FOR IMMEDIATE RELEASE

TRENTON (March 20, 2019)–Murphy administration official Katie Brennan, who came forward about her rape last October, amended her lawsuit today in the Superior Court of New Jersey, Mercer County, against the State of New Jersey and the accused, Al Alvarez, to add a claim of defamation against Alvarez and for declaratory judgment for changes to the State’s anti-harassment policy. The amended lawsuit also alleges that confidentiality provisions in the State’s anti-harassment policy violate the Law Against Discrimination’s non-disclosure provisions that were signed into law earlier this week, and that the State has retaliated against Brennan by unilaterally closing her complaint, previously opened by the State’s Office of Equal Employment Opportunity/Affirmative Action (“EEO/AA”), in response to her lawsuit.

The amended Complaint alleges an additional claim against Alvarez in response to defamatory statements it alleges he made to the Hudson County Prosecutor’s Office, New Jersey Legislative Select Oversight Committee, media and other persons.

On March 18, 2019, Governor Murphy officially signed S-121 into law that makes any provision in an employment which waives any substantive or procedural right of an employee unenforceable as against New Jersey public policy.  Under the new law, New Jersey employers will no longer be able to conceal the underlying details of sexual harassment and other claims of discrimination through the use of non-disclosure or confidentiality provisions in settlement agreements.  The new Non-Disclosure law also protects employees from being retaliated against for not entering into any agreement or contract that requires them to waive their substantive or procedural rights.

The Non-Disclosure bill will apply to all workplace discrimination claims alleged or brought under the New Jersey Law Against Discrimination.  The New Jersey Law Against Discrimination prohibits workplace discrimination on the basis of protected traits such as gender, disability, race, national origin and other protected classes of people.  It also prohibits employers from retaliating against employees who oppose discrimination or participate in harassment investigations.  Finally, it makes employers responsible for the harm caused to employees who are forced to work in a hostile work environment.

The Non-Disclosure bill is being touted a significant win for New Jersey employees’ rights and the #MeToo movement.  The law was sponsored by Senators Loretta Weinberg and Nia Gill an Assembly members Valerie Vainieri Huttle, John F. McKeon and Jon M. Brammick.  The law will not be administered retroactively.  Instead, it will only apply to employment contracts that are entered into, renewed, modified or amended on or after the law’s March 18, 2019 effective date. This means any contract to arbitrate or settlement agreement requiring the underlying claims of lawsuit to be confidential signed before March 18, 2019 can still be enforced by an employer against an employee.

New Jersey maintains a strong public policy in protecting employees who speak out against the employer’s for engaging in unlawful business activities.  The law recognizes that employers are responsible when they try to silence and hurt persons who oppose workplace conduct or activities that endangers people in the workplace and the public at large.  However, while New Jersey law clearly provides for immense legal protections for employees against workplace retaliation, this does not mean anyone who is fired for complaining to his or her employer will be successful in a claim for wrongful termination.

New Jersey first enacted its state whistleblower law, the New Jersey’s Conscientious Employee Protection Act (“CEPA”) in 1986. CEPA is broad in scope and considered as one of the farthest reaching state whistleblower laws in the entire country. CEPA is remedial legislation and is entitled to liberal construction by our courts.

Under of New Jersey’s whistleblower law, a worker cannot be terminated for opposing or refusing to participate in unlawful or certain other improper conduct of the employer.  By placing stiff penalties upon employers who violate the whistleblower law, the New Jersey anti-retaliation statute tries to discourage employers from engaging in illegal or unethical workplace activities.  The state law applies to private and public employers and employees.  It also can apply to independent contractors in certain circumstances depending on the specific facts and circumstances of the business relationship.

The rampant abuse of arbitration agreements, and the injustice that these agreements have created for employees, is finally being recognized and addressed. The Forced Arbitration Injustice Repeal Act, or “FAIR Act,” was introduced to the United States House of Representatives by Representatives Hank Johnson and Richard Blumenthal on February 28, 2019.  The FAIR Act would, among other things, outlaw forced arbitration clauses in employment contracts or agreements.  The FAIR Act would, instead, require that the employee agree to arbitration only after the dispute has arisen in order for any arbitration agreement to be enforceable.

If passed as written, the Fair Act would not have retroactive effect as to disputes that arose prior to its passing; however, the bill would have retroactive effect in that it would apply to arbitration clauses in employment contracts that were entered into prior to the bill’s passing.  In other words, if the bill passes, all disputes arising thereafter would not be subject to an arbitration clause included in an employment agreement.

The current state of arbitration across the country is a classic case of too much of a good thing.  In theory, arbitration would serve as an option afforded to both parties to a dispute, with each party given the opportunity to weigh the pros and cons of that option to determine if they wished to have their dispute resolved through arbitration. In reality, however, this is not how arbitration works most of the time.  In the majority of arbitrations, one party was not truly given an option and did not understand anything about the process prior to “agreeing” to have any future dispute resolved through that process.  As a result, many people never get their day in court, because they unwittingly signed away their right to do so.

The Millville Dallas Airmotive Plant Job Loss Notification Act, otherwise referred to as the New Jersey WARN Act (“NJ WARN Act”), requires employers of 100 or more full-time employees to provide advanced notice to terminated employees prior to certain events such as plant closings, operational transfers or terminations, and mass layoffs.  The New Jersey Senate Commerce Committee recently approved a bill that seeks to increase the NJ WARN Act’s prenotification period and require severance pay to affected employees in qualifying terminations.

The current New Jersey Warn Act requires qualifying employers to provide written notice to all affected employees not less than 60 days before the first termination in connection with certain terminations or transfers of operations and mass layoffs.  If the employer fails to provide proper notice, the employer must provide those terminated employees which severance pay equal to one week’s compensation for each full year of the employee’s employment.

On February 19, 2019, Governor Phil Murphy signed into law an extensive expansion of New Jersey’s paid Family Leave Insurance program and amends the New Jersey Family Leave Act. The New Jersey paid family leave program, which is about 10 years old, provides employees with paid leave for qualifying reasons to care for a newborn, adopted child or sick relative.  The New Jersey Family Leave Act, which was adopted in 1989, provides for eligible employees the right to take up to 12 weeks off from work in a 24 month period in order to care for a family member who is suffering from a serious health condition or upon the birth or adoption of a child.The new expansion of the paid family leave law extends paid benefits to eligible employees from six weeks to twelve weeks.  The new law will also make the benefits payable at a higher rate. Currently, benefits pay out two-thirds of an employee’s pay, capped at $633 per week. The enhanced benefits will entitle eligible workers to 80% of their wages, up to $860 per week. Further, the law was also expanded with regard to intermittent leave, increasing the entitlement from 42 days to 56 days, beginning July 2020.

In 2008, New Jersey followed in California’s footsteps and became the second state to enact paid family leave. Unfortunately, awareness of the program and its benefits has not been widespread. A 2017 study showed that only 12% of New Jersey’s eligible new parents were receiving family leave benefits. The recent enhancements signed by Governor Murphy were previously vetoed in 2017 by then Governor Chris Christie, who stated that such an expansion would be too expensive for New Jersey workers to bear.

The amendments will also change the New Jersey Family Leave Act by providing job protections to employees of private businesses that have at least 30 employees.  This change in the New Jersey Family Leave Act will become effective as of June 30, 2019.  This change represents an expansion over the old law, which only provided protections to employees of private businesses with at least 50 employees.  The program is funded through payroll deductions paid by every single New Jersey employee.  As of January 1, every New Jersey worker is contributing based on their initial $34,400 in wages, for a maximum contribution of $27.52 per year.

There are various laws that protect pregnant women from workplace discrimination and that provide for pregnancy related leave from work.  In fact, there are both federal and state laws that provide New Jersey employees the right to take pregnancy leave to give and recovery from giving birth. Each of these laws have different eligibility requirements that govern whether an employer must provide these rights to their employees.

The most commonly known pregnancy leave related law is the federal Family and Medical Leave Act (“FMLA”). The FMLA was first enacted and signed into law in 1993 by President Bill Clinton.  The FMLA provides up to 12 weeks of leave for any 12-month period of time in order to give birth or care for a new born or adopted child.  In order to be eligible for FMLA leave, the employee must be employed by the employer for one year and must have worked 1,250 hours during the one-year period preceding the leave.  If the employer is in the private-sector, they must have at least 50 employees for the FMLA to apply to them.  All public sector employers, regardless of size, are obligated to provide eligible employees pregnancy leave under the FMLA. In order to exercise rights under the FMLA, a pregnant employee must provide their employer notice of their intent to take the leave at least 30 days in advance of their need for the leave.

In a 2015 case entitled Aguas v. State of New Jersey, the New Jersey Supreme Court adopted the federal standard regarding employer liability for workplace sexual harassment. For the first time, the New Jersey Supreme Court held that an employer can avoid liability in situations where the workplace sexual harassment did not result in any tangible employment action if the employer can show (1) it has strong anti-harassment policies and effective reporting mechanisms and (2) the plaintiff unreasonably failed to take advantage of the policies and reporting procedures.

The Aquas ruling dramatically changed the manner in which sexual harassment cases have been litigated in New Jersey.  It has also served as a valuable reminder to all New Jersey employers of the importance of having strong anti-harassment policies in place to protect employees from sexual harassment.

The plaintiff in Aguas v. State of New Jersey, Ilda Aguas, was a corrections officer in the New Jersey Department of Corrections.  During her employment, Ms. Aguas began to experience objectionable sexual harassment at the hands of her supervisor, Lieutenant Darryl McClish. On multiple occasions, McClish both verbally and physically harassed Ms. Aguas, such as by asking her to go to a motel with him, forcing himself on her in imitation of a “lap dance”, and holding Ms. Aguas’s arms behind her back while pressing his genitals against her body and asking “what are you going to do?” Ms. Aguas objected to this behavior directly to McClish, who refused to cease the sexually harassing behavior. Ms. Aguas was additionally harassed by two other supervisors.

The “Diane B. Allen” New Jersey Equal Pay Act was enacted in April 2018, and made effective as of July 1, 2018. In passing the Equal Pay Act, the legislature did not expressly state that the law would be applied retroactively to claims that arise before July 1, 2018.  In September 2018, the first court decision applying the New Jersey Equal Pay Act was decided by the United States District Judge William Martini of the District of New Jersey in Perrotto v. Morgan Advanced Materials, which held that that the New Jersey Equal Pay Act should not be applied retroactively since the legislature did not specifically provide so.

Since its enactment, the New Jersey Equal Pay Act has widely been recognized as providing the strongest protections to workers of any equal pay law in the United States.  The New Jersey Equal Pay Act, which amended New Jersey’s Law Against Discrimination, prohibits discriminatory pay practices for protected classes for performing substantially similar work. The law is not limited to gender-based pay discrimination, but also includes other protected classes such as race, disability and age. Under the law, an illegal employment practice occurs every time an employee is impacted by a discriminatory compensation decision.

The New Jersey Equal Pay Act also provides for broad protections against retaliation for employees who seek redress from discriminatory pay practices. Specifically, it prohibits an employer from taking reprisals against any employee for requesting from, disclosing with, or disclosing to an employee or former employee or a lawyer from whom he or is she seeking legal advice or governmental agency for information regarding the job title, occupational category, and rate of compensation on the basis of a protected trait such as sex, race, disability, age or others.

FOR IMMEDIATE RELEASE

TRENTON (February 6, 2019)–Following is a statement from Katie Brennan in response to the findings of Peter Verniero’s inquiry into the vetting and hiring processes of the Murphy administration’s transition office:

“It’s clear from the report that there was a lack of accountability and effective policies and procedures to address a glaring personnel problem in the Transition. I appreciate the recommended reforms and I look forward to seeing additional recommendations from the Joint Select Legislative Oversight Committee so that comprehensive reform can be implemented.