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Articles Posted in Labor and Employment

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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 Contract-pen-thumb-300x225-80678-300x225the 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.

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Background

In the wake of the death of George Floyd, New Jersey Attorney General Gurbir S. Grewal issued two directives amending New Jersey’s Internal Affairs Policy and Procedures (commonly referred to as the “Attorney General Guidelines” or the “IAPP”).  The thrust of these directives is to allow for the disclosure of New Jersey police-1714956__340-300x200law enforcement officer disciplinary records to promote transparency and confidence in police departments and internal affairs disciplinary procedures, as well as to broaden the discovery available to criminal defendants.  Those issues are worthy of a dissertation in themselves, but here I want to focus briefly on their effect in New Jersey employment litigation.

Problems Shielding Records in Employment Law Cases

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A while ago I wrote a blog detailing the disciplinary process and appeal rights of non-civil service police officers under New Jersey employment law.  The Appellate Division of the Superior Court of New Jersey recently issued an opinion clarifying who is and isn’t a law enforcement officer entitled to these rights.police-hoboken-train-station

New Jersey Civil Service confers extensive due process rights on public employees before a government employer may impose discipline, including appeal of discipline to the New Jersey Civil Service Commission.  However, non-civil service employees, including police officers, do not have those protections, however.

Therefore, to increase the protections and legal rights for non-civil service police officers, the Legislature adopted several laws,  the first of which provides:

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Federal versus State Courts for New Jersey Employment Law

Employees who sue their employers for violating New Jersey employment law most often choose to litigate in state court because New Jersey employment law and courts are viewed as more favorable to employees, while employers seek to litigate in Federal court, because federal courts and employment law are seen as courthouse-1223280__340-300x200more friendly to employers.  However, there are exceptions.  For instance, public employees sometimes have additional remedies under federal employment law, and employees can litigate their state and federal law claims together in federal court.  A good example of this can be seen in a decision in  Chesler vs. City of Jersey City by Judge Susan D. Wigenton of the United States District (New Jersey’s federal trial court).

The Chesler Case

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A recent appellate decision in the case In the Matter of Christopher D’Amico, City of Plainfield Fire Department demonstrated once again that New Jersey civil service employees have an effect means of redress for when they are wrongfully disciplined.

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The D’Amico Case

Christopher D’Amico passed the New Jersey Civil Service test and was hired to be a firefighter by the City of Plainfield, a civil service jurisdiction.  As part of his application, D’Amico was required to prove their residency.  D’Amico submitted several documents, including an insurance card.  He admitted that he modified the card to list his actual residence in Plainfield.  Plainfield’s hiring committee recommended against hiring D’Amico because of the alteration, but the Fire Chief hired him anyway.  D’Amico attended the fire academy.  A citizen questioned several cadets’ residencies.  The concern about D’Amico was determined to be unfounded, but the City reexamined his application.  Even though the address was accurate and the change was known by the City when it hired him – and was admitted by D’Amico – the Director of Public Safety ordered the Chief to terminate D’Amico’s employment.  When D’Amico and two other cadets reported to the Department for their first day of work they were fired, in D’Amico’s case not because of his residence, but because of the alteration.

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The Appellate Division of the Superior Court recently issued an opinion on New Jersey employment law discussing the nature of sexual harassment and when a us-supreme-court-300x200tort claim notice must be served in the employment context.

 
The Willis Case

In this case, Willis v. Walker, Fuller and the College of New Jersey, Ratarsha Willis was employed as a senior building maintenance worker by The College of New Jersey (“TCNJ”). Willis and Walker had a consensual affair, during with Walker recorded their tryst on his cellphone in flagrante delicto.  Willis did not report to Defendant Walker, but he could assign her work.  Walker advised Willis that he showed the video with other employees, including Fuller, because she was teasing Walker that “his penis was little.”  Fuller, a supervisor, discussed the video with other TCNJ employees, but took no action to stop the conduct or report it to human resources.

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The New Jersey Supreme Court once again expanded  the enforceability of arbitration agreements under New Jersey employment law.  In its opinion in Skuse vs. Pfizer, Inc., the Court left in place the requirements necessary for agreements to arbitrate employee/employer disputes columns-round-300x201under New Jersey employment law, but in its application let the exceptions swallow the rule.

Pfizer’s Arbitration Agreement

Pfizer adopted an arbitration “agreement” – actually, more of a policy.  It was not a contract signed by an employee and Pfizer.  Rather, the employee was deemed to have agreed to arbitrate employment disputes if she continued working for Pfizer for sixty days after the policy’s effective date.  Employees were notified by email (to over 28,000 employees) about the policy and given a deadline to “acknowledge” having received it.  Whether the employees did or did not acknowledge receipt, they would be deemed to have “agreed” to the policy by their continued employment.  There was a training module with four slides which purported to explain the policy; one of the slides gave the employees the option to print a copy, but they were not given a copy by Pfizer; another thanked the employee for taking the training.  In the FAQ section of the training module employees were told that if they did not agree they would be fired.

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An important New Jersey employment law decision was recently issued by the Appellate Division in the case of Dibuonaventura vs. Washington Township.  Thesupreme-administrative-court-3565618_960_720-300x200 case has a long and tangled history, but this decision illustrates several important employment law rules affecting New Jersey government employees.

Background: Dibuonaventura I & II

Joseph Dibuonaventura was a police officer in Washington Township.  In 2012, he pulled over the Township’s former mayor and charged him with driving while under the influence of alcohol and refusing to take a breathalyzer test.  The former mayor disputed the charges and lodged internal affairs and criminal complaints against Officer Dibuonaventura.  Eventually the officer was indicted, and the Township suspended him pending the outcome of the criminal charges.  He was eventually found not guilty of all criminal charges by a jury.

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A recent New Jersey employment law decision in the case of Matter of Shyner examined the procedures available to New Jersey State Troopers to appeal employer imposed discipline, and the standards which appellate courts will utilize to review disciplinary decisions by the Superintendent of New Jersey State Police.

The Shyner Case.

Dawn Shyner was a lieutenant in the New Jersey State Police.  In 2014 she called 911 because of an altercation with her estranged husband; local police responded.  No charges were filed, nor was a domestic violence restraining order sought.  In accordance with New Jersey State Police protocols, she notified her supervisor and surrendered her weapon.  During that meeting her supervisor told her that he did not believe the incident would result in a domestic violence investigation, although undoubtedly an ordinary internal affairs investigation would ensue.

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The Arafa Case

The New Jersey Supreme Court issued an opinion in the case of Arafa v. Health Express Corporation in a consolidated appeals about a niche question regarding the interplay of the Federal Arbitration Act (the “FAA”) and the New Jersey Arbitration Act (the “NJAA”) regarding the judge-gavel-1461998219JBc-300x200enforceability of agreements in employment contracts to arbitrate disputes under New Jersey employment law.  The consolidated cases were both brought as class actions by employees whose duties included driving to make deliveries for their employers.  In one of the appeals it was clear that the employees were making deliveries outside the state as well as in it, and were therefore engaged in interstate commerce; in the other it was not clear.  In both cases the employers argued that the cases were not covered by the FAA, which contains an exemption which provides that the FAA will not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” which the United States Supreme Court has defined to include interstate deliveries.  Because the drivers were not covered by the FAA due to the exception, the employers argued, they were covered by the NJAA, which did not contain such an exemption, and the arbitration agreements were therefore enforceable.  Thus, the employers argued, the lawsuits in Superior Court should be dismissed and the cases submitted to binding arbitration.  The trial judges in the Law Division of the Superior Court of New Jersey agreed with the employers and dismissed the suits and ordered them to arbitration.  In both cases, the employees separately appealed, and different panels of the Appellate Division of the Superior Court reached different decisions.  To resolve the split, the New Jersey Supreme Court agreed to hear the appeals.

Why does this matter?  If it seems pretty arcane, it has significant real world consequences.  First, the employees sued for unpaid overtime under the New Jersey Wage and Hour Law because New Jersey law and New Jersey courts are seen – rightly or wrongly – as more friendly to employees than federal court, which of course is why the employers didn’t want the case there.  Moreover, arbitration is seen as much more friendly to employers than employees, which is why the two sides were fighting over it.

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