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The New Jersey Appellate Division has overturned a trial court’s decision dismissing a Somerset County detective’s whistleblower lawsuit that stems from complaints he made regarding improper evidence collection and casework by the forensic unit and his supervisor.  The case was previously dismissed by the trial court who found that the Somerset County Prosecutor’s Office’s actions in transferring the detective from the forensic unit to the fugitive squad did not amount to an adverse employment action required under the New Jersey Conscientious Employee Protection Act (“CEPA”) “whistleblower” law.

The Appellate Division disagreed with the trial court and has ordered the case to move forward to the discovery phase.  The plaintiff in the case, Jeffrey Scozzafava, began working in the Somerset County Prosecutor’s Office forensic unit in 2007.  Prior to his employment with the Somerset County Prosecutor’s office, Mr. Scozzafava was employed as a forensic detective with the New Jersey State Police Crime Scene Investigation unit.  In the lawsuit, Mr. Scozzafava alleges that he made several complaints regarding poor evidence collection and inadequate casework completed by the Unit (which included his supervisor) and that he was retaliated against by his employer in response to those complaints.

Specifically, Mr.  Scozzafava contends that his supervisor’s decision to move him out of the forensic unit to the fugitive squad amounts to an adverse employment action. Mr. Scozzafava alleges that his supervisor told Mr. Scozzafava that “Everybody does time in the penalty box” when they discussed the job transfer.  In the new role, Mr. Scozzafava was no longer able to earn overtime compensation and his office car was downgraded. Mr. Scozzafava also claims that as a result of the transfer, he was no longer able to utilize the skills and knowledge he had gained in his experience and study of forensic detective work.  This was particularly demeaning to him because he had developed extensive expertise in the field in addition to having earned a proven reputation as an expert.

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The New Jersey Appellate Division recently held that an employee, who quit her job in response to being told that she would be fired, can collect unemployment benefits.

In the case Cottman v. Bd. of Review, Dkt. No. A-1908-16T2, 2018 N.J. Super. LEXIS 52 (App. Div. March 29, 2018), the Appellate Division reversed the Board of Review’s decision that found Ms. Cottman ineligible for quitting her job after her child care arrangements fell through requiring her to ask for the day off.  Ms. Cottman was a parent of three children all of whom had special needs and worked the night shift for Quality Management Associates as a residential counselor.  When Ms. Cottman’s babysitter unexpectedly quit, Cottman as per company policy, tried to find a coworker to fill in for her but was unsuccessful finding anyone to work for her. As a result, Ms. Cottman told her supervisor that she would not be able to make it to work for her shift because there was no one to take care of her kids.  Her supervisor responded that she “might” be fired and should not “play with [her] time.”  Upon being told she might be fired, Cottman instead resigned.

When Ms. Cottman subsequently applied for unemployment benefits, she was initially denied after it was determined she had left her work voluntarily and without good cause attributable to her work.  The Appeal Tribunal cited the New Jersey Administrative Code (N.J.A.C.) which includes “care of children or other relatives” in the list of personal reasons that will ordinarily disqualify someone from receiving unemployment benefits. The Board of Review affirmed the decision.

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The Appellate Division has denied an individual from proceeding with her unemployment appeal as a result of failing to appear for the scheduled Appeal Hearing.  In the matter of Boone v. Board of Review, Department of Labor and Workforce Development, and LSA Ventures, LLC, Respondents- No. A-2286-16T3, decided April 9, 2018, the claimant realized the day after the scheduled appeal hearing date, that she had misread the date of the hearing which had been scheduled for the previous day.  After the claimant was unable to obtain a rescheduled date from the Department of Labor, she appealed the decision requesting that she be provided the right to a new hearing as a result of her non-appearance.

The claimant, Sharon Boone, originally filed for unemployment benefits in September 2016.  At this first stage of the unemployment benefits process, Ms. Boone was found ineligible for benefits by the Deputy Director because she left her job voluntarily due to dissatisfaction with her working conditions.   Ms. Boone then appealed her original determination disqualifying her from receiving unemployment benefits and received notice on October 26, 2017 that a telephonic hearing would take place before the Appeal Tribunal, which is the next level in challenging a finding of ineligibility for unemployment benefits. The notice informed Ms. Boone that the hearing would take place on November 14, 2016, at 10:30 a.m. The notice also informed Ms. Boone in upper-case print that she was required to call the Appeals Office 15-30 minutes before the scheduled hearing to register for the hearing.   The notice also indicated that the appeal may be dismissed or that the claimant could be denied participation in the appeal if “you fail, without good cause, to follow these instructions.”

Unfortunately for Ms. Boone, she did not call the Appeals office on the appointed date and time and therefore, the hearing did not take place. The Appeals Tribunal found therefore, that because Ms. Boone had failed to participate in the telephonic hearing, her appeal was dismissed.  On November 15, Ms. Boone subsequently faxed a letter indicating that she had confused the dates and thought her appeal was to take place “today.”  She requested a new hearing date, but the Tribunal declined to reopen the decision.

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Governor Phil Murphy has signed into law the “Diane B. Allen Equal Pay Act”, which is rightfully being touted as the strongest equal pay law in the United States.  The New Jersey Equal Pay Act amends the New Jersey Law Against Discrimination to specifically protect employees from discriminatory pay practices.  It provides severe penalties to employers who violate the new law.

The New Jersey Equal Pay Act, which will be effective immediately on July 1, 2018, specifically prohibits employers from paying employees less than other employers because of their gender, race or other protected class.  Employers must be able to refute a claim of wage discrimination by showing that any difference in pay is based upon a seniority system, a merit system or other legitimate bona fide factors (e.g. training, education, experience, quality or quantity of work).

The new law also provides some significant changes to the applicable statute of limitations.  For example, the New Jersey Equal Pay Act strengthens the statute of limitations for claims based on pay equity to a period of six (6) years as opposed to the two (2) year statute of limitations

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Employees are often unable to defend themselves against employers attempting to restrain their post-employment business activities through non-compete agreements.  While employers can sometimes show they have a protectable interest in restraining a former employee’s post-employment business activities, it has become far too common that employers inappropriately use restrictive covenants against former employees who simply cannot afford to defend themselves in an expensive commercial litigation.  These employees are often left with no recourse and have no choice but to cave to their former employer’s unreasonable and anti-competitive demands.

Two recent New Jersey cases provide hope and a roadmap to fight against employers who unfairly attempt to use non-compete agreements to the detriment of the former employee and their ability to make a living.  Both cases illustrate that there are ways to fight back against employers who attempt to use non-compete agreements to restrain competition and retaliate against their former employees.

The first case, Abuaysha v. Shapiro Spa LLC, et al., Docket No.: BER-L-988-18, was brought by our firm, Smith Eibeler on behalf of a terminated employee. This case involves a former massage therapist who filed an emergent Order to Show Cause against her former employer to be relieved of her non-compete agreement after she alleged unlawful termination from her employment.  Specifically, the plaintiff alleged that she was unlawfully fired in retaliation for leaving work and taking leave in order in order to get medical treatment after being told that she may have contracted the shingles virus from a client upon whom she had just performed a massage.  The plaintiff alleged that she told her supervisor that she needed to leave work to get medical treatment to make sure she did not have shingles and that she would not perform any further massages until a doctor cleared her to return to work.  The employer terminated her when she returned to work after a few days of leave.

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New Jersey is getting closer to becoming the tenth state to enact a paid sick leave law. On Thursday, April 12, 2018, the New Jersey Senate passed  (A1827) and is headed for Governor Murphy’s desk for his signature.  The bill was approved in March by the Assembly.

The legislation would allow workers to accrue one hour of earned sick leave for every 30 hours.   Employees who work for employers with less than 10 employees can accrue up to a maximum of 40 hours per year and employees who work for employers that employ more than 10 employees can accrue up to a maximum of 72 hours per year. Workers would be eligible for paid sick leave after 120 days of employment.

Certain types of employees are exempt from the bill, namely certain construction employees, per-diem health-care workers and public employees who have sick leave benefits in place. Employees who are employed by temporary employment agencies will accrue the benefits based upon the time they are employed with the agency and not for each separate client they are assigned.  The employer must pay the sick leave earned by the employee at the same rate of pay with the same benefits as the employee usually earns.

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The United States Supreme Court has declined review of a 7th Circuit Court of Appeal decision holding that the American’s with Disabilities Act (“ADA”) does not require employers to provide any reasonable accommodation of an extended medical leave for any more than twelve (12) weeks under the Family and Medical Leave Act (“FMLA”).

In  Severson v. Heartland Wood, Inc. No. 15-3754 (7th Cir. Sept. 20, 2017), the employee, Mr. Severson, went out on company approved FMLA leave for severe back pain in June 2013.  The day before he was supposed to return to work, he underwent back surgery necessitating an additional 2 or 3 months of medical leave to recover from the surgery. Mr. Severson, having exhausted his FMLA leave, asked his employer Heartland for the additional medical leave.  The company refused and terminated his employment.  Mr. Severson then sued his employer arguing that he was not being given the extra leave as a reasonable accommodation under the ADA.

The District Court sided with the employer on a summary judgement motion.  On appeal, the Seventh Circuit agreed, holding that the employer did not have to provide the additional leave other than the 12 weeks of medical leave available under the FMLA. Specifically, the Seventh stated that, “The ADA is an antidiscrimination statute, not a medical-leave entitlement.” The Court also reasoned that the goal of an ADA accommodation is to allow disabled employees to perform the essential functions of their jobs, not to excuse them from working and that “a multi month leave of absence is beyond the scope of a reasonable accommodation under the ADA.”

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It is not uncommon for employers to make an employee’s execution of an arbitration agreement a condition of their employment at the inception of the employee’s employment. But what happens when, in the midst of employment, an employer all of a sudden demands an employee’s agreement to an arbitration agreement under the threat of termination? Does an employee have to sign the arbitration agreement in order to remain employed?  What if the employee refuses to sign the arbitration agreement and, as a result, is suspended and not permitted to return to work by their employer?

A recent New Jersey Superior Court has held that an employer cannot take adverse employment action against an employee who refuses to sign an arbitration agreement that requires her to waive her statutory rights under the Law Against Discrimination.

In Cator v. Hotel ML/Coco Key West Resort et al., Plaintiff, a black female, had made complaints about race discrimination during the course of her employment. During the same time period, her employer implemented a new policy mandating, as a condition of her continued employment, that all current and prospective employees execute an arbitration agreement. Plaintiff refused to execute the arbitration agreement and waive her statutory rights to have her claims of race discrimination adjudicated in a court of law and by a jury of her peers. In response to her refusal to sign the arbitration agreement, the employer suspended her from work and advised her that she would not be permitted to return to work unless and until she signed the arbitration agreement. As a result, the employee filed a lawsuit for claims under the New Jersey Law Against Discrimination.  One of the claims was specifically whether an employer unlawful retaliates against an employee for refusing to sign an arbitration agreement that waives their statutory rights under the law.

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Less than one week from Opening Day of the major league baseball season, Congress has passed legislation that will exempt minor league baseball players from the wage protections mandated under the federal Fair Labor Standard Act (“FLSA”).  This means that Major League Baseball and Minor League Baseball will not be required to pay their minor league baseball players a minimum wage, any overtime pay, or any compensation for spring training or during the off season.

The legislation will also likely put an end to a pending lawsuit brought by minor league players in which they are attempting to gain the legal wage protections available under the FLSA.  The lawsuit was filed in 2014 by lead plaintiff and former minor leaguer, Aaron Senne, who argued on behalf of himself and other minor league baseball players, that Major League Baseball and Minor League Baseball were violating the FLSA by not paying the players minimum wage and overtime pay.  Most minor league players make less than $7,500 a season and work between 50-60 hours a week during the season without factoring in travel time.  Minor league games take place six to seven days a week and require extensive travel for the players.

The FLSA requires that employers pay covered employees no less than $7.25 for every hour worked.  Most states have similar minimum wage laws in place, such as New Jersey that has enacted the New Jersey Wage and Hour Act.  The New Jersey Wage and Hour Act currently mandates employers pay eligible employees a minimum wage of $8.60 per hour.  The FLSA also requires that employers pay covered employees overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half their regular rates of pay.  The New Jersey Wage and Hour law contains the same provision requiring employees provide eligible employees with overtime compensation.

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The New Jersey Legislature passed legislation this week that mandates equal pay to all New Jersey employees and penalizes New Jersey employers who discriminate against women and other protected classes in their paychecks. The bill has now been sent to Governor Murphy, who has made clear that he will imminently sign the bill into law.

The bill, entitled the Diane B. Allen Equal Pay Act, is named after state senator Diane B. Allen who left her broadcasting job in 1994 after filing gender and age discrimination complaints with the Equal Opportunity Employment Commission.   The New Jersey Equal Pay Act will modify the New Jersey Law Against Discrimination by strengthening the protections already provided by the current anti-discrimination law against employment discrimination by making it unlawful to discriminate against employees in their compensation.

Specifically, the New Jersey Equal Pay Act makes it an unlawful for an employer to pay a rate of compensation and benefits to employees of a protected class which is less than the rate paid to employees not in the same class for substantially the same work. Protected classes include such traits as sex, race, ethnicity, military status or national origin of the employee.  Once it is signed into law, the New Jersey Equal Pay Act will prohibit an employer from reducing the rate of compensation of any employee to comply with the new law.  This means that an employer who has been and continues to be in violation of the law cannot then decrease the compensation of any employee to the compensation of another employee who is being discriminated against in their compensation.