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Articles Tagged with New Jersey Employment Attorneys

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Epidemic, Coronavirus, Lurking, Virus
As a result of the coronavirus (“COVID19”), the state and federal governments have been taking significant steps to enact laws to assist with relief efforts, particularly in relation to the economic strain that many individuals, families, and businesses are facing as a result of widespread closures, business limitations, and stay-at-home orders.

The federal government previously passed the Families First Coronavirus Response Act which provides emergency relief in relation to job protection and paid leave. Now Congress is working on a new stimulus bill which would provide $2 trillion in relief aid through several different avenues.  This bill has not yet been passed and therefore is still subject to change at this point. However, it appears that several core areas are likely to remain and be ultimately signed into law.

This includes: unemployment assistance, rebates to individuals (relief checks), tax credits to businesses which were closed or significantly effected by COVID-19 and continued to pay employees, bailout loans for major companies such as airlines and hotels (this is perhaps the area most disputed in Congress and therefore most subject to change), and funding to hospitals and health care facilities.

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In the time of the Coronavirus (COVID19), many people are concerned about the likelihood of needing to file for unemployment benefits in New Jersey in the near future.

Certainly, many people will be in need of New Jersey State assistance in 2020 and beyond as a result of the coronavirus pandemic and its effects.

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Criminal charges against public employees can have serious consequences under New Jersey civil service law.  In this post, we’ll examine gavel-300x200some of those consequences.

Suspensions of New Jersey Civil Service Employees While Criminal Charges Are Pending

First, if a New Jersey civil service employee is facing criminal charges, she can be suspended while the charges are pending.  The employee must be served with a preliminary notice of disciplinary action (PNDA). The PNDA must advise her that she may be subject to being fired if the charges are upheld, and that she has the right to consult with an attorney.  The employee may request a hearing about the suspension. If no request is made within five days the appointing authority may issue a final notice of disciplinary action (FNDA). If the employee is charged with a third degree crime or higher, if she is charged with a crime of the fourth degree on the job, or if the charges are “directly related to the job,” the employee may be suspended indefinitely until the charges are resolved.

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Truck, Transportation, Vehicle
In 2016, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (“FMCSA”) announced a new rule establishing a database for information regarding violations of drug and alcohol testing regulations by commercial motor vehicle drivers. While the rule went into effect in 2017, the requirement for FMCSA-regulated employers to begin searching and reporting on this database did not take effect until January 6, 2020.

Therefore, regulated employers are now required to report information regarding any violations of the DOT’s drug and alcohol regulations through the FMCSA’s database (called “Clearinghouse”).  This will allow employers to identify drivers who are prohibited from operating a vehicle because of prior violations.

“Regulated employers” include employers in the trucking or transportation industry who either hold a Commercial Driver’s License (“CDL”) themselves or whose employees hold a CDL, and who operate a commercial motor vehicle(s) in any state which has (1) a gross vehicle weight of 26,001 pounds or more, or (2) is designed to carry 16 or more passengers (including the driver), or (3) is involved in transporting hazardous materials.

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There are many people who complain that Civil Service is a terrible hindrance to efficient government.  Managers complain that Civil civil-caseService rules hinder their ability to run their organizations by hiring, firing and imposing discipline as they believe is best.  Citizens often complain Civil Service makes it too hard to get rid of “bad apples.”  Employees complain that Civil Service makes promotions and transfers too difficult.  Applicants complain that the Civil Service system makes it too hard to get hired.  All these criticisms are valid, as far as the go.  However, they miss the mark because they focus on the trees but miss the forest.  New Jersey’s Civil Service System was adopted to combat some real and grave problems with state and local government.  Without Civil Service these problems would continue today unchecked.  Civil Service isn’t perfect, but New Jersey is a far better place because of it.

New Jersey has a long history of government corruption; it is by no means a new phenomenon.  This included a “spoils system” rewarding the winners of elections with the ability to award jobs to their supporters, outright bribery, political favoritism, nepotism and outright discrimination in hiring and keeping government jobs.  It was a disgrace.

In 1908 the early twentieth century Progressive Movement led New Jersey to adopt its first Civil Service laws, and to establish the Civil Service Commission to regulate Civil Service practices.  Then, in 1947, a constitutional convention was held at Rutgers University, in which a new state Constitution was adopted.  The goal of the constitutional convention was to reform many areas of New Jersey’s state and local governments.  One area it specifically addressed was Civil Service.  Article VII, section 1 of the New Jersey Constitution of 1947 provided that:

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People Of Uganda, People, Sad, Emotional
The Wrestling Incident

During an incident on December 19, 2018, a referee required an African American wrestler at Buena Regional High School choose between cutting his dreadlocks or forfeiting his wrestling match.  Rather than forfeit the match, the wrestler chose to cut his hair.  Because the incident had indicia of being racially motivated, or at least having a racially disparate impact, and allegations of racism by the same referee had previously been made, the New Jersey Division on Civil Rights (DCR) and the New Jersey State Interscholastic Athletic Association (known as NJSIAA, the Association self-regulates high school sports in New Jersey) begin a joint investigation.  The NJSIAA eventually suspended the referee for two years.

The New Jersey Division of Civil Rights’ Guidance

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Whistleblower, Clock, Read, Hours
When facing claims of retaliation for reports on objections about discrimination under the New Jersey Law Against Discrimination or Title VII of the Federal Civil Rights Act of 1964 (or for whistleblowing under New Jersey Conscientious Employee Protection Act), courts are often faced with the situation where there is no direct evidence in the form of an admission, document, email or tape recording.  Therefore, when examining whether an employer took an action because of retaliation, employees are often forced to rely upon circumstantial evidence.  One of the strongest types of circumstantial evidence in cases where the employee alleges she was retaliated against because of her objections about discrimination is the amount of time which elapsed between the objection and the employer’s adverse action.  However, this is not the sole element which courts will consider – nothing happens in a vacuum.

The United States Court of Appeals for the Third Circuit recently examined just such a situation in a case about Title VII retaliation allegation in the case of Jessica Harrison-Harper v. Nike, Inc., d/b/a/ Converse, Inc. (The Third Circuit hears Federal appeals from the courts of New Jersey, Pennsylvania, Delaware and the United States Virgin Islands).

In that case, Jessica Harrison-Harper was an employee of Nike and manager at a Converse retail store.  She was hired in July 2014.  During the first several months of her employment numerous complaints were received about Harisson-Harper.  For example, a customer complained about her refusal to accept the return of a pair of shoes bought at the store.  Nike received multiple complaints about Harrison-Harper from her employees about her mismanagement and demeanor, and also from a neighboring Nike store.  There was a complaint that Harrison-Harper violated a family discount policy.  She was counseled regarding failure to document employee time and attendance issues, and about her plan to rehire an employee she had previously fired for calling a subordinate a “bitch.”

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Decision on Objections to Fraud and Criminal Activity of Whistleblowers by New Jersey Supreme Court

In the recent case of Chiofalo v. State, Division of State Police, the Supreme Court of New Jersey issued an important employment law decision dealing with whistleblower retaliation.

The Conscientious Employee Protection Act — New Jersey’s “Whistleblower” Law

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New Jersey’s Law Against Discrimination has rightly been called one of the strongest employee protection laws in the nation.  This is true both because of the broad range of inherent characteristics  which it protects from discrimination, and the strong legal protections and remedies it provides.  In short, the Law Against Discrimination prohibits employers from discriminating against employees because of a wide range of inherent qualities which make them who they are. It likewise prohibits harassment because any of these characteristics as well.  These protected characteristics include race, creed, color, national origin, nationality, ancestry, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, including AIDS and HIV related illnesses.  It also prohibits discrimination or harassment because of an employee’s age.

The Andujar Case

The Third Circuit Court of Appeals, which hears appeals from the federal district courts in New Jersey, Pennsylvania, Delaware and the United States Virgin Islands, recently issued an instructive opinion in the appeal of an age discrimination verdict under the Law Against Discrimination in the case of Santos Andujar versus General Nutrition Corporation.

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The United States Third Circuit Court of Appeals (which hears appeals from the federal district courts in New Jersey, Delaware, Pennsylvania and the United States Virgin Islands) recently had the opportunity to address the state of New Jersey employment law on restrictive covenants in the case of ADP, LLC v. Rafferty.

Background

In the Rafferty case, two ADP employees, Kristi Mork and Nicole Rafferty, agreed to restrictive covenants in exchange for an award of company stock.  Because they were high performing employees, they agreed to restrictions in exchange for the stock award which were more onerous than lower performing  employees were required to agree to.  The restrictions applied whether they quit or were fired.