New Jersey Employment Lawyers Blog

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 Political Rhetoric Has Exacerbated Discrimination Towards Asian Americans During COVID-19 Pandemic

March 10, 2021 | Smith Eibeler LLC

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.

Can 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.”

New Jersey to Consider Massive Reforms to Law Governing Employee Non-Competition Agreements

February 24, 2021 | Smith Eibeler LLC

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.

While 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.

Sexual Assault At Women’s Prisons Violates the New Jersey Law Against Discrimination

February 18, 2021 | Smith Eibeler LLC

“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.

Around 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.

Manchester HS Basketball Star Exercises First Amendment Rights In Response to BOE’s Attempt to Silence Her

February 11, 2021 | Smith Eibeler LLC

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.

In 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.

New Jersey Grapples with the Appropriate Use of Sheltered Workshops for Disabled Workers

February 5, 2021 | Smith Eibeler LLC

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.

In 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.

Court Revives Nurse’s Whistleblower Lawsuit Against Rutgers School of Biomedical and Health Services

January 20, 2021 | Smith Eibeler LLC

The Appellate Division of the Superior Court of New Jersey has reversed a trial judge’s the dismissal of a whistleblower lawsuit brought by a former licensed nurse of Rutgers University School of Biomedical and Health Sciences, which used to be the University of Medicine and Dentistry of New Jersey (Rutgers). This court’s decision will revive the ex-nurses lawsuit and allow her claims of whistleblower retaliation under New Jersey’s Conscientious Employee Protection Act to proceed to trial.

Ms. Herbe worked as a licensed nurse at Rutgers since 2009 and had recently been promoted to the position of Clinical Nurse Coordinator for the Child Health Program. Over the course of three days, when she and two coworkers along with their supervisor were assigned to audit patient charts, the supervisor admittedly abandoned that task and brought one of Ms. Herbe’s coworkers along with her to help her fill out an application to Rutgers’ graduate nursing program. Ms. Herbe reported her supervisor for theft of time, among other rule violations, via an anonymous employee hotline. The Business Manager for the Child Health Program investigated Ms. Herbe’s anonymous allegations and found them to be credible. Both the supervisor and coworker were disciplined, including loss of leave benefit time and removal of the supervisor’s application from consideration by the graduate program.

Immediately after they were disciplined, Ms. Herbe’s supervisor began to harass her by making comments about her being “a mole”, meeting with Ms. Herbe’s team without her, asking them for “dirt on her”, changing the reporting requirements that Ms. Herbe had put in place for her team, yelling at her in front of new employees and generally trying to undermine her authority. The supervisor also wrote her up for leaving work early and other infractions that Ms. Herbe claims never occurred. Ms. Herbe also began receiving poor performance evaluations for the first time in her four years working at Rutgers.

The Persistent Problem of Sexual Harassment and Assault within the Military

January 14, 2021 | Smith Eibeler LLC

Sexual harassment and assault against female members of the military remains a persistent problem that has rightfully received heightened attention in the last few years in the hope that it can be eradicated from all branches of our armed forces. Gender-based harassment and assault are prevalent in the world of veterans affairs as well, and the area of veterans’ health care in particular has come under scrutiny.

According to a national Health Services Research and Development survey conducted by the U.S. Department of Veterans Affairs (VA), 25% of women patients at VA health care facilities have experienced sexual or other harassment from other veterans. The VA defines patient harassment as “unwelcome physical, non-verbal or verbal behavior that interferes with a veteran’s access to and sustained engagement with VA health care. Harassment creates an intimidating, hostile or offensive health care environment.” The VA also provides examples of harassing conduct. For instance, the VA recognizes the failure to acknowledge women as veterans as gender harassment, and it occurs when someone asks a woman veteran if she is accompanying her husband to an appointment or questions her about the authenticity of clothing identifying a branch or era of service. On Vantage Point, the official blog of the VA, it also lists catcalls, whistles, stares, leering or ogling, telling women to smile, telling women they are too pretty to be veterans and following or cornering someone as examples of gender-based harassment. By all appearances, the VA is working to identify, educate veterans about, and eradicate this type of sexual harassment.

However, some question the VA’s dedication to gender equality and safety in its health care facilities after Andrea Goldstein, senior policy advisor on female veterans to the House Committee on Veterans Affairs and lieutenant commander in the U.S. Navy Reserve, alleged she had been sexually assaulted at a government-run veterans’ hospital. Goldstein, who has chosen to make her identity known, claimed in September 2019 that while she was waiting in line to buy food in the main lobby of the VA hospital in Washington, D.C., a contractor rubbed his body against hers and made suggestive comments of a sexual nature. Since that time, the VA and specifically its Secretary of Veterans Affairs for the Trump administration Robert Wilkie’s handling of her claim have come under scrutiny. The ensuing investigations have raised serious questions about how the VA handles complaints of sexual harassment, assault and retaliation and point to larger societal problems of victim-blaming and refusing to address systemic problems of gender equality and respect for female veterans.

New Jersey Court Rules that Liquidated Damages Available Retroactively for Pre-2019 Wage Payment Violations

January 6, 2021 | Smith Eibeler LLC

Liquidated damages are a type of monetary compensation to which an injured party is entitled when a statute provides for this additional relief or when it is available under contract. When liquidated damages are an available remedy under statutory law, the statute will generally provide guidelines to courts to help them determine the appropriate award. Under New Jersey’s Wage Payment Law, specifically the August 6, 2019 amendments also commonly known as the Wage Theft Act, an additional amount of liquidated damages of up to 200% of the unpaid wages due are available should the plaintiff succeed in his or her claim for unpaid wages. The Wage Theft Act also extended the time plaintiffs have to bring claims against their employers from two to six years.

One question that has been litigated in the year and a half since the passing of the Wage Theft Act is whether the amendments apply retroactively to claims that arose before August 6, 2019. The Superior Court for the State of New Jersey in the Essex County vicinage just refused to dismiss a putative class action complaint filed by Werny Castro on behalf of himself and other similarly situated truck drivers, against the defendant Linden Bulk Transportation, LLC, a for-profit motor freight carrier, under the New Jersey Wage Payment Law, including the wage theft amendments. Castro claims that the trucking company purposely misclassified him and other similarly situated drivers as independent contractors rather than employees in order to avoid paying them proper wages in violation of the Wage Payment Law.

Castro’s job required him to deliver cargo from Linden’s facility to various ports in New Jersey. He claims that since August 2013, the trucking company has misclassified him and other drivers, and unlawfully required them to pay certain expenses thereby depriving them of rightfully earned wages. Specifically, Linden required drivers to pay for fuel, taxes, tolls, truck parts, insurance policies and business-related phone calls, among other items. The trucking company classified the drivers as lessors of the trucks, and itself as lessee. Castro claims, however, that the drivers in fact leased the vehicles from an affiliate of Linden and that at least one of the vehicles was even registered under Linden’s Department of Transportation registration number. In addition to control and ownership of the vehicles, Castro claims that the trucking company also exercised control over the work performed by him and the other putative plaintiffs. For instance, Linden set work schedules and distributed assignments, required the use of Linden’s shipping invoices and time verification reports, and required that the trucks be returned to and stored at Linden’s facility at the end of each shift. Linden also had the ability to terminate Castro and the other drivers, which would have left them entirely unemployed without any clients or customers, because they all relied entirely upon Linden for their work.

Are Companies Improperly Using Force Majeure Provisions to Cheat Sales Reps Out of COVID-19 Commissions?

December 21, 2020 | Smith Eibeler LLC

Employers are increasingly attempting to avoid having to pay sales employees their rightfully earned and owed sales commissions during the COVID pandemic. In many cases, a company has no legal basis to avoid paying sales representatives their earned commissions by unilaterally retroactively changing the terms and conditions of how sales commissions are earned because COVID related conditions result in an unexpected increase in sales. In these situations, a sales representative understanding of their legal rights is critical if he or she has any hope in recovering their earned commissions.

Employees who are paid through commissions rightfully rely on being timely paid their earned compensation. Commission structures also benefit employers by motivating employees to perform at or above company expectations, thereby increasing profitability for the employer and allowing the employer to identify and reward its most productive employees. The type of commission structure an employer uses can range from simple to complicated, and most of them are memorialized in employment agreements signed by both employer and employee. Once an employee and employer agree to the terms of how commissions are earned and when they are to be paid, an employer cannot unilaterally and retroactively change the terms without breaching the contract or potentially violating wage payment law. If an employer wishes to change the terms and conditions of a commission agreement, like any contract, they must give proper notice to the employee of the proposed change and obtain the employees clear consent to the new agreement. Often, employers who wish to alter commission structures do so to save money, which for the employee, means lower commissions and reduced income.

Sometimes, an employer is prevented from paying agreed-upon commissions due to unpredictable hardships outside of the employer’s control, like acts of terrorism or natural disasters that make performance of the contract impossible or impracticable. For an employer to protect itself from these unforeseen events, they may contain a force majeure clause in a sales agreement which potentially could release the paying party from its obligations when payment becomes impossible or impracticable.