Labor and Employment

Published on: October 28, 2013

New Jersey’s Administrative Law Courts

As our society has grown more complex, the government has been forced to take on more responsibilities. It created administrative agencies in the executive department, including for example, the Department of Environmental Protection, the Board of Public Utilities, the Merit System Board, the Department of Community Affairs, the Casino Control Commission, and Health and Senior Services. These agencies regulate in their respective areas, investigate and prosecute violations, and make decisions and issue penalties. These agencies are known as the “fourth branch” because they combine the functions of all three government branches.

The New Jersey Office of Administrative Law (“OAL”) is an independent state agency that provides independent and neutral hearings over these agency’s actions and rulemaking procedures. Administrative Law Judges (“ALJs”) hold trials to determine facts and make recommended decisions when individuals dispute agency actions. The agency itself then makes final decisions based on the ALJ’s opinion, which can be appealed to the Appellate Division of New Jersey’s Superior Court, and then to the New Jersey Supreme Court.

What To Expect At An OAL Hearing

A request for a hearing should be sent to the appropriate state agency making a decision. That agency will then send the case to the OAL for a hearing. In “contested cases” an ALJ will be assigned, and hold a trial. The ALJ makes a recommended decision which it sends to the agency that sent the case to the OAL. The head of that agency will review the opinion and has the right to adopt, reject, or modify the opinion. That agency’s head is the final decision maker. An appeal of the final decision is available to the Appellate Division of the Superior Court within forty-five days of the date of the final decision.

Notice of Filing

When a case is sent to the OAL a Notice of Filing or a Notice of Filing and Hearing is mailed to all the parties. The notice will identify the agency that sent the request and will generally contain information that can help a party prepare for a hearing, including the issues that will be discussed at the hearing.
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Published on: October 25, 2013

New Jersey’s Security and Financial Empowerment Act

by Pauline M.K. Young

New Jersey has recently enacted the Security and Financial Empowerment Act (“SAFE Act“). This law requires many public and private employers to allow employees to take an unpaid leave of absence up to 20 days in any 12-month period if that employee or someone in the employee’s immediate family (child, parent, or spouse) is a victim of domestic violence or a sexually violent offense.

The leave must be taken for the purposes of seeking medical attention or recovering from physical or psychological injuries, obtaining services from a victim services organization, obtaining counseling, participating in safety planning or relocation, or seeking legal assistance or other legal remedies as a result of sexual or domestic violence.

Each incident of domestic violence or a sexually violent offense is considered separate, each providing for up to 20 days of leave. Leave may be taken intermittently, as opposed to all together, but must be taken in full days. Therefore, if the person taking leave only needs to be out of work from 2-5p.m. on Monday and Thursday, she may take leave on both Monday and Thursday, but one full day of the leave will be credited, even if she is only gone one half day (she must, of course, be paid for the time she worked).

Although the employer is only required to grant unpaid leave, an employee may elect or an employer may require that the employee use paid vacation, sick, or personal time for all or part of the leave.
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Published on: October 9, 2013

New Jersey Disability Discrimination

by Maurice W. McLaughlin

Almost 29 million people over 16 years old had a disability. Of these,
approximately 6,000,000, or 21 per cent, were in the labor force, compared with almost 150,000,000 million people without a disability, for a 68 per cent participation rate.

Discrimination is prohibited under both New Jersey’s Law Against Discrimination (the LAD), and the federal Americans With Disabilities Act (the “ADA”. New Jersey’s Law Against Discrimination considers a wide range of conditions to be “disabilities,” thus providing a far more extensive scope of coverage than the Americans With Disabilities Act. New Jersey’s courts have expressly ruled that a disability does not need to be severe. Examples demonstrating this wide scope of coverage include court rulings that the following are protected disabilities: obesity; alcoholism; heart attacks; back ailments; varicose veins; cancer; removal of the kidneys, adrenal glands, lymph nodes and ribs; mastectomies; coronary bypass surgery; alcoholism and other substance abuse; gender dysphoria; transsexualism; and shoulder and arm injuries.
Indeed even perceived handicaps are protected.

Disability discrimination in any manner is prohibited under both acts. However, disability discrimination generally falls into three areas – direct adverse termination actions, harassment, and failure to accommodate.

Adverse employment action discrimination is straightforward. An employer may not fire, fail to promote, pay less, or in any other way treat a disabled employee differently than an able-bodied employee solely because of her disability, provided the employee can perform her job with “reasonable accommodation.”

Second, an employer may not harass an employee because of her disability to the point of creating a severe or pervasive hostile work environment. Examples of harassment include name calling, offensive remarks about the employee’s disability, public (in front of co-workers or customers, etc.) criticism or yelling, inconsistent treatment (for example, giving a work schedule which is more inconvenient that those given to non-disabled employees, or denying training opportunities), intentional exclusion from critical work meetings or social functions; displaying offensive materials at work; unfair or disparate denial of vacation; threats of discipline or firing; and physical violence or intimidation.
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Published on: October 7, 2013

The New Jersey Smoke Free Air Act

by Boris Peyner

New Jersey passed the Smoke Free Air Act in 2006. The Act is part of New Jersey’s effort to eliminate tobacco use because it is a significant public health threat. The United States Surgeon General has declared that secondhand smoke is a serious health hazard that leads to premature death in children and non-smoking adults.
The Smoke Free Air Act serve an important public purpose: Banning smoking in indoor “workplaces” and “public access” places. The Act ensures that people have same smoke-free workplaces and citizens can breathe smoke-free air in public places. Almost every place outside the home is affected, except for registered cigar bars.

In New Jersey, smoking is banned in places such as offices, restaurants, factories, bowling alleys, stores, malls, hotels (twenty percent of the rooms may be used for smoking), and private clubs. It is banned outside grammar schools and high schools. Smoking is also prohibited in workplaces and within twenty-five feet of a workplace. A “workplace” includes any area where some type of service or labor is performed, regardless of how much time workers spend working. “Workplace” also includes locations were volunteer work is performed. The Act applies to smoke break areas outside of the building, including outdoor patios and decks that are attached to a building

Recently an amendment was passed which bans the use of an electronic smoking device (i.e., “e-cigarette”) in indoor public places and workplaces. New Jersey is the first state to pass the “e-cigarette” law.
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Published on: September 27, 2013

Minimum Wage & Overtime in Employment Law

by Pauline M.K. Young

The minimum wage in New Jersey is $7.25 per hour. New Jersey law requires that all “non-exempt” private sector employees must receive “overtime” pay – one and a half times their normal hourly rate – for all time worked in any given week in excess of forty hours.

While New Jersey, like all states, has the option of providing a higher minimum wage, New Jersey’s current minimum only just meets the federal requirement of a $7.25 per hour minimum wage, which went into effect July 24, 2009.

Exempt employees are those who work in executive, administrative, or professional capacities. In any of these categories, the employee must made at least $455 per week to be exempt from overtime requirements.
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Published on: September 20, 2013

Harassment and Anti-Discrimination Policies

by Pauline M.K. Young

New Jersey protects employees from discrimination and harassment in employment when the discrimination or harassment is based upon a protected type or classification of person. For instance the following classes are protected by New Jersey’s Law Against Discrimination: age, race, creed/religion, color, national origin (your family’s country of birth), nationality (your country of birth or where you are a citizen), and service in the United States armed forces.

The Law Against Discrimination also protects people from discrimination based upon their gender, pregnancy, sexual orientation, marital status, familial status (though typically only with respect to housing discrimination), civil union status, domestic partnership status, gender identity or expression. Further, it also protects classifications based upon mental or physical handicaps or disability, perceived disability, AIDS/HIV status, genetic information, atypical hereditary cellular or blood trait, refusal to submit to a genetic test or make available the results of a genetic test to an employer, and any other characteristic protected under applicable federal, state or local laws or regulations.

The Law Against Discrimination not only covers employment practices, but also prohibits unlawful discrimination in housing, credit and business contracts, and places of public accommodation.
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Published on: August 23, 2013

New Jersey Employers Must Take Discrimination Complaints Seriously or Face Significant Consequences

by Boris Peyner

New Jersey employers should be wary to take all allegations of retaliation or discrimination seriously or face significant consequences. New Jersey employment law provides some of the strongest protections in the nation for employees. In New Jersey employees are protected against discrimination and whistle-blowing retaliation.

New Jersey’s Law Against Discrimination (the “LAD”) applies to all employers. The LAD prohibits discrimination or harassment in employment for a prohibited reason, including race, religion, color, gender, national origin, nationality, ancestry, age, marriage status, domestic partnership or civil union status, sexual orientation, identity, and disability. The LAD is remedial in nature and therefore is applied by the Court expansively.

New Jersey’s Conscientious Employee Protection Act (“CEPA”), which is New Jersey’s “whistleblower law,” prohibits employers from retaliating against employees who disclose, object to, or refuse to participate in actions which they reasonably believe are either illegal, fraudulent or in violation of public policy. CEPA protects all New Jersey employees and some independent contractors. The New Jersey Supreme Court has described CEPA as the most far-reaching whistleblower law in the United States.

Given the expansive interpretation of these two laws courts have been interpreting them with a very liberal standard. As a result, New Jersey employers that do not take discrimination or whistleblowing seriously can face dire legal consequences.
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Published on: August 9, 2013

Standards for Proving Age Discrimination Can Be Difficult to Navigate

by Noelle Robinson

Federal employment law, in the Age Discrimination in Employment Act (the “ADEA”),prohibits employers from firing, refusing to hire, or discriminating in compensation, terms, conditions, or privileges of employment because of a person’s age. Case law has evolved over time regarding the extent to which age needs to influence employer decisions for the employer to violate the ADEA. A 2009 Supreme Court decision made a distinction between the ADEA’s prohibition against age discrimination and federal law prohibiting so-called status-based discrimination based on race, color, religion, sex, or national origin (Title VII of the Civil Rights Act of 1964). Title VII finds an employer culpable for employment practices for which race, color, religion, sex, or national origin is “a motivating factor,” even if other factors also motivated the practice.

When an employee claiming age discrimination tried to use the “motivating factor” standard for the court’s decision, the Supreme Court disagreed that the standard was appropriate for age discrimination, instead turning to the language in the age discrimination law specifically, which states, “It shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The Supreme Court found that the “because of” language brought the issue back to a term familiar in the legal realm, “but-for” causation — the idea that “but for” discrimination against the person’s age, the employer’s action would not have occurred. As applied in that way, the standard requires an employee to show that employer’s action (such as hiring and firing decisions) would not have occurred in the absence of age discrimination. That standard is harder to prove than proving that age discrimination was one of possibly other motivating factors.

Although the case itself and case law that followed emphasized that the decision reflected a distinction between the age discrimination law and discrimination for other reasons (such as race and religion), the reasoning behind the case has begun to seep into case law about other forms of discrimination. A 2013 case held that similar to the 2009 decision on age discrimination, a civil rights claim of unlawful employer retaliation for status-based discrimination requires proof that the desire to retaliate was the but-for cause of the challenged employment action (Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 978 (2013)).
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Published on: August 8, 2013

Defining Severe Misconduct when Denying Unemployment Benefits

by Pauline M.K. Young

In 2010, the New Jersey State Legislature and Governor Chris Christie revised New Jersey’s Unemployment Compensation Law to combat the significant increase in funds needed to pay unemployment benefits as a result of the rise in the unemployment rate in New Jersey.

To achieve this problem of fast-depleting funds for unemployment benefits, the state created a new category of conduct, called “severe misconduct,” which would allow the state to disqualify employees from receiving unemployment benefits.

The prior two categories of misconduct which could be assessed were: “simple misconduct” and “gross misconduct.” Simple misconduct includes actions that are improper, intentional, malicious, or exhibit a willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design. Simple misconduct disqualifies the individual from disability for eight weeks (the week in which the misconduct occurred and seven weeks immediately following that).

Gross misconduct includes acts that are criminal, in the first, second, third, or fourth degree under the New Jersey Code of Criminal Justice. Employees fired for gross misconduct are disqualified from receiving any unemployment benefits.

The revisions implemented by the State in 2010 regarding “severe misconduct” failed to define severe misconduct, but included examples, such as: repeated violations of an employer’s rules, repeated lateness or absences after a written warning, falsification of records, physical assault or threats, misuse of benefits, sick time, or leave, theft of company property, excessive use of intoxicants or drugs on work premises, or where the behavior is malicious and deliberate.
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Published on: July 29, 2013

New Jersey’s Law Against Discrimination: Discrimination Not Always Required

by Pauline M.K. Young

New Jersey’s Law Against Discrimination (“LAD”) protects employees from wrongful termination or other acts based on their race, nationality, ethnicity, gender, age, or other protected characteristic. The LAD is a remedial statute, meaning that the legislature enacted the law not only as a preventative measure, but as a direct response to the rampant discrimination in employment that was being observed. As a result, New Jersey’s courts read the LAD law broadly, providing for expansive protection to employees.

Not only does the LAD protect employees from being fired because of their race, gender, or other protected classification, it also protects employees from being fired, demoted, or mistreated in retaliation of that employee’s objections to discriminatory practices that she has observed against other employees. Therefore if one employee observes another employee being discriminated against and the observing employee complains, protests against, or objects to the discriminatory action, she cannot be fired in retaliation for objecting. The observing employee also cannot be retaliated against for aiding or encouraging any other person from objecting to discriminatory acts by the employer.

Therefore an employee may have a valid retaliation claim under the LAD if she was fired, demoted, or otherwise mistreated in retaliation for that employee’s objections to discriminatory acts by the employer. There needs to sufficient evidence to show that the employee’s objections played a role in the decision to fire her (or take other negative action). It is the employee’s burden to prove these elements.
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