SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

In our recent political climate, the First Amendment and protected speech have been prevalent topics of public discourse. The conversation around our constitutionally protected right to express ourselves freely often focuses on the words and actions of adults, especially adults in the public eye. But free speech is a right that extends to children as well, and now our nation’s highest court will be deciding how a student’s First Amendment right to free speech coexists with a public school district’s right to control certain forms of student expression.

85B1D77E-3F46-4F76-AA85-89F1119617A2-300x170Brandi Levy was 14 years old when she found out she didn’t make the varsity cheerleading squad at her high school. In response, she and a friend posted a video to Snapchat in which they put up their middle fingers and said “F— school, f— softball, f— cheer, f— everything.” The girls were off campus during non-school hours and posted to a personal social media account. But the “chat” made its way to her coaches at Pennsylvania’s Mahanoy Area High School, and in response, Brandi was cut from the cheerleading squad for the entire year. The coaches’ reasoning was that Brandi’s post violated team rules to be respectful, avoid profanity and refrain from putting any negative information regarding Cheer on the internet. When the athletic director, principal, superintendent and school board all refused to reverse the decision of the cheerleading coaches, Brandi and her parents filed a federal lawsuit with the help of the American Civil Liberties Union (ACLU).

In 2017, the United States District Court for the Middle District of Pennsylvania granted Brandi’s request for a preliminary injunction stopping the school from removing her from the cheerleading squad and barring it from enforcing its ban on students’ speech off campus. The court found that, at that stage of the proceedings, Brandi had successfully shown the court that she was likely to succeed on the merits of her case and suspending her violated her First Amendment rights. The court based this decision on its view that Brandi’s off campus speech was not disruptive to the school’s operations and therefore, the school had no authority to control it. Brandi rejoined the JV squad for her sophomore year, but her lawsuit was years from being over. In the meantime, she continued cheering, making varsity both her junior and senior years.

For many teens, a summer job is a rite of passage, a way to earn money and gain independence, and start the transition into adulthood. For many teen girls working for Ocean City Beach Patrol, their summer lifeguarding jobs allegedly also came with unwanted groping, sexual harassment and sexual assault at the hands of their male supervisors. In recent news, local media sources have reported that a viral Instagram account called @ocbp_predators has led the Cape May County Prosecutor’s Office to investigate hundreds of allegations of sexual harassment and assault by members of the Ocean City Beach Patrol (OCBP). Reading through the accounts is disturbing. According to the anonymous posters, most of the misconduct was perpetrated by adult men in their thirties and forties against teenaged female lifeguards working for the OCBP.

IMG_6590-300x169Providing a link to RAINN, the national sexual assault hotline, the Instagram account contains allegations of male guards, some of whom are also teachers in Ocean County public schools, being involved in incidents where their teenaged direct reports were continuously sexualized at work and plied with drugs and alcohol at after-work parties, where often they would wake up unaware of what had happened to them the night before. Several of the Instagram posts referred to older male lifeguards repeatedly citing New Jersey’s age of consent, which is 16, to assert their entitlement to have sexual contact with the younger girls they supervised. However, New Jersey bars any adult in a position of authority having sexual contact with employees under the age of 18.

It seems clear that if the allegations against the male lifeguard supervisors are true, they could be facing criminal penalties, but that is not always the case. Sexual assault against teenagers is a significant societal problem that often goes unaddressed. According to TeenHelp.com, teenagers account for at least half of all reported instances of sexual abuse, with teens of working age (16-19) being over three times as likely as the general public to be victims. Additionally, once victimized, the same teen is more likely to experience further abuse, and when the victim is a high school aged female, she is more likely than others to develop eating disorders, risky sexual behaviors, unwanted pregnancies, and suicidal ideation. Despite these staggering statistics, less than one-third of sexual assaults against teens are reported. The low reporting rate may be due in part to the fact that only about half of abusers are eventually arrested and a measly 16% are imprisoned. Of those who do go to jail for their crimes, the average sentence is about 4 months. Approximately 80% of jailed rapists report that their victims were under the age of 18. What laws, other than the criminal code, are there to protect these girls?

On April 1, 2021 the American Rescue Plan Act (“ARPA”) went into effect, providing much needed relief as the country continues to reel from the impact of COVID-19. ARPA, which was signed into law on March 11, 2021, is a comprehensive, albeit temporary, funding bill addressing the economic and public health needs of both individuals and organizations that have been negatively impacted by the pandemic. It’s funding plan includes financial support for programs such as the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps), schools, child and elder care, mental health and addiction, housing and pension plans, among others. For qualifying employees, ARPA also extends and expands unemployment benefits and health insurance coverage under COBRA.

EC398118-061F-44BE-86E6-51A7805EDF17-300x167The Consolidated Omnibus Budget Reconciliation Act of 1985, commonly known as COBRA, allows qualifying employees – those who work for organizations employing more than 20 people – and their spouses and dependents to continue receiving health insurance coverage despite termination of their employment or reduction in their work hours, both events that would otherwise cause individuals to lose employer sponsored insurance coverage. The employee must pay an often high premium, but COBRA allows those who can afford it to avoid a gap in health care coverage.

Under ARPA, the federal government is financing a subsidy to offset the cost of COBRA premiums until September 30, 2021. Individuals who qualify for the COBRA subsidy will not have to pay any amount for their continued coverage during this window. The employer sponsored group health plan will cover the cost, and the federal government will reimburse the employer through a payroll tax credit. Specifically, the employer will pay the COBRA premium directly to the insurer and then request a refund against its Federal Unemployment Tax in the total amount of COBRA premiums paid. This subsidy will be available to employees who were terminated or suffered a reduction in hours involuntarily, were previously eligible for COBRA and either did not elect to enroll, or who enrolled but since dropped the coverage. The subsidy will include medical, dental and vision coverage. It is important to note that this subsidized coverage is temporary and will end when employees either exceed COBRA’s existing 18-month coverage limit or become eligible for other health coverage, including a spouse’s insurance coverage, Medicare or other employer-provided coverage. For all employees, it will end on September 30, 2021.

A former employee of Donald Trump’s 2016 Campaign has won a major legal victory against her former employer. Denson v. Donald J. Trump for President, Inc., Slip Copy, 2021 WL 1198666 (S.D.N.Y. March 30, 2021). Jessica Denson has won a summary judgment motion against the Campaign barring it from enforcing overly broad and vague non-disclosure and non-disparagement clauses contained in her Employment Agreement. The District Court for the Southern District of New York found in favor of plaintiff Jessica Denson and against defendant Donald J. Trump For President, Inc. and declared the Campaign’s non-disclosure and non-disparagement provisions invalid and unenforceable as unconstitutional under the First Amendment.

New Jersey Employment LaywersDenson argued that the non-disclosure and non-disparagement provisions of the Employment Agreement are unenforceable under New York law for several reasons, including that they restrict employee speech ad infinitum, their definition of confidential information is practically all-encompassing, they restrict speech on political matters and other topics of public concern, they threaten employees with severe financial penalties for breach, and they prevent employees from reporting misconduct in the workplace. In response, the Campaign claimed, among other things, that its privacy interests outweighed employee rights to unfettered free speech, and employees had waived their First Amendment rights anyway by signing the Employment Agreement.  Also in response to Denson’s claims that the non-disclosure and non-disparagement clauses were overbroad prohibitions on free speech and therefore unenforceable, the Campaign argued that she had failed to adequately identify how they had hindered her speech. Specifically, the Campaign pointed to Denson’s public statements expressing her negative opinions of the Campaign and former President Donald Trump, which she had posted on social media platforms over the past couple of years, allegedly without any legal action being taken against her. The Campaign even went so far as to confirm that it has no plans to enforce the non-disclosure or non-disparagement clauses against Denson in the future if she chooses to continue expressing her views. The Campaign argued that Denson could not show that the Employment Agreement “chilled” her exercise of free speech without presenting a specific, objective present or future harm.  The Court disagreed.

Relying on the reasoning of a 2010 case called Ashland Mgmt. Inc. v. Altair Invs. NA, LLC, 59 A.D.3d 97, 102 (1st Dept. 2008)aff’d as modified14 N.Y.3d 774 (2010), the Court applied a standards based test to the Employment Agreement. Specifically, the Court analyzed whether the clauses at issue were “reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.” As to the scope of the clauses, the Court found them to be essentially unlimited. The Campaign had defined “confidential Information” to include a variety of vague categories without clear definitions or limits. In fact, the Court was unpersuaded by the Campaign’s argument that certain categories of information are integral to the Campaign’s privacy interest, such as campaign strategy and communications. The Court found that even with respect to those categories of legitimate interest, the terms were not adequately defined, and thus were broad enough to cover any information at all relating to the Campaign. Recognizing that the Campaign has a legitimate interest in protecting certain information from disclosure, the Court still held that the non-disclosure provision was not written narrowly enough. “Indeed, the vagueness and breadth of the provision is such that a Campaign employee would have no way of knowing what may be disclosed, and accordingly Campaign employees are not free to speak about anything concerning the Campaign. The non-disclosure provision is thus much broader than what the Campaign asserts is necessary to protect its legitimate interests, and therefore is not reasonable.”

It is not uncommon for states or municipalities to require local residency for public employment. Proponents of residency requirements feel that they benefit the community because residents are more likely to have a strong commitment to the community, to pay local taxes, attend local schools and participate in community activities. Critics of residency requirements often argue that removing the choice of where to live imposes too great a burden on the employee and his or her family. Residency requirements have been litigated in our courts all over the country. The United States Supreme Court has upheld the constitutionality of residency requirements in general, finding that they are not per se irrational.

692696DC-BF0E-4D5C-B804-7228BA4B9D50-300x300In New Jersey, since September 1, 2011, the “New Jersey First Act”, signed into law by former Governor Chris Christie, has required most public employees working for the state, or one of its counties or municipalities, to live in New Jersey. That requirement has applied to employees of public agencies, commissions, public colleges and universities, and all school boards, among others to reside in the State of New Jersey unless otherwise exempted under the law. Exemptions were to be granted only when a worker could prove a “critical need or hardship.” Those who claimed qualification for the exemption had to present their case to New Jersey’s Employee Residency Review Committee and hope they were granted leave to live outside the state. As adopted by the Civil Service Commission, failure to comply with the State’s regulations on residence standards required the employee’s immediate suspension as “unfit for duty”.

An analysis by NJ Advance Media several years ago showed that in practice, the Employee Residency Review Committee has typically granted requests for exemptions to workers who can prove financial hardship or health concerns or who can submit proof that they are a “critical” employee who would be difficult to replace if they quit as a result of the residency requirement. Since its enactment, the Committee has granted exemptions to approximately 80% of applicants, with reasons ranging from child custody agreements to the inability to pay New Jersey’s high property taxes, to debilitating family illnesses. Other applicants have been granted permission to live outside the state simply by presenting a letter from their employer stating that they are “critical” to their work for the state.

In January, during a television news interview, then President Donald Trump said about the novel coronavirus, “It’s one person coming in from China.” That one remark, seemingly a purely geographical description of the virus’ origin, became the starting point from which our former President attempted to shift blame from his doorstep to China’s for mounting deaths, unemployment, shuttered businesses, food and housing insecurity and widespread panic. By convincing his supporters that our country’s pandemic response was actually Americans being forced to fight a war against an invisible Chinese invader, Trump caused a drastic shift in our political climate that resulted in Asian Americans becoming targets of hate crimes, harassment and discrimination.

IMG_1E2345D1B7BA-1-300x225Can one person’s words, even if made publicly, really cause an entire race of people to suffer abuse and harassment? In short, yes; harassment or much worse. All we need to do to know that is to revisit the history of Nazi Germany, the Yugoslav Wars of the 1990s, the Rwandan genocide in 1994, and the American response to the Japanese after World War II. Xenophobic rhetoric, especially when propagated by a political leader, can absolutely lead to hate and discrimination and in the worst cases, extreme violence. After the September 11, 2001 terrorist attacks, the Equal Employment Opportunity Commission (EEOC) tracked the number of bias complaints filed by Arab, Muslim, Middle Eastern, South Asian and Sikh workers in the U.S. and saw a 250% increase in the wake of 9/11. This drastic response occurred despite then President George W. Bush urging people not to discriminate.

In contrast, consider Trump’s narrative around the coronavirus. In April 2020, at a press briefing, Trump linked the unfolding pandemic to his conservative immigration policy: “Therefore, in order to protect American workers, I will be issuing a temporary suspension of immigration into the United States”. In May 2020, as the pandemic worsened on U.S. soil and Trump was taken to task for his perceived nonchalance around the virus, he responded, “Intelligence has just reported to me that I was correct, and that they did NOT bring up the Corona Virus subject matter until late into January, just prior to my banning China from the U.S.” In a tweet that same month, “Great reviews on our handling of Covid 19, sometimes referred to as the China Virus.” In July 2020, as the country approached 4 million cases of Covid-19, unemployment was rising, and growing numbers of citizens were becoming food or housing insecure, Trump tweeted, “We are United in our effort to defeat the Invisible China Virus, and many people say that it is Patriotic to wear a face mask when you can’t socially distance. There is nobody more Patriotic than me, your favorite President!”Later that month, “You will never hear this on the Fake News concerning the China Virus, but by comparison to most other countries, who are suffering greatly, we are doing very well – and we have done things that few other countries could have done!” Remembering Herman Cain during a White House briefing after his death from Covid-19 last year, Trump said “he passed away from the thing called the China virus.” In August 2020, as the U.S. reached 6 million cases of Covid-19, Trump referred to the virus publicly as “the China virus” at least another 4 times, including during a virtual rally in Nevada when he said, “I mobilized the largest response since World War II to fight the China virus and we are really doing well. Our numbers are excellent, really really good, and hopefully, we’re rounding the final turn on that disaster given to us by China.” As U.S. deaths passed 200,000 in September 2020, Trump linked the coronavirus to China a dozen more times, often by using wartime analogies and imagery to emphasize his patriotism and to cast the virus as a hostile foreigner. During rallies in North Carolina, Nevada, Michigan and Florida, he referred to it as “the invisible enemy” and made repeated references to defeating “the China virus.” During a rally in North Carolina, he stated “We will end the pandemic from China. We will end our — our plague from China.”

A proposed bill that would significantly limit New Jersey employers’ ability to prevent their employees from working with competing businesses will be considered by the New Jersey Assembly Labor Committee.  Proponents of the bill argue the new statutory framework will encourage innovation and production by eliminating the special hardships that non-compete agreements impose on New Jersey employees. This legislation, if passed, would be a gigantic victory for New Jersey employees whose pursuit of job and career opportunities have been stifled for far too long by employers’ restrictive covenants.

692696DC-BF0E-4D5C-B804-7228BA4B9D50-300x300While non-compete agreements are disfavored by our Courts, current New Jersey law allows employers to require employees to execute these anti-competitive contracts as a condition of employment regardless of the agreement’s ultimate enforceability. Job applicants who choose not to execute a non-compete agreement can lawfully be denied employment, and if an employee is fired for refusing to sign during the course of his or her employment, there is no recourse for wrongful termination.

Because litigation involving an alleged breach of a non-competition agreement is fact sensitive to the particulars of each case, it is often very difficult for an employee (or his or her employment attorney) to accurately predict whether a court will enforce a contested non-compete agreement. To make matters even worse for employees, most non-compete disputes will never get to the point of a judicial determination because of the high cost inherent in restrictive covenant litigation and the significant financial disparities that so often exist between the individual employee and entity employer.  The reality is that most working people simply cannot afford to pay a competent non-compete attorney to represent them.  Because of this reality, employees who have been subjected to overly broad, anti-competition restrictive covenants, have no recourse and are left with the choice of either remaining in a job they would like to leave or leaving the job only to be forced out of their chosen industry for the period of time (e.g. 1 to 2 years) required under the non-competition clause.

“There’s a long and ugly history at Edna Mahan,” said New Jersey Attorney General Gurbir Grewal. He was referencing not only the January 11, 2021 attack in which prison guards wearing riot gear beat, pepper sprayed and sexually assaulted the female inmates housed at the Edna Mahan Correctional Facility for Women in Clinton, New Jersey. The long history of sexual abuse at Edna Mahan dates back at least to the early 1990s, and a searing report issued in the Spring of 2020 by the Department of Justice has exposed the prison as a hostile and abusive environment, not because of the inmates’ crimes, but because of the guards whose duty it has been to house, feed and protect these women.

C3AC1131-D54A-483E-826B-FE4BDF8B551D-300x166Around midnight on January 11, 2021, over two dozen officers forcibly removed the women inmates from their cells, resulting in broken bones, concussions, and in at least one instance, forcible sexual penetration. Although we typically protect the privacy of harassment and assault victims, some of the women who were attacked have chosen to come forward publicly. Inmate Ajila Nelson said she was beaten and sexually assaulted in her cell during the extraction. Desiree Dasilva was punched repeatedly in the head resulting in a broken eye socket and said an officer left a boot print on her arm. Emmalee Dent was punched in the head approximately twenty-eight times by one of the guards as she pressed herself against a wall and attempted to protect herself from the blows. Inmate Faith Haines told a local media outlet that the attack started when another prisoner became upset that her cell had been searched while she was outdoors for recreation. Reportedly, Sean St. Paul, an administrator who was suspended in the wake of the attack threatened the inmates with similar discipline “every night” that they “acted up”.

A few weeks later, three prison guards – Sergeant Amir Bethea, Sergeant Anthony Valvano and Officer Luis Garcia – were accused of filing false reports in an effort to cover up the attack and were charged with official misconduct, tampering with public records, and Garcia was charged with aggravated assault for the beating of Emmalee Dent.

In Manchester, a township in Ocean County, New Jersey where 92% of its approximately 43,000 residents are white, a star high school basketball player’s attempt to speak out against issues of race discrimination and inequity was shut down by the Board of Education. At the most recent Board meeting, star basketball player Destiny Adams, presented a thoughtful speech to the Board to persuade them that the girls basketball team should be permitted to wear Black Lives Matter sweatshirts during the pregame warmup to their first game of the season, which took place Tuesday, January 26. Destiny was supported at the meeting by her mother, an attorney, and her father, the principal of Manchester High School, both of whom also spoke. Without discussing her proposal among the members of the Board or taking an official vote on it, the Board denied her request, stating that warmup gear may only display the school’s name.

fullsizeoutput_3c-1-300x169In speaking to news media, Destiny said of the Board’s decision, “They told me no, but that can’t really silence me, so we needed to find a way around it”. In fact, Destiny and most of her teammates wore Black Lives Matter sweatshirts prior to their season opener last night against Jackson Liberty High School despite the Board’s ruling. Destiny and another teammate also wore socks that said Black Lives Matter, while another player wrote Black Lives Matter on her sneakers.

According to the New Jersey State Interscholastic Athletic Association, what players wear during pregame warmups is determined at the school’s discretion. From a legal standpoint, the question is how to balance public school students’ First Amendment right to freedom of expression with a school’s right to ensure the school environment is not disrupted and the rights of one student do not infringe on the rights of another.

Statistics show people with disabilities in the United States are twice as likely to be unemployed than those without a disability. The issue has been exacerbated during the coronavirus pandemic, which has caused joblessness to rise and an increase of workplace disability discrimination. But underlying the conversation about getting people with disabilities back to work is a controversial debate about where and what type of work people with disabilities should have access to and be provided reasonable accommodations.

6AE55F99-A017-42B1-BEAB-4D7220445832-300x169In September 2020, Governor Murphy announced that a total of $1,312,500 of CARES Act funding will be used to reopen 26 sheltered workshop programs throughout New Jersey which have been closed for close to a year due to the Covid-19 pandemic. In making this announcement, supporters credited sheltered workshops with providing “a positive and valuable service for our developmentally disabled community”, and “a safe work environment that cultivates their skills and abilities”. However just 4 months later, in January 2021, some of those same supporters advanced the argument that our state government should be doing more to help individuals with disabilities find inclusive and competitive employment. So what is a sheltered workshop and how is it different from an inclusive and competitive workplace?

A sheltered workshop is an employer that is authorized under New Jersey’s Wage and Hour Law to employ individuals with disabilities at a rate less than the minimum wage. Specifically, Subchapter 9 of the Wage and Hour Law, defines “individual with disability” as someone whose earning capacity is impaired by a physical or mental disability and “sheltered workshop” as a charitable organization focused on rehabilitation, employment or vocational training for individuals whose earning capacity is thus impaired. The law is based on the faulty logic that a person’s disability is the main factor impairing his or her earning potential, and not the law itself which explicitly degrades that potential. These sheltered workshops apply for permits with the Office of Wage and Hour Compliance which authorize them to employ individuals with disabilities at less than minimum wage. Only people with disabilities can be employed under these special permits, ensuring that all non-disabled employees are paid higher wages.

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