New Jersey employment lawyer

Residency Requirement for Public Employees Receives Court Scrutiny

March 28, 2021 | Smith Eibeler LLC

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.

In 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.

How the EEOC is Hindering State’s Ability to Identify Systemic Employment Discrimination

November 9, 2020 | Smith Eibeler LLC

Late last month the state of California, the California Department of Fair Employment and Housing, the state of Minnesota, the Minnesota Department of Human Rights, the state of Maryland and the Maryland Commission on Civil Rights, together filed a lawsuit against the Equal Employment Opportunity Commission (EEOC) stemming from the EEOC’s decision to stop sharing important data with state and local “fairness in employment practices agencies” (FEPAs). The complaint filed in the Federal District Court for the Northern District of California alleges that the EEOC’s decision has negatively impacted state efforts to eradicate workplace discrimination and violates Title VII of the Civil Rights Act of 1964. It also alleges that the decision violates the federal Administrative Procedure Act, because the change was made without consultation or adequate notice to state FEPAs with whom the EEOC has longstanding worksharing agreements. The states and state agencies involved in the lawsuit are seeking an order setting aside the EEOC’s new policy and requiring the EEOC to reinstate FEPAs’ access to employment data.

What Is EEOC Data and Why Is It Important to The States?

Since 1966, spurred by the new legal requirements of Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination based on race, color, religion, sex and national origin,the EEOC has required employers with 100 or more employees to report employment data broken down by job category, race, sex and ethnicity on forms called EEO-1s. The intent of the EEO-1 data is to help identify and eradicate workplace discrimination in accordance with Title VII. Specifically, Title VII requires employers to maintain records that can show whether unlawful employment practices have been committed, and to preserve and produce those records as mandated by the EEOC. In further support of that mandate, Title VII also requires that the EEOC maintain open communication and coordinate its efforts with FEPAs. In part, the EEOC must provide FEPAs employment information reported to it if the reporting employer is in the FEPA’s state. In return, FEPAs are bound by confidentiality provisions. Worksharing Agreements between the EEOC and FEPAs generally set forth terms governing the relationship between the two agencies and often require both agencies to make data available to the other if it will assist in carrying out their responsibilities under Title VII.

BARDA Doctor’s Whistleblower Complaint Brings Conscientious Employee Protections into the Covid-19 Discussion

May 30, 2020 | Smith Eibeler LLC

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.

There 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.

New Jersey Amends Workers Compensation to Protect Essential Workers during COVID-19 Pandemic

May 21, 2020 | Smith Eibeler LLC

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.

So 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.

Supreme Court Allows Employee Terminated for Medical Marijuana Law to Proceed with Discrimination Lawsuit

March 12, 2020 | Smith Eibeler LLC

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.

In 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.

New Jersey Sexual Harassment Law: Revisiting Aguas v. State of New Jersey

February 11, 2019 | Smith Eibeler LLC

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.

Death of Taxes: Bill Allowing Plaintiffs in Fee-shifting Discrimination and Qui Tam Cases to Claim Income Tax Exclusion Gets Final Legislative Approval

December 19, 2018 | Smith Eibeler LLC

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.