Labor and Employment

Published on: February 9, 2021

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

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 The unpublished opinion also examined what law an employee may bring suit under for whistleblower claims at the same time she is also bringing claims of discrimination and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.

Published on: December 23, 2020

Paid Leave Requirements Under the Families First Coronavirus Response Act Are Important New Jersey Employment Law Developments

by Pauline M.K. Young

As a result of the COVID-19 pandemic, the federal government passed the Families First Coronavirus Response Act (“FFCRA”) on March 18, 2020. This law includes two Acts providing for paid leave to be enforced by the US Department of Labor’s Wage and Hour Division. They provide great protections for New Jersey employees which should help the economic recovery.

These 2 Acts are the Emergency Family and Medical Leave Expansion Act, and the Emergency Paid Sick Leave Act. While the provisions were initially only supposed to apply from the effective photo__1894482_mclaughlin_nardi_4712 date of April 1, 2020 through December 31, 2020, they may be extended. Much depends on the current standoff between Congress and President Trump.

The Emergency Paid Sick Leave Act applies to all employers with less than 500 employees. No prior employment or employment history with the employer is required for employees to be covered. The Act generally provides for 80 hours (or 2 weeks) of paid sick leave to qualifying employees.

Published on: December 21, 2020

New Jersey Civil Service Appeal Process is a Two Way Street

by Maurice W. McLaughlin

As we have explained here before, the New Jersey Civil Service appeal process gives civil service employees a meaningful avenue for appealing discipline imposed by their government employers. However, a recent appellate opinion is a good reminder that this meaningful avenue for appeal is a two-way street. police-1714956__340-300x200

The New Jersey Civil Service Appeal Process

When a governmental employer wants to discipline employees with civil service protections, it must first give them a Preliminary Notice of Disciplinary Action (a “PNDA”) listing the charges and specifications against them. Employee then have the right to elect to have a hearing, and whether they do nor not, when final discipline is imposed, the employer must then give the employee a Final Notice of Disciplinary Action (an “FNDA”). For major discipline (a fine or suspension of more than five days, or termination), the employee has 20 days to file an appeal.

Published on: December 18, 2020

Opinions in Other Areas of New Jersey Law Provide Guidance When Challenging Arbitration Agreements in New Jersey Employment Contracts

by Maurice W. McLaughlin

It is interesting that the trend in New Jersey employment law is to enforce arbitration agreements in employment contracts, while at the same time finding them unenforceable in consumer and commercial contracts. However, the law is the same: whatever the area, arbitration agreements are interpreted and enforced – or not enforceable – under New Jersey contract law. It’s therefore worth looking at two recent opinions in these areas to see what can be learned.

The Knight Case: Consumer Contracts and Consumer Fraud

In the first, a published opinion in case of Knight v. Vivint Solar Developer, LLC, the Appellate Division of the Superior Court of New Jersey stuck down an arbitration agreement which the defendants tried to enforce in a consumer fraud lawsuit over the sale of solar panels. After Knight sued, Vivint filed a motion to courthouse-1223280__340-300x200 dismiss her complaint and enforce an arbitration agreement which required the parties to arbitrate their disputes.

Published on: November 19, 2020

Appellate Division Rules that New Jersey Civil Service Appeals Must be Decided Based on Independent Fact-Finding by Administrative Law Judge

by Maurice W. McLaughlin

The State and Federal Constitutions require that when the government takes action against someone that person must receive due process. For Civil Service employees, that process is the disciplinary appeals process. Therefore, in the case of In re Smith, Irvington Township, Department of Public Safety, the Appellate Division ruled that an administrative law judge and the Civil Service Commission could not rely on fact findings in a related but separate criminal trial. This is an cop important New Jersey employment law decision, because to meet the constitutional requirements of due process and fundamental fairness, the New Jersey Civil Service disciplinary appeals process must give a meaningful hearing to effected civil service employees.

Monique Smith was a career officer with the Irvington Police Department. On the day that she was promoted to captain, her boyfriend broke up with her by email. Captain Smith went to his apartment after the ceremony, and followed him when she saw him leaving in his car. Smith admitted driving over a center island during her drive. Smith was charged with eight traffic violations for this drive, including leaving the scene of an accident and reckless driving. The Department suspended Smith because of the charges. Based on this incident, Smith was also criminally charged with second degree aggravated assault, fourth degree unlawful possession of a weapon, third degree possession of a weapon for unlawful purposes, and fourth degree criminal mischief. The aggravated assault was dismissed by the State, and the criminal mischief charge was amended to a disorderly persons offense (a misdemeanor). A jury found Captain Smith not guilty of all the charges. The trial judge also heard the traffic offenses and found Smith guilty of reckless driving.

Prior to the decision, administrative disciplinary charges were filed against Smith for conduct unbecoming a public employee and five other violations stemming from the same conduct. A departmental disciplinary hearing was held and a six month working day suspension without pay was imposed. Smith appealed to the New Jersey Civil Service Commission. The Commission referred the matter to the Office of Administrative Law (the “OAL”) as a contested case. An administrative law judge (“ALJ”) held a two day hearing. The ALJ issued a recommended decision that the charges be upheld but that the penalty be reduced to a ninety day suspension. The ALJ also recommended that Irvington pay half of Smith’s attorneys fees as she was the prevailing party. However, the ALJ based her findings not on the evidence produced at the hearing, but rather wholly on the evidence and findings of fact from the criminal trial. Despite Smith’s exceptions, the Commission adopted the ALJ’s recommended decision, except that the ninety days would be ninety working days and it rejected the award of attorneys fees.

Published on: November 17, 2020

Facts Still Matter When Trying to Enforce Arbitration Agreement Under New Jersey Employment Law

by Maurice W. McLaughlin

The recent trend has been for courts to find arbitration agreements enforceable under both Federal and New Jersey employment law. However, prior to enforcing an arbitration agreement, courts must find that there was actually agreement. This simple concept was emphasized again by the Appellate Division of the Superior Court of New Jersey in the case of Christina Imperato v. Medwell, LLC.

In that case, Christina Imperato was hired by Medwell, a chiropractic office. She had a limited education and no prior medical or office experience. When she was hired, Dr. Ali Mazandarani sat with her and had her sign some pre-employment forms. They were not explained; Mazandarani sat with her, handed her the forms, and pointed to where she should sign. She was not given the opportunity to read these or take them home. The documents included a five page agreement which required that employment disputes be resolved by arbitration rather than court.

Imperato sued Medwell in the Superior Court of New Jersey for sexual harassment in violation of New Jersey’s Law Against Discrimination. Medwell’s attorneys filed a motion asking the court to dismiss the lawsuit and order the case to arbitration. The trial judge allowed discovery, including depositions, on the limited question of whether Imperato signed the arbitration agreement, and if so whether she signed it voluntarily and knowingly. The judge then held a hearing with live testimony on that single issue.