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New Jersey’s Law Against Discrimination makes it illegal for employers to discriminate against employees because they have a “disability.”

Law Against Discrimination also requires employers to make “reasonable accommodations” so that employees can do their jobs despite their disabilities.  New Jersey’s Workers Compensation Act requires employers to carry workers compensation insurance which provides for medical coverage and compensation for employees who are injured on the job.  However, there are relatively few cases examining the interplay of these two important New Jersey employment laws.  However, New Jersey’s Supreme Court recently issued an important decision on just this interplay in the case of Caraballo v. City of Jersey City Police Department.

Disability Discrimination and Reasonable Accommodation Under New Jersey Employment Law

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construction-machine-3412240__340-300x202The Appellate Division of New Jersey’s Superior Court recently reviewed the signature requirements for filing a construction lien claim prior to and after the 2011 amendments to New Jersey’s Construction Lien Law.  Our construction attorneys represent contractors in construction law matters including but not limited to filing and/or defending against construction lien claims under New Jersey’s Construction Lien Law, N.J.S.A. 2A:44a-1, et seq.

The Court’s review was in Diamond Beach, LLC v. March Associates, Inc., decided in December 2018.  The Court was required to review the signatory requirements “pre” and “post” Construction Lien Law amendments, and determine whether the amendments should retroactively apply to previously filed construction liens.  Prior to the 2011 Construction Lien Law amendments, N.J.S.A. 2A:44A-6 required that a lien claim be signed, acknowledged, and verified by “a partner or duly authorized officer” of the partnership or organization.  The 2011 Construction Lien Law amendments dropped the requirement that the lien claim be signed by a “duly authorized officer” and instead required that the lien claim comply with the N.J.S.A. 2A:44A-8 claim form which requires that a “officer/member” sign the form.

While the amendment may have lowered the filing requirements, the Court found that the 2011 changes to the signatory requirements do not retroactively apply to the lien at issue, which was filed prior to the 2011 amendments, because the amendments did not expressly state that they were retroactive.  Further, the Court found that the amendments were not “curative” because there was no evidence that they were made to “cure” a previous misinterpretation of the law.  Diamond Beach, LLC v. March Associates, Inc., 457 N.J. Super. 265, 277–78 (App. Div. 2018).

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office-2009693__340-300x200New Jersey employment law generally recognizes that employees have a limited right to privacy in the workplace, including in their digital life.  However, a recent federal appellate decision limited the reach of employee privacy.  It is an unpublished decision, and therefore not binding.  However, it is a troubling outcome.

The New Jersey Supreme Court Finds Employees Have Privacy Rights

People generally have a right to privacy which they do not lose when entering the work force.  The New Jersey Supreme Court explained in the 1992 case of Hennessey v. Coastal Eagle Point Oil Co. that the source of this right in New Jersey Employment law comes from the New Jersey Constitution and the common law.  However, in that same case, the Supreme Court ruled that the right to privacy in the workplace is not absolute, and may yield to legitimate public policy concerns such as public and employee safety.

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site-2293451__340-300x200When a solid waste collection company enters into a contract to transfer ownership of assets, a petition for approval must be submitted the New Jersey Department of Environmental Protection.  Assets may not be transferred until this approval is obtained.  One area which the NJDEP evaluates prior to issuing such an approval is the impact of the transfer upon effective competition.  This is a very detailed analysis which can be time consuming.

The solid waste industry serves a dynamic market and the NJDEP must continually evaluate the market to ensure that there are multiple companies serving the customers in each market.  The controlling case law is found in United States v. Philadephia Nation Bank, 374 U.S. 321 (1963), in which the United States Supreme Court held that any sale which results in one company controlling thirty percent or more of the market and results in a significant increase in the concentration of companies in that market creates a lessening of effective competition.  When that is found it creates a presumption which is rebutted if it is shown that the sale is not likely to have such anti-competitive effects.

When the NJDEP performs an analysis of effective competition, it will only prohibit asset transfers if the transfer increases the company’s level of concentration in the market to an extent that could facilitate collusion among a small number of remaining competitors.  The NJDEP considers the following factors to determine effective competition: 1) the size of the company compared to the other companies providing the same service in the markets affected by the transfer; 2) the percentage of customers in the affected markets which will be served by the company after the transfer; and 3) this Herfindahl- Hirschman Index (HHI) of market concentration.

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whistleblower-1764379__340-300x300New Jersey employment law has some of the strongest employee protections in the United States.  A recent unpublished decision by the Appellate Division of New Jersey’s Superior Court may have expanded those already strong protections.

New Jersey Whistleblower Laws

New Jersey has two main employment laws protecting whistleblowers.  The first is the common law rule established by New Jersey’s Supreme Court in the case of Pierce v. Ortho Pharmaceutical Corp. in 1980, which prohibits an employer from retaliating against an employee in violation of a “clear mandate of public policy” found in legislation; administrative rules, regulations and decisions; and judicial decisions.  Thus, an employer may not discipline an employee for disclosing, objecting to or refusing to participate in a practice which violated one of these policies.

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truck-3503831__340-300x200Selling a business can be an involved process.  However, selling an A901 licensed waste transportation business in New Jersey can be even more complex.

Waste hauling is a strictly monitored and regulated industry in New Jersey under the umbrella of the New Jersey Department of Environmental Protection (“DEP”).  In fact, while the waste transportation company may be owned by limited liability members or corporate shareholders, no owner may sell an A-901 licensed business without DEP approval and oversight.

Indeed New Jersey’s Administrative Code (“NJAC”)  contains the DEP’s regulations which provide that no solid waste transporter can sell, lease, or otherwise dispose of its property (including customer lists) without obtaining prior authorization from the DEP.   Therefore, anyone seeking to sell their waste collection business or the assets thereof, must file the appropriate notices with the DEP and obtain approval from the DEP before any closing or consummation of the sale or transfer may take place.

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construction-645465__340-300x200A recent decision in the case of Jacobs v. Mark Lindsay and Son Plumbing & Heating, Inc., by the Appellate Division of New Jersey’s Superior Court examined the interplay between two very important laws – New Jersey’s Consumer Fraud Act and the criminal “theft of services statute” in the context of a dispute between a contractor which wanted to get paid, and a homeowner who didn’t believe the contractor had earned his fee. It contains important lessons for residential construction contractors.

The Consumer Fraud Act and Theft of Services

New Jersey’s Consumer Fraud Act prohibits merchants from engaging in “unconscionable commercial practices.” The Consumer Fraud Act applies to “home improvement contractors,” and regulations issued by the Division of Community Affairs extend the Consumer Fraud Act’s protections to specific requirements for contracts for “home improvement” work, including having a signed, written contract in the first place. The New Jersey Criminal Code makes theft of services a criminal offense.

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girl-2607176__340-300x240There are many types of medical leave benefits which exist in New Jersey for employees, and they are ever-expanding and evolving. There is the federal Family Medical Leave Act of 1993 (“FMLA”) which allows an employee to take time off from work either for that employee’s own medical issues or to care for a seriously ill family member. The FMLA allows an employee to take up to twelve weeks of unpaid, job-protected leave each year as long as the employer has fifty or more employees.

To supplement this, in 2008 New Jersey enacted the Family Leave Act. That law provided up to six weeks of paid time off for employees to care for sick family members or newborn babies. The FLA did not cover time off for the employee’s own illness (because that is covered by New Jersey’s Temporary Disability Insurance laws (“TDI”)). Still, under the FLA, employees could take 6 weeks off to bond with or care for a family member and their jobs were protected during that period. The employee would receive up to 2/3rds of their normal weekly salary or wages (or approximately 66% of wages), up to a maximum of $650 per week. As with the FMLA, the FLA only applied to employers with fifty or more employees.

For an employee who had to be out for her own medical condition, pregnancy, or disability, that employee could file for TDI benefits. To qualify for TDI, an employee would need to be out of work for a medical reason for more than seven days. TDI benefits provide employees with up to 26 weeks of partial salary replacement. As with the 2008 FLA, the employee could receive up to 2/3rds of her normal wages. However, with TDI, that amount maxes-out at $637 per week.

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american-963191__340-300x200Background

On February 4, 2019, Governor Phil Murphy signed legislation which will raise the minimum wage in increments culminating in a minimum wage of $15 per hour on January 1, 2024.  The new law puts New Jersey at the forefront of the “living wage” movement, while the phase in is designed to lessen the impact on small businesses.  The new law amends the New Jersey Wage and Hour Law, which governs minimum wage and overtime requirements.

The legislation is the result of negotiations between the Governor and Legislature lasting more than a year.  The amendment was praised by labor unions and most Democrats in the state, but opposed by the New Jersey Chamber of Commerce and most Republicans.

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contract-1464917__340-300x200Senator Marco Rubio recently introduced the Freedom to Compete Act. This proposed law would prohibit employers from entering into or enforcing non-compete agreements with lower level employees while simultaneously protecting employers’ trade secrets.

Non-Compete Agreements

Non-compete agreements are binding contractual restrictive covenants which limit an employee’s ability to compete with her employer after she leaves or while she is employed. These agreements normally prohibit the employee from forming a competing business, and also from directly or indirectly capacity by working for a competitor or soliciting their employer’s customers.