seniority, merit, education, productivity, experience, and other legitimate business reasons. The Act also allows expands upon the LAD’s typical 2-year statute of limitations by setting forth that limitation period restarts each time the employee receives unequal compensation resulting from a discriminatory decision or practice.  The employee may also recover up to 6 years of back pay as a result of a violation by the employer.  Additionally, the employee may receive treble damages – meaning that they may recover three times the monetary damages awarded as a result of the pay discrepancy.