Articles Posted in Labor and Employment

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The United States Court of Appeals for the Third Circuit recently issued an opinion interpreting the New Jersey Civil Service Act regarding the reemployment rights of laid off civil service employees.  It probably reached the right decision, but its reasoning was far too broad and may have a negative impact on future cases.

In that case, Tundo vs. County of Passaic, two probationary Passaic County Corrections officers with disciplinary problems were laid off as part of a mass layoff for budgetary reasons.  They had not completed their “working test period” (probationary period) yet.  Thereafter, the County obtained funds and sought to rehire some of the laid off employees.  It therefore contacted the New Jersey Civil Service Commission so that the Commission could create a list from which the County could rehire laid off workers, which the Commission did.  There was dispute about whether the list was a “revived” list – or not whether this was a revived “regular reemployment” list or a revived “open competitive” list was left unclear.  The County challenged the placement of the two laid off officers on the list.  The Civil Service Commission rejected the challenge.  The County therefore had the officers apply for the job, but as part of the application process the County required them to sign a release of their right to sue the County.  They refused to sign and the Civil Service Commission removed their names from the list.  The officers then sued under Section 1983 of the Civil Rights Act of 1871, arguing that their due process rights were violated by their removal from the list.  The Third Circuit disagreed, holding that employees do not have a property right to their position on a reemployment list.

The decision was correct in this case because the officers had no right to be on a special reemployment lists.  However, in many cases, other officers do have a legal right to be on employment or remployment list, which would give them a “property interest” triggering due process protections before their governmental employer could remove them.

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The United States Third Circuit Court of Appeals (which hears appeals from the federal district courts in New Jersey, Delaware, Pennsylvania and the United States Virgin Islands) recently had the opportunity to address the state of New Jersey employment law on restrictive covenants in the case of ADP, LLC v. Rafferty.

Background

In the Rafferty case, two ADP employees, Kristi Mork and Nicole Rafferty, agreed to restrictive covenants in exchange for an award of company stock.  Because they were high performing employees, they agreed to restrictions in exchange for the stock award which were more onerous than lower performing  employees were required to agree to.  The restrictions applied whether they quit or were fired.

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Background: The Law Against Discrimination

New Jersey’s Law Against Discrimination (often referred to as the “LAD” or the “NJLAD”) prohibits discrimination and harassment against employees because of a wide variety of immutable characteristics. Among these are protections against discrimination and harassment because of an employee’s age and disability. The Law Against Discrimination’s protections have been described as among the strongest in the country.

The Caraballero Case

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Tenure is one of the most important protections for teachers in New Jersey employment law.  Both full-time and part-time teachers may receive tenure protection.  However, no New Jersey court has addressed the situation where a part-time tenured teacher’s earnings were reduced when her hours were cut, even though her hourly rate of pay was slightly increased.  However, in the recent case of Zimmerman v. Sussex County Educational Services Commission, the New Jersey Supreme Court addressed this issue head on.

Background: General Principles About Tenure for New Jersey Teachers

One of the bedrock principles of New Jersey public education employment law is tenure protection.  Tenure of teaching staff members employed in the positions of teacher, principal, assistant principal, vice-principal, assistant superintendent, athletic trainer, school nurse and other positions in public schools requiring certification is generally governed by Title 18A of New Jersey Statutes. It was designed to protect competent and qualified teaching staff member from being subject to removal, discipline or “reduction in compensation” for “unfounded, flimsy or political reasons.” Tenure is a statutory right, not contractual.  It cannot be waived, forfeited or bargained away.  When a teacher satisfies the statutory requirements, she receives tenure protection.

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On March 28, 2018, the New Jersey Appellate Division granted an appeal and reversed a trial court employment law decision which had granted summary judgment in favor of the defendant employer the New Jersey Department of Human Services and against the plaintiff employee, dismissing all of his claims. In the case of Jerry Dean Rivera v. State of New Jersey Department of Human Services. The case was argued by Maurice W. McLaughlin, Esq. and Maurice W. McLaughlin, Esq. and Robert Chewning, Esq. wrote the briefs.

The case involved an employee who filed a complaint against his employer for discriminating against him based on his “disabilities,” national origin, and race; retaliating against him for his reports of unfair and discriminatory labor practices; and creating a hostile work environment in violation of New Jersey’s Law Against Discrimination (“LAD”), New Jersey’s Conscientious Employee Protection Act (“CEPA”), and the common law under Pierce v. Ortho Pharmaceutical Corp.

As with most discrimination cases, one of the major issues was determining whether the employee was performing the essential functions of his job. This issue required determining whether regular attendance was an essential function of the employee’s job, and, if so, what level was regained and whether the employer was required to accommodate the employee’s absences. The Appellate Division concluded that the employee should be given the opportunity to establish that he was able to perform all of his essential functions with a reasonable accommodation. Because no discovery was produced by the employer relating to whether it could have accommodated the employee’s absences either through a leave of absence or modified work schedule – combined with the fact that the employer’s overall size and other available positions – the employee was denied a fair day in court.

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Being a cop is a tough job.  It is physically dangerous, and often thankless.  However, it is intensely important, and as a result our society places great trust, authority and responsibility in our law enforcement officers.  Because of this special trust, the law holds law enforcement officers to a higher standard.  And because of the job’s difficulty and importance, it also gives law enforcement officers greater due process rights than other employees before they are disciplined.

Employment Protections for Law Enforcement Officers

New Jersey employment law provides that permanent police officer may not be disciplined except for “just cause,” or have her employment terminated for political reasons – or indeed any reason “other than incapacity, misconduct, or disobedience of rules and regulations established for the government of the police department.”  An officer may be disciplined only after she receives notice of the charges against her and is given a fair and impartial hearing.  The specific language of the statute provides:

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Gender discrimination is one of the most heavily litigated areas of New Jersey Employment Law. The United States Third Circuit Court of Appeals recently issued an opinion involving the issue of “sex plus” gender discrimination which will apply equally to New Jersey’s state and federal courts.

What is “Sex Plus” Discrimination?

Although it didn’t call it that, the concept of “sex plus” discrimination was first adopted by the United States Supreme Court in a 1971 decision involving Title VII of the Civil Rights Act of 1964, in the case of Phillips v. Martin Marietta Corp. In that case a woman applied for a job in which three quarters of the employees were female, and thus it was clear that the employer did not discriminate against women. However, it did not accept applications from women with pre-school age children, while at the same time it accepted and employed men with pre-school age children. The Supreme Court found that this was sex discrimination because it placed barriers to work on women that it did not place on them.

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medical-marijuana-300x300While the sale and possession of marijuana are flatly illegal under federal law, and the illegal status of recreational marijuana under New Jersey law has not changed yet, the medical use of marijuana is legal under New Jersey’s Compassionate Use Act for ALS, anxiety, certain chronic pain conditions, migraine headaches, MS, opioid addiction, terminal cancer, muscular dystrophy, inflammatory bowel disease, Crohn’s disease, terminal illness with less than twelve months of life expectancy, and Tourette’s Syndrome. It may also be used to treat HIV, acquired immune deficiency syndrome and cancer if severe or chronic pain, severe nausea or vomiting, cachexia or wasting syndrome result from treatment.  Additionally, seizure disorder, epilepsy, Intractable skeletal muscular spasticity, glaucoma and PTSD qualify for medical marijuana treatment if the patient is intolerant of or resistant to conventional therapy.

The Interplay of Medical Marijuana and Disability Protections under New Jersey Employment Law

The Compassionate Use Act contains the language that “Nothing in this act shall be construed to require… an employer to accommodate the medical use of marijuana in any workplace.”  On the other hand, New Jersey’s Law Against Discrimination does require employers to make reasonable accommodation for an employee’s disability if the accomodation would allow her to work without causing undue hardship for the employer.  The conditions which allow for the use of medical marijuana under the Compassionate Use Act would in all likelihood constitute “disabilities” under the Law Against Discrimination.  These two laws, both of which laudably aim to protect vulnerable people, thus appear to be in conflict.

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New Jersey’s Law Against Discrimination makes it illegal for employers to discriminate against employees because they have a “disability.”

Law Against Discrimination also requires employers to make “reasonable accommodations” so that employees can do their jobs despite their disabilities.  New Jersey’s Workers Compensation Act requires employers to carry workers compensation insurance which provides for medical coverage and compensation for employees who are injured on the job.  However, there are relatively few cases examining the interplay of these two important New Jersey employment laws.  However, New Jersey’s Supreme Court recently issued an important decision on just this interplay in the case of Caraballo v. City of Jersey City Police Department.

Disability Discrimination and Reasonable Accommodation Under New Jersey Employment Law

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office-2009693__340-300x200New Jersey employment law generally recognizes that employees have a limited right to privacy in the workplace, including in their digital life.  However, a recent federal appellate decision limited the reach of employee privacy.  It is an unpublished decision, and therefore not binding.  However, it is a troubling outcome.

The New Jersey Supreme Court Finds Employees Have Privacy Rights

People generally have a right to privacy which they do not lose when entering the work force.  The New Jersey Supreme Court explained in the 1992 case of Hennessey v. Coastal Eagle Point Oil Co. that the source of this right in New Jersey Employment law comes from the New Jersey Constitution and the common law.  However, in that same case, the Supreme Court ruled that the right to privacy in the workplace is not absolute, and may yield to legitimate public policy concerns such as public and employee safety.