Published on:

The United States Court of Appeals for the 3rd Circuit has affirmed a New Jersey District Court’s decision denying post-trial motion for judgment by Walmart after the jury entered a verdict against them in favor of a former employer.  The former employee, Barry Boles, claimed that he was unlawfully terminated by Walmart in retaliation for taking medical leave because of his disability.  The jury agreed, and found Walmart liable for back pay damages in the amount of $130,000, emotional distress damages in the amount of $10,000, punitive damages in the amount of $60,000 and attorney fees and costs in the amount of $200,000.  Walmart appealed the decision to the Court of Appeals.

In this case entitled, Barry Boles v. Wal-Mart Stores, Inc., the employee Mr. Boles had worked for Walmart for many years.  Mr. Boles first went out on a medical leave on May 8, 2011, after going to the emergency room for a large blister on his leg.  The large blister progressed into a five or six inch ulcer requiring Mr. Boles to take an extended medical leave of absence.  Walmart eventually placed Mr. Boles on medical leave pursuant to the Family and Medical Leave Act from June 22, 2011 through September 10, 2011.  During his FMLA leave, Mr. Boles’ treating doctor provided a certification that advised Walmart that Mr. Boles would not be able to return to work until October/November, 2011.

On October 23, 2011, Mr. Boles returned to work, but learned that he could not log onto his computer.  Mr. Boles attempted to reach out to the Market Human Resource Manager, Quawad McDonald, to find out his status, but his attempts were ignored by Mr. McDonald.  Finally, on or about October 29, 2011, Mr. Boles received a letter from Mr. McDonald advising him that he had been terminated as of October 25, 2011 for “failure to return” to work.

Published on:

The U.S. Labor Department has proposed new rules that include increasing the minimum salary threshold level for executive, administrative and professional exemptions and the minimum total annual compensation level for the “highly compensated employee” exemption under the Fair Labor Standards Act.  The new proposal would raise the minimum salary thresholds to $970 a week (i.e. $50,440 a year) from the current $455 per work ($23,660 a year).  The passing of this new rule, which is expected, would amount to a huge victory for employees across the country.

The present $455 salary threshold has not been updated since 2004 and has left certain low salaried managerial or office work workers in an unfair situation of being exempt from receiving overtime pay.  In announcing the proposed overtime rules change, the US Department of Labor specifically identified jobs such as convenience store managers and fast food assistant managers as being required to work 50-60 (or more) hours a week and be compensated as little as $23,660 a year, which is less than the poverty level for a family of four.  These employees can be paid a minimum salary of $23,660, and not be paid any additional compensation for overtime hours worked. It has been estimated the change in law will help 5 million workers become overtime eligible and will increase employees’ wages across the country by $1.3 billion.  The US Department of Labor has submitted the change to the Office Management and Budget (OMB), The OMB has 30 to 90 days to review and then publish the rules in the federal register as final.

In addition to increasing the salary threshold, the US Department of Labor has also proposed to increase the total annual compensation requirement needed to exempt highly compensated employees to $122,148 annually and to establish a mechanism to automatically update the future salary and compensation levels.

Published on:

The New Jersey Supreme Court has ruled that an employee can show they suffered from a disability (as defined by the law) through the testimony of their treating physician.  This is a significant win for victims of disability discrimination, who often do not have the finances to pay for expensive medical expert testimony necessary for their case.

In the matter of Delvecchio v. Township of Bridgewater, the employee claimed she was unlawfully terminated on the basis of disability in violation of the New Jersey Law Against Discrimination.  The employee was employed as a dispatcher for the Township of Bridgewater and developed inflammatory bowel syndrome (IBS), panic attacks and anxiety during her employment, which she claimed required certain accommodations from her employer.   On September 16, 2009, the town terminated the employee’s employment, claiming neglect of duty and chronic/excessive absences, after the employer denied her requests for accommodations.  At trial, the court prohibited the employee from having her treating physician testify to her diagnosis and treatment.  As a result of the court’s adverse evidentiary ruling, the employee was unable to offer evidence showing she was disabled, which resulted in her losing her entire case.

The case was based upon disability discrimination which his prohibited under the New Jersey Law Against Discrimination.  The New Jersey Law Against Discrimination prohibits unlawful discrimination based on a disability unless the nature and extent of the disability reasonably precludes the performance of the job position.  An employee suing under the LAD must prove, inter alia, that he or she was disabled as defined in the act.  When the disability is not readily apparent, an employee must present expert medical evidence to assist the jury in understanding whether the condition alleged is a disability under the law

Published on:

It is surprising for many independent sales representatives to learn that there are specific laws in place to protect the recovery of their unpaid sales commissions from their principal.  In fact, many independent sales representatives equate an unpaid sales commission to that of an unsecured debt, often simply writing off the unpaid sales commission as an uncollectable debt, not worth their time, money or other resources in trying to recover from the principal.  In their view, they believe they will spend more money on an attorney trying to recover the unpaid sale commission than the amount the debt is worth in the first place.  As a result, the independent sales representative will simply abandon their hard earned unpaid sales commission.

Unbeknownst to a lot of independent sales representatives, many states have laws impose significant penalties against principals who fail to pay sales commissions.  In fact, some states have laws that have stronger protection to independent sales representatives’ from receiving unpaid sales commissions than are in place for employees from receiving his or her unpaid wages.  In New Jersey, for example, our legislature has enacted The Independent Sales Representative Rights Act, which provides for treble damages in an amount three times of the unpaid sales commission, as well as attorney fees and costs of suit against principals who fail to timely pay their independent sales representatives their earned sales commission.  This means that if you are an independent sales representative who is owed a sales commission in the amount of $2,000, you could recover up to $6,000 for the unpaid sales commission and all attorney fees and costs incurred in attempting to recover the debt.  Many other states outside New Jersey have a similar law in place.  The remedies provided under laws like New Jersey Sales Representative Rights Act encourage law firms like ours to take unpaid sales commission cases on a contingency basis.  This means in most of our cases, our attorneys do not get paid for any of the legal work they perform unless the independent sales representative gets paid the sales commission.

It is important for all independent sales representatives to know their rights in connection with recovering unpaid sales commissions.  If you are an independent sales representative, who has not been paid an earned sales commission, I strongly encourage you to reach to our firm or an attorney familiar with your particular states unpaid sales commission law, to discuss your options in recovering your hard earned sales commission.

Published on:

The New Jersey Appellate Division has ruled that an employee is not disqualified from receiving unemployment benefits for refusing to submit to a flu vaccination policy for purely secular reasons.

In the case of June G. Valent v. Board of Review, Department of Labor, the employee, Ms. Valent, was employed as a Registered Nurse with Hackettstown Community Hospital (“the Hospital”) from May 11, 2009 through her termination on January 2, 2011. On September 21, 2010, the Hospital’s corporate entity, Adventist Health Care, Inc., implemented a “Health Care Worker Flu Prevention Plan” that required their employees to have a flu vaccine unless there was a documented medical or religious exemption.

Ms. Valant refused to be vaccinated with the flu shot and did not provide her employer with any medical or religious reason.   Although Ms. Valant offered to wear a mask during flu season as a concession for not having to be vaccinated, the Hospital declined her offer and terminated her employment on the basis that she violated her employer’s flu vaccination policy.  If terminating Ms. Valant was not enough, the Hospital then challenged Ms. Valant’s claim for unemployment benefits by claiming that she committed misconduct (“improper, intentional, connected with one’s work, malicious, and within the individual’s control, and is either a deliberate violation of the employer’s rule or a disregard of standards of behavior which the employer has the right to expect of an employee.”) in her refusal to permit her employer to inject her with the flu vaccination.  The Appeal Tribunal rejected this argument and found that Ms. Valant’s refusal to follow an employer’s policy that “was not unreasonable” and approved her claim for unemployment benefits.  The Board of Review, however, reversed the Appellate Division and disqualified Ms. Valant on the basis of simple misconduct.  In the decision, the Board of Review found that the hospital’s policy requiring flu vaccinations was not unreasonable, and therefore Ms. Valant should be disqualified from receiving unemployment benefits.

Published on:

For the second time this year, the New Jersey Appellate Court has reverse and remanded a Board of Review decision disqualifying a claimant from receiving New Jersey unemployment benefits on the basis of severe misconduct. This is yet another reminder how necessary it is for the New Jersey legislature to enact a clear definition of what constitutes severe misconduct under New Jersey unemployment law.

In 2010, the New Jersey legislature created a new classification of misconduct called severe misconduct. Prior to 2010, there were only two types of misconduct, which were gross misconduct and misconduct (which was changed to simple misconduct with the enactment of severe misconduct). Gross misconduct occurs when an individual is terminated because they committed a crime of the first, second, third or fourth degree under the New Jersey Code of Criminal Justice. Simple misconduct occurs when an individual is terminated because he or she committed an act that is “improper, intentional, connected with one’s work, malicious, and within the individual’s control, and is either a deliberate violation of the employer’s rules or a disregard of standards of behavior which the employer has the right to expect of an employee.”

In creating the new classification, the legislature did not define “severe misconduct.” Instead, the 2010 amendment sets forth a list of examples of what constitutes severe misconduct, which includes the catch-all example, “where the behavior is malicious and deliberate but is not considered gross misconduct.” This “malicious and deliberate” catch-all example is, in fact, a lesser standard than the definition of simple misconduct, which has been the cause of the Department of Labor’s confusion and as to how to apply the law for over the last three years.

Published on:

The Sayreville Board of Education cancelled the varsity football team’s Thursday night game last week for what was described by Superintendent Richard Labbe as inappropriate conduct of a significant and serious nature within the football program. On Tuesday, the Board of Education cancelled the entire season in midst of the Middlesex County Prosecutor’s Office continued investigation into potential criminal conduct that occurred within the Sayreville football program.

ABC news reported that the allegations included younger kids of the Sayreville football team being routinely taunted, bullied and intimidated by the older players, often with “sexual overtones.” On Wednesday, nj.com published an exclusive article of specific allegations of sexual assault from an anonymous parent of a Sayreville football player. The article describes an almost daily locker room ritual of senior football players sexually assaulting freshman football players during this season as follows:

It came without warning.

Published on:

A new bill has been introduced to the New Jersey legislature that would invalidate any contract not to compete, not to disclose and/or not to solicit between employers and former employees if it is determined that the employee is eligible for unemployment benefits. The bill [A-3970] if passed, would not apply to any contract not to compete, not to disclose and/or not to solicit, that was in effect prior to when the bill is enacted.

The current law in New Jersey allows employers to enforce an agreement not to compete, not to disclose and/or not to solicit if the agreement protects a legitimate interest of the employer. Courts have held that, in certain circumstances, employers have a legitimate interest in protecting things such as trade secrets, confidential business information and customer relationships. In order to enforce a restrictive covenant, the terms of the not to compete, not to disclose and/or not to solicit clause must be reasonable, not impose an undue hardship on the employee and not be injurious to the public. Courts will not enforce agreements not to compete, not to disclose and/or not to solicit if the restriction is unreasonable. New Jersey courts have repeatedly held that employers do not have a legitimate interest in restricting competition. This is because New Jersey has a strong public policy affording individuals the right to pursue one’s profession and livelihood. When determining whether a restrictive covenant is enforceable, New Jersey courts will analyze the specific facts and circumstances of the employee’s former employment and new employment, along with the specific terms of the restrictive covenant.

If A-3970 becomes law, an employee would be relieved from any contractual obligation not to compete, not to disclose and/or not to solicit if they are found to be eligible for unemployment benefits. An employee is eligible for unemployment benefits if they become unemployed due to not fault of their own. Most disqualifications for unemployment benefits are because the employee either left work voluntarily without good cause attributable to the work or was involuntarily terminated for committing an act of misconduct. The three types of misconduct are gross misconduct, simple misconduct and severe misconduct. Gross misconduct is when an employee is terminated because they committed a crime of the first, second, third or fourth degree under the New Jersey Code of Criminal Justice. Simple misconduct occurs when an employee is terminated because of improper, intentional, connected with one’s work, malicious and within the applicant’s control and is either a deliberate violation of his or her employer’s rules or a disregard to standards of behavior that the employer has the right to expect of the applicant. There currently is no statutory definition for severe misconduct, but there is a bill pending to correct this oversight by the legislature. The Appellate Division has interpreted severe misconduct to be a gap-filler between simple misconduct and gross misconduct.

Published on:

ESPN, Sports Illustrated, Good Morning America and probably even your own Facebook page, have been flooded with varying opinions on the Miami bullying/harassment scandal. This blog entry is written by our New Jersey Employment Lawyers to analyze the facts, as reported, to determine whether a hostile work environment existed that would be in violation of the New Jersey Law Against Discrimination.

For those who have been living under a rock for the week, Miami Dolphins offensive lineman Jonathan Martin left his employment with the Miami Dolphins as a result of, at least in part, constant harassment and bullying directed at him from his teammates. It has been reported that Mr. Martin checked himself into a hospital as a result of suffering from emotional distress caused by the harassment. One teammate in particular, Richie Incognito, has been suspended indefinitely for his role in the harassment and bullying. NFL Commissioner Roger Goodell has appointed the prominent attorney, Ted Wells, to conduct an independent investigation into allegations of harassment and bullying within the Miami Dolphins.

Based upon the allegations that have reported, Mr. Wells’ investigation should reveal that Jonathan Martin was subjected to a hostile work environment that would be in violation of New Jersey law. The New Jersey Law Against Discrimination makes it unlawful to discriminate against an employee on the basis of protected characteristics, which include race, color, disability and sexual orientation. In other words, the discrimination must be based upon one of these protected characteristics in order for the harassment to be against the law. In the landmark case of Lehman v. Toy ‘R’ Us, Inc. 132 N.J. 587 (1993), the New Jersey Supreme Court defined a hostile work environment based upon sexual harassment as discriminatory conduct that a reasonable person of the same sex in the plaintiff’s position would consider sufficiently severe or pervasive to alter the conditions of employment and to create an intimidating, hostile, or offensive working environment. The Lehman decision held that New Jersey employers must maintain an effective policy against unlawful harassment/discrimination. An effective policy requires, inter alia, that employers investigate complaints of harassment promptly, thoroughly and completely. All complaints of sexual harassment and other forms of discrimination must be fully investigated.

Published on:

In 2010, the New Jersey legislature amended New Jersey Unemployment Benefits law to include a new basis for disqualification of benefits called “severe misconduct”. Prior to the change in law, a claimant could be denied from receiving unemployment benefits if he or she was terminated for “misconduct” or “gross misconduct.” Misconduct is defined by the regulations as an act that is “improper, intentional, connected with one’s work, malicious, and within the individual’s control, and is either a deliberate violation of the employer’s rules or a disregard of standards of behavior which the employer has the right to expect of an employee. Gross misconduct is defined by law as a termination caused by the claimant as a committing a crime of the first, second, third or fourth degree under the New Jersey Code of Criminal Justice.

While adding “severe misconduct” as a new basis for unemployment benefits disqualification, the Legislature did not define what “severe misconduct” means, and instead set forth a non-exclusive list of examples of what could be severe misconduct. These examples include “repeated violations of an employer’s rule or policy; repeated lateness or absences after the applicant receives a written warning from their employer; falsification of records; physical assault or threats that do not constitute gross misconduct; misuse of benefits or sick time; abuse of leave; theft of company property; excessive use of drugs/alcohol on the job; theft of time; or where the behavior is malicious and deliberate but is not considered gross misconduct.

Since the amendment to the unemployment law, our New Jersey unemployment lawyers have seen far too many cases in which the lack of a clear definition of severe misconduct has resulted in an unjust and unfair result for our clients. A lot of confusion for Appeal Tribunal examiners stems from the fact that last statutory example of severe misconduct (where the behavior is malicious and deliberate but is not considered gross misconduct) is in fact a lesser standard than the regulations definition of misconduct.