Isolated ‘Highly Offensive Gender Slur’ Insufficient to Warrant Employee’s Termination

The New Jersey Supreme Court overturned the termination of a state employee who uttered a highly offensive gender slur that was overheard by other employees.  William R. Hendrickson, Jr., a fire safety inspector with the New Jersey Department of Consumer Affairs (“DCA”) was terminated from his employment as a result of the slur, but his termination was reduced to a six-month suspension following a hearing before an Administrative Law Judge (“ALJ”) with the New Jersey Office of Administrative Law.  The Supreme Court ruled that suspension, not termination, was the proper punishment in light of the offense.


On December 1, 2013, while on an assignment at MetLife Stadium, which was hosting a New York Jets football game, inspectors from DCA’s Division of Fire Safety were tasked with ensuring the stadium complied with applicable safety codes.  Hendrickson and two other inspectors met in the parking lot before beginning their assignments.  Their supervisor was Senior Inspector Margaret Knight, who was not present with the three men in the parking lot.

While in the parking lot, Hendrickson learned that Senior Inspector Knight assigned him to inspect the pyrotechnics display (fireworks) which were on the roof of MetLife Stadium.  After being informed of his assignment, the two other inspectors overheard Hendrickson made an obscene remark about Senior Inspector Knight, calling her the “c-word.”  Both inspectors were offended by Hendrickson’s remark and reported the incident.  At the hearing, Hendrickson provided a different account of his reaction to the assignment, stating that he walked away and “muttered” to himself that he hoped Senior Inspector Knight “gets a disease.”  Hendrickson testified that he said a few things he was not proud of but claimed to have no recollection of using the offensive language.

After learning of Hendrickson’s outburst, Senior Inspector Knight announced to a number of inspectors, including Hendrickson, that if anyone had any issues with her, to respect her position and come to her directly to discuss and resolve the issue.  Hendrickson walked away without talking to Senior Inspector Knight and completed his assigned task without incident.

ALJ and Appellate Decisions

After the hearing, the ALJ issued a written decision holding that Hendrickson uttered a gender slur in the workplace and violated the State’s policy prohibiting gender discrimination and engaged in conduct unbecoming a public employee.  While the ALJ rejected Hendrickson’s account as not credible, the ALJ found that termination was too harsh a remedy given Hendrickson’s lack of disciplinary history in the 15-months prior and 9-months after the incident.  The ALJ ordered Hendrickson be suspended for 6-months.

The Department of Consumer Affairs appealed the ALJ’s decision to the Appellate Division.  The Appellate Division, substituting their judgment for that of the ALJ, reinstated the penalty of removal and Hendrickson thereafter appealed to the New Jersey Supreme Court.

Supreme Court Decision

The Supreme Court overturned the Appellate Division’s decision and reinstated Hendrickson’s 6-month suspension imposed by the ALJ.  The Supreme Court determined the proper standard of review was to assess whether the sanction imposed by the ALJ was “so disproportionate to the offense, in light of all circumstances, as to be shocking to one’s sense of fairness.”

While acknowledging that Hendrickson’s use of a highly offensive gender slur in a public place which was overheard by co-workers must be firmly condemned, the Supreme Court concluded that the ALJ’s decision to impose a 6-month suspension was not shocking to one’s sense of fairness.  In making this determination, the Supreme Court found the ALJ considered:  (1) Hendrickson’s outburst to be an isolated incident; (2) the incident was mitigated by Hendrickson’s unblemished disciplinary record prior to and after the incident; and (3) Hendrickson was ultimately redeemable.  As the Supreme Court stated: “A belittling gender insult uttered in the workplace by a state employee is a violation of New Jersey’s policy against discrimination and Hendrickson’s conduct was unbecoming a public employee.” Thus, the Supreme Court deferred to the ALJ’s conclusions and reinstated Hendrickson’s 6-month suspension.

Bottom Line

Employers have a responsibility to investigate complaints employees raise about harassment and discrimination in the workplace.  If the investigation concludes that an employee has engaged in the conduct complained of, often the employer is faced with a choice of how to properly discipline the employee.  In this case, while the Supreme Court did not does not excuse Hendrickson’s conduct, it found that the ultimate decision by the employer to terminate the employee was too harsh in light of the circumstances. While termination can always be considered, an employer must take into account, and properly document, any mitigating factors that apply in imposing discipline lesser than termination.

For more information please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at, or 973-533-0777.

Putting Employees in the “Penalty Box” Could Have Courts Blowing the Whistle on You

While the National Hockey League’s Capitals are in Washington D.C. celebrating their Stanley Cup win, a Prosecutor’s Office in New Jersey may be in hot water for putting an employee in the penalty box following complaints about department misconduct.

Last month, the Appellate Division held that the transfer of an employee to a “less desirable” position can be considered an act of retaliation that violates the Conscientious Employee Protection Act (CEPA). This is true even if the employee’s primary terms and conditions of employment – compensation, hours, and physical location – remain unchanged after the transfer.

Jeffrey Scozzafava, a detective with the Somerset County Prosecutor’s Office, had been assigned to the forensic Crime Scene Investigation Unit since his hire in 2007.  In 2015, after he complained about the mishandling of evidence and deficient casework in his unit, he was transferred to the fugitive squad. Scozzafava brought a claim for retaliation against his employer. The Prosecutor’s Office argued that he did not suffer an adverse employment action because Scozzafava’s rank, position, pay and benefits remained the same, and it arguably improved his scheduled working hours.  Therefore, the Prosecutor’s Office argued, the move was a lateral transfer and not a demotion.

The Appellate Division disagreed and held that there was more to the analysis than merely ensuring that an employee is not terminated, suspended, or demoted after making a complaint, and that all of the attendant circumstances surrounding the employment action will be closely examined.

Scozzafava had previously been a forensic detective with the New Jersey State Police, and had 12 years of extensive training and experience in the forensic field prior to his employment with the Somerset County Prosecutor’s Office. He was a member of numerous forensic professional associations, devoted time as an instructor, and was qualified as an expert in various courts.  His abrupt transfer to the fugitive squad deprived him of using and building upon his twenty years of expertise in the forensic field.

The Court acknowledged that “not every employment action that makes an employee unhappy constitutes an actionable adverse action,” but held that under the circumstances of this case, the transfer was “objectively demeaning” to Scozzafava. It certainly did not strengthen the employer’s argument that when asked for the reasoning behind the transfer, Scozzafava’s lieutenant told him “everybody does time in the penalty box.”

Scozzafava also claimed that his transfer to the fugitive squad offered fewer opportunities to earn overtime pay. While the lower court found that the potential for overtime was “too nebulous” to be considered as part of an employee’s compensation, the higher court suggested that this could be independent grounds for the finding of a retaliatory act.  It has already been established by the New Jersey Supreme Court that “any reduction in an employee’s compensation” is considered an adverse employment action, and the Appellate Division suggests that reduced opportunities for overtime, standing alone, would qualify as a reduction in pay.

Bottom Line:  Here, the employer was well aware that its transfer of Scozzafava was not neutral, and the purpose was admittedly to put Scozzafava “in the penalty box.”  The new standard emerging from this decision expands the inquiry into the type of employment action that is considered retaliatory.  In addition to a review of the standard terms and conditions of employment – compensation, benefits, hours, and job title, the employee’s skills, training, and job history will be examined to determine whether the transfer is truly lateral, or whether it instead could be considered “objectively demeaning” – a phrase the Court twice repeated in its decision.  If it can be, and it comes on the heels of an employee objection or complaint about conduct that the employee reasonably believes is unlawful, the employer could face exposure for an act of retaliation. It is important to carefully review any management decision that could appear as if the purpose of the employment action is to bench an employee for not being a team player. A job transfer intended to be punishing will likely be flagged by the courts.

Public Employer Obligations Under the Workplace Democracy Enhancement Act

Governor Murphy has signed the Workplace Democracy Enhancement Act (“WDEA”) into law. The WDEA takes immediate effect and creates new obligations of which public employers must be aware.

First, the WDEA extends the negotiations unit to include all full and part time employees who perform negotiation unit work. For example, employees who were not included in the unit because they had not met the threshold number of hours or percent of time worked, must be included in the unit within 90 calendar days from the law’s signing.

In addition, the WDEA requires public employers to provide “access” to organization members, and grants the exclusive representative employee organization specific rights, including, but not limited to:

  • The right to meet with members on the premises of a public employer during the workday to investigate and discuss grievances or other workplace related complaints, or to address any other workplace issue;
  • The right to conduct worksite meetings on the employer’s premises during lunch and other non-work breaks, as well as before and after the workday, in order to discuss workplace issues, collective negotiations, administration of a collective negotiation agreements, and other matters related to the organization’s duties and internal union matters;
  • The right for representatives to meet with new employees for a minimum of 30 minutes within 30 calendar days from that employee’s date of hire, without charge for such time against the employee’s pay or leave time;
  • The right to certain employee contact information, to be produced in a specific timeframe;
  • The right of email use, for matters such as collective negotiation agreements administration, the investigation of grievance, other workplace related complaints or concerns, and internal union matters; and
  • The right to demand negotiations over rights of access, subject to binding arbitration.

The WDEA furthermore prohibits public employers from encouraging employees to resign or relinquish membership in a union, and from encouraging them to revoke their authorization of fee deductions. Public employers likewise are prohibited from either encouraging or discouraging employees from joining, forming, or assisting a union. An employer who violates these provisions will be deemed to have engaged in an unfair labor practice, and the WDEA requires the Public Employment Relations Comission to order the employer to make the union whole for any harm that may result from such actions.

Finally, the WDEA amends existing law to provide that union fee deductions may be authorized by means of electronic communication and electronic signatures. In addition, employees of a public employer that have previously authorized deductions must give written notice to the employer “during the 10 days following each anniversary date of their employment” if they wish to revoke their authorization. Upon receipt of an employee’s revocation, the public employer is required to provide notice to the union within five days. The revocation takes effect on the 30th day after the anniversary date of employment.

For further information, please contact Joseph M. Hannon, Esq.,  or Jennifer Roselle, Esq., Counsel with the Labor Law Practice Group.

Unhappily, Ever After: NJ Supreme Court Rules Divorcing Employees Protected by NJLAD

Unfortunately, not all marriages are happily ever after.  When divorce seems inevitable, losing your job as a result of a looming divorce is something no employee wants to worry about.  On June 21, 2016, the New Jersey Supreme Court in Smith v. Millville Rescue Squad (074685 (A-19-14) unanimously ruled that the New Jersey Law Against Discrimination’s (“NJLAD”) protection against discrimination on the basis of marital status also includes protection for divorced employees.  The New Jersey Supreme Court upheld the 2014 decision of the Appellate Division which concluded that the Millville Rescue Squad’s decision to terminate the plaintiff, Robert Smith, based on an assumption about his ability to work with his ex-wife was discriminatory.  In finding that the protections afforded by NJLAD’s marital status are not limited to the state of being single or married, the New Jersey Supreme Court effectively extended the reach of the NJLAD to include those who are separated, going through a divorce or divorced and recently widowed. Employers are prohibited from assuming, based on “invidious stereotypes,” that an employee will be disruptive or ineffective simply because of their marital status.

Smith, a 17-year veteran at Millville Rescue Squad (“MRS”), was allegedly fired when his supervisor heard the news about an impending separation from his then-wife and coworker.  Knowing the contentious nature of divorces, and worried about the spillover effect of a potential divorce involving two of his employees, Smith’s supervisor allegedly warned him that his continued employment with Millville was contingent on how the separation turned out.  After receiving confirmation from Smith that an amicable reconciliation was unlikely, Smith’s supervisor allegedly stated that he could not promise that it would not affect plaintiff’s job, as he believed Smith and his co-worker wife would certainly have an “ugly divorce”.  Smith was subsequently terminated for performance based on “company restricting” reasons.

Smith ultimately filed suit for wrongful termination and discrimination in violation of the NJLAD based on marital status, claiming the reasons given for his departure were discriminatory, improper and pretextual.  At oral argument before the New Jersey Supreme Court, the attorney for MRS conceded that although Smith’s supervisor’s comments were made in reference to the potential negative impact the divorce would have in the workplace, the disparaging comments were not signifying a bias against divorce itself.  Smith contended that the supervisor’s ugly comment demonstrated clear evidence of prejudice given his stellar performance record.

Notably, the New Jersey Supreme Court was careful to emphasize that the presumptive extension of NJLAD does not preclude employers from implementing and enforcing “anti-nepotism” policies in the workplace, confirming that the ability of an employer to restrict employees related by blood or marriage from working together has not been diminished.  Nonetheless, such policies must be enforced in a nondiscriminatory manner and in strict adherence the precedent set by NJLAD.  Additionally, the Court further clarified that employers are allowed to discipline employees based on performance and conduct, irrespective of their marital status so long as the reason for their discipline is not related to circumstances in his or her personal life.

As a result of this decision, employers must use caution when terminating an employee who is either in the process of getting divorced or is divorced.  The decision to terminate an employee cannot be based on an assumption about an employee’s inability to perform their job given for reasons related to their marital status.  The decision to terminate must only be based on actual workplace conduct or performance issues unrelated to marital status that has been clearly and routinely documented.

For more information on this decision and best practices regarding employee documentation and termination, please contact John C. Petrella, Esq., Director of the firm’s Employment Litigation Practice Group at, or Dina M. Mastellone, Esq, Director of the firm’s Human Resources Practices Group, at, or 973-533-0777.

Please, Take Your Time: NJ Supreme Court Voids Contracts That Limit Workers’ Time to Sue

On June 15, 2016, the New Jersey Supreme Court issued its long-awaited decision in Sergio Rodriguez v. Raymours Furniture Company, Inc., in which it addressed whether the two-year statute of limitations under the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 to -49, may be altered pursuant to a private agreement.  The issue was a matter of first impression for New Jersey courts.  In a unanimous opinion authored by Justice Jaynee LaVecchia, the Court held that “a private agreement that frustrates the LAD’s public-purpose imperative by shortening the two-year limitations period for private LAD claims cannot be enforced.”

Plaintiff, Sergio Rodriguez, was hired by defendant, Raymours Furniture Company, Inc., the parent company of furniture retailer Raymour & Flanigan, in September 2007, and sustained an injury to his knee in April 2010.  After having undergone surgery for the injury, along with a brief recovery period, Rodriguez was cleared to resume his work duties in September 2010.  Just two short days after his return to Raymour & Flanigan, Rodriguez was terminated as part of a company-wide reduction in force. Rodriguez instead contended that he was targeted because of his injury and asserted that others with less seniority or distinguishing features were retained.

Rodriguez brought a lawsuit in the Superior Court against Raymours in July 2011, seven months after his termination, alleging wrongful termination based on an actual or perceived disability under the LAD, which carries a two-year statute of limitations. However, Raymour & Flanigan’s employment application, which Rodriguez signed, included a provision shortening the period for an employee to file a claim against the company to six months. The provision stated that “I agree that any claim or lawsuit relating to my service with Raymour & Flanigan must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit,” adding, “I waive any statute of limitations to the contrary.”

The trial court granted summary judgment in favor of Raymours, upholding the validity of the contractual limitation as clear and unambiguous and neither unreasonable nor against public policy.  On appeal, the Appellate Division also sided with Raymours, holding that employers are generally able to shorten a statutory limitation through an employment contract so long as the provided language is clear and unambiguous.  While pointing out that the language of the provision was acceptable and not misleading, the Appellate Division noted that “[t]he disputed contract provision was not buried in a large volume of documents.  It was contained in a two-page application and set forth very conspicuously in bold oversized print and capital lettering, just above the applicant’s signature line. The terminology was clear and uncomplicated.”  Ultimately, the trial court and Appellate Division held that the provision met the aforementioned threshold and by signing the document, Rodriguez waived his rights to access the LAD after the six-month period expired.

On appeal to the Supreme Court, the plaintiff made two arguments, generally focusing on principles of contract unenforceability based on unconscionability.  Because this contract was one of adhesion, the plaintiff contended that it was both procedurally and substantively unconscionable and unenforceable due to the inherent imbalance of power in an employment application.  Furthermore, the plaintiff argued that permitting such a contractual shortening of the limitations period would frustrate the remedial scheme of the LAD.  The defendant-employer argued that it is well established under New Jersey law that parties may privately contract to shorten statutes of limitation and that the waiver at issue here was clear and unambiguous.

This case drew significant interest from the legal community.  The New Jersey State Bar Association, the New Jersey Association for Justice, the American Civil Liberties Union of New Jersey, and the National Employment Lawyers Association all submitted amicus curiae briefs generally supportive of the plaintiff’s position, focusing on the “singular public-interest importance of the LAD.”  The Academy of New Jersey Management Attorneys filed a brief in support of the defendant, arguing that shortening the limitations period under the LAD did not frustrate public policy and was within private parties’ ability to contract.

While recognizing the “strong belief” in the freedom to contract in New Jersey, the Court emphasized the public interest that the LAD serves to protect in trying to eliminate discrimination.  In making its determination, the Court relied heavily on its decision in Montells v. Haynes, 133 N.J. 282 (1993), where the two-year statute of limitations for claims under the LAD was first established.  In addition, the Court looked to the State Legislature’s more than two-decades-long acceptance of that limitations period, noting that the LAD has been amended in other respects during that time period.  The Court offered several reasons in support of its decision:

  • Shortening the time period for bringing an LAD action in the Superior Court would undermine the integrated nature of the statutory avenues of relief and election of remedies made available to claimants;
  • A limitations period of shorter than two-years would effectively eliminate claims because it takes time for an individual to bring the claim forward and the two-year period established in Montells was purposefully designed to impose uniformity and certainty;
  • A shortened limitations period might compel a person to file a premature LAD action where investigation might reveal a lack of a meritorious claim; and
  • Case law has incentivized employers to first receive workplace complaints, investigate them, and respond and any shortening of the period would “seriously affect an employer’s ability to protect itself.”

The Court emphasized that its decision was “rooted in the unique importance of our LAD and the necessity for its enforcement.”  The Court further noted that “[r]estricting the ability of citizens to bring LAD claims is antithetical to that societal aspiration and defeats the public policy goal” of the law.  While the Court’s decision was rooted in the public policy importance of the LAD, the Court also noted that it would have reached the same outcome based on the argument of unconscionability, though it did not go into a detailed analysis.  The Court said that if such an analysis were to be performed, it would have struck down the agreement because the provision was located in an employment application, the plaintiff could not bargain, and it was an adhesion contract containing “indicia of procedural unconscionability.”

What does this decision mean for employers in New Jersey?  The Court’s decision affirms its longstanding commitment to the public policy goals and remedial nature of the LAD.  Unless and until the State Legislature decides to alter the limitations periods for claims under the LAD, it remains a two-year period and that time frame may not be amended through a private agreement.

While it appears that employers can no longer alter the two-year statute of limitations for LAD claims by private agreement, employers need to take action to ensure that they are in the best positon possible when litigation does arise, which can be achieved by:

  • Thorough documentation of performance issues;
  • Regular Anti-Discrimination and Harassment Training;
  • Proper paperwork for all reductions-in-force; and
  • Ensuring that prompt and thorough investigations of employee complaints are conducted.

Finally, when terminating an employee, employers may want to consider severance payments in exchange for a release of all claims. Most importantly, employers should consult with counsel to evaluate their arbitration agreements, employment policies and procedures, and ensure conformity with the Court’s ruling.  For more information, please contact John C. Petrella, Esq., Director of the firm’s Employment Litigation Practice Group at, or Dina M. Mastellone, Esq, Director of the firm’s Human Resources Practices Group, at, or 973-533-0777.

New Jersey Assembly Picks Up Fight For $15 Minimum Wage

The fight for a $15 minimum wage is gaining steam in the New Jersey Legislature. On May 26, 2016, the New Jersey Assembly passed Bill A15, which would raise the minimum wage to $15 an hour by 2021. Currently, the New Jersey State minimum wage is $8.38 per hour.

The $15 minimum wage would not get there all at once. Under the recently passed bill, the minimum wage first would increase to $10.10 per hour on January 1, 2017.  Then, between 2018 and 2021, the minimum wage would increase by the greater of $1.25 an hour or $1.00 an hour plus the CPI each year. An identical version of the Assembly’s bill has already passed the New Jersey Senate’s Labor Committee (Bill S15). If the full Senate passes the bill it will head to the Governor’s desk where it most likely will be vetoed.

But the Governor’s veto may not be the end of the bill. The Legislature is proposing that in the event of a Governor veto, the bill be put to a constitutional referendum for the voters to decide during the New Jersey General Election on November 7, 2017. This would not be the first time the Legislature managed to get around a veto to increase the minimum wage. The minimum wage was previously raised by constitutional referendum in 2013 when voters amended the State’s Constitution to increase the minimum wage to $8.25 per hour despite a Governor Christie veto.

While the proposed $15 minimum wage may seem a long way away, employers should start thinking now about how this would affect their business. Many employers are still struggling from the more than 15% increase in the minimum wage over the last two years. An increase to just $10.10 in 2018 (which is when the increase would take effect if the bill is vetoed but then approved through referendum) would reflect another 20% increase, or an almost 40% increase since 2013.  Such increased labor costs may be more than some employers can or are willing to absorb. For instance, Wendy’s recently stated it would replace some workers with automated machines in response to significant increases in minimum wage.

For more information regarding the potential impacts of Bill A15, or regarding any other wage and hour issues, please contact John R. Vreeland, Esq. Director of the Firm’s Wage & Hour Compliance Practice Group, at 973-535-7118 or, or Aaron C. Carter, Esq. at 973-646-3275 or

New Jersey Supreme Court Rules that CEPA is a Watchdog’s Best Friend

On July 15, 2015 in a 5-0 decision, the Supreme Court of New Jersey issued its long awaited decision in Lippman v. Ethicon, Inc., which affirmed and modified the Appellate Division’s ruling that employees, whose core job duties include monitoring whether their employers comply with standards and regulations, are protected under the New Jersey Conscientious Employee Protection Act (“CEPA”).  While advocates hailed the decision as a major victory for workers’ rights, employers fear it will expose companies across New Jersey to more lawsuits.

In Lippman, the plaintiff brought an action under CEPA against his former employer, Ethicon, Inc., a subsidiary of Johnson & Johnson, alleging that he was terminated due to his whistleblowing activities with regard to safety concerns he had with some of the pharmaceutical products developed by the defendants.  Lippman’s high-level position however required him to assess health risks posed by products and to provide medical input in determining whether corrective measures were required.  After he complained, Lippman was terminated.  Ethicon maintained that Lippman was fired for engaging in a romantic relationship with a subordinate employee.  The Superior Court granted the defendants’ motion for summary judgment and dismissed Lippman’s case finding that, since Lippman’s job duties included raising issues regarding product safety, he was not entitled to protection under CEPA.  On appeal, the Appellate Division reversed finding that “watchdog employees” are the most vulnerable to retaliation because they frequently speak out and that CEPA does not limit protection based on an employee’s job title or function.

The New Jersey Supreme Court agreed and ruled that CEPA is remedial legislation and that the statutory cause of action created by CEPA applies equally to all employees regardless of their specific job duties.  The Court found that there is no evidence of legislative intent to have CEPA operate any other way due to its liberal construction.  The Court also found that CEPA protects employees who “refuse to participate” in any activities they believe are unlawful, implying it protects activities related to an employee’s normal job duties, since “it would be likely that the employee would be asked to participate in employer activity within the course of, or closely related to, his or her core job functions.”  Thus, there can be no additional requirements imposed on watchdog employees unless and until the legislature specifically expresses such intent to distinguish employees who are entitled to CEPA protection.  The Court also rejected the Appellate Division’s requirement that employees must demonstrate they pursued and exhausted all internal means of securing compliance in order to bring a claim under CEPA.  The Supreme Court found that this requirement was “incompatible with prior precedent and imposes an obligation nowhere found in the statutory language.”

Employers’ Takeaways:

  • CEPA’s protections extend to all employees regardless of their job duties; even those who are employed for the explicit purpose of bringing concerns or potential issues to the attention of the company
  • There is no longer a requirement that employees must demonstrate an exhaustion of all internal means of securing compliance in order to secure whistleblowing protections under CEPA.
  • Employees, however, still need to demonstrate that they have suffered an adverse employment action (such as demotion, termination and the like), and that the adverse action occurred because they engaged in protected activity.
  • Companies that hire professionals to specifically engage in risk analysis such as the pharmaceutical industry should take extra precaution when making employment decisions regarding these types of employees. Management and Human Resources professionals must be trained and sensitized to protected conduct in all its forms.

For more information regarding this decision and to learn how you can protect your company from whistleblowing claims, please contact John C. Petrella, Esq., Director of the firm’s Employment Litigation Practice Group at, or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at or 973-533-0777.

Same-Sex Couples Now Receive Equal Coverage Under The FMLA

On Friday, March 27, 2015, the Department of Labor (“DOL”)’s new regulation revising the definition of “spouse” to include those in same-sex marriages went into effect expanding the definition of spouse under the Family and Medical Leave Act of 1993 (“FMLA”).

With the reversal of the Defense of Marriage Act (“DOMA”) by the U.S. Supreme Court in United States v. Windsor, President Obama instructed all federal agencies to determine if federal benefits programs should be expanded as a result. Consequently, on February 25, 2015, the DOL published a Final Rule (“Final Rule”) which amended the regulatory definition of spouse under the FMLA to include all individuals in legal marriages, regardless of where they live thus ensuring that the FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights.  Prior to the New Rule, the DOL used the “state of residence” rule, which required the employer to look to its own state’s marriage laws to determine if an employee claiming FMLA leave actually had a “spouse”.  Thus, same-sex couples who were married in a state where the union was legal, but resided in a state that does not recognize same, these individuals would not be considered spouses under the old standard.

Under the new “place of celebration” standard, the definition of spouse is now a husband or wife as defined or recognized in the state where the individual was married (“place of celebration”), and specifically includes individuals in same-sex and common law marriages.  The Final Rule also defines spouse to include a husband or wife in a marriage that was validly entered into outside of the United States if it could have been entered into in at least one state.  Thirty-Seven (37) states currently recognize same‑sex marriage, while thirteen (13) states do not yet recognize the union.

It is important to note that the new regulatory definition of spouse does not substantively alter the FMLA.  For example, it does not change the eligibility requirements or an employee’s entitlement to take up to 12 workweeks of FMLA leave in a 12-month period, or what types of employers are covered by the FMLA.  All requirements for eligibility, qualifying reasons for leave, employee and employer notification, and certification must be met.  The revised definition also expands the right of both parents to utilize FMLA leave for the birth or adoption of their child.  Under the previous language, these rights were limited to the “mother” and “father”, limiting this option to partners in a heterosexual marriage.

As expected, not all states have agreed with this change. On March 26, 2015, the United States District Court for the Northern District of Texas, granted a request made by the states of Texas, Arkansas, Louisiana, and Nebraska for a preliminary injunction with respect to DOL’s Final Rule.  The Texas Attorney General, Ken Paxton, who was joined by the Attorney Generals for Nebraska, Arkansas, and Louisiana, was able to show a likelihood of prevailing on his claim that a change in the federal law’s definition of spouse would force Texas employers to choose between breaking federal or state laws.  U.S. District Judge Reed O’Connor ultimately agreed with the coalition of states in finding that the agency was exceeding its authority in changing the Final Rule.  In his opinion, Judge O’Connor stated his belief that Congress “intended to preserve a state’s ability to define marriage in this way without being obligated under the laws of another jurisdiction which may define it differently.”

Takeaway for Employers:

  • Given the injunction, a great deal of uncertainty surrounds the DOL’s Final Rule with additional court rulings expected in the coming months.  A recent posting on the DOL’s website about the decision provides no clear answers.
  • In the interim, the best approach for those employers operating in New York and New Jersey is offer FMLA benefits to employees in same-sex marriages who qualify for leave under the DOL’s new definition of spouse.
  • Continue to follow our blog and the DOL’s website for further developments.

For questions related to compliance with the FMLA, please contact Dina M. Mastellone, Esq., Director of the Human Resource Practices Group and Counsel in the Employment Law & Litigation Group, at, or Eileen Fitzgerald Addison, Esq., Associate in the Human Resource Practices Group, at

N.J. Business Groups Vow To Fight Paid Sick Leave Law in Trenton

A group of six business organizations—including the New Jersey Business & Industry Association and the New Jersey State Chamber of Commerce—has filed a lawsuit against the City of Trenton, New Jersey, demanding the delay of a voter-approved measure requiring Trenton employers to provide their workers with paid sick leave.

The coalition is asking the Mercer County Superior Court to overturn the measure, arguing that it is unconstitutional, and preempted by state statutes.  The Ordinance, No. 14-45, become law on Wednesday, March 6th –120 days after 5,989 Trenton voters approved the measure in a November 2014 referendum.

In its papers, the coalition argues that the City lacks legal authority to implement the Ordinance.  More specifically, the group contends that the measure is a direct violation of the police powers granted to municipalities, which are subject to constitutional limits. In addition, the measure “substantially impairs” employer-employee contracts, in violation of the Contract Clause.  The group further argues that the city is over-stepping its powers and cannot reach beyond its municipal boundaries to require employers located outside of Trenton to provide paid sick leave for employees who work at least 80 hours a year in the City.  Christopher Gibson, the attorney for the group, said “Trenton’s mandatory paid sick leave ordinance is vague, ambiguous and contrary to New Jersey law and impossible to interpret, administer or implement.”

Notably, Trenton’s law is modeled after a similar ordinance successfully implemented in Newark. The Newark law requires employers with 10 or more workers to provide up to 40 hours—accruing one hour for every 30 hours worked – of paid sick time annually. Employers with fewer than 10 workers only have to provide up to 24 hours of paid sick time. Those in the child care, home health care and food service industries are required to provide the full 40 hours regardless of their size.

The referendum forced Trenton to join eight other municipalities within the state to pass such a measure. Over the past two years, local legislators in Jersey City, Newark, Passaic, East Orange, Paterson, Irvington and Montclair have passed their own versions of this ordinance. Earlier this month, Bloomfield joined the movement and passed its own paid sick leave law. Montclair, whose referendum was approved in November along with Trenton, also ushered in paid sick leave Ordinance on March 4th.  Notably, a State Assembly panel passed a statewide version of the bill in December.

For questions related to Trenton’s paid sick time ordinance, or compliance with your local paid sick leave laws, please contact Dina M. Mastellone, Esq., Director of the Human Resource Practices Group and Counsel in the Employment Law & Litigation Group, at, or Eileen Fitzgerald Addison, Esq., Associate in the Human Resource Practices Group, at

NJ Requires Many Notifications to Employees in 2015

As New Jersey employers ring in the new year, they should be mindful of the New Jersey Department of Labor’s notice distribution requirements.  The DOL publishes several important notices which, in addition to posting, must be individually distributed to employees as follows:

New Jersey Security and Financial Empowerment Act (“NJ SAFE” Act)

  • In addition to a posting requirement, the NJ SAFE Act regulations require employers to “use other appropriate means to keep its employees so informed.”
  • Employers should include a written policy on the NJ SAFE Act in the employee handbook and/or distribute a copy of the notice to all current employees and to new employees upon hire.

Employer Obligation to Maintain and Report Records

  • Any new employee hired after November 7, 2011, must be provided a written copy of the notice at the time of hiring. The notice may be distributed to employees by hard copy or via electronic mail.

 New Jersey Family Leave Act (“NJ FLA”)

  • In addition to a posting requirement, the NJ FLA regulations require that if an employer has an employee handbook, “information concerning leave under the Act and employee obligations under the Act must be included in the handbook.”
  • If an employer does not have an employee handbook, it must “provide written guidance to each of its employees concerning all the employee’s rights and obligations under the Act.”
  • The DOL states that employers may duplicate and provide employees with a copy of the NJFLA Fact Sheet to provide such guidance.

New Jersey Family Leave Insurance

  • Employers must provide employees with a written copy of the notification: (i) at the time of the employee’s hiring; (ii) whenever an employee provides notice of a potential claim; and (iii) upon the first request of the employee. Written notification may be electronically transmitted to employees.

 New Jersey Conscientious Employee Protection Act

  • The notice must be distributed annually to all employees.

NJ Gender Equity

  • Employers must provide a written copy of the notice to each employee who is hired after January 6, 2014 at the time of his or her hire.
  • Annually, on or before December 31 of each year, employers must provide each employee a written copy of the notice.
  • Employers also must provide each employee a written copy of the notice upon request.
  • The required written notice can be distributed electronically or in hard copy form.
  • In every instance in which a written notice is required to be provided to an employee, the written notice must be accompanied by an acknowledgment that the employee has received it and has read and understands its terms. This acknowledgment must be signed by the employee (in writing or by means of electronic verification) and returned to the employer within 30 days of the employee’s receipt of the notice.

It is important to note that, for some of these notices, merely posting will not fulfill the DOL’s distribution requirements.  Nor will merely including notices in your workplace Employee Handbook.  Each law sets forth unique notice requirements.  Moreover, the inclusion of required notices in an Employee Handbook is not recommended – only critical employment law and HR policies should be set forth in Employee Handbooks.


Effective January 1, 2015, the hourly minimum wage in New Jersey is $8.38 per hour.

For more information on employer obligations in 2015 and beyond, please contact Dina Mastellone, Esq., Director of the Human Resources Practice Group and Counsel in the Employment Law & Litigation Group, at, or Eileen Fitzgerald Addison, Esq., Associate in the Human Resources Practice Group, at