Labor and Employment Law

Published on: March 15, 2021

State Supreme Court Finds Promissory Estoppel Viable New Jersey Employment Law Claim for Withdrawal of Job Offer, Including Those to Investment Advisors

A frequent problem in New Jersey employment law occurs when a business offers someone a job without a contract, that person then quits their current employment, the business rescinds the offer, and the employee is left without a job. There is no contract, so the employee cannot sue for breach of contract. What can she do? In an important New Jersey employment law decision, the State Supreme Court ruled in the case of Goldfarb v. Solimine that the employee signature-3113182__340-300x200 has a viable claim for promissory estoppel and may recover “reliance damages” from the prospective employer based on what she would have made had she not quit in reliance on the promise and stayed at her prior job. Promissory estoppel is a legal doctrine which provides that a party should be responsible for the consequences when a promisee relied on its promise and suffers damages when the promisor fails to perform.

Background

David Solimine offered Jed Goldfarb a job managing his family’s investment portfolio. Goldfarb would receive an annual salary of $250,000-$275,000, plus ten to twenty percent of profits made because of his efforts or advice. Neither the offer nor a contract were ever put in writing. However, Goldfarb left his current job as a financial analyst (where he had made between $308,000 and $466,000 per year) in reliance on Solomine’s promise of employment. After Goldfarb quit, Solimine withdrew the offer and Goldfarb found himself unemployed.

Published on: March 12, 2021

The New Jersey Supreme Court Considers the Pregnant Workers Fairness Act for the First Time in Police Pregnancy Discrimination Matter

by Robert Chewning, Esq.

On March 9, 2021, the New Jersey Supreme Court issued an important employment law decision on pregnancy discrimination in the case of Delanoy v. Township of Ocean, which confirms the distinct causes of actions that may be brought and how they should be brought under the New Jersey Pregnant Workers Fairness Act (“NJPWFA”).

Background

A female police officer for the Township of Ocean brought a pregnancy discrimination case against the Township based on standing operating procedures (“SPOs”) and the Township’s treatment, which she alleged discriminated against her in violation of the NJPWFA and New Jersey’s Law Against Discrimination (“NJLAD”).

Published on: March 9, 2021

Federal Appeals Court Rules that Psychological Examinations for Applicants for Law Enforcement Officer Positions Cannot Be Used to Discriminate Against Qualified Applicants

by Maurice W. McLaughlin

A Federal Appeals Court’s recent precedential decision in the case of Gibbs v. City of Pittsburgh may have profound implications for New Jersey civil service appeals from psychological disqualification of law enforcement officer applicants.

Background

Christopher Gibbs applied to be a police officer with the Pittsburgh, Pennsylvania Police Department. He was an honorably discharged Marine and had been accepted for employment with five other law enforcement agencies. Similar to the practice in New Jersey and as required by Pennsylvania state law, after he was found otherwise qualified Pittsburgh offered Gibbs an offer of employment conditioned upon passing an examination to determine whether he was cop psychologically fit for the job. Gibbs had attention deficit hyperactivity disorder (“ADHD”). The examining doctor found him unfit because of his ADHD. The psychologists conducting the examination ignored the fact that Gibbs’s ADHD was under control, that five other departments had found him psychologically fit, that he had unblemished records as a police officer and a Marine, and they never explained how Gibbs’s ADHD would interfere with his ability to perform his duties as a police officer.

Published on: March 9, 2021

How the New Recreational Marijuana Law May Effect New Jersey Employment Law

by Pauline M.K. Young

In February of 2021, Governor Murphy finally signed the long awaited “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” which legalizes recreational, adult (at least 21 years old) use of marijuana (or “cannabis”).

One of the major concerns which has existed since the very beginnings of this Act was how it was going to effect drug testing in the workplace and what job protections might need to be created in relation to employees’ marijuana use. The Act does address job protections. However, while several sections of the Act photo__1894482_mclaughlin_nardi_4712 came into effect immediately, the employment-related provisions are not expected to take effect until the newly-created Cannabis Regulatory Commission establishes regulations providing specific procedures and rules for generally practices in compliance with the Act. That Commission is supposed to do so within 180 days of the passing of the Act, bringing us to approximately August 21, 2021 before marijuana job protections will come into effect.

The Marijuana Act specifically prohibits employers from refusing to hire, firing, or taking some other adverse action against someone specifically because that person uses marijuana recreationally. Indeed, an employer cannot discriminate against an individual in compensation or in any terms, conditions, or privileges of employment based upon marijuana use outside of the workplace. Thus, marijuana use appears to have the same protections as other protected classifications such as race and gender discrimination. Again, we will have to see how the Committee addresses this to see what the specific rules will be.

Published on: February 28, 2021

Court Examines Procedures for Appeals of New Jersey Tenure Arbitration Decisions

by Maurice W. McLaughlin

Under New Jersey employment law, a school board must bring tenure charges when it wants to discipline a tenured teacher. The teacher can then appeal the tenure charges to the New Jersey Commissioner of Education. The Department of Education then refers the case to an arbitrator for determination of whether or not the charges should be sustained. New Jersey’s Appellate Division recently examined the procedures for appealing such a tenure arbitration decision in the case of Ragland v. Board of Education of the City of Newark.

Background

Larhonda Ragland was a tenured teacher in the Newark Public School System. She received consecutive summative evaluations of “ineffective” or “partially ineffective” based on poor student achievement and classroom observations. The Board therefore served her with tenure charges of inefficiency. She challenged the Board’s evaluation process, and the Department of Education the referred the charges to an arbitrator.

Published on: February 9, 2021

Appeals Court Issues New Jersey Employment Law Decision About Whistleblower Retaliation, Discrimination and Harassment at New Jersey County College

by Maurice W. McLaughlin

The Appellate Division of the Superior Court of New Jersey examined the evidence necessary for claims of retaliation, discrimination and harassment under New Jersey’s Law Against Discrimination and New Jersey’s whistleblower law, the Conscientious Employee Protection Act. The unpublished opinion also examined what law an employee may bring suit under for whistleblower claims at the same time she is also bringing claims of discrimination and sexual harassment under New Jersey employment law.

Background

Nadine Heller is an associate professor at Middlesex County College (“MCC”). She received tenure in that position and still holds it. She also held the position of Chair of the Visual and Performing Media Arts Department. As Chair she was part of the Department administration.

Published on: January 27, 2021

Appellate Division Issues New Jersey Employment Law Decision on Applicability of Rice Notice to Tenured Teachers

by Maurice W. McLaughlin

The Appellate Division recently issued an important New Jersey employment law decision concerning the due process rights of tenured teachers.

Tenured teachers have significantly more protections than untenured teachers.

An untenured teacher is essentially an “employee-at-will” who may be terminated without cause; however, an untenured teacher has the right to require that her board of education discuss her termination in public session. Thus, the board cannot discuss an untenured teacher’s employment without first giving the untenured teacher formal notice of the intention to discuss her employment and the opportunity to require that it be held in public; this notice is referred to as a “Rice Notice” and derives from the Open Public Meetings Act.

Published on: January 21, 2021

New Jersey Supreme Court Explores Good Faith Defense For Employer’s Failure to Pay Overtime Under New Jersey Wage and Hour Law

by Maurice W. McLaughlin

The New Jersey Wage and Hour Law regulates minimum wage and overtime requirements. It is New Jersey’s counterpart to the Federal Fair Labor Standards Act. The Wage and Hour Law and Fair Labor Standards Act are bedrock elements of New Jersey employment law. Under the Wage and Hour Law, New Jersey employers must pay overtime at a rate of one and half times an employee’s regular pay if she works more than forty hours a week. However, if the employer is in imagesCAWQ89PS the trucking industry, the employer is only legally required to pay overtime at the rate of one and half times minimum wage. However, if the employer should have paid the higher rate but paid the lower rate, it can raise the defense that it did so in “good faith” reliance on government orders or regulations.

In the case of Branch v. Cream-O-Land Dairy, Elmer Branch filed a class action lawsuit in the New Jersey Superior Court against his employer, Cream-O-Land Dairy, on behalf of himself and similarly situated truck drivers employees, for non-payment of overtime in violation of the Wage and Hour Law. Cream-O-Land argued that it was not required to pay the higher rate for two reasons. First, it argued that it was a “trucking industry employer,” and that all the employees were paid at least the lower overtime rate. Second, it argued that it met the “good faith” defense. The trial agreed that Cream-O-Land satisfied the good faith defense and dismissed the case on that ground. Branch appealed to the Appellate Division of the Superior Court which reversed, finding that the matters on which Cream-O-Land relied did not satisfy the statutory requirements of the Wage and Hour Law.

Cream-O-Land then appealed to the Supreme Court of New Jersey. Because the trial judge did not address the exemption for trucking industry employers the Supreme Court, like the Appellate Division, examined only whether Cream-O-Land satisfied the good faith defense. It ruled that it did not.

Published on: January 15, 2021

Federal Case Examines the Standards for Summary Judgment Motions Under New Jersey Law Against Discrimination

by Maurice W. McLaughlin

In the recent case of Arku-Nyadia v. Legal Sea Foods, LLC, in the United States District Court for the District of New Jersey, the federal trial court covering the entire State of New Jersey, Judge Susan Wigenton examined the standards governing motions for summary judgement in lawsuits alleging violation of the New justice-2060093_960_720-300x200 Jersey Law Against Discrimination. In a summary judgment motion, a judge is asked to dismiss a party’s lawsuit because the moving party argues that even if the court took all the evidence in the best light favorable to the other party, it doesn’t create a question of fact for a jury and the moving party should prevail as a matter of law.

Background: The Arku-Nyadia v. Legal Sea Foods, LLC Case

Suzy Arku-Nyadia was a Black woman who was born in Ghana and immigrated to the United States in 1999, to pursue bachelor’s and master’s degrees. She worked for Legal Sea Foods, LLC (“LSF”) for fifteen years at multiple locations, beginning in Virginia in 2002 before transferring to Short Hills, New Jersey in 2004, and thereafter working in both New Jersey and New York. Her final position was at LSF’s Paramus location.

Published on: December 28, 2020

Small Business Assistance Expect in the New Stimulus Package

by Pauline M.K. Young

Following a $2 trillion plus stimulus bill passed in the Spring of 2020, the Congress has finally been able to come to terms on another economic stimulus and relief bill, and the president has finally signed it into law. The bill is over nearly 5,600 pages long and has a whole host of miscellaneous provisions included therein.

However, for small businesses several issues were of particular concern. First, there have been a host of issues, questions, and need for clarification on the small-business-300x215 previously created Paycheck Protection Program (“PPP”). Back in the Spring of 2020, that program was created to provide money to small businesses to help them pay their payroll while suffering from financial issues caused by the Covid-19 pandemic and widespread shut-downs and stay-at-home orders. The new stimulus bill clarifies that expenses paid with these funds may still be used in tax deductions and the amount of the PPP loan would not be considered in calculating the company’s gross income.

PPP funds were generally supposed to be used for (and would only be forgiven for) use in covering payroll, mortgage interest, rent, and utility payments. The new bill should be expanding forgivable expenses to operational expenditures for software or computing services for business operations, property damage due to public disturbances that were not covered by insurance or other compensation, payments to suppliers where the supplies were essential to the operations, made pursuant to a contract prior to the covered period, or for perishable goods, or worker-protection costs required to comply with requirements of state or local governments, the CDC, OSHA, or the Department of Health and Human Services.