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Labor & Employment Insights

Is It Time to Limit Your Exposure to Employment Lawsuits?

Published on: October 23, 2014 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The New Jersey Judiciary reported that approximately 40% of lawsuits filed with the courts involve claims by employees against their current or former employers. In this current litigious landscape, are there actions employers can take to protect against potential employment lawsuits? As a result of a recent decision from a New Jersey appellate court, the answer is a resounding “Yes.” Under that decision, employers and employees are permitted to enter into agreements that significantly shorten the statutory time period in which employees can file suit against the employer. Employees who fail to file suit within the agreed-upon time period will be barred from pursuing their claims, notwithstanding the fact that the statutory limitations period has not run.

Statutes of limitation are time periods established by law in which lawsuits must be initiated. The statutes of limitation vary depending upon the causes of action being asserted. For example, breach of contract claims can be filed up to six years after the alleged breach; suits alleging violations of the New Jersey Law Against Discrimination (“LAD”) and the New Jersey Wage & Hour Law must generally be filed within two years of the accrual of the claim; and whistleblower lawsuits under the Conscientious Employee Protection Act must be filed within one year of the accrual of the claim.

In its recently rendered decision in (“Raymours”), the Appellate Division of the Superior Court of New Jersey affirmed that an employer can require its employees to enter into agreements to shorten the statutory time period in which lawsuits can be filed against the employer, provided that the agreed-upon time period is reasonable.

New Jersey Supreme Court Raises the Bar for Health Care Whistleblowers under CEPA

Published on: October 23, 2014 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Clarifying the burden placed upon health care workers alleging New Jersey Conscientious Employee Protection Act (CEPA) violations, the New Jersey Supreme Court’s recent decision in 218 N.J. 8 (2014) illustrates the barriers facing employees who point to alleged violations of codes of ethics or employer policies to support whistleblowing claims.

The Facts: Registered Nurse James Hitesman served as shift supervisor for a nursing home operated by Bridgeway, Inc. (“Bridgeway”). In 2008, Hitesman e-mailed Bridgeway management expressing concerns that seasonal respiratory and GI symptoms were rising at an alarming rate at the nursing home. Unsatisfied with Bridgeway’s response to his concerns, Hitesman reported the increase in infections to governmental agencies and the media. In his communications with the media, however, Hitesman provided partially redacted copies of Bridgeway administrative logs that nevertheless disclosed information that could lead to the identification of patients. Bridgeway ultimately terminated Hitesman for his disclosure of patient information to the media in violation of the facility’s confidentiality policy and the Health Insurance Portability and Accountability Act (HIPAA).

Hitesman filed suit alleging that his discharge violated CEPA’s prohibition of retaliatory action against a health care employee who reports on, or objects to, employer activity that the employee reasonably believes constitutes “improper quality of patient care” or is “incompatible with a clear mandate of public policy concerning the public health.” Hitesman pointed out that “improper quality of patient care” is defined by statute as a violation of “any law, or any rule, regulation or declaratory ruling adopted pursuant to law or professional code of ethics.” To support his claim of a reasonable belief that Bridgeway’s infectious disease practices constituted improper quality of patient care, Hitesman relied upon the American Nursing Association’s Code of Ethics that obligated him to improve patient care, as well as Bridgeway’s Internal Code of Conduct and its Statement of Resident Rights as the governing standard for assessing Bridgeway’s misconduct.

Third Circuit Slams Employer for Inability to Prove FMLA Notices to Employee Were Received

Published on: October 23, 2014 | by Eric B. Levine

By: Eric Levine, Esq.

In its recent decision in the Third Circuit Court of Appeals (which includes New Jersey) issued a ruling that signals heightened obligations for employers communicating with employees about their rights under the Family Medical Leave Act (“FMLA”). Prior to that ruling, employers typically relied upon the “Mailbox Rule” (which presumes receipt of a letter properly deposited into the U. S. Mail) as evidence that mandated FMLA notices were received by employees. After , however, the Mailbox Rule’s viability in the FMLA context is questionable, and prudent employers should institute procedures to insure that FMLA notices are served by certified mail or other method of traceable transmission so that actual receipt by the employee can be established.

The Facts: Lisa Lupyan was an instructor for Corinthian Colleges, Inc. (“CCI”). In 2007, Ms. Lupyan requested a personal leave of absence to recover from depression, and thereafter provided CCI with a physician’s certification of a mental health condition. As a result, CCI determined that Ms. Lupyan was eligible for FMLA leave as opposed to using her personal leave allotment.

Employers Take Notice – New Jersey has “Banned the Box”

Published on: August 14, 2014 | by John H. Schmidt, Jr. and Lindabury, McCormick, Estabrook & Cooper, P.C.

On August 11, 2014, Governor Christie signed into law “The Opportunity To Compete Act” (the “Act”)[1]. In adopting that law, the legislature specifically found that “removing obstacles to employment for people with criminal records provides economic and social opportunities to a large group of people living in New Jersey, increasing the productivity, health and safety of New Jersey communities.” The new law is applicable to employers within the State with fifteen or more employees over 20 calendar weeks, but excludes persons employed in domestic service in a person’s home.

Criminal Record Inquiries Prohibited During the Initial Employment Application Process: The new law provides that an employer shall not place any advertisement soliciting applicants for employment that explicitly states the employer will not consider an applicant who has a criminal record unless a criminal background check is required by law or regulation, or a law or regulation would restrict an employer’s ability to engage in specified business activities based on the employees’ criminal records. The new law also provides that during the initial employment application process an employer (1) shall not require an applicant for employment to complete an employment application that make inquiries regarding the applicant’s criminal record and (2) shall not ask any questions regarding the applicant’s criminal record. The initial employment application process begins when the applicant first makes an inquiry about a prospective position and ends when the employer has conducted a first interview of the applicant.

Following the initial employment application process, an employer may require an applicant for employment to complete an employment application that makes inquiries about the applicant’s criminal record, and may ask questions regarding the applicant’s criminal record. An employer may refuse to hire an applicant for employment based upon the applicant’s criminal record, unless the applicant’s criminal record was expunged or erased by executive pardon. It should also be noted that if an applicant voluntarily discloses information about his/her criminal record during the initial employment application process, the employer may ask additional questions about the applicant’s criminal record during that process.

EEOC Outlines New Guidance on Religious Garb and Grooming in the Workplace

Published on: April 4, 2014 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

By: Sergio D. Simoes

On March 6, 2014, the Equal Employment Opportunity Commission (the “EEOC”) released new guidelines on how federal employment discrimination law, specifically Title VII of the Civil Rights Act of 1964, applies to religious dress and grooming practices, and what steps employers can take to meet their legal responsibilities in this area. Examples of religious dress and grooming practices include wearing religious clothing or articles, observing a religious prohibition against wearing certain garments, or adhering to shaving or hair length observances. In most instances, employers are required by federal law to make exceptions to their usual rules or preferences to allow employees to observe religious dress and grooming practices.

The EEOC has not created any additional obligations with its new guidelines. They are intended merely to clarify questions concerning the application of Title VII to religious issues in the workplace. The guidelines remind employers that unless it would result in an undue hardship, employers must consider accommodating an employee’s request to wear religious garb or engage in sincerely held religious practices at work. To that end, the guidelines state the following:

Gender Equality in The Payment of Wages in New Jersey

Published on: January 9, 2014 | by John H. Schmidt, Jr.

In September of 2012, Governor Christie signed a new law requiring every employer in New Jersey that employs 50 or more employees to post a notice that was prepared by the New Jersey Department of Labor and Workforce Development and that addresses gender equality in the payment of wages and other forms of compensation and benefits. The new law also requires every employer to whom the law applies to give a copy of that same written notice to every employee. The written notice must immediately be distributed to every employee (as the law is newly enacted) and hereafter must be distributed annually to every employee on or before December 31. Every new employee must also be given a copy of the written notice when hired, and when the employee specifically requests a copy of the written notice.

The annual distribution of the written notice can be accomplished by a paycheck insert, by a flyer distributed at an employee meeting, by email delivery, or through an internet or intranet website, if the website is for the exclusive use of the employees, can be accessed by all employees and the employer provides notice to the employees of the posting. It is important to note that the written notice to employees must be acknowledged by the employee; the acknowledgement must indicate that the employee has read the written notice and understands its terms. The employee acknowledgement can be a written document signed by each employee or an electronic acknowledgement returned to the employer within 30 days of each employee’s receipt of the written notice.

For you convenience we have attached the Written Notice that was prepared by the New Jersey Department of Labor and Workforce Development. The Written Notice is printed in both English and Spanish. If you employ more than 50 employees, the Written Notice should be posted together with the other postings required by law. If you employ more than 50 employees, the attached Written Notice should also be distributed to all employees as promptly as possible and every year into the future. As an employer subject to this new law, you must post and distribute the Written Notice prepared by the New Jersey Department of Labor and Workforce Development in both English and Spanish.

New Jersey Becomes the Latest State to Extend Additional Leave Rights to Victims of Domestic Violence and Their Families

Published on: August 29, 2013 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Employment Law Newsletter

For several decades New Jersey employers with 50 or more employees have been grappling with the administration of employee leave rights – 12 weeks in any 12- or 24- month period – under the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA). The administrative challenges were heightened when the New Jersey Paid Family Leave Law – applicable to all employers regardless of size – was added to the mix. Well, things are about to become even more complicated. Effective October 1, 2013, New Jersey employers of 25 or more employees are required to provide 20 days of unpaid protected leave for eligible victims of domestic or sexual violence under the New Jersey Security and Financial Security Act (the NJ SAFE Act).

Who is eligible for leave under the NJ SAFE Act? Like the eligibility requirements under the NJFLA, employees must have worked for the employer for at least 12 months and for at least 1,000 hours in the immediately preceding 12-month period. In comparison, employees must have one year of service and 1,250 hours of work to qualify for benefits under the FMLA.

The Supreme Court Eases Burden for Retaliation Claims Under the LAD

Published on: August 2, 2013 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

By: Kathleen M. Connelly

By unanimous decision in the recent case of (July 17, 2012), the New Jersey Supreme Court extended greater protection to employees blowing the whistle on suspected violations of law in the workplace. While the decision may have some positive implications for employers, several aspects of the ruling may well spawn increased litigation.

Siding with employees, the court ruled that in actions under the New Jersey Law Against Discrimination (LAD), an employee alleging unlawful retaliation for having complained of discriminatory behavior in the workplace need only show that he/she had a good faith belief that the alleged conduct violated the LAD. The employee is not required to point to an actual victim of discrimination, and the fact that the employee was wrong and complained of conduct that was in fact entirely lawful will not bar a retaliation claim. This holding could significantly expand the number of employees eligible to pursue unlawful retaliation claims in response to a termination or other adverse employment action.

Proposed Legislation Could Change the Competitive Playing Field in New Jersey

Published on: April 12, 2013 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

New Jersey Courts have consistently enforced covenants not to compete (also known as restrictive covenants) contained within an employment agreement. Those covenants have traditionally been used by an employer to prevent an employee from leaving his/her employ and immediately soliciting the employer’s customers and/or clients – – many of whom the employee would not have known except as a result of working for that particular employer. Those covenants have also been used to prevent an employee from leaving his/her employment and using the employer’s confidential information (such as information about the employer’s pricing, margins, profits, etc.) to gain an unfair advantage in competition with the former employer. Provided that the covenants were reasonable and not simply intended to thwart fair competition, employers could be assured that their customer/client relationships and their confidential information would be protected.

Introduced on April 4, 2013, Assembly Bill No. 3970 could potentially change that competitive landscape in New Jersey. Assembly Bill No. 3970 is designated as “an act concerning certain employment contracts and unemployment compensation” and consists of only 2 paragraphs. It specifically states:

1.An unemployed individual found to be eligible to receive benefits pursuant to the “unemployment compensation law,” R.S. 43:21-1 et seq, shall not be bound by any covenant, contract, or agreement, entered into with the individual’s most recent employer, not to compete, not to disclose, or not to solicit. This section shall not be construed to apply to any covenant, contract, or agreement in effect on or before the date of enactment …

DOL Issues New FMLA Forms and Poster

Published on: March 7, 2013 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Employment Law Newsletter

As illustrated in a related article in this issue, employers who fail to comply with the FMLA’s various notice requirements may land an employer in court. Although employers are free to craft their own notices so long as they are compliant with regulatory requirements, the DOL has issued standard forms containing all of the required components which the prudent employer should certainly utilize when administering FMLA requests. The DOL has recently issued updated FMLA forms that are available though the DOL website, http://webapps.dol.gov/libraryforms or can be downloaded in a PDF by clicking here. Employers should note that the updated forms do not include the Military Caregiver Leave form due to recent changes in those requirements that will presumably result in an revised form in the near future.

In addition, in conjunction with the new rule addressing Military Caregiver Leave, the DOL has issued a new FMLA poster that employers must prominently display in the workplace. A copy of the poster is likewise available on the DOL website.