New Jersey Employment Lawyers Blog

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.

Is it Unlawful to Terminate an Employee Because they have COVID-19?

March 24, 2020 | Smith Eibeler LLC

For New Jersey employees, the short answer is yes. On March 20, 2020, Governor Murphy signed into law new legislation that makes it unlawful for an employer to take adverse employment actions, including termination, against any employee for requesting or taking time off from work because the employee has or is likely to have the Coronavirus. The new law, A3848, comes in the wake of the Public Health Emergency and State of Emergency declared by Governor Murphy earlier this month. This new Coronavirus job protection law will provide victims of the virus with much needed protections from losing their job or being denied reinstatement.

The legislation was enacted as a part of the New Jersey’s continued efforts to deal with the Coronavirus pandemic and the devastating impact is having and will continue to have on individuals and their employment. In the last few weeks, the number of confirmed cases of Coronavirus in New Jersey has continued to climb and is expected to continue to rise expenditionaly. Among the attempts to slow the spread of the disease, medical professionals have advised those who have contracted or are suspected to have contracted the novel Coronavirus to quarantine themselves. Even those individuals who have not come in to contact with the disease are being urged to practice social distancing, isolating themselves in an attempt to limit potential exposure to the disease. As Governor Murphy stated in one of his recent press briefings, “Quite simply, stay at home.”

Prior to the passing of this Coronavirus job protection law, it was unclear what sort of job protection a quarantined individual would have during the Coronavirus outbreak. The New Jersey Law Against Discrimination, which provides employees protection from discrimination and retaliation in the workplace, has a broad definition of “disability” that includes certain types of serious illnesses. However, some courts have interpreted the New Jersey Law Against Discrimination’s broad provision concerning disabilities not to cover transient illnesses such as the flu. While the Coronavirus is concernedly much more serious than the common flu, it remains unclear whether the New Jersey Law Against Discrimination is a viable avenue to relief for affected employees.

New Jersey COVID-19 Legislative Update

March 21, 2020 | Smith Eibeler LLC

Earlier this week, we wrote about a package of proposed bills submitted by the New Jersey Assembly Democratic Caucus, designed to provide relief for New Jersey citizens suffering the impacts of the coronavirus pandemic (“Coronavirus”). Specifically, we focused on three proposals designed to address some the employment-related impacts of the virus: missing work due to illness or family-care needs, missing work due to job closure, and the potential for employment-related retaliation taken against those individuals who missed work due to one of the impacts of the virus.

These three bills – A-3846 , A-3847 , A-3848 were each passed by the State Assembly on Monday, March 16th. Although the Assembly ultimately passed each bill, they were not passed with equal support: A-3846 and A-3848 were passed unanimously (65-0), while A-3847 passed with 56 votes in favor compared to 4 votes against and 5 abstentions. This third bill, a bill that would provide paid sick leave to certain local government employees without requiring those employees to first use up any accrued leave they might have, was clearly the most contentious of the three.

Once these bills were sent to the State Senate for review, the contentious nature of A-3847 remained apparent: the Senate has neither voted on nor taken any action with regards to the bill. In comparison, on Thursday March 19th, the Senate mirrored the Assembly and unanimously passed versions of A-3846 and A-3848. Thereafter, on Friday March 20th, Governor Murphy signed the second of these bills, A-3848, into law. This bill prohibits employers from retaliating against any employees who missed work or requested time off of work due to the Coronavirus, if such request or medical leave was made or taken pursuant to a recommendation from a medical professional. The remaining bill, A-3846, remains on Governor Murphy’s desk and will likely be approved and passed into law in the days or weeks ahead.

New Jersey Legislature Releases Proposed COVID-19 Employment Protections

March 16, 2020 | Smith Eibeler LLC

The New Jersey Assembly Democratic Caucus will introduce a package of 25 bills, each designed to address a different aspect of the impact from the novel coronavirus COVID-19 pandemic (“Coronavirus”). Some of these impacts are directly related to the Coronavirus, but many others are the downstream, unintended but unavoidable consequences of policies and practices instituted to combat further spread of the virus. Many of these policies and practices have focused on limiting or eliminating social interaction, wherever possible. While this may be the best method of stopping the spread of the virus, it creates additional problems in the context of employment rights and protections.

Many of the proposed bills in this package impact employment in ancillary ways, however three of the bills are specifically designed to provide employment protections. If passed, these bills would provide critical benefits for employees who are impacted by the Coronavirus pandemic, including providing payment of lost wages, provision of paid sick leave, and job protections for individuals who take leave. As is discussed in detail below, these proposed bills do not apply to all employees or all situations.

“Temporary Lost Wage Unemployment Program” (A-3846)

Can I Collect Benefits Due to Corona Virus-Related Layoff or Business Closing?

March 15, 2020 | Smith Eibeler LLC

Many businesses and schools have or will be closing due to the Corona-Virus. While some New Jersey workers can still perform their job duties and responsibilities from home, others cannot and will be temporarily or permanently separated from their employment. For those people who are separated from their employment for COVID-19 related reasons, there are various local, state or federal governmental run programs that provide for paid benefits to impacted workers. For New Jersey employees who find themselves unemployed due to COVID-19, they two programs that could provide for temporary relief are New Jersey Unemployment Insurance and the “Emergency Paid Leave Act of 2020” program that was passed into law late Friday night.

New Jersey Unemployment Insurance Law provides for unemployment benefits for employees who are separated from their work due to no fault of their own. Employees who are unable to perform their job duties and responsibilities at home during a Corona-Virus related business closing may be eligible to collect unemployment benefits if they meet all other eligible requirements, including the minimum earnings requirement. Benefits under the New Jersey Unemployment Insurance program are available up to 26 weeks per year. Eligible employees are paid 60% of his or her average weekly wage earned during the base year, with a maximum week benefit up to $713. The current maximum total benefit for one worker to receive is $18,538 for 26 weeks of unemployment.

Workers who become eligible to receive unemployment benefits are required to be show they are (1) able to work; (2) actively seeking work; (3) available for work: and did not refuse any offer of suitable work. While securing a new job during the Corona-Virus pandemic could prove very difficult, any person collecting unemployment benefits should still actively seek for work during their period of unemployment. This includes applying for any open and available jobs and keeping all documentation to prove he or she conducted a diligent job search efforts should the Department of Labor request the information relating to the job search.

Can I Collect Benefits If I Need Leave From Work Because of the Corona Virus?

March 15, 2020 | Smith Eibeler LLC

It is unknown how many workers across New Jersey will fall ill with COVID-19 or be quarantined as a result of a Coronavirus exposure. Many school districts across New Jersey have already closed, with more anticipated to be closed imminently. Many New Jersey working families will need to take FMLA or other form of leave from work as a result of a family member or themselves for contracting COVID-19, or simply to care for children not in school.

The New Jersey Paid Family Leave Insurance provides for benefits for up to 6 weeks to provide care for a seriously ill or injured family member diagnosed with COVID-19. In order to be eligible for Family Leave benefits, a New Jersey worker would have to had paid into the system and meet the minimum gross earnings requirements. New Jersey workers must have worked 20 weeks and earned at least $200 per week, or have earned a combined total of $10,000 in the base year. Eligible workers are currently paid 2/3 of their average weekly wage with a maximum of $667 per week. However, starting July 1, 2020, eligible workers will be paid 85% of their average weekly wage with a maximum of $881 per week. The New Jersey Paid Family Leave Insurance law is different from the New Jersey Family Leave Act, which provides eligible employees with job protection for qualifying reasons such as child birth or to care for a family member who is suffering from a serious health condition.

If a New Jersey employee tests positive for COVID-19 or has symptoms consistent with COVID-19 and is unable to work, there are several possible state programs under which he/she may be eligible. The employee may use accrued Earned Sick Leave. All employers, regardless of size, must provide employees with up to 40 hours of earned sick leave per year to care for themselves or a loved one. Earned Sick Leave time may accrue as you work at a rate of one hour per 30 hours worked, or, your employer may give you a “bank” of 40 hours at the beginning of the year. A New Jersey worker exposed to Coronavirus during the course of their work and directed to quarantine as a result may also use Earned Sick Leave during the quarantine period. Earned Sick Leave is also available to employees who are unable to work because their child’s school or daycare was ordered closed by a public official.

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.

Division of Civil Rights Publishes New Jersey Equal Pay Act Guidelines

March 5, 2020 | Smith Eibeler LLC

The New Jersey Division of Civil Rights has published its guidelines concerning the administration of the New Jersey Diane B. Allen Equal Pay Act. The New Jersey Equal Pay Act, first enacted into law in 2018, makes it unlawful for employers to engage in discriminatory compensation practices and retaliate against employees for complaining about workplace wage related issues. The guidelines issued by the New Jersey Division of Civil Rights will assist employers, employees, lawyers and judges on how to interpret the equal pay law in situations involving workplace wage discrimination and wage disparity.

The New Jersey Equal Pay Act prohibits employers from paying employees who are members of a protected class less than their counterparts who perform substantially similar work and are not in a protected class. Unlike many other state equal pay laws, protected classes under the New Jersey equal pay statute are not limited to gender and instead include all other protected classes under the Law Against Discrimination such as age, sexual orientation, race, disability, national origin and others.

The New Jersey Equal Pay Act amended the New Jersey Law Against Discrimination to provide for significant penalties to employers who violate the law. In addition to an award of back pay for up to six (6) years from the date of the last unlawful pay occurrence, the law allows an employee to recover an additional amount equal to three (3) years of the awarded back pay monetary amount as treble damages.

Revisiting Battaglia v. UPS: New Jersey Employment Retaliation Law

February 27, 2020 | Smith Eibeler LLC

An employee is protected from retaliation from his or her employer when he or she engages in protected activity under the New Jersey Law Against Discrimination. But what constitutes protected activity? Is any complaint covered? Or does the employee complaint have to one that the complained of conduct violate the law? The Supreme Court of New Jersey answered these questions concerning the standard in a 2013 decision in the case of Battaglia v. United Parcel Service Inc., in holding that an employee engages in protected activity when employee’s complaint is reasonable and made with a good faith belief that the complained of conduct violates the LAD.

The Battaglia decision involved a case of sexual harassment retaliation. Michael Battaglia had been employed with UPS since 1985, when he began as a driver and worked his way up the ranks. In 2001, Battaglia became the division manager of UPS’s South Division and he began supervising Wayne DeCraine. During this time, Battaglia became aware of DeCraine’s derogatory remarks about women, including sexually inappropriate comments about female employees at UPS. Battaglia took steps at that time, in accordance with UPS policy, to address DeCraine’s conduct and behavior. For unrelated reasons, thereafter, Battaglia was moved through several other departments at UPS and ultimately in 2004, returned to working with DeCraine – now with DeCraine supervising Battaglia as a division manager.

After some time, DeCraine began making what Plaintiff perceived to be a series of inappropriate sexual comments. While the comments were only made in the presence of male employees, the comments were about other female employees. Battaglia asserts that he spoke with DeCraine each time he made a comment and further met with their supervisor who had also heard these remarks.