The New Jersey Employment Law Firm Blog

December 4, 2017

New York Court Rules on Overtime Pay for Home Care Workers

Overtime laws have many exceptions and exemptions, but even when an employee is indisputably entitled to overtime, disputes may also arise over what, precisely, constitutes “work time” for which the employee is owed compensation. A New York appellate court recently ruled on this question with regard to home care attendants who do not reside with their clients but who work 24-hour shifts. Andryeyeva v. New York Health Care, Inc., 2017 NY Slip Op 6421 (N.Y. App., 2d Dept., Sep. 13, 2017). While the industry standard does not require employers to pay home care attendants for time spent sleeping or eating, the plaintiffs alleged that this practice violated a state regulation regarding non-residential employees. The court ruled that non-residential home care attendants are entitled to pay for sleep and meal periods. Another New York appellate court reached similar findings earlier this year in Tokhtaman v. Human Care, LLC, 2017 NY Slip Op 2759 (N.Y. App., 1st Dept., Apr. 11, 2017). These decisions do not directly affect New Jersey wage and overtime disputes, but they could have some impact in the future.

The Fair Labor Standards Act (FLSA), the New Jersey Wage and Hour Law, and other statutes require employers to pay non-exempt employees time-and-a-half for hours worked in excess of 40 hours in a week. Neither statute provides a specific definition of “hours worked.” The FLSA includes “hours worked” in the section providing definitions. Rather than defining the term, however, it merely notes that time spent performing certain tasks “at the beginning or end of each workday” might not count as “hours worked” if excluding this time is part of a collective bargaining agreement. 29 U.S.C. § 203(o). Unpaid time spent changing into or out of a uniform or other required work clothes is a common basis for overtime claims.

The plaintiffs in Andryeyeva and Tokhtaman provide in-home care to elderly individuals and individuals with disabilities. They do not provide “residential” or “live-in” care, meaning that they have their own separate residences. They often work long shifts, however, lasting 24 hours or longer. During that time, they are often able to sleep and eat meals, but they must remain with or near the client. The question presented in both cases was, essentially, whether sleep and meal time counts as “hours worked.”

November 16, 2017

Court Ruling on Medical Marijuana Could Affect New Jersey Disability Discrimination Law

by Resnick Law Group, P.C.

In 2009, the New Jersey Legislature authorized the possession and use of small amounts of marijuana for medical purposes with a doctor’s prescription. Federal law, however, still classifies marijuana as a controlled substance with no recognized medical use. This has led to considerable uncertainty in the area of employment law, such as whether states that allow medical marijuana use also protect workers against discrimination based on drug use that, while legal under state law, still violates federal law. So far, no New Jersey court has found that state antidiscrimination law covers lawful medical marijuana use, but at least one such claim is currently pending in state court. The defendant in that lawsuit is arguing that the federal Controlled Substances Act (CSA) preempts any state laws addressing employment discrimination claims. A federal court in Connecticut recently rejected a similar argument in Noffsinger v. SSC Niantic Operation Company, No. 3:16-cv-01938, ruling (D. Conn., Aug. 8, 2017). While this ruling does not directly affect New Jersey courts, it could have an impact on future cases.

The New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA), N.J. Rev. Stat. § 24:6I-1 et seq., establishes procedures for medical professionals to prescribe marijuana. It also exempts qualifying medical professionals and their patients from liability under the state’s criminal and civil laws dealing with marijuana. Id. at §§ 2C:35-18, 24:6I-6. It does not specifically mention employment. A pair of bills introduced in the New Jersey Legislature, A2482 and S2161, would add specific employment protections for medical marijuana patients, but they have never received hearings.

Under the Supremacy Clause of the U.S. Constitution, federal law generally takes precedence over conflicting state laws. The CSA’s classification of marijuana as a Schedule I controlled substance, 21 U.S.C. § 812(c)(I)(c)(10), has caused much confusion in this regard. Preemption by federal law is a major part of the defendant’s argument in a lawsuit filed by a medical marijuana patient alleging violations of the New Jersey Law Against Discrimination (NJLAD). Wild v. Carriage Services, No. L-000687-17, complaint (N.J. Super. Ct., Bergen Cty., Jan. 30, 2017). In a motion to dismiss filed in February 2017, the defendant in Wild argues that the NJCUMMA directly conflicts with the CSA. Courts have dismissed several similar lawsuits recently on procedural grounds that do not address the merits of the medical marijuana claims. See Barrett v. Robert Half Corp., No. 2:15-cv-06245, order (D.N.J., Feb. 21, 2017); Wiltshire v. Breunig, et al, No. L-000052-16, complaint (N.J. Super. Ct., Cape May Cty., Feb. 5, 2016).

November 10, 2017

The Rights of Unpaid Volunteers and Interns in New Jersey Employment Law

by Resnick Law Group, P.C.

New Jersey employment laws protect workers’ rights in multiple areas, including wages and hours of work, discrimination and harassment, and retaliation for reporting suspected wrongdoing by an employer. Many of these laws apply specifically to “employees,” but no single definition of “employee” exists. Some statutes only cover paid employees, while others also apply to independent contractors, unpaid interns, or volunteers. The legal status of unpaid workers, including both interns and volunteers, has been the subject of multiple court battles. The New Jersey Appellate Division recently held that the state’s whistleblower statute, the Conscientious Employee Protection Act (CEPA), does not apply to unpaid volunteers. Sauter v. Colts Neck Volunteer Fire Co. No. 2, No. A-0354-15T1, slip op. (N.J. App., Sep. 13, 2017). In light of this decision, it is worth reviewing how various employment statutes in New Jersey view unpaid volunteers and interns.

“Volunteer” Versus “Intern”

Some laws make a distinction between volunteers and interns. Generally speaking, an internship provides some form of educational benefit to the worker, possibly including course credit at an educational institution, and it may be paid or unpaid. Even when an internship is unpaid, the worker is considered to gain an educational benefit. A volunteer position, on the other hand, is usually undertaken for primarily altruistic reasons, or at least without the expectation of any specific return.

November 3, 2017

Supreme Court to Address Ambiguity in Whistleblower Provisions of Dodd-Frank

by Resnick Law Group, P.C.

When lawmakers and their staffs draft proposed legislation, they must consider any and all possible interpretations of the language they use. Even then, the legislative process may alter or amend a bill in ways that affect the potential meaning of certain words or phrases. Confusion over ambiguities in some statutes is inevitable. The U.S. Supreme Court recently granted certiorari in a case that involved a dispute over the meaning of the word “whistleblower” in the anti-retaliation provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act, or “Dodd-Frank.” The lower-court decision from the Ninth Circuit deferred to the interpretation of the Securities and Exchange Commission (SEC), which applied a broad definition of the term. This conflicts with a Fifth Circuit decision finding that Dodd-Frank’s whistleblower protection is limited to a narrow definition provided within the statute. Thus, the status of New Jersey whistleblowers remains unclear pending the Supreme Court’s resolution of the issue.

Dodd-Frank creates incentives for “whistleblowers”—employees and other insiders—to report violations and protects them from retaliation. Employers may not terminate or otherwise retaliate against whistleblowers for reporting Dodd-Frank violations to the SEC, or for “making disclosures that are required or protected” by other statutes. 15 U.S.C. § 78u-6(h)(1). Reading this provision in isolation, one might think that it applies to people who report legal violations to the SEC, other government agencies, or company management. An earlier subsection, however, defines “whistleblower” specifically as someone who reports securities law violations to the SEC. Id. at § 78u-6(a)(6). The dispute before the Supreme Court concerns whether Dodd-Frank’s anti-retaliation provision only applies to this narrow definition of “whistleblower,” or whether it uses a broader definition.

The plaintiff worked for the defendant as a Vice President. He made several reports to his superiors “regarding possible securities law violations by the company,” and he was fired shortly afterwards. Somers v. Digital Realty Trust, Inc., 850 F.3d 1045, 1047 (9th Cir. 2017). He sued for retaliation under Dodd-Frank. The district court held that he was a “whistleblower” within the meaning of the statute, even though he did not make a report to the SEC. The Ninth Circuit affirmed this ruling on several grounds.

October 27, 2017

What Does New Jersey Retaliation Law Say About Firing Someone for Political Beliefs or Activities?

by Resnick Law Group, P.C.

Federal and state anti-discrimination laws protect workers against discriminatory employment practices based on numerous factors. The New Jersey Law Against Discrimination (NJLAD) identifies more protected categories than the equivalent federal statute, Title VII of the Civil Rights Act of 1964. Several recent news stories have involved employers who terminated workers because of political views that they expressed. In one case, an employee of a tech company lost his job after posting a memorandum criticizing the company’s gender diversity efforts on a company message board. In August 2017, several companies fired employees for participating in a rally in Virginia that prominently displayed symbols associated with explicitly racist organizations. People have also had their employment threatened or terminated for views and activities on the opposite side of the political spectrum. This raises questions about how, or whether, anti-discrimination laws protect workers against adverse actions by their employers because of their political views.

The terms “political views” and “political speech” have no distinct definitions for legal purposes. They broadly refer to individuals’ opinions on matters of public concern, as well as statements they make and activities in which they participate that involve those matters. “Speech” can include more than just spoken statements in this context, such as written statements and participation in advocacy.

The First Amendment to the U.S. Constitution prohibits the government from punishing people based on the content of their speech, or saying things the government does not like. Private employers are not bound by this restriction. Public employees might be able to assert free-speech claims, but private employees cannot. The National Labor Relations Act (NLRA) prohibits private employers from taking adverse action against employees for speech or advocacy related to labor organizing. Whistleblower protection laws, like the Conscientious Employee Protection Act (CEPA), protect employees who speak out about legal violations by their employers.

October 20, 2017

Third Circuit Rules on Legality of Mass Layoffs After Failed Sale of Company

by Resnick Law Group, P.C.

A person’s job can be one of the most important features of their identity. When two people meet for the first time, for example, one of the first questions asked is very often “What do you do?” One’s job serves other purposes, such as the obvious purpose of providing income to support oneself and one’s family. Finding a job is important, but losing a job can be devastating. New Jersey labor laws protect workers in many aspects of the employer/employee relationship, including limiting the ability of some employers to fire numerous employees all at once. Laws like the Worker Adjustment and Retraining Notification (WARN) Act of 1988 apply to large employers that are planning a mass layoff of employees. The Third Circuit Court of Appeals recently ruled on a claim brought under the WARN Act involving a company that had been sold as part of a bankruptcy case. In re AE Liquidation, Inc., No. 16-2203, slip op. (3rd Cir., Apr. 4, 2017).The WARN Act applies to businesses with at least 100 full-time employees. 29 U.S.C. § 2101(a)(1). Covered employers must provide advance notice to employees prior to a “mass layoff.” The statute defines a “mass layoff” as the termination of a large number of employees within a 30-day period that is not related to a plant closing. For the WARN Act to apply, the layoff must affect either (1) at least 50 full-time workers, who constitute at least one-third of the total full-time workforce; or (2) at least 500 full-time employees. Id. at § 2101(a)(3).

An employer must provide at least 60 days’ notice to “affected employees” before undertaking a plant closing or mass layoff. Id. at § 2102(a). Aggrieved employees may recover damages for violations that include up to 60 days of back pay. Id. at § 2104. New Jersey has a similar law that requires additional disclosures from employers and allows claims for compensatory damages. N.J. Rev. Stat. §§ 34:21-3, 34:21-6.

The plaintiffs in AE Liquidation were employees of an aviation company that declared bankruptcy in November 2008. The employer planned a sale of the business as a going concern, providing “almost daily assurances that the funding was imminent and the company could be saved.” AE Liquidation, slip op. at 4. The sale fell through due to lack of funding, and the plaintiffs were laid off in February 2009. The plaintiffs filed suit under the WARN Act.

October 13, 2017

Plaintiff in New Jersey Whistleblower Lawsuit Alleges Retaliation, Wrongful Termination

by Resnick Law Group, P.C.

Employees of private companies owe a duty of loyalty to their employers, meaning that they may not act in a way that directly damages or conflicts with an employer’s interests. Employers are often within their rights to terminate an employee who breaches this duty. At the same time, however, employees are in a unique position to bring legal violations by their employers to light. Employees who report wrongdoing by their employers are commonly known as “whistleblowers,” and laws at the state and federal levels offer them protection against retaliation, including termination. A New Jersey employment lawsuit, which was recently removed from an Essex County court to a federal court, involves discrimination and retaliation claims by a former executive. Chandler v. Honeywell Int’l, No. L-004230-17, complaint (N.J. Super. Ct., Essex Cty., Jun. 9, 2017), removed to No. 2:17-cv-06173, notice of removal (D.N.J., Aug. 16, 2017). The plaintiff alleges that the defendant hired her to address discrimination problems but actually only intended to use her “as a false shield to deflect…inquiry by third parties.” Id., complaint at 5.

The New Jersey Conscientious Employee Protection Act (CEPA), N.J. Rev. Stat. § 34:19-1 et seq., protects whistleblowers from retaliation and other adverse employment actions if they report legal violations by their employers. If an employee “reasonably believes” that an action or policy of their employer violates the law, or is otherwise fraudulent or criminal, CEPA prohibits retaliation against the employee for reporting the matter to a supervisor or government official. Id. at § 34:19-3(a). The statute also protects employees who testify or otherwise cooperate in an investigation of alleged wrongdoing by the employer, as well as employees who refuse to participate in acts that they reasonably believe to be illegal or fraudulent. Retaliation against employees for reporting suspected legal violations is also prohibited by the New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-12; the Civil Rights Act of 1991, 42 U.S.C. § 1981; and other statutes.

The plaintiff in Chandler began working for the defendant in July 2015 as the “Vice President, Organizational Development and Learning” in the company’s “Performance Material and Technologies business.” Chandler, complaint at 2. She alleges that the defendant consistently told her that it had hired her because of “a sincere desire to remedy” a pattern of “non diverse appointment of managers to its executive ranks.” Id. at 2-3. Once she began working for the defendant, however, she alleges that the company interfered with her efforts to do her job, including by questioning her qualifications and character. The defendant terminated her employment in December 2016, according to her complaint.

October 6, 2017

Third Circuit Reinstates New Jersey Employment Misclassification Lawsuit

by Resnick Law Group, P.C.

Workers asserting a cause of action against an employer under various employment statutes must establish multiple facts before any claim may proceed. Perhaps before anything else, they must demonstrate an employment relationship between the defendant and themselves. If a claimant is an independent contractor rather than an employee, the employer may have far fewer obligations, or none at all, under employment statutes and the common law. “Misclassification” involves classifying workers who meet a legal definition of an employee as independent contractors. A recent Third Circuit Court of Appeals decision allowed a New Jersey misclassification lawsuit to proceed, specifically addressing another early roadblock for complainants: a contractual clause purportedly mandating arbitration of all disputes. Moon v. Breathless, Inc., No. 16-3356, slip op. (3d Cir., Aug. 17, 2017).

No precise definition of “employee” exists in state or federal law. The federal Fair Labor Standards Act (FLSA) defines an “employee” as “any individual employed by an employer,” and “employ” as “to suffer or permit to work.” 29 U.S.C. §§ 203(e)(1), (g). Different jurisdictions have therefore developed their own definitions of “employee” and “independent contractor.” New Jersey’s definition is quite expansive, holding that an individual is an employee unless they meet a three-part test: (1) the employer lacks control over how the individual performs their job; (2) the individual’s job either is substantially different from the employer’s usual business activities or is not performed at the employer’s regular place of business; and (3) the individual has an “independently established trade, occupation, profession or business” that includes their work for the employer. Hargrove v. Sleepy’s, LLC, 106 A.3d 449, 458 (N.J. 2015).

Many employment contracts include clauses stating that both parties agree to arbitration of any disputes, often precluding the option of going to court. The arbitration process involves submitting a dispute to an arbitrator, a private individual with specialized training in dispute resolution. The process may involve something resembling a trial, in which each side presents arguments and evidence, and the arbitrator makes a decision. Whether the arbitrator’s decision is binding on the parties depends on the terms of the arbitration clause.

September 28, 2017

New Jersey Court Allows Wrongful Termination Case Under FMLA and State Law to Proceed

by Resnick Law Group, P.C.

State and federal laws protect workers from termination based on a protected category like race or sex, known as discriminatory termination; or because of participation in protected activities like reporting legal violations, known as retaliatory discharge. A claimant must make a prima facie case of a discriminatory or retaliatory purpose in order to get past a summary judgment motion. A federal court in New Jersey recently ruled in a plaintiff’s favor on claims of discriminatory discharge under state law and retaliatory discharge under federal and New Jersey wrongful termination laws. Ferren v. Foulke Mgt. Corp., No. 1:15-cv-03721, opinion (D.N.J., Feb. 16, 2017).

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination by employers on the basis of multiple categories, including disability. N.J. Rev. Stat. § 10:5-12(a). Unlawful discrimination includes discharging an employee solely or primarily because of a disability. It also prohibits retaliating against an employee because of a protected activity. The federal Family Medical Leave Act (FMLA) guarantees that qualifying employees of covered employers may take unpaid leave for certain purposes, and it prohibits employers from retaliating against employees for taking authorized leave or reporting violations of the statute. 29 U.S.C. § 2615.

The plaintiff in Ferren began working for the defendant in 2001 as a lot attendant at a car dealership. His job duties included lot maintenance and customer service. He took medical leave in October 2014 for a shoulder injury, according to the court, after informing his supervisor that he would be having surgery and was invoking his rights under the FMLA. The plaintiff was scheduled to return to work in January 2015. He reportedly provided a doctor’s note to the supervisor in December 2014, which stated that the plaintiff should not lift more than five pounds and should refrain from certain other activities. The supervisor allegedly told the plaintiff to “go home and get better.” Ferren, op. at 3. On the plaintiff’s scheduled return date, he was laid off.

September 22, 2017

Appellate Court Rules on Mixed-Motive Claim in FMLA Retaliation Case

by Resnick Law Group, P.C.

The Family and Medical Leave Act (FMLA) requires covered employers to provide qualifying employees with a minimum amount of unpaid leave for certain reasons. It also prohibits employers from interfering with employees’ use of authorized leave, discriminating based on the use of leave time, or retaliating against an employee for using leave. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey employment disputes involving federal law, recently ruled on a case alleging retaliation under the FMLA. It found that the district court should have given the jury an instruction regarding the “mixed-motive” theory of liability, which shifts the burden of proof to the defendant if a plaintiff demonstrates that their “use of FMLA leave was a negative factor in the employer’s adverse employment decision.” Egan v. Del. River Port Auth., 851 F.3d 263, 267 (3rd Cir. 2017).

Employees who meet a minimum requirement for number of hours worked during the preceding 12-month period are eligible for up to 12 weeks of unpaid leave under the FMLA. 29 U.S.C. §§ 2611(2), 2612(a)(1). This only applies, however, if the employer has at least 50 employees. Id. at § 2611(4). Many workers do not qualify for FMLA leave because their employer is not big enough, or they have not worked for the employer long enough to become eligible. The FMLA provides numerous protections to help ensure that employees who are able to accrue leave are able to use it. This includes a prohibition on retaliating against an employee who uses or attempts to use leave to which they are entitled. Id. at § 2615(a)(1), 29 C.F.R. § 825.220(c).

Courts have identified two general theories for discrimination and retaliation claims: pretext and mixed-motive. In a pretext claim, a plaintiff asserts that an employer’s stated reason for an adverse action is false and is merely a pretext for an unlawful motive. A mixed-motive theory alleges that an employer had “both legitimate and illegitimate reasons” for the adverse action. Egan, 851 F.3d at 268 n. 1. The plaintiff must show that the “exercise of FMLA rights was ‘a negative factor’ in the employer’s employment decision.” Id.