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On March 28, 2018, the New Jersey Appellate Division granted an appeal and reversed a trial court employment law decision which had granted summary judgment in favor of the defendant employer the New Jersey Department of Human Services and against the plaintiff employee, dismissing all of his claims. In the case of Jerry Dean Rivera v. State of New Jersey Department of Human Services. The case was argued by Maurice W. McLaughlin, Esq. and Maurice W. McLaughlin, Esq. and Robert Chewning, Esq. wrote the briefs.

The case involved an employee who filed a complaint against his employer for discriminating against him based on his “disabilities,” national origin, and race; retaliating against him for his reports of unfair and discriminatory labor practices; and creating a hostile work environment in violation of New Jersey’s Law Against Discrimination (“LAD”), New Jersey’s Conscientious Employee Protection Act (“CEPA”), and the common law under Pierce v. Ortho Pharmaceutical Corp.

As with most discrimination cases, one of the major issues was determining whether the employee was performing the essential functions of his job. This issue required determining whether regular attendance was an essential function of the employee’s job, and, if so, what level was regained and whether the employer was required to accommodate the employee’s absences. The Appellate Division concluded that the employee should be given the opportunity to establish that he was able to perform all of his essential functions with a reasonable accommodation. Because no discovery was produced by the employer relating to whether it could have accommodated the employee’s absences either through a leave of absence or modified work schedule – combined with the fact that the employer’s overall size and other available positions – the employee was denied a fair day in court.

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Being a cop is a tough job.  It is physically dangerous, and often thankless.  However, it is intensely important, and as a result our society places great trust, authority and responsibility in our law enforcement officers.  Because of this special trust, the law holds law enforcement officers to a higher standard.  And because of the job’s difficulty and importance, it also gives law enforcement officers greater due process rights than other employees before they are disciplined.

Employment Protections for Law Enforcement Officers

New Jersey employment law provides that permanent police officer may not be disciplined except for “just cause,” or have her employment terminated for political reasons – or indeed any reason “other than incapacity, misconduct, or disobedience of rules and regulations established for the government of the police department.”  An officer may be disciplined only after she receives notice of the charges against her and is given a fair and impartial hearing.  The specific language of the statute provides:

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Gender discrimination is one of the most heavily litigated areas of New Jersey Employment Law. The United States Third Circuit Court of Appeals recently issued an opinion involving the issue of “sex plus” gender discrimination which will apply equally to New Jersey’s state and federal courts.

What is “Sex Plus” Discrimination?

Although it didn’t call it that, the concept of “sex plus” discrimination was first adopted by the United States Supreme Court in a 1971 decision involving Title VII of the Civil Rights Act of 1964, in the case of Phillips v. Martin Marietta Corp. In that case a woman applied for a job in which three quarters of the employees were female, and thus it was clear that the employer did not discriminate against women. However, it did not accept applications from women with pre-school age children, while at the same time it accepted and employed men with pre-school age children. The Supreme Court found that this was sex discrimination because it placed barriers to work on women that it did not place on them.

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medical-marijuana-300x300While the sale and possession of marijuana are flatly illegal under federal law, and the illegal status of recreational marijuana under New Jersey law has not changed yet, the medical use of marijuana is legal under New Jersey’s Compassionate Use Act for ALS, anxiety, certain chronic pain conditions, migraine headaches, MS, opioid addiction, terminal cancer, muscular dystrophy, inflammatory bowel disease, Crohn’s disease, terminal illness with less than twelve months of life expectancy, and Tourette’s Syndrome. It may also be used to treat HIV, acquired immune deficiency syndrome and cancer if severe or chronic pain, severe nausea or vomiting, cachexia or wasting syndrome result from treatment.  Additionally, seizure disorder, epilepsy, Intractable skeletal muscular spasticity, glaucoma and PTSD qualify for medical marijuana treatment if the patient is intolerant of or resistant to conventional therapy.

The Interplay of Medical Marijuana and Disability Protections under New Jersey Employment Law

The Compassionate Use Act contains the language that “Nothing in this act shall be construed to require… an employer to accommodate the medical use of marijuana in any workplace.”  On the other hand, New Jersey’s Law Against Discrimination does require employers to make reasonable accommodation for an employee’s disability if the accomodation would allow her to work without causing undue hardship for the employer.  The conditions which allow for the use of medical marijuana under the Compassionate Use Act would in all likelihood constitute “disabilities” under the Law Against Discrimination.  These two laws, both of which laudably aim to protect vulnerable people, thus appear to be in conflict.

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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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