New Jersey Employment Lawyers Blog

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.

Katie Brennan, State of New Jersey, Murphy campaign, Al Alvarez reach $1m settlement in sexual assault suit

May 15, 2020 | Smith Eibeler LLC

TRENTON (May 15, 2020)–Attorneys for Katie Brennan said on Friday that they have reached a settlement agreement in Brennan’s lawsuit against the State of New Jersey, Murphy for Governor, Inc., and Al Alvarez. Brennan came forward in October 2018 about having been raped by Alvarez when he was a senior member of Gov. Phil Murphy’s 2017 gubernatorial campaign staff. She filed suit in January 2019.

As part of the settlement, the State of New Jersey and Murphy for Governor, Inc. will pay $1 million, of which $600,000 will go to Brennan and $400,000 will go to cover the legal costs for more than a year of work with her attorneys at Smith Eibeler, LLC. Brennan will donate the entirety of the $600,000 she will receive to The Waterfront Project, a 501(c)(3) nonprofit organization dedicated to assisting Hudson County’s economically disadvantaged people–the working poor, seniors, veterans, and those living with disabilities–by providing information, advice, and pro bono legal representation to address their civil legal issues and concerns. The Waterfront Project will use the donation from Brennan to fund legal services and support for low-income survivors of sexual assault and harassment.

“The Waterfont Project is honored to play a part in making New Jersey a more equitable place for survivors of sexual assault,” said Rebecca Symes, Interim Executive Director of the Waterfront Project. “We look forward to partnering with sexual assault survivors, advocates, and policymakers to design an innovative project addressing this very complicated, but urgent need.”

Court Affirms Verdict of Transgender Person Harassed by Jersey City Police Department

May 14, 2020 | Smith Eibeler LLC

Most people are aware that the state and federal law can provide legal protection against sexual harassment and other discriminatory conduct to employees in the workplace. No job-related action, from recruitment and interviewing to compensation or discharge can be intentionally influenced or biased by an employee’s protected class, such as sex, gender, race, disability and others protected classes. But what if the individual is discriminated or harassed outside the employment? Will the law provide any protection to an individual who is subjected to sexual harassment or other forms of discrimination in places outside the employment, such as government building, campaign organizations or within a police department? The Appellate Division has issued a decision providing further guidance in situations in which a person is subjected to non-employment related discrimination in a case entitled Holmes v. Jersey City Police Department.

The case involves a transgender man, who was arrested for shoplifting and brought to the Jersey City Police Department for processing. The individual, Mr. Holmes, presented his valid driver’s license indicating his gender as male at the time of the arrest. After fingerprinting revealed Holmes’ former name and gender, the officers used offensive and demeaning language to verbally harass Mr. Holmes for the duration of his time at the police station. The officers also moved Mr. Holmes from a male holding cell to a female holding cell despite Mr. Holmes’ identification as male.

The New Jersey Law Against Discrimination prohibits gender-based discrimination and sexual harassment in a place of public accommodation. A place of public accommodation is any place that is open to the public, including schools, businesses, restaurants, government buildings and healthcare facilities. Public place accommodation violations include the use of offensive language, the display of demeaning images such as pornography or inappropriate drawings, as well as unwanted touching and other forms of physical harassment. This harassment can be unlawful regardless of whether it’s performed by an employee of the public place or another patron. Places of public accommodation have legal obligations to ensure that they have policies and procedures in place to prevent and stops the harassment once it knows about it or should have known about it, and it may not retaliate against the individual who was harassed or complained about harassment.

New Jersey Appellate Court Affirms Medical Leave Reasonable Accommodation Verdict

May 5, 2020 | Smith Eibeler LLC

Under the New Jersey Law Against Discrimination (LAD), an employee is entitled to reasonable accommodations at his or her workplace when he or she has a disability and the accommodation allows him or her to carry out basic job functions. But what if the employee requires medical leave to seek treatment for the disability? How long can the requested leave be? What if the employee’s time off under the federal Family and Medical Leave Act (FMLA) has already been exhausted or is unavailable? And how can the employee prove that he or she would still be able to perform basic job functions if the accommodation is provided?

The Appellate Division of the Superior Court of New Jersey answered these questions in a recent decision in the case of Pritchett v. New Jersey, when it held that leaves of absence are available accommodations under the LAD. In upholding the reasonableness of a request for a 4month extension of a medical leave, the Court determined that even unpaid leave that exceeds FMLA entitlements can be considered a reasonable accommodation, and should be assessed on a case by case basis. Additionally, the Court found that the LAD does not require expert testimony as to the individual employee’s ability to return to work. Such testimony need only attest to the fact that someone with the same disability could potentially function in the workplace.

In 2006, Shelley Pritchett was hired as a corrections officer at the Juvenile Justice Commission (JJC), and within a year, she was promoted to senior corrections officer. As a routine part of her job, Pritchett escorted inmates through and around the prison, responded to codes, and intervened to end physical fights between inmates when necessary. On June 8, 2011, Pritchett broke up a fight among several inmates and injured her neck, back and knee. Due to her injuries, Pritchett took medical leave pursuant to the FMLA until September 21, 2011, exhausting all of her available FMLA leave.

How the Families First Coronavirus Response Act Can Provide Help to New Jersey Workers

April 22, 2020 | Smith Eibeler LLC

The federal government recently enacted the Families First Coronavirus Response Act which provides emergency aid to workers as a result the Covid-19 outbreak. The Families First Coronavirus Response Act is a compressive package that, in part, temporary amends the Family and Medical Leave Act (“FMLA”) to incorporate, paid sick leave and extended family leave to support workers that can no longer work due to the coronavirus pandemic.

With respect to paid leave, the Families First Coronavirus Response Act is essentially comprised of two components: The Emergency Paid Sick Leave Act and The Emergency Family and Medical Leave Expansion Act.

The Emergency Paid Sick Leave Act

New Jersey Expands Family Leave Act to Provide COVID-19-Related Job Protection

April 15, 2020 | Smith Eibeler LLC

Governor Murphy signed legislation yesterday that amends the New Jersey Family Leave Act to provide job protections to employees who need to take leave from work during the COVID-19 epidemic in order to care for a family member because of qualifying reasons relating to the coronavirus. The passing of S2374 is part of a series of new laws enacted to address the COVID-19 pandemic and the severe impact it is having on New Jersey workers both at home and at their place of work.

In a press release, Governor Murphy said, “New Jerseyans should not have to make a decision between caring for a loved one with COVID-19 and keeping their job. Our state is already home to the nation’s most comprehensive Family Leave Act, and it’s only right that we expand these protections to meet the unprecedented health crisis we are facing.”

The New Jersey Family Leave Act provides eligible employees with up to twelve (12) weeks of job protected leave for certain qualifying reasons relating to family leave. These include bonding with a new born, adopting a child, the placing of a child into foster care with the employee or providing care to a family member who is suffering from serious health condition. The New Jersey Family Leave Act does not permit employees to take leave for their own serious health condition and therefore does not permit employees to take leave for their own heath related COVID-19 reason. Employees who are suffering from COVID-19 could be eligible for leave under other laws such as the Family and Medical Leave Act, New Jersey Law Against Discrimination or Americans with Disabilities Act.

Do COVID-19 Whistleblowers Have Legal Protection Against Workplace Retaliation?

April 8, 2020 | Smith Eibeler LLC

The COVID-19 pandemic has forced many New Jersey employees to work in unsafe work environments. Facing increased risk of exposure, many employees are rightfully concerned that they will become infected or infect others because of their employer’s failure to have in place proper safety measures limiting the spread of COVID-19 at the workplace. Not surprisingly, many New Jersey workers who are forced to work in unsafe working environments have voiced objections to their employers, governmental officials and others concerning the unsafe work environments. With the increased number of employee complaints, many complainants are left wondering whether they have any legal protection against their employers who have taken adverse employment action against them in retaliation for their complaints. While we indeed may be living in unprecedented times, the COVID-19 pandemic is not a defense available to employers who choose to retaliate against employees for making reasonable and good faith complaints concerning unlawful workplace issues. Luckily for New Jersey workers, the state’s strong whistle-blower laws can provide employees with legal protections should they be fired from their jobs for complaining about unsafe work environments, improper quality of patient care or other unlawful business activities.

The New Jersey Conscientious Employee Protection Act is often described as being one of the most far-reaching, pro-employee, whistleblower statutes in the United States. The purpose of the New Jersey anti-retaliation law is to protect whistleblowers from being retaliated against when they disclose, complain, object to or refuse to participate in certain actions at the workplace that he or she has a reasonable belief to be either unlawful, in violation of public policy or improper quality of patient care, should the employee be a licensed or certified health care professional. A retaliatory action can manifest in the form of a demotion, suspension, termination or other forms of adverse action that would dissuade a reasonable worker from making or supporting a charge of unlawful retaliation.

Governor Murphy’s Executive Order No. 107 may also provide COVID-19 whistleblowers with additional legal support that their COVID-19 related complaints are protected under the New Jersey whistleblower law. While Executive Order No. 107 bans many non-essential retail businesses from operating during the pandemic, it also places obligations upon essential or non-retail businesses and how they need to operate their business during the pandemic. For example, all businesses must accommodate their workforce, wherever practical, for telework or other work-from-home arrangements. Additionally, for employees who cannot perform their job duties via telework or work-from-home, businesses should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue. Many businesses are ignoring these requirements in running their business during the pandemic.

Federal Omnibus “CARES Act” Provides Aid to New Jersey Workers

March 28, 2020 | Smith Eibeler LLC

On March 27, 2020 the President Trump signed into law a massive stimulus bill, H.R. 748, which provides, among other things, a host of employment related protections and benefits to New Jersey workers. The stimulus package, titled the Coronavirus Aid, Relief, and Economic Security Act, or the CARES Act (hereinafter referred to as the “CARES Act”), provides aid to American citizens that have been negatively impacted by the novel Coronavirus, COVID-19, pandemic.

Included in the Act’s employment protections are additional unemployment compensation benefits, expands paid leave protection, and provides payroll protections to small businesses. The bill has been heavily negotiated by both political sides for the past few weeks. The final negotiated bill has received overwhelming bipartisan approval, receiving an approval by the Senate on Wednesday in a 96-0 vote. The employment related benefits provided under the CARES Act to New Jersey workers include the following:

Unemployment Benefits

Can an Employee be Terminated for Reporting Violations of New Jersey’s COVID-19 Executive Order 107?

March 25, 2020 | Smith Eibeler LLC

An employee may have a claim for whistle-blower retaliation under New Jersey state law if their employer takes adverse employment action against him or her for complaining directly to the employer or or reporting violations of New Jersey Executive Order 107 to a governmental agency. Executive Order 107 was signed by Governor Murphy on March 21, 2020 in furtherance of concerted efforts to stop the spread of COVID-19. Since its passing, there have been many news stories of New Jersey employees reporting that employers are conducting business as usual and in violation of their legal obligations under Executive Order 107. Employers who retaliate against their employees for “blowing-the-whistle” on violations of Executive Order 107 may also find themselves subjected to liability under the New Jersey Conscientious Employee Protection Act.

The New Jersey Conscientious Employee Protection Act is considered one of the furthest reaching anti-whistleblower statutes in the country. New Jersey’s whistle-blower protection law makes it unlawful for an employer to take adverse employment action (including, but not limited, to termination) against an employee for engaging in protected activity that is covered by the statute. There are many forms of protected activity recognized under the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34-19-3. For example, an employee who discloses or threatens to disclose to a supervisor or public body practices or acts of the employer that he or she reasonably believes to be in violation of a law, rule or regulation promulgated pursuant to the law is engaging in protected activity under the statute. Protected activity can also include objecting to or refusing to participate in any activity, policy or practice that the employee reasonably believes is “incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.” N.J.S.A. 34-19-3(c)(3).

The clear stated purpose of Executive Order 107 is to limit the spread and mitigate the impact of COVID-19. In order accomplish the objections of the executive order, Governor Murphy ordered specific directives upon employers concerning how they must conduct their business operations during the coronavirus pandemic. Among other things, Executive Order 107 directs the temporary closure of non-essential retail businesses. It also mandates non-retail businesses to accommodate their workforce for telework or work-from-home arrangements. The term “telework” is defined in the order as “the practice of working from home or alternative locations closer to home through the use of technology that equips the individual to access necessary materials.” The order further states that in situations in which employees cannot perform their job functions via telework or work-from home arrangements, the employer should make best efforts to reduce staff on-site to the minimal number of workers necessary to ensure the continuation of essential business operations.