A New Jersey Appellate Division has reversed a Board of Review decision denying an employee the right to have an appeal hearing after failing to register and appear for the scheduled appeal hearing.  This decision stems from the Department of Labor, Unemployment Division, recent change in its procedures that now requires the employee and employer to pre-register one day before the scheduled hearing before the Appeal Tribunal.  In this case, the employee’s unemployment appeal was dismissed without any opportunity to have an appeal hearing because of the employee’s failure to call and register.

In the case entitled Jeff Randall v. Board of Review and D&C Tire Pros, Inc., the claimant, Mr. Randall filed his claim for unemployment benefits in January, 2017 as a result of the termination of his employment with D&C Tire Pros, Inc.  The initial determination disqualified Mr. Randall from receiving unemployment benefits by finding that Mr. Randall was discharged for simple misconduct in connection with the work.  The simple misconduct determination resulted in disqualifying Mr. Randall from receiving unemployment benefits from the period January 22, 2017 through March 18, 2017. Mr. Randall appealed the Deputy’s initial determination to the Appeal Tribunal by arguing that he was not terminated from his employment due to simple misconduct connected with the work.

In response to his appeal, Mr. Randall received a Notice of Telephone Hearing to take place on April 6, 2017 before an Appeal Tribunal Hearing Examiner.  The Notice of Telephone Hearing reads as follows:

The New Jersey Appellate Division has reversed a trial court’s determination that barred an employee from pursuing punitive damages in an arbitration proceeding.  While reversing the trial court’s determination concerning the issue of punitive damages, the court affirmed the trial court’s dismissal of the lawsuit by holding that the plaintiff knowingly agreed to arbitrate her sexual harassment claims by waiving her right to a jury trial as set forth in the employment agreement. As a result, the employee will now pursue her sexual harassment claims in a private arbitration, but will be permitted to pursue her claims for punitive damages in the arbitration proceedings.

In the case of Milagros Roman v. Bergen Logistics, LLC,the employee, Ms. Roman, alleges that she experienced sexual harassment during her employment with Bergen Logistics.  Roman began her employment as a human resource generalist in 2015.  In April, 2017, Roman alleges that she was subjected to sexual harassment from her immediate supervisor and was terminated form her employment in retaliation for rebuffing the sexual advances.  Roman subsequently filed a complaint in the Superior Court of New Jersey for claims sexual harassment, retaliation, hostile work environment and intentional infliction of emotional distress.

The employer responded by filing a motion to dismiss and to compel Roman to bring her claims in a private arbitration proceeding based upon an employment agreement that she signed in which she waived her right to a jury trial.  The employment agreement also included a provision that barred Roman from pursuing punitive damages in any action against the employer.  Specifically, the agreement read the employee and the employer agreed not to “file or maintain any lawsuit, action or legal proceeding of any nature with respect to any dispute, controversy or claim within the scope of [the] Agreement,” and that “BY SIGNING [THE] AGREEMENT [PLAINTIFF] AND THE COMPANY ARE WAIVING ANY RIGHT, STATUTORY OR OTHERWISE TO A TRIAL BY JURY.” The trial court granted the employer’s motion and dismissed Roman’s claim and also found that the arbitration agreement’s clause that waived Roman’s right to pursue punitive damages as enforceable.

In yet another legislative win in favor of New Jersey workers, Governor Murphy has signed a bill eliminating the controversial severe misconduct disqualification for unemployment benefits.   As of Friday, August 24, 2018, the severe misconduct disqualification has been repealed from the New Jersey unemployment law.  The bill also makes other significant changes to unemployment law concerning misconduct.  The change of law is being viewed by plaintiff employment attorneys as another legislative victory for New Jersey employees.

The History of Severe Misconduct

The severe misconduct disqualification was first enacted into law in 2010 and created a new total disqualification of unemployment benefits as a more severe penality than that of simple misconduct’s temporary seven (7) week disqualification. Prior to the 2010, a claimant would be disqualified for six weeks if it was found that they committed misconduct and could only be totally disqualified from receiving unemployment benefits if it was found that the termination was for gross misconduct.  Gross misconduct is when the claimant is terminated as a result of committing a criminal act, such as stealing, assault and other conduct punishable by criminal law.

The United States Court of Appeals Third Circuit has reversed a district court’s dismissal of a disability discrimination lawsuit brought by a registered nurse against her former employer. In the lawsuit captioned Aleka Ruggiero v. Mount Nittany Medical Center, the registered nurse claims that she was unlawfully terminated from her employment in violation of the Americans with Disabilities Act (“ADA”) for being terminated after refusing to get required vaccination because of her disability.

The plaintiff, Aleka Ruggiero, was employed as a registered nurse at Mount Nittany Medical Center before being terminated in July of 2015. According to the Complaint, Ms. Ruggiero suffers from severe anxiety and eosinophilic esophagitis, which limited her certain areas of life, including her ability to eat, sleep and engage in social communications. Despite her disabilities, Ms. Ruggiero was able to perform her job duties.

However, Ms. Ruggiero was required by the medical to receive a vaccination for tetanus, diphtheria and pertussis (the “TDAP”) vaccination as a result of her position as a nurse.  After not obtaining the vaccination prior to the deadline mandated by the hospital, Ms. Ruggiero provided a medical note from her doctor that medically exempted her from having to receive the vaccination. Mount Nittany Medical Center rejected the doctor’s note and requested further detail concerning Ms. Ruggiero’s medical inability to get the TDAP vaccination. After the treating doctor provided further information from the treating doctor, the medical center again rejected it as insufficient.  The medical center also rejected Ms. Ruggiero’s request to wear a surgical mask while at work as a different form of reasonable accommodation. After rejecting both reasonable accommodations requests, Ms. Ruggiero was eventually terminated after she missed the new imposed deadline to obtain the TDAP vaccination.

New Jersey lawmakers have introduced a bill that will prohibit an employer from requiring that victims of discrimination, retaliation and harassment to keep their claims confidential as part of a settlement. Employers routinely require that non-disclosure provisions are included as a material term of any settlement agreement in cases of sexual harassment and other employment discrimination.  Bill No. 121, if passed, will render any confidentiality provision contained in a settlement agreement as unenforceable.

Earlier this year, the federal government passed the Tax Cuts and Jobs Acts (“TCJA”).  In an apparent response to the #MeToo movement, the TCJA included a provision that prohibits employers from taking a deduction for attorney fees’ and costs that are incurred in any sexual harassment or sexual abuse case if the settlement agreement includes a non-disclosure provision.  While this provision was clearly aimed at curbing the use of the non-disclosure provisions in sexual harassment lawsuits, it did not prohibit the use of non-disclosure provisions all together.  Under TCJA, an employer can still require a victim of sexual harassment or abuse to keep any settlement of his or her claim confidential if they are willing to forgo the tax deduction.

Bill No. 121 takes it much further by making any confidentiality provision in any settlement agreement that attempts to conceal discrimination, retaliation, or sexual harassment, null and void.  Under the bill, an employer must include a prominent notice that the clause is unenforceable if they choose to add it to any settlement agreement.  The bill also prohibits an employer from taking any retaliatory action against an employee who refuses to sign an employment agreement that contains any illegal non-disclosure clause.

A New Jersey Appellate Division has affirmed a jury verdict of $525K in favor of a former customer service representative against her former company, RockTenn Co., and supervisor for claims of hostile work environment and unlawful retaliation. This sexual harassment case is another reminder to all New Jersey employers of the importance of having effective anti-discrimination policies in place that stop and remediate workplace sexual harassment.

In the case, Velez v. RockTenn Company and Raymond Perry,  the employee, Ms. Velez began her employment with RockTenn as a customer service representative in November, 2010 earning $45,000 per year.  Shortly after beginning her employment, Ms. Velez’s supervisor, Mr. Perry, engaged in sexually harassing behavior toward her.  The unwelcomed sexual harassment included Mr. Perry showing Ms. Velez a picture of his girlfriend and telling Ms. Velez that they had recently broke up.  Mr. Perry commented that his girlfriend had “nice thighs” and he loved Latino women. Ms. Velez, who is also Latino, testified that Mr. Perry would inappropriate look at her breasts, legs and backside while he spoke to her at work and one time asked her out on a date.  Ms. Velez also testified that he asked her out and that his conduct caused her to avoid going into his office.  At the company holiday party, Mr. Perry again showed a picture of his girlfriend to Ms. Velez and announced that she was trying to convince him to have a threesome.  A month later in January, 2011, Mr. Perry placed his hand over Ms. Velez’s hand during a work-related conversation and stated, “Oh, I should not be doing this, should I?”

Mr. Perry also exhibited controlling behavior over Ms. Velez during her employment.  Mr. Perry attempted to limit Ms. Velez’s interactions with other employees and went as far as to instruct her not to have lunch with another male employee, whom Mr. Perry did not believe was a good person. Mr. Perry also prevented Ms. Velez from attending a mandatory training, which Ms. Velez claims was in retaliation for her rebuffing of Mr. Perry’s harassing conduct.

An arbitration award supporting the termination of a Woodbridge teacher for repeated shoplifting has been affirmed by the New Jersey Superior Court and Appellate Division. In this case, Michele Schwab v. Woodbridge Township School District Board of Education, the terminated teacher argued that her shoplifting incidents were caused by a mental health disability and that she should not have been terminated for cause.  In rejecting this argument on appeal, the courts have issue another reminder of how difficult it is to overturn the decision of a private arbitrator.

During her sixteen years as an educator, Michele Schwab received awards such as “Educator of the Year” and was frequently described as a highly effective teacher. However, in February of 2015, Ms. Schwab engaged in criminal behavior by shoplifting from a store in the Woodbridge Center Mall. Ms. Schwab’s arrest and the charges against her were later dismissed. More than a year later, she again was charged with shoplifting and pled guilty to the charges brought against her after a video of the act surfaced on social media.  The video of her shoplifting that was seen by several of her fourth-grade students. Ms. Schward did not report her arrest to her employer, which the Board of Education claimed is a violation of a district policy.

When the school learned of the charges, Ms. Schwab was placed on suspension pending an investigation. Ms. Schwab’s employer additionally filed tenure charges against her, citing two counts of theft, failure to report her arrest, violation of district policies, and a pattern of unbecoming conduct. The charges were transmitted to an arbitrator for a hearing. After an investigation, the arbitrator decided that the Board of Education had established just cause to discipline Ms. Schwab, and that termination was an appropriate response to her charges.

Over the weekend, German Soccer Star, Mesut Ozil, retired from the German National Team following what he claimed to be rampant racist remarks and mistreatment based on his Turkish heritage, according to the BBC. The German Football Association, “DFB”, denies accusations of maintaining a hostile and discriminatory work environment for athletes of foreign descent. Ozil’s allegations align with experiences of other World Cup athletes who claim that they’ve been victims of racially hostile treatment based on their national origin.

The FIFA World Cup of soccer took over the international sports stage this summer and served to shed light on issues of discrimination worldwide. Though athletes were required to be citizens of the countries that they played for in the tournament, many players identified as immigrants to these nations, or shared heritage with other countries as well. A common experience of these dual-citizenship or immigrant athletes was to feel as though their fans accepted them as fellow citizens only when their team won; after a loss, the “foreign” athletes were treated as undesirable outsiders. This sentiment would manifest in hate mail, racist or discriminatory statements, and the reception of undue blame for their team’s poor performance.

Along these lines, Mesut Ozil claims he was discriminated against, singled out and scapegoated for Germany’s failure to advance past the group stages in the World Cup this year. Ozil, who is of Turkish descent, claims that he received racially harassing hate mail and was unfairly blamed for Germany’s poor World Cup performance.  Earlier this year, Ozil posted a photograph featuring himself alongside the President of Turkey after a friendly, soccer related meeting. Ozil was immediately criticized by DFB officials and fans who questioned his loyalty to democratic values.  Ozil was also abandoned by partners and sponsors and denounced by DFB officials such as Reinhard Grindel for the photograph and meeting. Fans referred to him as a “Turkish pig” and German media outlets openly blamed his Turkish heritage and meeting with Erdogan for Germany’s losses in the World Cup.

New Jersey is taking a stand against the unreasonable of non-compete agreements and other restrictive covenants in the fast food industry. New Jersey has joined a group of states leading an investigative charge against several corporations in the fast food industry for the utilization of no-poach and non-compete agreements. While non-compete agreements are common in a wide variety of industries in which the companies could show they have a protectable interest in restricting an important and/or high wage earner, this is rarely this case in the fast food industry. Because of this, the New Jersey Attorney General has decided to address the issue.

Non-compete agreements are a type of restrictive covenant where an employer restricts an employee from working in a particular industry for a definite period of time after the separation of their employment. Non-compete agreements often seek to restrain employees from working for specific competitive companies, while others prohibit the employee from working in the entire industry for a particular period of time. When these agreements are in place, they leave employees with only two options: attempt to move up the ranks of their own individual franchise location or find work in a different industry. Plaintiff-side employment lawyers often argue that non-competes damage labor competition within particular industries, suppress wages, restrict an employee’s earning potential and cause damage to a state’s economy. Defense-side employment lawyers argue that their employer clients extend substantial resources in employees that is worthy of protection for a period of time.

The corporations involved in the New Jersey investigation include Burger King, Dunkin’ Donuts, Five Guys Burgers and Fries, Little Caesars, Wendy’s, Arby’s, Popeye’s Louisiana Chicken and Panera Bread. The large size corporations allow them to nearly dominate the fast food industry, which heightens the impact that the non-compete agreements have on fast food employees. Fast food employees are particularly at risk of being damaged by restrictive covenants because of the trend of low wages and a common lack of resources available to them. These employees usually lack high levels of education and can be desperate for work. They typically do not have access to attorneys who can review their employment agreements or explain their protected rights. Because of this, New Jersey along with other states are attempting to address the harmful policies in order to protect the rights of vulnerable individuals.

More than a year before #MeToo, a Select Task Force was created by President Obama to examine the problem of sexual harassment at the workplace. The Select Task Force consisted of a select group of outside experts who analyzed the causes and effects of workplace harassment and made recommendations what should be done to prevent it. The Select Task Force’s Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace was published in 2016 before the #MeToo movement.

The mission of the Select Task Force on the Study of Harassment in the Workplace was to determine the extent to which harassment impacts employees of various industries nationwide, as well as how best to mediate this behavior. The Task Force operated in conjunction with the United States Equal Employment Opportunity Commission (EEOC), and its eighteen (18) members include academics, lawyers, EEOC representatives, and other experts from all across the country.  The Select Task Force’s June 2016 Report outlined that analyzed the different factors that increase the risk of workplace harassment, how workplace harassment impacts employees and productivity, and how workplaces can both address and prevent the occurrence of harassment in their office. The eruption of movements have revealed the continuing epidemic of sexual harassment in the workplace which has caused an renewed interest in the report.

The report revealed that Equal Employment Opportunity Commission (EEOC) received approximately 30,000 charges of workplace harassment in 2015 alone. This statistic is even more shocking in light of the Select Task Force’s finding that only 25% of the victims report the harassment to their employers. In fact, reporting harassment to the employer is the least common response to harassment.  Victims of sexual harassment fear disbelief, inaction, or blatant retaliation by their superiors or the harasser.