Articles Posted in Labor and Employment

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baby-2242638__340-300x210New Jersey’s Law Against Discrimination gives employees some of the strongest legal protections against discrimination and harassment in the nation.  However, these protections have recently been expanded.  In one of his last acts as governor, Chris Christie signed the Legislature’s amendment to the Law Against Discrimination its protections to include mothers who are breastfeeding.

The New Jersey Law Against Discrimination

The Law Against Discrimination was enacted in 1945, placing New Jersey at the forefront in protecting employees’ from workplace discrimination.  Indeed, the Law Against Discrimination was the first statewide civil rights enforcement law.  Since then it has been amended many times by legislation and court decisions, always expanding and strengthening New Jersey’s protections against discrimination.

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the-dollar-3125419__340-300x200Some of the areas in which businesses make their largest investments of time and expense are trade secrets (including customer lists) customer relations and client development, and employee development.  However, these interests may conflict, especially when highly placed employees leave a firm.  This is an area of potentially bitter dispute in New Jersey business law and employment law.

Businesses have many trade secrets, but the most important of these is often information regarding its customers.  Because of intense competition, and the time, effort and expense which businesses invest in cultivating their clients, customer lists, especially customer lists in service industries, are protected by the common law and New Jerseys Trade Secrets Act.

Businesses also invest significant expense in training and developing their employees, even aside from salary and benefits.  Thus, New Jersey business law and employment law imposed a duty of loyalty on employees, even those who do not have a restrictive covenant.  This duty of loyalty prohibits employees from competing with their employers while they are employed.  An employee may not induce her employer’s employees or customers to leave her employer, nor may she appropriate her employer’s trade secrets.  The employee may plan to leave, and if the employee does not have a restrictive covenant she can even seek employment with competitors or even set up a business entity which will compete with the employer after she leaves. However, the employee cannot go beyond the planning stage while still employed.

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help-164755__340-300x199The New Jersey Appellate Division recently issued a decision which found an arbitration agreement unenforceable against a plaintiff who was alleging age discrimination under New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-1 (“LAD”). Our attorneys represent both employers and employees in employment law, and the determination of whether an arbitration agreement is enforceable is one of the first issues that must be decided in any case where there is a signed arbitration agreement.

The decision was in the case of Flanzman v. Jenny Craig, Inc.  In that case, the employer, Marilyn Flanzman, was an eighty-two year old former weight loss counselor who worked for Jenny Craig, Inc. for twenty-six years.  Who filed suit for alleged age discrimination and harassment.  The trial court below compelled the case to proceed to arbitration.  Marilyn filed an appeal based on the trial court’s order to compel arbitration.  On appeal, the Appellate Division was asked to determine whether the arbitration agreement between the parties was invalidated because the parties failed to identify any arbitration forum or process for conducting the arbitration.

The Appellate Division ultimately ruled that the parties lacked a “meeting of the minds” and therefore held that the arbitration agreement was invalid, reversing the trial court’s decision below.  The Court came to its decision because neither party could identify the rights that plaintiff was given under the arbitration agreement in exchange for plaintiff waiving her right to a jury trial.  In its opinion, the Appellate Division found “selecting an arbitral institution informs the parties, at a minimum, about the institution’s general arbitration rules and procedures.  Without knowing this basic information, parties to an arbitration agreement will be unfamiliar with the rights that replaced judicial adjudication.  That is the parties will not reach a ‘meeting of the minds.’”

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agreement-300x200The Appellate Division of New Jersey’s Superior Court recently issued an instructive decision about arbitration agreements in employment law disputes.  The case does not invalidate arbitration agreements – they are protected by both federal and New Jersey law – but it does show that the trend is that arbitration agreements are being construed strictly against the employers which drafted them.

The Skuse Case

In the case of Amy Skuse v. Pfizer, Inc., the Appellate Division invalidated an electronic arbitration agreement used by Pfizer for all its employees.  The “agreement” was not on paper, but an electronic “training module.”  Employees received an email which instructed them to complete the “electronic training.”  Even if they didn’t, complete the training module, the employees would have be deemed to have agreed to the arbitration provision by continuing to work for Pfizer for another 60 days.  The module allowed them to scroll past the text of the provision, and did not provide for the employees to indicate their agreement to arbitration, only their “acknowledgement” of the policy.  The module then thanked the employee for “reviewing” the policy, but not for agreeing to it.

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yes-3029367__340-300x158The United States District Court for the District of New Jersey recently issued a decision which illustrates some of the weaknesses in both Federal and New Jersey Employment law, particularly Title VII of the Civil Rights Act of 1964 and New Jersey’s Law Against Discrimination.  Our attorneys represent both employers and employees in employment law, and this issue is of utmost concern to us.

The decision was in the case of Axakowsky v. NFL Productions, LLC, d/b/a NFL Films.  In that case, Nadia Axakowsky sued NFL Productions, LLC, for sexual harassment under Title VII of the Federal Civil Rights Act of 1964 and New Jersey’s Law Against Discrimination.  The judge dismissed the case on summary judgment, ruling that Axakowsky was an independent contractor and therefore was not protected by either law.

The judge undertook a detailed analysis under federal case law interpreting Title VII.  Culminating with the United States Supreme Court’s decision in Nationwide Mutual Insurance Company v. Darden in 1992, the federal courts have developed a test to determine whether a worker classified as a contractor is in reality an employee entitled to protection under Title VII.  The judge went into detail examining all the factors in the relationship, and determined that Axakowsky was in reality a contractor, not an employee, and therefore not entitled to protection under Title VII.  Without going into detail, given that Axakowsky worked only one and a half hours per week as a voice-over artist and continued to audition for and accept other work, the analysis was in all likelihood correct.

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silhouette-3299358__340-300x274As previously discussed here, on May 2, 2018, New Jersey’s Governor, Phil Murphy signed into law New Jersey’s Paid Sick Leave Act (the “Act”).  The Act took effect on October 29, 2018.  The New Jersey Department of Labor and Workforce Development (“NJDOL”) issued proposed regulations to further address the employees’ rights and employers’ obligations under the Act.

Below is a list of several areas where the proposed regulations provided additional guidance to the Act itself:

1. Exempt Employees under the Act.

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creative-signstop-age-discrimination-260nw-520754950-300x215Amazingly, despite the law being clear for many years that age discrimination in employment is illegal, and despite the fact that both research and experience have shown the value of mature workers, age discrimination against older employees continues to be widespread in New Jersey and the country at large.  Both the Federal Age Discrimination in Employment Act and New Jersey’s Law Against Discrimination provide strict prohibitions against employers and supervisors discriminating against older employees.

Sometimes, however, the boundaries of these laws are unclear, and guidance from the Courts is required.  On November 6, 2018, the United States Supreme Court issued an important decision affecting the rights of state and local government employees under the Age Discrimination in Employment Act.

The Mount Lemmon Fire District Case and the Age Discrimination in Employment Act

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we-566326__340-300x135On June 27, 2018, the United States Supreme Court issued an important employment law decision in the case of Janus v. American Federal of State, County and Municipal Employees (“AFSCME”). Prior to Janus, the general law was that public sector unions (i.e. unions comprised of governmental employees) could collect fees from employees even when the employee did not want to join the union. The prior law was set in the case of Abood v. Detroit Board of Education,a prior United States Supreme Court case from 1977.

In Abood, the Court held that a public employee could still be required to pay union dues to cover collective bargaining, contract administration, and grievances even if they refused to join the union. The employee could only opt out of paying a portion of fees which were used for political purposes. Much of the reasoning for that holding was that public employees would benefit from union activities and thus should have to pay for such activities; however they did not need to pay for ideological or political support which the employee did not support. Being forced to make donations to political candidates through mandatory union dues was found to be a violation of First Amendment rights.

However, the Janus ruling changed that long-followed law. Janus argued that everything a public-sector union does (including bargaining for wages) is inherently political because it involves the use of taxpayer money, and therefore all mandatory union dues protected by the First Amendment. One concern is that this could potentially have a negative effect upon democratic political support where unions are generally very active in supporting candidates.

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autumn-house-3689939__340-300x159Our employment attorneys represent applicants who have been removed from lists of eligibles for Civil Service positions for a variety of reasons including disqualification for failing background check, failing to maintain residency, and psychological and medical disqualification.

When applying for a Civil Service position, one requirement that may get overlooked by a potential applicant is the residency requirements for that position within a specific Civil Service jurisdiction.  All open competitive examination announcements should state the residency requirements for that position and, unless otherwise specified, that these requirements must  be met until the announced closing date and/or as of the date of the appointment.  N.J.A.C. 4A:4-2.11(a).

N.J.A.C. 4A:4-2.11(b) defines residence as a single legal residence.  Factors for determining an individual’s residence for local service have been developed through N.J.A.C. 4A:4-2.11(c) and discussed in cases such as In the Matter of Roslyn L. Lightfoot (MSB, decided January 12, 1993) and In the Matter of James W. Beadling (MSB decided October 4, 2006.)  These factors include:

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Our employment law attorneys represent public employees in all phases of their employer-employee relationship.  We regularly represent civil service employees in appealing the imposition of discipline.  One of the bedrock principles of New Jersey civil service employment law is the concept of “progressive discipline.”

Background

New Jersey has a long history of government employment decisions being made for political reasons – this is, after all, the state of Frank “I Am The Law” Hague.  That is why New Jersey Legislature established the civil service system in 1908 to remove political influence, favoritism, cronyism and nepotism from decision making in the hiring, firing and discipline of New Jersey government employees.  Today, the Civil Service Act and the regulations adopted by the Civil Service govern hiring for employees of the State of New Jersey, twenty of New Jersey’s twenty one counties, and many of its municipalities, boards and commissions.  For the State of New Jersey then, and the local governments which have adopted the civil service system, employee discipline is governed by civil service.