SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Articles Tagged with New Jersey employment lawyer

Many of us have heard of employee whistleblowers who go public with their employer’s egregious wrongdoings and suffer job loss or other retaliation for doing so. Both the federal government and the State of New Jersey offer protections to these conscientious employees.  For example, a federal law called the Whistleblower Protection Act of 1989 protects employees who disclose evidence of illegal or improper governmental activities. In New Jersey, we have enacted the Conscientious Employee Protection Act, which is viewed as one of the furthest reaching whistleblower laws in the country. Whistleblower laws such as these were enacted to assure that employees have protections when they do the right thing and oppose unlawful activity of their employer.  We, as a society, belief that employers and the government must play within the rules to protect people from being harmed from dangerous situations that can be caused by unlawful conduct.

IMG_3937-300x169There is perhaps no better example of the importance that whistleblowers can play in stopping governmental behavior that can cause harm to people than the allegations that Dr. Rick Bright has made against the government concerning its COVID-19 response. Dr. Bright was recently ousted from his prominent position as Director of the Biomedical Advanced Research and Development Authority (BARDA) for what he alleges was in retaliation for disclosing certain violations of law, gross mismanagement and waste of funds, abuse of authority and substantial and specific danger to public health and safety of the government in response to the Covid-19 pandemic.

Dr. Rick Bright recently began making headlines when he went public with his Complaint alleging Whistleblower Retaliation filed with the United States Office of Special Counsel. In the lengthy filing, Dr. Bright alleges that he was fired from his position within the Department of Health and Human Services (HHS) after he refused to spend money on unproven and potentially dangerous drugs that the White House was touting as promising treatments for Covid-19, and he resisted pressure to put in place a national program geared toward expanding public access to those drugs.

Most people know that Workers’ Compensation provides benefits to employees who get injured or sick as a result of their jobs. Workers’ compensation is a State-run insurance program that provides medical and other benefits to individuals who suffer job-related ailments. It also provides death benefits to an employee’s dependents if the employee dies as a result of the job-related illness or injury. Workers’ compensation is a no-fault program, which means that a sick or injured employee will receive the benefits no matter who was at fault, but in exchange, the employee cannot bring a civil action against the employer except under circumstances involving intentional acts.

IMG_0999-300x169So what about all the essential workers who are risking their health showing up to work every day during the Covid-19 pandemic? First responders, healthcare workers, and employees working to provide essential goods and services during the Statewide shut down are among those at the greatest risk of contracting and becoming sick from the virus. How does New Jersey’s Workers’ Compensation Law protect them? Can Covid-19 be considered a work-related illness during our current public health crisis?

New Jersey lawmakers have recognized this as a serious problem in today’s workforce and have passed legislation to protect essential employees who contract Covid-19 at work. Senate Act No. 2380, approved on May 14, 2020, mandates that if during the public health crisis declared by Executive Order 103 (and extended by any subsequent executive orders) an essential employee contracts Covid-19 while at work outside of his or her home, there will be a rebuttable presumption that the contraction of the virus was work-related and fully compensable under New Jersey’s Workers’ Compensation Law, disability retirement, and any other benefits provided to individuals who suffer illness or injury related to their employment.  This presumption in favor of the essential employee can be rebutted by a preponderance of the evidence that shows the employee was not exposed to the virus while at work.

The New Jersey Supreme Court has issued an important decision holding that an employer’s refusal to permit an employee to use medical marijuana can constitute a violation of the New Jersey Law Against Discrimination. The New Jersey Legislature has in recent years recognized the medical benefits of cannabis use to treat symptoms of certain medical conditions. As a result, New Jersey has enacted progressive legislation, including enacting the Compassionate Use Act supporting the use of medicinal marijuana. The New Jersey Supreme Court’s ruling provides greater job protection to New Jersey employees treating serious medical conditions with medicinal marijuana and affirms New Jersey’s position on the use marijuana as a legitimate method of medical treatment.

IMG_1040-300x169In Wild v. Carriage Funeral Holdings, Inc., the plaintiff, Justin Wild, was employed with the defendant company, Feeney Funeral Home, LLC as a licensed Funeral Director. In 2015, Wild was diagnosed with cancer. His treating Physician prescribed medicinal marijuana as a component of his cancer treatment–primarily to help manage pain. Wild did not disclose this treatment method to his employer, but on days he worked, Wild would only take his prescribed medical marijuana after his shift had ended.

In May of 2016, Wild was involved in a motor vehicle collision during work. Another driver had run a stop sign and struck Wild’s vehicle. As a result of the accident, Wild required medical attention. At the hospital, Wild disclosed to his treating physician that he had a prescription for and had been using medical marijuana to treat his cancer. Upon inspection, the physician concluded the Wild was not under the influence of marijuana at the time of the incident.

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.

On Monday, the New Jersey State Assembly approved a bill that would provide a substantial tax benefit to victims of unlawful workplace discrimination, retaliation, or other violations of laws that regulate any aspect of the employment relationship.  This bill was first introduced in the New Jersey State Senate in January 2018, and has enjoyed widespread, bi-partisan support as it has worked its way through the legislative process.  Monday’s approval by the Assembly, by a unanimous vote of 79 to 0, was the final legislative hurdle.  If Governor Phil Murphy signs the bill into law, it will be a great victory for victims of workplace discrimination and retaliation across New Jersey.

In 2004, the United States Congress passed the Civil Rights Tax Relief Act. The Civil Rights Tax Relief Act was intended to, among other things, eliminate a flaw in the tax treatment of awards won by plaintiffs who successfully prosecuted claims of discrimination or retaliation.  Prior to 2004, a plaintiff who received an award in a discrimination or retaliation case were required to include in their gross income the entire amount of that award.

This was the case, despite the fact that a portion of that award constituted attorney’s fees and costs that were awarded along with the amount awarded for the plaintiff’s damages. Not only did this tax treatment negatively impact those plaintiffs, it also subjected that portion of the award to double taxation, as the attorneys who ultimately collected those fees and costs were also required to include that amount in their gross income. Congress cured this flaw by exempting that portion of such a plaintiff’s award from their gross income.  In approving the legislation on Monday, New Jersey is finally following suit.

Contact Information