New Jersey Employment Lawyers Blog

Protecting U.S. Postal Workers From Whistle-blowing Retaliation

September 4, 2020 | Smith Eibeler LLC

As drastic changes to the U.S. Postal Service (USPS) result in mail delivery delays, some postal workers have chosen to speak publicly about how these changes are impacting their work environment. Given the highly-politicized news coverage of postal service changes leading up to what is expected to be a largely mail-in presidential election, postal workers who refuse to remain silent may face retaliation from their employer.

Last month, Frank Bollinger, a union official representing approximately 900 members of South Jersey Area Local 0526, gave an interview to NJ Advance Media in which he described the problems he saw at work and the negative impact they were having on both his union members and the general public. After the interview was published, Mr. Bollinger received a threatening letter from his employer that indicated his job might be in trouble for speaking publicly about workplace issues. Specifically, management responded to Bollinger’s interview by sending him a letter demanding his appearance at an investigative interview. The letter had a threatening tone, reading in part that the investigative interview would be Bollinger’s “Day in Court” and that he was facing “a very serious matter.” After NJ Advance Media published a second story, outing the employer’s letter to Mr. Bollinger, management at the USPS backpedaled and backed down. Although the post office management has since canceled the investigative interview, Mr. Bollinger questioned whether he could be disciplined for speaking out or if his speech was protected under the National Labor Relations Act (NLRA).

The NLRA, however, does not apply to federal, state, or local government employees, many agricultural workers, or employees who work on interstate railroads and airlines. Congress enacted the NLRA in 1935 to protect the rights and general welfare of private sector employees, encourage collective bargaining, and curtail certain private sector labor management practices that were harming workers and the U.S. economy. It is considered an unfair labor practice for an employerto interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA. Under the NLRA, employees have the right to organize, form labor organizations and labor unions, appoint representatives to engage in collective bargaining, and engage in other “concerted activities” for the purpose of collective bargaining or other workplace safety and fairness issues. Concerted activities are activities that bring workers together as a cohesive group to address work-related issues. Some examples of concerted activities are talking with co-workers about wages and benefits, circulating a petition to improve hours, participating in a concerted refusal to work in unsafe conditions, and joining with co-workers to talk directly to the employer, to a government agency, or to the media about problems in the workplace. An employer cannot fire, discipline, threaten or “coercively question” an employee for any of these activities. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. However, a private sector employee is not protected under the NLRA if he or she says or does something egregiously offensive or knowingly false, or if he or she publicly disparages the employer without any underlying labor controversy.

Teacher Requests for Leave Are Forcing Some Schools to All-Remote Learning

August 26, 2020 | Smith Eibeler LLC

As schools scramble to figure out how best to reopen in a couple of weeks, with many opting for a fully remote start to the school year, teachers in some districts are faced with an all too familiar problem for working parents. How will they manage teaching in person and caring for their own kids at the same time? In towns that had planned to reopen with in person instruction, an increasing number of teachers whose children will be at home learning remotely are availing themselves of the 12-week leave available to them under the Families First Coronavirus Response Act (FFCRA). This leave will allow them to care for their own children while many school buildings and childcare centers remain closed.

The FFCRA is a temporary expansion to the Family and Medical Leave Act (FMLA) that requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply through December 31, 2020 to covered employers (those with between 50 and 500 employees) and any employee who has been employed for at least 30 days. Employees can request leave at any time, for several reasons, including because the employee must quarantine, a dependent of the employee must quarantine, or for childcare when the child’s school or usual childcare provider is closed or unavailable for reasons related to COVID-19. When the leave is requested for childcare, employees are entitled to up to 12 weeks of partially paid leave that is subtracted from what would otherwise be their FMLA time. Employers of healthcare workers and first responders can opt out of providing this leave, and employers with fewer than 50 employees can opt out of granting leave requests specifically for childcare issues if granting the request would jeopardize the viability of the business.

Teachers who suffer from disabilities may also be entitled to accommodations, including leave of absence, if they can show the requested accommodation is reasonable and supported by medical evidence. The Law Against Discrimination prohibits employers from discriminating against disabled employees in connection the terms and conditions of their employment. The Law Against Discrimination also requires employers to engage in an interactive process with disabled employees who are in need for assistance, and provide them with reasonable accommodations, unless they can show it would be undue hardship on the school’s operations to provide the accommodation.

A Long Way To Go: NJCASA Releases Report on Sexual Harassment in New Jersey Politics

August 19, 2020 | Smith Eibeler LLC

This month the New Jersey Coalition Against Sexual Assault (NJCASA) released its report, “It’s Everywhere, It’s Everything: The Report of the New Jersey Coalition Against Sexual Assault’s 2020 Survey on Misogyny & Sexual Misconduct in New Jersey Politics.” The report publishes survey results received from employees within New Jersey’s political sphere regarding their experiences of sexual harassment and misconduct in the workplace. It also makes recommendations for improving workplace culture around sexual harassment and misconduct, including increased education and training, the development of transparent, predictable reporting processes, and the creation of a culture of accountability in NJ politics.

Survey respondents held a variety of positions within state politics, including advocates and activists, state government employees, campaign staffers, lobbyists, partisan political operatives, staffers to elected officials, those holding elected office themselves, legislature employees, and county and municipal government employees. The largest reporting groups were advocates and activists (16%), state government employees (13%), campaign staffers (13%) and partisan political operatives (13%). The vast majority of respondents were white (85%), non-immigrant (94%), heterosexual (81%), cisgender (79%), highly-educated (89%) women (78%). As the report acknowledges, this means that this particular study provides a window into the sexual harassment and misconduct experienced and witnessed by a highly privileged group, and indicates that despite holding such privilege, these respondents were often without the proper resources to prevent, report, or obtain justice in the face of harassment and misconduct in the workplace. The report stressed the importance of interpreting the results as framed and informed by one specific type of woman.

It comes as no surprise that most survey participants (57%) reported having either experienced and/or witnessed sexual harassment and misconduct during their work in NJ politics, and that women are far more often the targets of this misconduct and more likely to report it than men. By occupation, 75% of county government employees reported experiencing harassment, and 77% of campaign staffers and 76% of lobbyists reported witnessing it. When defining the specific types of harassment encountered, verbal remarks and misogynistic comments were the most frequently reported and combined make up 45% of the total. Three percent of respondents reported having been raped. State government employees reported that misogyny is “very prevalent” in their workplaces.

Federal Bill Introduced to Protect Primary Caregivers From Workplace Discrimination

August 13, 2020 | Smith Eibeler LLC

On June 5, 2020, new federal legislation was introduced that would protect family caregivers from workplace discrimination. Introduced by United States Senator Cory Booker (D-NJ), the Protecting Family Caregivers from Discrimination Act would make it unlawful for an employer to (1) fail or refuse to hire an applicant because of the family caregiver responsibilities of the applicant; or (2) take adverse action or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because of the family caregiver responsibilities of the employee. The proposed law would also make it unlawful for an employer to interfere with or restrain the employee from exercising his or her rights under the act, and to retaliate against an employee for seeking enforcement of these protections.

The Protecting Family Caregivers from Discrimination Act would be enforced by the Equal Employment Opportunity Commission (“EEOC”), and violations would requireproof of disparate treatment by an employer or the disparate impact of an employer’s policies on a caregiver employee. An employee alleging discrimination under this Bill would have a private right of action against his or her employer without being required to file a charge through the EEOC or exhaust any other administrative remedies first.

Primary caregiver discrimination has long been an inadequately addressed problem in our work force, with advocacy groups, research centers, and legal projects fighting for appropriate protections for decades. This legislation is supported and endorsed by many of those groups, including the Center for WorkLife Law, National Employment Law Project, the National Alliance for Caregiving, the Caregiver Action Network, Caring Across Generations, the National Women’s Law Center, A Better Balance, National Partnership for Women & Families, The Arc of the United States, and the National Domestic Workers Alliance.According to a report from the Center for WorkLife Law at the University of California-Hastings, the number of employees reporting caregiver discrimination in the workplace increased almost four-fold from 2005 to 2015. The Center for WorkLife Law also reports that 60% of caregiver employees suffer retaliatory action from employers for having family responsibilities, including reduced hours and negative performance reviews. As of 2020, the American Association of Retired Persons (AARP) found that 53 million Americans care for their dependent family members and 61% of them do so while working at a full-time job.

Questions Arise as to Whether Employers Will be Able to Enforce Arbitration Agreements in Employment Contracts When it Comes to Harassment, Discrimination and Retaliation

August 6, 2020 | Smith Eibeler LLC

A New York State trial court recently ruled that the arbitration clause in an employment contract requiring an employee to submit to binding arbitration for claims against her employer, including sexual harassment claims, was unenforceable following amendments to New York State’s Human Rights Law in 2018. The decision creates a split in authority between New York State and federal courts, following a 2019 decision in the Southern District of New York upholding the enforceability of arbitration agreements in employment contracts. That court found that the Federal Arbitration Act (FAA) preempts the New York statutory prohibition. These contrasting decisions may create uncertainty around the viability of employee/employer arbitration agreements in New York as they relate to harassment and discrimination claims.

This confusion exists in New Jersey as well. On March 18, 2019, Governor Murphy signed legislation that, among other things, prohibits mandatory arbitration of discrimination, retaliation or harassment claims as against public policy. While other jurisdictions, including New York, have enacted similar legislation pertaining to sexual harassment claims, the New Jersey law covers all claims arising under the New Jersey Law Against Discrimination (NJLAD). The New Jersey law also states that confidential settlement agreements “shall be deemed against public policy and unenforceable”. It is important to note that the prohibition of arbitration does not apply to collective bargaining agreements. It remains unclear whether New Jersey courts will find that this state law is preempted by the FAA, but nonetheless, employers run the risk of violating the new law if arbitration provisions are included in employment contracts going forward. The new law is not retroactive. It applies “to all contracts and agreements entered into, renewed, modified or amended on or after” March 18, 2019.

Since the signing of New Jersey’s law prohibiting the inclusion of arbitration agreements in employment contracts, New Jersey courts, both state and federal, have upheld the validity of arbitration clauses that were signed before enactment of the law.

Even Negotiations In Good Faith Will Not Protect an Employer Who Fails to Promptly Rehire an Active Duty Military Service Employee Upon Return From Deployment

July 30, 2020 | Smith Eibeler LLC

A recent legal decision highlights the swiftness with which employers must rehire employees returning from active military duty. In Harwood v. American Airlines, the United States Court of Appeals for the Fourth Circuit found that a delay of six or eight weeks was too long after the end of active military duty to rehire an employee. The Court ordered the airline to pay back wages to the plaintiff, a commercial pilot and major general in the Airforce Reserve. The decision came from the Fourth Circuit, which considers legal disputes arising out of federal laws in Maryland, Virginia, West Virginia, and North and South Carolina. The federal law at issue was the Uniformed Services Employment and Reemployment Rights Act (USERRA), which is law in every state, including New Jersey.

Harwood was on military leave from his job with American Airlines from June 2013 through August 2015, and informed his employer of his intent to return to work following the end of his leave. In preparation for his return to American Airlines, Harwood had to obtain a medical certification from the Federal Aviation Administration (FAA). Because he had been diagnosed with atrial fibrillation during his military tour, the FAA denied the certification. Over the course of the next two months, Harwood and American Airlines communicated regarding his medical issue and potential resolutions to get Harwood back to work. Because he was not medically cleared to fly by FAA standards, American Airlines offered to extend his military leave until the medical waiver came through or, alternatively, to create a position appropriate for his status and with equal pay. Ostensibly, the airline was working diligently and in good faith to return the plaintiff to his former status within the company. However, the airline made its employment offer in late October, approximately six weeks after Harwood’s military leave ended and two months after he had informed his employer of his intent to return to work.

Harwood declined both options offered by American Airlines and spent the next three months on military active duty, receiving military pay. Approximately five months after his deployment ended, Harwood decided to accept American Airlines’s offer for the custom position. On that same day, he received his medical waiver to fly so he was reassigned as a domestic flight captain.

Amazon Must Defend Itself Against Allegations of Wage and Hour Laws Violations Against New Jersey Employees

July 23, 2020 | Smith Eibeler LLC

On June 29, 2020, the U.S. District Court for the District of New Jersey ruled that consumer goods giant, Amazon, must defend itself in a class action lawsuit brought by warehouse employees claiming violations of wage and hour laws arising from Amazon’s mandatory post-shift security screenings.

According to the Complaint, at the end of the workday, Amazon’s warehouse employees must submit to a lengthy security screening before they are permitted to leave Amazon’s premises. The lawsuit alleges that the security screening requires hundreds of employees to wait together before each individual must walk through a metal detector and place his or her personal items on a conveyor belt to be scanned via x-ray. If, after the initial screening, Amazon determines that additional screening is necessary, the employee must then report to the secondary screening area for a manual search of the employee’s person. These screenings are intended by Amazon to prevent theft of goods and can take approximately half an hour to complete after the employees have already clocked out of their shifts. Employees are not compensated for the time spent in these screenings.

The Complaint also alleges that the same security screening procedure is required of any employee that wishes to leave Amazon’s premises for his or her unpaid, 30 minute lunch break. Given the vastness of Amazon’s parking lot and remoteness of its premises, the screening allegedly prevents employees from going off site for their meal breaks. The lawsuit claims that Amazon violated federal and state wage and hour laws by failing to count time spent in these mandatory screenings as “hours worked” for purposes of calculating wages and overtime.

The Duty to Mitigate Damages Applies to All Litigants: Even NFL Coaches

July 16, 2020 | Smith Eibeler LLC

As those of us who are Rutgers football fans know, finding a winning head coach can be very difficult. Unfortunately, the Rutgers football head coach position has become available three times in the past eight years, which means three expensive and time consuming job searches. While there are always a large pool of candidates who would love the opportunity to be the head coach of Rutgers football, there are always some highly qualified candidates who choose to interview for reasons other than actually wanting the job. One example is to gain leverage in securing a better contract from their current coaching position. Another example, is when an unemployed coach who is still owed money under a term contract interviews for a job to prove they are mitigating their damages.

The issue of mitigation of damages has been placed front and center in connection with a federal lawsuit former Arkansas head coach, Bret Bielema has filed against his former employer. According to news reports, Bielema is being accused by his former for failing to mitigate when removing himself as a candidate for the Rutgers position during the search when it became likely Rutgers would be hiring Schiano.

Bielema sued the Arkansas Razorback Foundation for breach of contract by alleging that the school has failed to pay him $7 million in salary he was owed after his no-cause firing. Arkansas claims, however, that Bielema failed to mitigate his damages for failing to use reasonable efforts to secure a comparable coaching job and instead accepting a much lower-paying job in the NFL. The lawsuit, currently pending in federal court, presents an interesting legal issue that many plaintiffs in employment cases are faced with in litigating their claims of wrongful termination or breach of contract. Did Bielema mitigate the damages he claims to have sustained by his termination.

The Families First Coronavirus Recovery Act Covers Leave for Closed Summer Camps

July 1, 2020 | Smith Eibeler LLC

For many working parents, school closures across the State of New Jersey since mid-March have posed insurmountable challenges as families attempt to manage work obligations with remote schooling and closed childcare centers. Now that the school year is over for most students and many summer camps are shuttered or running virtually, working parents are faced with a new set of childcare challenges that will impact their ability to fulfill work obligations. What options are available to working parents who are unable to balance the demands of work and childcare during Covid-19 closures this summer?

The United States Department of Labor (DOL) said Friday in one of its guidance letters that working parents may be entitled to up to 10 weeks of partially paid leave over the summer to care for their children if they can show that the virus disrupted plans to send them to a summer camp. To be eligible for such leave under the Families First Coronavirus Response Act (FFCRA), covered workers include those employed by small and mid-size employers—those with more than 50 but fewer than 500 employees.

How does an employee demonstrate the intended plans for his or her children to attend a summer program? Proof of summer camp plans were firm and then disrupted by the virus should be sufficient. The key inquiry is whether there is any “evidence of a plan” to rely on summer camp as a means of childcare, and to consider whether it is “more likely than not” that if the camp was running normally, the child would be attending. Examples of sufficient proof might be an application or deposit that was submitted to the camp, proof that a child was already enrolled in a camp that is now closed, showing the child attended summer camp in previous years, having the child’s name on a camp’s waitlist, or some other indication of the worker’s intent to enroll the child(ren). At a minimum, the employee’s affirmative steps to secure a spot in a summer camp evidences “plans” that should satisfy FFCRA’s requirement for coverage. An employee who merely expressed an interest in a summer program but took no concrete steps toward enrollment will likely not be covered.

Smith Eibeler Applauds Middletown North Valedictorian Jada Tulloch for Her Courageous Exercise of First Amendment Rights

June 26, 2020 | Smith Eibeler LLC

The recent highly publicized deaths of George Floyd, Breonna Taylor and Ahmaud Arbery, among others, have cast a spotlight on race relations across the United States. Supporters of the Black Lives Matter movement in many cities have taken to the streets in protest of police brutality and systemic racism. In addition to public protests, many are sharing their views throughout social media and speaking out publicly to facilitate increased awareness and education to impact much needed change.

In recent local news, Middletown North High School Valedictorian, Jada Tulloch, took to social media to share her own experiences with racism in her hometown and to give her perspective on the protest staged by her classmates in response to being denied an in-person graduation ceremony. On June 2, Ms. Tulloch posted a video on Instagram about how she survived years of oppression and racism in Middletown, a student population that is approximately 90% Caucasian, and admonished those of her peers claiming that their rights were being infringed upon by the Middletown Board of Education. Ms. Tulloch was referring to a recent protest by her fellow high school classmates held outside the Board of Education offices on June 1. The demonstration was in opposition to proposed plans to have a virtual graduation in lieu of an in-person event due to the COVID-19 pandemic and resulting Orders of Governor Murphy. Ms. Tulloch spoke directly to those of her classmates who belittled the #BLM movement and the bravery of those standing up to police brutality and racial injustice through organized protest.

Responses to Ms. Tulloch’s remarks were varied, with many voicing their support of her statements while others criticized her and demanded her planned graduation speech as valedictorian be rescinded. Middletown superintendent, William O. George, III showed early support for Ms. Tulloch on behalf of the district when he wrote a letter on June 4, addressed to the school community, in which he refused to denounce her social media post and affirmed her First Amendment right to share her perspective and to speak out against injustice and systemic racism. Those opposed to Ms. Tulloch’s actions wrote letters to the Middletown Board of Education and on social media chastising her for speaking out against the racism within the Middletown community.