Labor and Employment

Published on: May 15, 2017

Guidance for New Jersey Employers and Employees About President Trump’s Executive Order Promoting Free Speech and Religious Liberty

rubics-cube-2108030__340-300x200 President Trump recently issued an “Executive Order Promoting Free Speech and Religious Liberty.” We have been asked what this will mean for New Jersey employers or employees. For private sector, and New Jersey state and local public sector employers and employees, the answer is probably not much, if anything. Let’s break it down by some of declarative provisions.

Section 1. Policy. It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom. ….Umm, well, that’s been the policy of the government for decades now, so nothing much should change there.

Sec. 2. Respecting Religious and Political Speech. All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech. In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury. As used in this section, the term “adverse action” means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit. First, again, protecting free speech and free exercise of religion are already the federal government’s policy. Discrimination by employers against employees is already prohibited by federal law, and both federal and New Jersey employment law require employers to provide “reasonable accommodation” so employees can exercise their religion, so no change there. And if you’re in the private sector – too bad; the First Amendment only protects you from the government, not your private sector employer. Further, those protections already exist in the public sector.

Published on: May 2, 2017

New Jersey Court Rules that Unemployment Benefits Should Not Lower Lost Pay Recoverable from Employer Which Discriminates Against Disabled Employee

by Maurice W. McLaughlin

wheelchair-1365410__340-300x300 Our employment lawyers represent employers and employees in New Jersey labor and employment litigation. Each employment case has two parts. The first is liability – did the employer commit the wrongful act of which it is accused by the employee? If the answer is no, the case is over; if the answer is yes, then the employee must prove damages. One question which has bedeviled courts is whether unemployment compensation received by an employee should reduce the damages she can receive for lost pay resulting from an allegedly discriminatory firing. The Appellate Division of the Superior Court of New Jersey has now answered this question with a resounding “no.”

New Jersey provides a wide range of employment protections to employees. These laws provide for a range of remedies if employees are the victim of unlawful conduct by their employer. Some laws provide for recovery of damages for emotional distress. Sometimes, in especially egregious cases, punitive damages may be available. If the particular statutes provide for it, such as New Jersey’s Law Against Discrimination (known as the “LAD”) and the Conscientious Employee Protection Act (known as “CEPA”), if the employee is successful at trial the court may even order the employer to pay the employee’s attorneys fees.

The basic element of damages in employment cases, however, is lost pay. All other elements of damages flow from lost pay. If an employee is unemployed for a year, the pay she would have made during that time is recoverable as damages if she wins her suit. If after a year she then gets a job earning $10,000 per year less, the difference is recoverable as well. If after a year she gets a job making the same or more money, her damages end when she gets the new job.

Published on: April 25, 2017

Continued Clarifications of the Conscientious Employee Protection Act

by Pauline M.K. Young

police-1714956__340-300x200 New Jersey’s Conscientious Employee Protection Act (“CEPA”) provides a remedy for employees who are wrongfully terminated in retaliation for objecting to conduct which is believed to be illegal. This Act is often referred to as the New Jersey “whistleblower law.” In fact, it is one of the most liberally interpreted and expansive whistleblower laws in the country. CEPA is a relatively new law, enacted n 1986, and thus has been the subject of much debate, misunderstanding, and misapplication.

CEPA provides wrongfully terminated or retaliated against employees with an avenue to seek redress. An employee is protected under CEPA if she disclosed, objected to, or refused to participate in an act, policy, or practice of the employer which the employee reasonably believed violated a law, regulation, or public policy. If the employee is then fired, harassed, or otherwise retaliated against as a direct result of the disclosure, objection, or refusal, that employee may have a claim under CEPA.

In the recent case of Fraternal Order of Police, Lodge 1 v. City of Camden, police officers brought an action against the City claiming (among other things) retaliation in violation of CEPA for the officers’ objections to the City’s policies regarding police-civilian interactions, based upon the belief that the policy violated the anti-quota law.

Published on: April 6, 2017

Sexual Orientation Discrimination in the Seventh Circuit and Comparison with New Jersey’s Law Against Discrimination

by Maurice W. McLaughlin

pencil-1385100__340-300x200 Here at the New Jersey Lawyers Blog we usually stick to New Jersey law (the name is probably a giveaway). However, a federal decision this week in the United States Court of Appeals for the Seventh Circuit (with jurisdiction over appeals from the federal courts in Illinois, Indiana and Wisconsin) deserves mention. In the case of Hively vs. Ivy Tech Community College of Indiana, the Seventh Circuit held that firing an employee because of her sexual orientation is illegal sex discrimination in violation of Title VII of the Civil Rights Act of 1964. It became the first Federal appeals court to so hold. It broke with many of its sister circuits. The United States Supreme Court has never decided the issue.

Kimberly Hively was a part-time adjunct professor at Ivy Tech. She applied for at least six full time teaching positions but was rejected each time. Finally, her part-time contract was not renewed. Hively was only lesbian. She filed a complaint with the U.S. Equal Employment Opportunity Commission (the “EEOC”) alleging sex discrimination in violation of Title VII because she claimed that had been terminated because of her orientation. The EEOC issued a right to sue letter, and she filed suit in the United States District Court for the Northern District of Indiana pro se (on her own without a lawyer). The District Court dismissed her suit, ruling that discrimination because of sexual orientation was not protected by Title VII. She appealed to the Seventh Circuit. Initially a three judge panel of the Seventh Circuit agreed with the District Court and ruled against her. However, the entire court then voted to hear her appeal en banc (by the whole court), and reversed its prior decision.

The Seventh Circuit had several reasons for its holding. First, in 1989 the Supreme Court held that the practice of gender stereotyping was illegal sex discrimination. Then in 1998 it held that it made no difference whether or not the harasser was of the same or a different gender as the victim provided that the harassment was because of the victim’s gender. It then reasoned that if the stereotype is that a woman should marry a man Hively would not have been fired if she had married a person of the other sex, then she was discriminated against because of her gender because she married a woman, a person of the same sex.

Published on: March 23, 2017

New Jersey’s Law Against Discrimination: Damages in Consideration of Unemployment Benefits

by Pauline M.K. Young

images New Jersey’s Law Against Discrimination (the “LAD”) makes it unlawful to discriminate against someone on the basis of race, age, nationality, gender, religion, sexual orientation and several other specifically protected groups. While this covers an array of relationship scenarios, it is often applied in the context of an employment relationship.

Any person who has been subjected to unlawful discrimination in employment may file a lawsuit under the LAD. The LAD specifically provides for remedies to include all those that are available in typical tort actions. A tort action is generally a civil action in which one person or entity sues another for some wrongful conduct which the actor committed in breach of some actual or implied duty to the other person or entity (other than by way of a breach of contract). These damages may involve a number of categories such as back (past lost) pay, front (future) pay, emotional distress, lost benefits, etc. The act also provides for punitive damages – meaning damages in addition to actual losses which are imposed to punish the wrongdoer for egregious and/or intentional acts, and deter future wrongful acts.

In virtually every employment discrimination case, the plaintiff is required to mitigate her losses. This means that an employee who has, for example, been fired because of a discriminatory purpose or motivation, must make reasonable efforts to find another job to reduce her damages.

Published on: March 10, 2017

Age Discrimination Under Federal and New Jersey Employment Law – Illustrated by Two Recent Cases

by Maurice W. McLaughlin

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Our employment law department represents private sector employers and public and private sector employees. One of the most prevalent claims we see is age discrimination in the workplace.

Age Discrimination Laws

Age Discrimination is illegal under both state and federal law. New Jersey employment law prohibits this under the Law Against Discrimination. The Federal law prohibiting age discrimination is the Age Discrimination in Employment Act, or the “ADEA.” Both laws prohibit discriminating against employees or job applicants because of their age, although the coverage is much different. Two recent cases illustrate these differences.

Published on: February 28, 2017

New Case on Teacher Arbitration from New Jersey Supreme Court

by Maurice W. McLaughlin

chalk-1551571__340-300x229 In the case of Bound Brook Board of Education v. Ciripompa, the Supreme Court reviewed the extreme deference which courts are required to give arbitrator’s decisions. However, the Supreme Court explained that this deference to the arbitrator is not unlimited.

In the Bound Brook case, two tenure charges were filed against a teacher. The teacher, who had tenure, had allegedly been engaging in pervasive misuse of his employer-issued computer and inappropriate conduct toward female coworkers, allegedly often in the presence of or involving students. After an investigation, the Board determined that the teacher should be fired and tenure charges were filed against the teacher.

The first count of the tenure charges was “conduct unbecoming.” The second count was not labeled, but contained allegations of inappropriate conduct and harassing behavior toward coworkers, some of a sexual nature, and occasionally involving students. Like the local board of education, the New Jersey Commissioner of Education likewise found dismissal warranted and submitted the charges for review by an arbitrator pursuant to the TEACHNJ Act.

Published on: February 21, 2017

Recent Decision by New Jersey’s Appellate Division Clarifies Requirements for Rice Notice to Employee Whose Employment May be Terminated

by Maurice W. McLaughlin

student-2052868__340-300x198 Our employment attorneys represent New Jersey public sector employees in disputes with their governmental employers. One area in which we frequently see disputes is the failure to give a “Rice Notice” to employees whose employment may be affected by an action by their governmental employers.

New Jersey employees, including non-tenured employees, have the right to advanced notice whenever a governing body, such as a town council or a board of education, is going to discuss the employee’s employment. This notice is called a “Rice Notice” after the case of Rice vs. Union County Regional Board of Education, which upheld the right. Normally, under New Jersey’s Open Public Meetings Act, personnel actions must be discussed in closed session unless all the affected employees request in writing that the discussion be held in the open during the public session of the meeting. The Rice Notice gives the employee the notice they need to actually exercise that right.

In the recent case of Kean Federation of Teachers vs. Morell, the Appellate Division of the Superior Court of New Jersey had the opportunity to take a fresh look at the requirements for a Rice Notice. In that case the Court was faced with a situation where the Board of Trustees of Kean University delegated the task of evaluating recommendations by the University President for the retention or dismissal of faculty members. The subcommittee evaluated the University President’s recommendations and made its own recommendations to the Full Board. The full Board of Trustees then voted on those recommendations without discussion. The Board argued that because it did not actually discuss any employment matters, but just voted without discussion,a Rice Notice was not necessary.

Published on: January 25, 2017

Educational Emergency Certificates and their Effect on Tenure

by Robert Chewning, Esq.

school-93200__340-300x200 In New Jersey, certifications are generally required for all professional staff members in public schools and other institutions regulated by the New Jersey Department of Education. There are various types of certificates based on the type of employment you are seeking (i.e., teachers, principals, school psychologist, etc).

Emergency certificates are issued to a limited amount of personnel within the educational services category including school social workers, school counselors, and associate library media Specialists. For a full list of positions where emergency certificates may be issued, please visit New Jersey’s Department of Education website.

The regulation governing emergency certifications is N.J.A.C. §6A:9B-5.12, which sets forth when, by whom, and for what reasons emergency certificates may be issued. Emergency certificates may be issued at any point in the school year but, regardless of when they are issued, they expire on July 31^st of each year. They serve an important purpose by allowing a board of education to apply for an emergency certificate for a candidate if that particular board of education is unable to locate a candidate with a provisional or standard certificate to fill the position.

Published on: January 25, 2017

Appealing Civil Service Disqualification for Medical or Psychological Reasons

by Maurice W. McLaughlin

Our firm’s employment lawyers handle a significant number of New Jersey civil service issues. One of the most vexing is removal from a list of eligibles because of medical or psychological disqualification.

Hiring for the vast majority of civil service jobs is determined by merit based on competitive examinations. One thing that may disqualify an applicant is disqualification because of an alleged psychological or medical condition which would render the candidate unable to effectively perform the requirements of the job she is applying for.

Generally the disqualification will not happen until after the examination is complete, the results are tabulated, and a list of eligibles is generated. Prior to an offer of employment being made the employer cannot require the applicant to submit to a medical or psychological examination. After the offer of employment is made, however, the applicant may be required to submit to a medical or psychological examination as a condition of employment, provided that all other applicants to whom offers are extended are required to undergo an evaluation as well. If the results indicate the applicant cannot perform the essential duties of her job because of a psychological or medical condition, the employer can request that the Civil Service Commission remove her name from the list.