Articles Posted in Labor and Employment Law

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New Jersey employment law has generally upheld non-compete (or non-competition) agreements provided they met certain requirements aimed at allowing employees to earn a living.  Non-compete agreements have been much vilified by pro-employee groups, and much5-225x300 supported by pro-employer groups.  However, the United States Federal Trade Commission has issued a rule which would prohibit non-compete agreements.  At least one lawsuit has been filed aiming to block the new regulation, and others are expected.  So whether the rule will take effect, and if so in what form it will be allowed, is still an open question.  However, employers and employees should be prepared, because unless an injunction is issued the rule will become effective in several months.

The Rule

The Rule, part of the United States Code of Federal Regulations, defines non-compete clauses as:

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The Wage and Hour Division of the United States Department of Labor has issued a new regulation vastly increasing the number of employees who are entitled to overtime.

Background

Both Federal and New Jersey employment law both require that employees must be paid one and a half times their regular hourly rate (“timecourthouse-1223280__340-300x200 and a half”) for work beyond forty hours in any week.  However, there are exceptions.  The major exemptions are for executive, administrative, professional, and highly compensated employees.  In addition to the requirements particular to each exemption, the employees cannot be paid less than the threshold for the exemption.

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Federal and New Jersey employment law both prohibit discrimination because of an employee’s gender.  The United States Supreme Court’s recent decision in the case of Muldrow v. City of Saint Louis establishes what employees must prove to have a viable lawsuit for gender discrimination under Title VII of the Civil Rights Act of 1964.  Because New Jersey courts often look to Federal case law about Title VII to guide them in interpreting New Jersey employment law, it is likely that this standard will be adopted as the law in New Jersey.scoutus-room

Background

Jatonya Clayborn Muldrow was a long serving, decorated officer with the St. Louis Police Department.  Justice Elena Kagan described the factual background of the case.

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Background

Employment as a teacher and in many other New Jersey public school positions requires that the employee hold a certificate to work in their positions.  However, under certain1-300x225 circumstances, these certificates can be suspended or revoked, rendering the employee ineligible to work in their chosen profession.

The New Jersey Commissioner of Education can suspend the certificates of employee’s who leave before their term of employment ended without their employer’s consent.

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In New Jersey Civil Service, hiring and promotion are done in accordance with the applicant’s (or “eligible’s”) rank on a list.  There are specific reasons why an applicant may be removed from a Civil Service list.  However, sometimes removal is done because of favoritism,sgt-johnny-jpeg-232x300 nepotism, politics, discrimination, whistleblower retaliation, cronyism, or outright bribery.  Since the entire purpose of the New Jersey Civil Service System is to ensure that hiring is based on merit, there is an appeal process for applicants who believe that their name was improperly removed from a Civil Service hiring or promotion list.

Allowed Reasons for Removal from a Civil Service Eligible List

An applicant may be removed from a list because she:

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Arbitrators make the final decision in hearings on tenure charges.  Appeals are limited.  However, the scope of their powers to fashion appropriate discipline was open to question.  As I wrote last year, the Appellate Division of New Jersey’s Superior Court ruled in the case ofschool-bus-1-300x200 Sanjuan v. School District of West New York that arbitrators were limited in those powers, and could not impose demotion as a remedy for disciplinary violations.  The case was appealed, and the New Jersey Supreme Court issued a decision overturning the Appellate Division’s decision.

Background

Amada Sanjuan worked for the West New York Board of Education as an assistant principal.  On February 12, 2020, she fell down a flight of stairs, was injured, and was out of work as a result.  Sanjuan claimed that she fell while picking up a piece of paper on the stairs.  However, video showed that she removed a piece of paper from her purse after she fell, and placed it at the top of the stairs.

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New Jersey employment law in the public sector incorporates the doctrine of collateral estoppel, which in some cases bars relitigating issues already decided in another forum.  This applies to administrative appeals of employment action.  A New Jersey appellate court7-300x225 recently examined this doctrine in the context of the revocation of a teacher’s teaching certificate after an arbitration on tenure charges in the case of In the Matter of the Revocation of the Certificates of Lesley Etheridege by the State Board of Examiners.  The court extended the reach of the New Jersey Supreme Court’s Winters case.

Background

Lesley Etheridege was employed as a teacher by the Passaic County Vocational School District.  She held a New Jersey Department of Education “Teacher of Electronic Technology Certificate of Eligibility” and a “Teacher of Electronic Technology Standard Certificate.”  In 2015, the District filed 23 tenure charges against her with the New Jersey Commissioner of Education, one for inefficiency under the TEACHNJ Act, and 22 for various instances constituting conduct unbecoming a teacher (one of which the District later dismissed).  The Commissioner found that, if true, the allegations would be grounds for termination or reduction in salary and therefore transferred the charges to an arbitrator in accordance with the TEACHNJ Act.  The arbitrator held three days of hearings and sustained the charges, finding that Etheridge had committed conduct unbecoming by “falsifying grades and engaging in inappropriate grading practices; failing to report to teaching assignments; leaving students unattended; leaving the school campus without permission or notification; failing to complete lesson plans; and insubordination by failing to provide lesson plans as directed by her supervisor.” The arbitrator rejecter Etheridge’s argument that the charges were brought because of political affiliation, nepotism, union activity and discrimination.  The arbitrator found that termination was the appropriate remedy for her continued pattern of inappropriate behavior.

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New Jersey Employment Law Protections for Pregnant Employees

New Jersey employment law, as well as Federal employment law, prohibits discrimination against employees because of pregnancy, requires employees to reasonably accommodate employees’ pregnancy, bars retaliation against employees who request accommodations for pregnancy or object to the treatment of pregnant employees, and bars coercion of pregnant employees from being required to acceptkids-300x225 unreasonable or no accommodations or take leave unless medically necessary.

Under New Jersey employment law, the primary statutory protection for pregnant employees is the New Jersey Law Against Discrimination.  The main provision of the Law Against Discrimination protecting pregnant employees is N.J.S.A. 10:5-12.  This provision makes it illegal “For an employer, because of… pregnancy or breastfeeding… to refuse to hire or employ or to bar or to discharge from employment or to discriminate against an individual in compensation or in the terms, conditions or provisions of employment.”  This has been held to also bar harassing an employee because of protected traits, such as pregnancy.  These provisions also apply to unions and employment agencies.

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One of the most difficult New Jersey employment law issues confronted by government employees is that they are sometimes drawn into legal action because of actions taken in the course of their employment.  Defending such charges can cause significant expense andsupreme-administrative-court-3565618_960_720-300x200 hardship to government employees.  For teachers, administrators and other public education employees, however, there are two laws which provide for payment of the employee’s attorneys fees and litigation expenses by their board of education in certain criminal, quasi-criminal, administrative and civil legal actions. The Appellate Division examined the question of when an employee must notify their employer and request payment under the two different statutes in a case where the New Jersey State Board of Examiners sought to revoke an employee’s teaching certificate in the case of Maria Azzaro v. the Board of Education of the City of Trenton.

Background: The Order to Show Cause and Administrative Litigation

Maria Azzaro worked for the Trenton Board of Education.  The New Jersey Department of Education, Office of Fiscal Accountability and Compliance alleged that while Azzaro was a vice-principal at Trenton Central High School improper practices occurred including misassignment of students, giving students credits for classes they did not attend or attended only sporadically, that certain classes did not meet Department requirements, and that transcripts were falsified so that students could matriculate.  As a result, in 2007, the New Jersey Department of Education, State Board of Examiners served Azzaro with an Order to Show Cause seeking revocation or suspension of her teaching certificate because she allegedly knew of or participated in these practices.

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A recent New Jersey employment law decision in the case of A.B. vs. Board of Education of the City of Hackensack, Bergen County illustrates the dangers of public employees, especially teachers, posting suggestive content on their social media accounts, and the reach and consequences of the New Jersey “Pass the Trash” Law.

 

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A.B. was a teacher with the Hackensack Board of Education.  In 2013 the Board was advised that A.B. had made inappropriate posts on her social media page, including: “Fuck me, I’m Irish”, and “Women say Men Think with Their Penis. Ladies, don’t be afraid to blow their minds.”  Finding these posts could potentially constitute sexual misconduct, the Board considered discipline and started an investigation, including referrals to the Hackensack Police Department and Bergen County Prosecutor’s Office.  The Board of Education was particularly concerned that A.B.’s post could have been seen by her minor age students.  Three days later, the Board of Education and A.B. entered into a settlement agreement in which she resigned. She then went to work for another school district.  New Jersey enacted the Pass the Trash Law in 2018.

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