Beware the Boilerplate: New Jersey Court Finds Discrimination from Language in an Unsigned Settlement Agreement

Just in time for Halloween, on October 31, 2018, a New Jersey federal court held that an unsigned, non-binding separation agreement could provide relevant background evidence of age discrimination, and that employers anywhere could be subject to the reach of the New Jersey judiciary, even if they have no contacts with the state.  

Facts

Kathleen Fowler worked for AT&T, Inc. (“ATTI”) and AT&T Services, Inc. (“ATTS”) (collectively, “AT&T”), for more than 30 years until her employment was terminated.  Kathleen Fowler v. AT&T, Inc. & AT&T Services, Inc.  At the time of her termination, she was 60 years old and undergoing chemotherapy for breast cancer.  She sued AT&T in the United States District Court for the District of New Jersey, claiming that the company engaged in age and disability discrimination when it erroneously told her that it was eliminating her position and that she was being placed on “surplus status,” meaning she had 60 days to find another job within AT&T or be terminated.  While on surplus status, she applied internally for other positions like her former job, which AT&T rejected.  Instead, AT&T placed her in a different position and then failed to reasonably accommodate her disability so that she could perform that job or be transferred to another vacant position. Meanwhile, of the 69 people in Fowler’s former unit, only two were selected for surplus, Fowler and another person who was aged 52.  Nobody under the age of 40 was selected for surplus.

AT&T terminated Ms. Fowler’s employment and offered to pay her severance in exchange for her signing a separation agreement that included a general release and waiver of liability, including age discrimination claims.  Ms. Fowler did not sign the agreement.

In her complaint, Ms. Fowler alleged that the (unsigned) release ran afoul of the Older Workers Benefit Protection Act (“OWBPA”).  The OWBPA is a federal statute aimed to protect older employees by requiring employers to provide specific information in exchange for a waiver of age discrimination claims.   Ms. Fowler alleged that the release was invalid under the OWBPA because it contained factual misstatements, failed to comply with OWBPA’s strict disclosure requirements, and was intended to harm workers aged 40 and older.

ATTS’s Motion to Strike

ATTS moved to strike the allegations in the complaint related to non-compliance with OWBPA.  ATTS argued that because Ms. Fowler did not sign the separation agreement containing the release that she claimed violated OWBPA, those allegations were immaterial to her age discrimination cause of action and would only serve to invite unnecessary discovery and cast ATTS in a prejudicial light.  In opposition, Ms. Fowler argued that the allegations related to ATTS’s release were relevant because they reflected the company’s age bias.  In reply, ATTS argued that the alleged OWBPA violation could not support a showing of age bias because the Third Circuit in Lawrence v. National Westminster Bank N.J. previously held that an employee who does not sign a waiver or release cannot establish a violation of OWBPA.

The District Court denied ATTS’s motion to strike, finding that ATTS’s non-compliant release suggested a pattern or practice of age-based bias.  The court was unpersuaded by ATTS’s reliance on Lawrence because, unlike in Lawrence, Ms. Fowler did not bring a separate cause of action under OWBPA; rather, she alleged that ATTS’s conduct was inconsistent with OWBPA, the statute designed to protect older employees, which revealed a pattern of age-based bias.

ATTI’s Motion to Dismiss

ATTI moved to dismiss Ms. Fowler’s case against it for lack of personal jurisdiction.  Personal jurisdiction refers to a court’s power to make decisions regarding an entity’s legal rights or obligations.  There are generally two types of personal jurisdiction.  First, a court can have general jurisdiction over an individual whose residence is in the forum state and an entity whose place of incorporation and/or principal place of business is within the forum state.  Second, a court can exercise specific jurisdiction over an entity in a lawsuit filed against it when i) the entity purposely directed its activities at the forum state; ii) those activities are what led to the lawsuit; and iii) the assertion of jurisdiction comports with fairness.

In Fowler, the court had personal jurisdiction over Ms. Fowler because she was a New Jersey resident.  ATTI moved to dismiss claiming the New Jersey District Court lacked personal jurisdiction over it because it is a Delaware corporation with its principal place of business in Texas.  ATTI does not employ, own real property, insure persons or property, pay taxes, contract, operate, or produce goods or services in New Jersey, nor is it even registered to do business in New Jersey.  Nevertheless, the court held that, because Ms. Fowler’s claims against ATTI arose out of a release directed at her in New Jersey, ATTI should have expected that it could be hauled into court in New Jersey to litigate disputes over that conduct.  Thus, the court held that it could exercise specific personal jurisdiction over ATTI.

Bottom Line

Employers must ensure that separation agreements containing a release and waiver of age discrimination claims comply with the precepts of OWBPA, even if the agreement is just an offer and is never signed.  More generally, this case serves as a harsh reminder that an employer’s course of conduct, although not alone sufficient to sustain a separate cause of action, may be probative of the employer’s discriminatory animus.  Courts routinely allow employees to allege and introduce evidence of their employers’ other acts to prove a discriminatory attitude in making the employment decision at issue.  For instance, an employer’s history of treating its older employees poorly may provide an evidentiary source for employees to tap to prove the allegations of discrimination against them individually.

With respect to personal jurisdiction, Fowler reaffirms the principle that a court in New Jersey can make decisions about an employer that has no contacts in this state if the employer purposely directed the alleged conduct at residents in New Jersey.  Employers may not be able to escape the authority of the New Jersey judiciary and the potential liability imposed on it by New Jersey law by simply incorporating and operating outside of the state.

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

Can New Jersey Courts Reach a “Meeting of the Minds” With the Federal Arbitration Act?

Three recent decisions in New Jersey shed new light on the ongoing tension between the Federal Arbitration Act (“FAA”) and the standard of review utilized by the New Jersey courts concerning the enforceability of arbitration agreements.  Congress passed the FAA almost a century ago to address the hostility courts had towards private arbitration and put arbitration agreements “on equal footing” with other contracts.  In New Jersey, however, courts have been reaching decisions that appear to be at odds with the FAA and are increasing their focus on “mutual assent” – whether or not parties have reached a “meeting of the minds.”

Can Mutual Assent Be Found in an Email?

          Two recent decisions by the United States District Court for the District of New Jersey, Schmell v. Morgan Stanley & Co., Inc. and AT&T Mobility Services LLC v. Jean-Baptiste, address mutual assent where the company’s arbitration agreement was presented to employees by email.

Facts in Schmell

Mr. Schmell was employed as a Senior Vice President with Morgan Stanley from January 2006, until his termination in October 2017.  Schmell filed a complaint in the Superior Court of New Jersey, Monmouth County alleging wrongful termination.  Morgan Stanley subsequently removed the case to federal court and moved to compel arbitration pursuant to its Convenient Access to Resolutions for Employees (“CARE”) Arbitration Agreement.

Morgan Stanley’s CARE Agreement was sent out to employees through their work email address.  In relevant part, the email informed employees “that the program was mandatory unless they opted out and that their continued employment without opting out constituted acceptance” of the arbitration agreement (emphasis added).  The CARE Agreement was also available on Morgan Stanley’s internal human resources portal.  Schmell continued his employment without opting out and, in opposing the motion to compel arbitration, claimed that he never read the email and did not recall reviewing it, stating that he could receive possibly hundreds of emails in a given day.

The District Court’s Decision in Schmell

In the first of three separate decisions (Schmell I), the District Court Judge found that there was an unresolved question as to whether Schmell had notice of the CARE Agreement and denied Morgan Stanley’s initial motion to compel arbitration.  In particular, the Court noted that the notice question raised a genuine issue as to whether “there was a meeting of the minds [so that Schmell] could mutually assent to the terms of the CARE program.”  In a second decision (Schmell II), the Court ordered limited discovery to address this notice question, the goal being to “properly evaluate whether there was a meeting of the minds on the agreement to arbitrate.”  In the third-and-final decision (Schmell III), the Court ruled that the limited discovery had established that Schmell did indeed have notice of the email and, consequently, the CARE Agreement.  Therefore, although Schmell failed to opt out or otherwise respond to the email, such notice, particularly that the CARE program was mandatory, combined with his continuing employment without opting out, constituted his assent to be bound by the arbitration agreement.

Facts in Jean-Baptiste

          Ms. Jean-Baptiste was employed as an Assistant Store Manager for AT&T at the time she filed her complaint in the Superior Court of New Jersey, Union County alleging gender and race discrimination in violation of the New Jersey Law Against Discrimination.  AT&T removed the case to federal court and filed a motion to compel arbitration, pursuant to an agreement that had been presented to Jean-Baptiste by email in March 2016.  The email informed Jean-Baptiste that participation in the arbitration program was optional and also established a deadline for employees to opt out of the agreement, stating “[i]f you do not opt out by the deadline, you are agreeing to the arbitration process as set forth in the Agreement.” (emphasis added). Prior to the opt-out deadline, Jean-Baptiste accessed the arbitration agreement and clicked on a button that read “Review Completed.”  In opposing AT&T’s motion to compel arbitration, Jean-Baptiste argued that she never affirmatively agreed to be bound by the arbitration agreement and that her mere silence could not be construed as her assent to the terms.

The District Court’s Decision in Jean-Baptiste

The District Court, in considering whether Jean-Baptiste’s silence constituted her assent to the arbitration agreement, applied New Jersey contract principles, particularly that the enforceability of such an agreement could only result from an “explicit, affirmative agreement that unmistakably reflects the employee’s assent.”  The Court also cited the opinion in Schmell I, that such affirmation “need not be an actual signature, but must demonstrate a willingness and intent to be bound by the arbitration provision.”

The District Court’s decision addressed the differences between Ms. Jean-Baptiste’s case and the facts in Schmell. Whereas Mr. Schmell was notified that participation in the CARE Agreement was mandatory and that his continued employment without opting out signified assent to the agreement, the email sent by AT&T to Ms. Jean-Baptiste contained no such notification.  The District Court highlighted the fact that AT&T specifically told Jean-Baptiste that the decision to participate was “entirely up to her” and that there would be “no adverse consequences” if she chose not to participate in the program.  As such, the District Court found that Jean-Baptiste’s decision to continue her employment had nothing to do with her assent (or lack thereof) to the optional arbitration program and emphasized that “the burden of obtaining affirmative acceptance . . .  rests with employers.”

Shed the Pounds and the Arbitration Provision

In Flanzman v. Jenny Craig Inc., the New Jersey Appellate Division found that an arbitration provision between weight loss company Jenny Craig and a former employee was unenforceable because the agreement failed to identify where or how the parties would arbitrate their dispute.

Facts in Flanzman

Ms. Flanzman was employed with Jenny Craig for 26 years as a weight loss counselor before she was terminated at the age of 86.  She filed a complaint in Superior Court of New Jersey, Bergen County alleging age discrimination and discriminatory discharge in violation of the New Jersey Law Against Discrimination.  Jenny Craig moved to compel arbitration pursuant to an agreement that Ms. Flanzman had signed in 2011 – 20 years after she had been hired – as a condition of her continued employment.  The problem with Jenny Craig’s arbitration agreement, however, was that it failed to specify the forum in which the parties could bring their claims.

Trial and Appellate Decisions

The trial court found that the absence of a specified arbitration forum did not render the agreement unenforceable, instead it allowed Ms. Flanzman to choose the body that would conduct the arbitration.  The Appellate Division, however, reversed this decision, holding that the parties could not have reached a “meeting of the minds” without knowing what rights would replace their right to judicial resolution of their dispute and, therefore, the agreement lacked mutual assent.  The basis for the Appellate Division’s decision was adapted from the New Jersey Supreme Court’s decision in Atalese v. United States Legal Services Group, L.P., which instructed the lower courts to “take particular care in assuring the knowing assent of both parties to arbitrate, and a clear mutual understanding of the ramifications of that assent.”

Thus, since Jenny Craig’s arbitration agreement did not identify where and how the parties would arbitrate the dispute (such as, through the American Arbitration Association, or by creating a process for the selection of an arbitrator), this failure doomed the agreement.  Jenny Craig may still seek review by the New Jersey Supreme Court, which has as recently as September 2018 taken up cases to clarify the interplay between New Jersey contract law and the FAA.

Bottom Line

Courts applying New Jersey’s contract-principle approach to arbitration agreements have made it clear that courts will not assume that employees have intended to waive their right to a jury trial unless the agreements reflect their assent in unambiguous terms.  Likewise, employers should not assume that the bare existence of an arbitration agreement will be sufficient to compel arbitration.  As the Court noted in Schmell and Jean-Baptiste, employers bear the burden of obtaining their employee’s affirmative assent.  While, in some circumstances, an employee’s silence may be construed to signify assent, the better approach is to use the most unambiguous means possible – such as a signature.  As you can see, ambiguity on this issue leads to consequences that cut against the benefits of arbitration – such as speed in resolving disputes, relative informality, and cost-effectiveness.  Furthermore, Flanzman instructs that, in addition to requiring mutual assent to arbitrate, the parties must also have a mutual understanding as to the rights that will be afforded in arbitration, to replace those that have been waived.

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

The 10 Most Frequently Asked Questions and Answers About New Jersey’s New Paid Sick Leave Law

Fall brings requests for time off for school conferences.  Winter brings absences for colds and flu.  The New Jersey Paid Sick Leave Law (the “Sick Leave Law”) provides paid sick leave to virtually every New Jersey employee to attend to these needs.  The Sick Leave Law became effective on October 29, 2018, and requires all New Jersey employers, regardless of size, to provide paid sick leave for full-time, part-time, casual, and seasonal employees.  Sick leave may be used for the employee’s own medical condition, or the medical condition of the employee’s family member.  Employees may also use paid sick leave for absences due to public health emergencies and absences related to domestic violence suffered by the employee or the employee’s family member.  Finally, paid sick leave may be used by the employee to attend school conferences and events. Employers may choose to either allow employees to accrue sick leave at a rate of 1 hour for every 30 hours worked, up to a maximum of 40 hours per year, or “frontload” the 40 hours of sick leave at the beginning of the benefit year.

In this article, we explore the 10 most frequently asked questions we have been receiving in assisting employers to comply with the requirements of the new law:

  1. When do employees accrue sick leave and how soon may they start using it?

The law and the proposed regulations conflict on this issue as it pertains to current employees. The statute states that for employees who were hired before October 29, 2018, earned sick leave begins to accrue on October 29, 2018. The current employee can use his or her earned sick leave 120 calendar days after his or her start date. This means that current employees can use paid sick leave as soon as it is accrued, and if an employer frontloads the full entitlement of paid sick leave, then the employee can use that leave immediately.

The proposed regulations, however, provide that current employees cannot use paid sick leave until the 120th calendar date after the employee commences employment, or February 26, 2019, whichever is later. We have the statute, on one hand, that allows current employees to use their accrued paid sick leave immediately, and the proposed regulations, which state that they must wait until February 26, 2019.  How do employers comply with the Sick Leave Law considering this conflict?  There is no clear-cut answer, but instead employers must look at their current PTO policies and benefit year.  Employers must also determine if any segment of the workforce is receiving less than the full complement of leave provided for under the law (and not the proposed/draft regulations).

The statute and regulations are consistent with respect to new hires.  Employees hired after October 29, 2018, accrue paid sick leave immediately on the employee’s first day. New employees cannot use accrued paid sick leave until the 120th calendar day after the employee commences employment.

  1. Do I need to take any action if I already offer paid time off (“PTO”)?

It depends.  An employer’s PTO policy will only be compliant with the Sick Leave Law if the employer provides at least the minimum amount of sick time as required by the Sick Leave Law (1 hour of paid sick leave for every 30 hours worked). An employer may offer a more generous PTO policy; however, the policy must meet or exceed all the requirements of the Sick Leave Law and allow employees to use the time for all the reasons permitted by the law.

  1. What is the interplay between the Sick Leave Law, the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA)?

The FMLA provides 12 weeks of unpaid job-protected leave for employees suffering from a serious health condition or for the care of a family member with a serious health condition. Similarly, the NJFLA provides 12 weeks of unpaid job-protected leave for employees to care for a newly born or adopted child, or for the care of a family member with a serious health condition. When an employee is eligible to care for a family member under both FMLA and NJFLA, the leave may run concurrently pursuant to the employer’s policy.

The Sick Leave Law may also be used for illness by the employee or the employee’s family member. The Sick Leave Law, however, limits leave up to 40 hours, and, unlike the FMLA and NJFLA, the time off is paid. It is feasible that situations may exist where the Sick Leave Law runs concurrent with either FMLA or NJFLA, or both. Notably, the Sick Leave Law carries with it an extremely broad definition of “family member,” which includes anyone “whose close association with the employee is the equivalent of a family relationship.” This means that New Jersey employees may use paid sick leave to care for a person, regardless of biological or legal relationship. This allows employees to take leave to care for individuals not covered as family members under the FMLA and NJFLA.

Another important distinction is that unlike the FMLA or NJFLA, the Sick Leave Law may not be used to bond with a newborn or newly adopted or fostered child.  In addition, FMLA and NJFLA take precedence when they require employers to do more than the Sick Leave Law.

Finally, the FMLA and NJFLA only apply to employers that meet certain criteria and only eligible employees (based on length of service and hours worked) are entitled to take FMLA and NJFLA leave.  The Sick Leave Law applies to almost all New Jersey employees and employers, so employees ineligible for FMLA or NJFLA will likely be entitled to paid sick leave, particularly those employed by small businesses.

  1. If my municipality already has a paid sick time law, does the new law affect my
    workforce?

Yes. The new law fully preempts and displaces the municipal ordinances that previously provided paid sick leave in 13 municipalities in New Jersey.

  1. Can employers require that employees provide notice when taking sick leave?

            Yes and No. Employers can require that employees provide up to 7 days’ notice of “foreseeable” absences. Foreseeable absences include time off for scheduled medical appointments. Where the need for leave is unforeseeable, an employer may only require notice “as soon as practicable,” and only if the employer has notified the employee, in advance, of this notice requirement.

Employers may only require documentation to substantiate the need to sick leave under two circumstances: 1) when the employee is absent for 3 or more consecutive days or 2) when the employee is absent during established “black-out dates.” Blackout dates must be limited to verifiable high-volume periods or special events (like the winter holidays). Importantly, employers must provide notice to employees of these backout dates.

  1. If we offer a more generous PTO policy than the law requires, are we exempt from the law’s carry-over provision?

          No. Employers whose employees accrue PTO in excess of the law’s requirement are still required to carry-over a maximum of 40 hours paid leave to each new benefit year. An employer is not required to carry over more than 40 hours paid leave per year.

  1. Are employers required to change the “benefit year”?

          Employers are required to establish a single benefit year (the 12-month period in which employees accrue or are frontloaded paid sick leave) for all employees. Employers who calculate PTO based on the employee’s anniversary date can no longer do so if that PTO is being used for paid sick leave. This requirement also means that employers must work closely with payroll to address accrual dates.

The law also requires that if employers seek to change the benefit year they must provide at least 30 calendar days’ notice to the Commissioner of the NJDOL. Employers are not required to provide notice to the Commissioner of the initial establishment of a benefit year.

  1. What happens to unused sick time at termination?

            Employers are not required to payout for unused sick time at termination unless a company policy or a collective bargaining agreement provides for payout. Employers should update their policies to unambiguously provide that accrued and unused paid sick leave will not be paid out at termination.

  1. The law only exempts construction employees subject to a collective bargaining agreement, public employees who are provided with sick leave, and per diem health care employees. What constitutes a per diem health care employee?

          This is another great example of where the law and proposed regulations contradict. The statute defines “per diem health care employee” as any New Jersey licensed health care professional (or license applicant) employed by a facility licensed by the New Jersey Department of Health or any first aid, rescue, or ambulance squad member employed by a hospital system, who fulfills the following three qualifications: (1) works on an as-needed basis to supplement a health care employee or to replace or substitute for a temporarily absent health care employee; (2) works only when the employee indicates that the employee is available to work, and has no obligation to work when the employee does not indicate availability; and (3) either (a) has the opportunity for full time or part-time employment under that healthcare provider or (b) has waived earned sick leave benefits for alternative benefits or consideration. So, under the law, a per diem health care employee must meet an exceedingly high standard to be exempt. However, the proposed regulations eliminate the three qualifications.

          Whether this departure from the law was intentional or a mere scrivener’s error is unclear and we await the publication of the final regulations. For now, the statute controls.

  1. Does the new law impose additional recordkeeping and compliance requirements?

Yes. Employers must post the NJDOL’s required notice in a conspicuous place, accessible to all employees in each New Jersey workplace. In addition, employers must distribute the notice (1) to all existing employees by November 29, 2018; (2) at the time of hiring; and (3) if the employee requests a copy of the notice. The required notice may be distributed by email. Employers are not required to obtain signed acknowledgments confirming that employees received the notice.  Significantly, employers must distribute the notice in English and if the employee’s primary language is other than English, the employer must also provide the notice in the employee’s primary language.

Employers must also maintain records documenting the hours worked and earned sick leave used by employees. Records must be maintained for 5 years and made available for inspection by the NJDOL. If an employee claims an employer violated the Act, and that employer has failed to maintain adequate records, then the law creates a presumption that the employer failed to provide paid sick leave.

Bottom Line

The answers to the questions above are based on a review of the FAQs and proposed regulations released by New Jersey Department of Labor and Workforce Development (NJDOL). Employers reviewing the draft regulations for guidance may also find that some of the sections contradict the Sick Leave Law. The proposed regulations are not binding and are open for public comment until December 14, 2018.  We will continue to monitor developments and will provide an update once the final regulations are released by the NJDOL.

In the meantime, employers should work closely with counsel to address the specific needs of their workplace.  In addition, employers must adhere to the notice and recordkeeping requirements, and review and revise existing policies, practices and procedures related to calculating employee’s sick leave to ensure compliance with the new law.

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

New Jersey Issues Mandatory Notice for Compliance with New Jersey’s Paid Sick Leave Act

The New Jersey Department of Labor and Workforce Development (NJDOL) has issued its long awaited mandatory notice for compliance with the New Jersey Paid Sick Leave Act (“the Act”) which goes into effect on October 29, 2018. The “Notice of Employee Rights” can be found here.

All New Jersey employers regardless of size must:

  • Post the notice in a conspicuous place accessible to all employees in each New Jersey workplace; and
  • Distribute the notice (1) to all existing employees by November 29, 2018; (2) at the time of hiring; and (3) if the employee requests a copy of the notice.

The required notice may be distributed by email. Employers are not required to obtain signed acknowledgments confirming that employees received the notice.

The notice must be also be posted and distributed in any language that the employer believes is the first language of a majority of the employer’s workforce. In addition to English, the NJDOL will release the notice in 12 additional languages, including Spanish, Chinese, and Arabic. The NJDOL has advised that translations will be available on its website soon.

Under the new law, employees accrue 1 hour of paid sick leave for every 30 hours worked. Employees (hourly, salaried, full-time, part-time) may accrue up to 40 hours of paid sick leave per benefit year.  Employers are also permitted to designate the “benefit year” as any 12-month period but may not modify it without notifying the NJDOL.

Employees become eligible to use earned sick leave beginning on the 120th day after they are hired, and may use their earned sick leave as it is accrued. Employers are also permitted “frontload” 40 hours of paid sick time. There is no requirement to pay out accrued and unused sick leave upon termination absent a company policy to the contrary.

Coverage

Permissible use of sick leave, which will accrue at the rate of one hour for every 30 hours worked up to 40 hours per benefit year, includes the following:

(i) Diagnosis, care, treatment, recovery and/or preventive care for the employee’s own mental or physical illness or injury or the employee’s family member’s mental or physical illness or injury;

(ii) Absence due to a public health emergency declared by a public official that causes the closure of the employee’s workplace or the school or childcare facility of the employee’s child or requires the employee or an employee’s family member to seek care;

(iii) A necessary absence for medical, legal or other victim services because of domestic or sexual violence perpetrated on the employee or the employee’s family member; or

(iv) To attend a school-conferences, meetings, or any event requested or required by a child’s school administrator, teacher, or other professional staff member responsible for the child’s education, or to attend a meeting regarding a child’s health or disability.

The Act also broadly defines “family members” to include an employee’s child, spouse, domestic partner, civil union partner, parent (including adoptive, foster or step-parent, or legal guardian), sibling (including foster or adoptive siblings), grandparent or grandchild, and the parent, grandparent or sibling of the employee’s spouse, domestic partner or civil union partner. Notably, an employee has the opportunity to use their sick leave for the care of a non-related individual whose close association with the employee is the “equivalent” of a family relationship.

Exemptions & Employees Covered by a CBA

Per diem healthcare employees, construction workers subject to a collective bargaining agreement (CBA), and public employees who are provided with sick leave with full payment pursuant to any other law, rule or regulation are exempt from the new law. Non-construction employees covered by a CBA at the time the law goes into effect are also exempt, but the Act’s provisions will apply once the CBA expires. Further, employees and their representatives may waive the rights available under the law and address paid leave in collective bargaining.

Notice

Employers are entitled to 7 days advance notice of “foreseeable” absences and can restrict employee’s use of “foreseeable” paid sick leave on certain dates.  Where the need is unforeseeable, an employer may only require notice “as soon as practicable,” if the employer has notified the employee of this requirement.  In addition, employers are only permitted to ask the employee for documentation to substantiate the sick leave if the employee is absent for 3 or more consecutive days.

Compliance

Employers will be required to maintain records documenting the hours worked and earned sick leave used by employees. Records must be maintained for 5 years and made available for inspection by the NJDOL. If an employee claims an employer violated the Act, and that employer has failed to maintain adequate records, then there is a presumption that the employer failed to provide paid sick leave.

Anti-Retaliation

Employers are prohibited from retaliating or discriminating against employees under the Act. The Act broadly defines retaliation to include not only retaliatory personnel action like suspension, demotion, or refusal to promote, but also includes threatening to report the immigrant status of an employee or family member of the employee. Employers are also prohibited from retaliating or discriminating against an employee who files a complaint with the commissioner or a court alleging the employer’s violation of the Act, or informs any other person of their rights under the Act.

There is a rebuttable presumption of unlawful retaliatory action whenever an employer takes adverse action against an employee within 90 days of when that employee opposes any violation of the Act, informs any person about the employer’s alleged violation of the Act, files a complaint alleging a violation of the Act, or cooperates in an investigation into an alleged violation of the Act.

Penalties

Any failure of an employer to make available or pay earned sick leave as required by the new law, or any other violation of the law, shall be regarded as a failure to meet the wage payment requirements of the New Jersey Wage and Hour Law.  Employers will also be subject to the penalties and remedies contained in the New Jersey Wage and Hour Law, including fines and possible imprisonment, reinstatement of a discharged employee to correct any discriminatory action and payment of all lost wages in full.

Bottom Line

The New Jersey Paid Sick Leave Act takes effect on October 29, 2018. Employers in New Jersey, in consultation with legal counsel, must post the notice and review and revise existing policies, practices and procedures related to calculating employee’s sick leave to ensure compliance with the Act.  Human Resources and Benefits personnel should also be trained on the new paid sick leave law requirements and Managers should also receive updated training to ensure that internal recordkeeping processes are sufficient to keep track of time taken under the new law.

For more information on New Jersey’s new paid sick leave law, see the June issue of New Jersey Employment Law Letter.

For more information about the potential impacts of the Paid Sick Leave Act or what steps your company can take to effectively ensure compliance with wage and hour laws, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at  jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

No Roman Holiday: New Jersey Appellate Division Says Employees Must Submit Sexual-Harassment and Discrimination Claims to Arbitration

August 23, 2018 was a busy day for the New Jersey Appellate Division on the arbitration front when it issued two opinions effectively upholding the enforceability of arbitration agreements.  Both cases involved sexual-harassment and discrimination claims brought by employees against their former employers under the New Jersey Law Against Discrimination (“NJLAD”).  In D.M. v. Same Day Delivery Service, Inc., et al., the Appellate Division held that a former employee was bound by the terms of an arbitration agreement, even though the language in a few sentences were “poorly written” and “didn’t make sense.”  In Roman v. Bergen Logistics, LLC, et al., the Appellate Division held that a former employee was required to arbitrate her claims, but added that, contrary to the terms of her agreement, she could also seek punitive and exemplary damages in arbitration.

Same Day provides some clarity for Arbitration Agreement language

In Same Day, an employee filed a complaint in New Jersey state court against both her former employer and her former manager, asserting claims under the NJLAD.  The employee had been hired as a delivery person by Same Day Delivery, Inc. and worked as a driver for just over two months.  During the time of her employment, the employee alleged that her manager had made “sexually provocative comments” about her body and subjected her to a hostile work environment on account of her sex and sexual orientation.  Furthermore, the employee maintained that she was fired in retaliation for rejecting her manager’s advances.

The employer moved to dismiss the complaint and compel arbitration, asserting that the employee had electronically signed an arbitration agreement along with her employment application, which she had submitted through the company’s online recruiting platform, and was therefore required to submit her claims to binding arbitration.  In response, the employee argued that the arbitration agreement was unenforceable and pointed to certain sentences with ambiguous and unclear language, which she contended made the whole agreement incomprehensible to an employee of average intelligence and thus invalid.  Particularly at issue was the wording of the last sentence of the agreement, which stated “I am agree to waive my voluntarily and knowingly, and free from any duress or coercion whatsoever to a trial by a trial judge or jury as well as my right to participate in a class or collective action.”  The trial court found that, although this sentence “doesn’t make sense,” the rest of the agreement was sufficiently clear to make the agreement enforceable and therefore entered an order directing arbitration and dismissing the complaint.  The employee appealed.

Giving further support to the federal and state policies favoring the arbitration of disputes, the New Jersey Appellate Division affirmed the trial court’s finding that the poorly drafted language did not make the whole agreement ambiguous to the extent that it was invalid because the remainder of the document was clearly written.  In reaching this conclusion, the Appellate Division addressed the issue of what language would make an arbitration agreement clear and understandable to an ordinary reader.  At the outset, the Appellate Division noted that the standard in New Jersey for an enforceable arbitration agreement is that the language clearly state that the employer and employee(s) are 1) agreeing to arbitrate and 2) agreeing to waive the right to pursue a claim in court.  Notably, this standard does not require a “particular form of words,” but, being mindful that these agreements involve a waiver of rights, the language must be such that the employee has full knowledge of his/her legal rights and, by signing, demonstrate his/her intent to surrender those rights.  The Appellate Division also noted that such an agreement will pass muster when it is phrased in plain language that is understandable to an average member of the public, who may not know that arbitration is a substitute for the right to sue.

Roman: don’t waive punitive damages goodbye

In Roman, the court confronted an arbitration agreement which stated, among other things, that the employee had waived her right to pursue punitive damages for all employment matters, including those related to wrongful termination, discrimination, harassment, retaliation, and any other violation of state and federal law.  The employee was hired by Bergen Logistics, LLC as a human resources generalist and signed an arbitration agreement as an express condition of her hiring and continued employment. The employee was terminated within four months of her hire date, after which point she filed a complaint in New Jersey state court against her employer and her former supervisor, asserting claims under the NJLAD and for intentional infliction of emotional distress.  The employee alleged that, during the time of her employment, her supervisor had sexually harassed her and had created a sexually hostile work environment and she further alleged that her termination was retaliation for her objecting to the supervisor’s sexual advances.

The employer moved to dismiss the complaint and compel arbitration, asserting that the employee was obligated to arbitrate her claims pursuant to the agreement that she had signed at the outset of her employment.  In response, the employee argued that the arbitration agreement was unenforceable because it barred the recovery of punitive damages, which the NJLAD makes explicitly available to victims of discrimination.  Unpersuaded, the trial court found that the agreement was a clear and unambiguous waiver of claims for punitive damages, that the employee knowingly signed the agreement, and that the agreement covered the claims set forth in the complaint.  The trial court accordingly entered an order upholding the enforceability of the agreement and dismissing the complaint.  The employee then appealed, again contending that a waiver of punitive damages should not be enforced.

In reviewing the trial court’s decision, the New Jersey Appellate Division noted that the federal and states policies favoring arbitration are “not without limits.”  In this vein, the Appellate Division focused its review on the relationship of the waiver-of-rights provision in arbitration agreements to the rights afforded by the NJLAD.  The Appellate Division determined that the NJLAD permits the recovery of punitive damages to victims of discrimination for an important, public-interest purpose, namely the deterrence and punishment of the most egregious discriminatory conduct by employees who, by virtue of their positions in upper management, control employer policies that should prevent discriminatory conduct in the workplace.  The Appellate Division held that this is a “substantive right” that cannot be waived by agreement between an employee and his/her employer.  Therefore, that Appellate Division modified the trial court’s decision by affirming that the employee must arbitrate her claims and adding that she was permitted to include claims for punitive and exemplary damages in the arbitration proceeding.

Bottom Line

While these opinions reaffirm the compelling federal and state policies that favor the arbitration of disputes, they also illuminate equally compelling, and at times competing, public interests at play within the broader scope of employer-employee relations in the state of New Jersey.  Courts in New Jersey have consistently recognized the benefits of arbitration as providing an inexpensive and efficient means of dispute resolution.  Furthermore, the agreement between the employee and employer to pursue arbitration as expressed in the form of a contract has been strictly enforced, in most instances.  However, these recent opinions make it clear that the enforceability of arbitration agreements depends, in part, on the clarity of the plain language used as well as on the rights that the employee and employer have agreed to waive.  These recent opinions should serve as cautionary tales that the public interests of clarity in contract and an employee’s right to a discrimination-free workplace are some of the many considerations that employers must have when crafting arbitration agreements with the assistance of counsel.

For more information on what your company can do to ensure its arbitration agreement will be enforceable, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

Federal Judge Clears the Haze for New Jersey Employers in the Weeds with Medical Marijuana Users

States across the country, including New Jersey, continue to legalize medical marijuana, but it remains an illegal substance under federal law, and employers’ confusion continues to bud.  The complication that employers have – especially in states such as New Jersey with expansive disability protections under the New Jersey Law Against Discrimination (“NJLAD”) – is that any employee who is using marijuana for a medicinal purpose under the New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”), likely would be considered to have a disability and thus be protected under the NJLAD.

One way an employer can be considered under NJLAD to have discriminated against a disabled individual is by failing to offer him/her a reasonable accommodation.  While the NJCUMMA explicitly states that a reasonable accommodation would not include allowing an employee to use marijuana at work, the statute is not so blunt on the topic of workplace drug testing.  Does NJLAD require that employers accommodate a medical marijuana user by waiving the requirement that he/she pass a drug test for federally-prohibited narcotics?  Issuing a dose of relief to employers who feared that NJCUMMA would set their drug test requirements ablaze, a New Jersey federal judge recently ruled that the answer is no.

In Cotto v. Ardagh Glass Packing, Inc., et al., the plaintiff worked for about 5 years as a forklift operator for a glass packaging company.  In 2016, he injured his head on the job and was placed on light duty work.  He was subsequently asked to take a drug test before returning to work as a condition of continued employment.  He informed his employer that he would test positive for medical marijuana, which he was legally prescribed to treat a neck and back injury that occurred in 2007.  Seeking an accommodation, the plaintiff requested that his employer waive the requirement that he pass a drug test for marijuana.  Apparently, the plaintiff had told the employer upon hire that he was prescribed medical marijuana.  After his employer refused to waive the requirement that he pass a drug test before returning to work, he sued for disability discrimination based on a failure to accommodate.

Judge Robert B. Kugler of the U.S. District Court for the District of New Jersey held that the NJCUMMA does not require an employer to waive its requirement that employees pass a drug test for illegal drugs.  Addressing the issue as one of first impression in New Jersey, Judge Kugler relied on the current federal prohibition on marijuana.  He also relied on the express language of the NJCUMMA, which provides that legal medical marijuana users shall not be subject to criminal or civil penalties related to their use of the drug, but expressly excludes employers from its scope, as follows: “Nothing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.”  N.J.S.A. § 24:6I-14.  Judge Kugler also observed that most courts outside New Jersey have concluded that, unless their state statute’s language explicitly provides otherwise, the decriminalization of medical marijuana does not shield employees from adverse employment actions related to their use of the drug.

Last year, in Barbuto v. Advantage Sales and Marketing, LLC, the Supreme Court of Massachusetts was faced with a similar set of facts: an employee suffering from Crohn’s disease who was legally prescribed medical marijuana under Massachusetts’ medical marijuana statute, sought a waiver of her employer’s policy barring from employment those who test positive for marijuana.  Like the NJCUMMA, Massachusetts’ statute also explicitly states that employers are not required to accommodate any on-site medical marijuana use.  The employer in Barbuto argued that because the only accommodation the employee sought – her continued use of medical marijuana – is a federal crime, it was facially unreasonable.  The Barbuto Court disagreed, noting that such an argument respects federal law alone and ignores Massachusetts voters’ and legislators’ recognition of marijuana as an acceptable method to treat debilitating medical conditions.  The Court further held that, even if an accommodation of continued use of medical marijuana were facially unreasonable, the employer still had a duty to engage in the interactive process and explore with the employee whether there was an alternative accommodation that would allow her to work, such as allowing her to use the drug off-site during non-working hours.

Cotto concerned the reasonable accommodation request of waiving a drug test while Barbuto involved the reasonable accommodation request of using marijuana off-site during non-work hours.   The parties and judge in Cotto seem to have gone out of their way not to cite or distinguish Barbuto, so while New Jersey employers now have clarity about drug testing, they remain dazed and confused as to whether allowing an employee to use medicinal marijuana off-site during non-work hours would be a legitimate reasonable accommodation.

In addition, employers should understand that their knowledge that an employee uses the drug almost invariably imputes knowledge that an employee suffers from a protected disability.  The Cotto case concerned employer conduct resulting from an employee’s treatment, not the employee’s disability, as the plaintiff admitted that his employer knew about his disability for years and never discriminated against him until he was asked to take the drug test.  However, in the absence of such favorable facts, employers should take caution not to make employment decisions based solely on their knowledge that an employee is a medical marijuana user.

For more information about the interplay between the decriminalization of medical marijuana and disability discrimination law, please contact Harris S. Freier, Esq. of the firm’s Employment Litigation Practice Group, at hfreier@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, 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.

“Burn Files” and Employee Self-Help: Effective Policies Protect Documents Wrongfully Taken by Former Employee

A New Jersey appellate court recently upheld the disqualification of a former employee’s attorneys in a whistleblower claim against his former employer, because the employee had improperly taken documents containing privileged attorney-client communications to use against the employer “when they try to get him.”

Facts

The defendant, Maquet Getinge Group (“Maquet”), a German pharmaceutical company, designs, develops, manufactures, and distributes medical devices.  Because of the medical and technological focus of defendant’s business, Maquest maintains sensitive research and development data, new products, quality processes and procedures and protocols for the preparation of inspections by the Food and Drug Administration (“FDA”) on its computer systems.  Maquet had in place comprehensive policies designed to protect its confidential, proprietary information, including a “Standards of Conduct” policy, an “End User Acceptable Use Policy.”  Plaintiff, Oscar Sanchez (“Sanchez”), was employed by Maquet as the Chief Quality and Compliance Officer for approximately 18 months, until he was terminated in April 2015.  As a condition of his employment, Sanchez and other similarly situated employees had to sign a “Confidential Information, Invention Assignment, and Non-Compete Agreement.”  This agreement contained, inter alia, a “Covenant Not to Disclose” and a provision on “Return of Company Documents.”  Two months prior to his termination, Sanchez was disciplined after an investigation into numerous complaints about his conduct and deportment involving employees who reported to him.  After receiving the complaints, Sanchez informed a Senior Vice President of Marketing at Maquet that “he had personally retained copies of all kinds of Maquet-owned documentation – which he referred to as his ‘burn files’ and which included copies of . . . two executives’ hard drives and a binder full of emails and documents,” which he allegedly told his co-worker he “would use the ‘burn files’ to “f***” Maquet ‘when they tried to get him.’”

On July 2, 2015, Sanchez filed a complaint against Maquet alleging he had been wrongfully terminated for whistleblowing activities, in violation of the Conscientious Employee Protection Act (“CEPA”).  Maquet served Sanchez with its First Request for the Production of Documents in October 2015, to which plaintiff responded on February 1, 2016.  Upon receipt of the documents, Maquet claimed the documents plaintiff’s counsel had produced were owned by Maquet and had been improperly taken by Sanchez without Maquet’s knowledge or consent. Further, Maquet claimed the documents produced contained privileged attorney-client communications between Maquet’s staff and its attorneys, including correspondence regarding FDA compliance issues, results of third-party audits, budgeting issues, research and development, quality processes and procedures, and FDA findings.

Lower Court Decision

Defendant moved to preclude plaintiff from using these documents against defendant, and to remove plaintiff’s chosen counsel and his firm from continuing to represent plaintiff in the case.  In its decision, the lower court rejected plaintiff’s argument that Maquet had waived the attorney-client privilege. The Judge then found that Plaintiff’s chosen counsel “knew or should have known the material was privileged” yet failed “to promptly notify the opposing side that they had received privileged information” until nine (9) months after the case had been initiated. In disqualifying chosen counsel from serving as plaintiff’s counsel, the Judge found he would neither be harmed in the prosecution of the case nor that he would be unable to secure competent substitute counsel, as the case was still in its early stages.

Appellate Court’s Decision

Sanchez appealed arguing that the motion judge erred in reaching her decision to disqualify his chosen counsel without conducting an evidentiary hearing and that the judge misapplied the multi-factor analysis the NJ Supreme Court established in the seminal case, Quinlan v. Curtiss-Wright Corp. The Appellate Division rejected these arguments and affirmed the lower court’s decision.

The Appellate Division concluded the motion judge properly found the documents in question to be covered by the attorney-client privilege, particularly finding that the motion judge had noted the documents in dispute contained communications between Sanchez, Maquet’s Global Chief Quality Assurance & Regulatory Officer, and Maquet’s General Counsel. The record also indicated the documents included emails labeled “ATTORNEY CLIENT PRIVILEGE” by plaintiff. The Appellate Division found no legal basis to question the motion judge’s conclusion that Maquet’s counsel was included in the communications to offer legal advice and guidance if he so chose.

The Appellate Division then rejected as untimely and legally unnecessary, plaintiff’s argument that the motion judge should have conducted an evidentiary hearing to consider the Quinlan factors.  Quinlan set forth seven (7) factors to consider when an employee may take or use documents belonging to his or her employer. The first consideration a judge must make is “how the employee came to have possession of, or access to, the document.” In reviewing the record, the court found that Sanchez removed the documents at issue in direct violation of Maquet’s policies related to confidential documents containing proprietary information in an act that was outside of his ordinary duties because he wanted to [get] the company when they tried to get him.  The court also noted that Sanchez copied the documents to share with his attorneys for the purpose of evaluating whether he had “a viable cause of action” against Maquet and conversely, that Maquet had a strong interest in keeping the materials confidential.

Finally, while recognizing that the disqualification of counsel is a harsh discretionary remedy that must be used sparingly, the Appellate Division concluded that Sanchez’ extra-judicial self-help measures deprived Maquet of the opportunity to prevent the disclosure of the privileged information and that plaintiff’s counsel’s unreasonable delay in disclosing this information rendered futile any attempt to mitigate this harm.

Bottom Line

Employers need to maintain robust policies related to maintaining and access to proprietary and confidential information, and in appropriate circumstances, agreements like those used by Maquet. These policies should: (1) set forth what materials are confidential or proprietary; (2) specify who within the company is permitted access to the proprietary and confidential information, whether by job title, level, need to know basis, etc.; and (3) set forth the purpose for which the employee is granted access and any limitations on access to the proprietary and confidential information. These policies and agreements will be critical in allowing a court to determine the employee was unauthorized in taking the documents and acted outside their ordinary duties of employment.

For more information about the potential impacts of this ruling or what steps your company can take to effectively prevent and address whistleblower complaints, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

Welcome to The Garden State: NJ’s Law Against Discrimination Grows to Protect Non-Resident Employees

A New Jersey appellate court recently held that a non-resident employee who telecommuted to her New Jersey employer from her home in Massachusetts may be covered by the New Jersey Law Against Discrimination (NJLAD).

Facts

The employer, Legal Cost Control, Inc. (LCC), was a corporation located in Haddonfield, New Jersey.  The employee, Susan Trevejo, lived in Massachusetts, paid property taxes in Massachusetts, and held a Massachusetts driver’s license.  She never lived in New Jersey, and she never worked in LCC’s New Jersey office.  Trevejo received health insurance benefits from LCC’s insurance provider, Amerihealth New Jersey, but the plan did not condition coverage on New Jersey residency.  Trevejo’s sole connection to New Jersey was using a company-issued computer to remotely connect to LCC’s network and a company-issued phone to engage in conference calls.  After twelve years with the company, LCC terminated Trevejo’s employment.  In turn, she filed a lawsuit alleging age discrimination in violation of the NJLAD.

Lower Court’s Decision

LCC moved to dismiss the case, arguing that Trevejo was not an “inhabitant” of New Jersey, and thus, could not pursue a claim under NJLAD.  The trial court allowed for limited discovery over whether Trevejo was an “inhabitant” of New Jersey; the parties were barred from engaging in discovery over Trevejo’s other connections to the state.  The trial court ultimately dismissed the case, finding that Trevejo was not an “inhabitant” of New Jersey covered by NJLAD.

Appellate Court’s Decision

Trevejo appealed, arguing that the trial court overly restricted discovery and that she needed to engage in discovery regarding the nature and substance of her daily “virtual” connection to LCC’s New Jersey office.  The Appellate Division agreed, reversing the trial court’s decision and sending the case back to the trial court for more discovery.

In deciding that NJLAD’s coverage is not limited to inhabitants of New Jersey, the Appellate Division relied on the text of NJLAD itself.  The statute expressly prohibits discrimination against “any individual” and repeatedly uses the term “person” to identify who is protected from discrimination.  The term “person” is used throughout the statute, whereas the word “inhabitant” appears only in the legislation’s preamble.  Accordingly, the court concluded that NJLAD’s coverage is not limited to inhabitants of New Jersey.  This was, as the Appellate Division reasoned, consistent with the overarching goal and strong public policy behind NJLAD, to eradicate discrimination from the workplace entirely.  The trial court’s restricting discovery to whether Trevejo was a New Jersey inhabitant could not be reconciled with that principle.

Rather than Trevejo’s place of residency, the Appellate Division directed that discovery focus on where the discriminatory conduct took place and whether Trevejo was employed in New Jersey or Massachusetts.  The scope of discovery should extend to:

  • Where plaintiff’s co-employees worked;
  • Whether those co-employees worked from home;
  • The nature of the software used by plaintiff and other LCC employees to conduct business on behalf of LCC;
  • The location of the server used to connect plaintiff and other employees to LCC’s office in New Jersey;
  • The location of the internet service provider allowing plaintiff and other employees to connect to LCC’s office in New Jersey;
  • The individual or individuals who made the decision to terminate plaintiff and the basis for the decision; and
  • Any other issues relevant to plaintiff’s contacts with New Jersey and her work for LLC that may demonstrate her entitlement to protection under the NJLAD.

Facts Matter

The New Jersey Appellate Division has consistently applied this type of fact-sensitive approach to deciding whether non-resident telecommuters are covered by New Jersey laws, even outside the discrimination context.  But this fact-sensitive approach often produces seemingly inconsistent results.  For example, in one case, an employee who telecommuted to her New Jersey employer from her home in North Carolina was denied New Jersey unemployment benefits based on a finding that she performed all of her work in North Carolina.  This seems to contradict the holding in Trevejo’s case, where the court was unconvinced by the fact that Trevejo performed all of her work in Massachusetts.  As if you were not already confused enough by the muddle of laws and regulations governing the workplace, this case illustrates the importance of facts, rather than bright line rules, in making decisions about your employees.

Bottom Line

Beware that all of your employees, regardless of where they perform their work, may be entitled to claim protection from discrimination under NJLAD.  The issue will come down to a factual inquiry over whether they have sufficient contacts with the state.  Be mindful that NJLAD is one of the most employee-protective state anti-discrimination statutes in the country.  In light of that fact, and the absence of any bright line rule regarding NJLAD’s applicability to out-of-state employees, you may want to consider executing, where available by law, a written agreement with your non-resident telecommuters delineating which state’s law applies in the event of a legal dispute (“choice of law” clause), and in which court those disputes are to be filed (“forum selection” clause).

For more information about the potential impacts of this ruling or what steps your company can take to effectively prevent and address complaints of discrimination, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at jpetrella@nullgenovaburns.com, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com, or 973-533-0777.

N.J. Governor Orders Fresh Focus On Worker Misclassification

On May 3, 2018 New Jersey Governor Phil Murphy signed Executive Order No. 25 which authorizes a 12-person task force to review misclassification of workers as independent contractors in New Jersey, with a focus on the construction industry.  The Employee Misclassification Task Force will be responsible for examining misclassification enforcement, developing practices to improve enforcement of current law, making recommendations to encourage compliance with the law, and reviewing existing state law and applicable procedures related to worker misclassification.

The reasons advanced by the Governor for launching the Task Force are that misclassification as an independent contractor results in workers’ losing legal rights and employment related benefits, harms the State’s economy by non-payment of State and federal payroll taxes, serves as a barrier to union organizing, and provides non-compliant employers with an unfair competitive advantage over employers that properly classify their workers.

The Task Force will include three representatives of the State Department of Labor and Workforce Development, three representatives of the Department of the Treasury, one representative each of the Departments of Law and Public Safety, Agriculture, Banking and Insurance, Human Services, and Transportation, and a representative of the Economic Development Authority. Notably, the Task Force will have no representation from the plaintiffs’ or defense bars, at least at the outset.

In light of the State’s renewed crackdown, employers must be cognizant that the designation of a worker as an independent contractor in New Jersey is not a matter of semantics but must be defensible under legal precedent. Specifically, New Jersey adheres to the “ABC” test in distinguishing an independent contractor from an employee. This test presumes that a worker is an employee of the service recipient and places the burden on the service recipient to establish otherwise.

To meet this burden, an employer must show that:

  • The worker has been and will continue to be free from control or direction of the performance of the service, both in the service contract and in fact;
  • The worker’s service is either outside the usual course of business for the service recipient, or is performed outside of all the places of the business of the service recipient; and
  • The worker is engaged in an independently established trade, occupation, profession or business.

If any of these three criteria is not met, the worker is properly classified as an employee.  Accordingly, a New Jersey employer must carefully assess the status of its workforce in light of the heightened attention to misclassification at the state level.

For more information about Executive Order No. 25 and guidance as to what your organization should be doing in anticipation of this new enforcement priority, please contact one of the partners in the firm’s Labor Law Practice GroupJames J. McGovern III, Esq., at jmcgovern@nullgenovaburns.com, Patrick W. McGovern, Esq., at pmcgovern@nullgenovaburns.com, Douglas E. Solomon, Esq. at dsolomon@nullgenovaburns.com, or John R. Vreeland, Esq., at jvreeland@nullgenovaburns.com  — or call us at 973-533-0777.