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We are OPEN and PREPARED. In response to the COVID-19 pandemic, our Firm is utilizing telephone consultations whenever possible. We are equipped with technology for working remotely, as necessary, and are committed to continuing to serve our clients through this difficult time. Please connect with us on Facebook for the latest employment-related information dealing with COVID-19.

COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

Late last year, the National Labor Relations Board (NLRB) issued an important ruling regarding restrictions on the use of company email accounts by employees for non-work purposes. This ruling reverses a 2014 NLRB decision, which held that employment policies restricting the use of company email for union organizing purposes presumptively violate the National Labor Relations Act (NLRA). It largely reinstates another NLRB ruling, this one from 2007, which allowed a ban on company email use. While the 2019 decision is a setback for employees’ workplace rights, it is not a complete return to the situation in 2007. The NLRB left some exceptions that would allow use of company email for union organizing purposes when employees have no other “reasonable means…to communicate with one another.” If you have questions concerning use of company email, contact a New Jersey employment attorney to learn more about how federal law may affect you.

The NLRA protects workers’ labor organizing rights and regulates the relationship between labor unions and employers. Section 7 of the statute, codified at 29 U.S.C. § 157, states that employees have the right to organize, to form or join labor unions, to engage in other “concerted activities” related to organizing, and to refrain from any of those activities. Section 8(a), found at 29 U.S.C. § 158(a), prohibits employers from interfering with those rights, restraining employees’ ability to exercise their rights, or discriminating against an employee for engaging in protected activities.

The 2007 NLRB decision held that “employees have no statutory right to use [an employer’s] e-mail system for Section 7 purposes.” The employer maintained a policy that “prohibit[ed] the use of e-mail for all ‘non-job-related solicitations.’” The Board held that employers’ property rights in their email systems allowed them to restrict non-work-related uses, including activities otherwise protected by the NLRA.

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The U.S. Supreme Court issued a landmark decision on June 15, 2020 regarding employment discrimination on the basis of sexual orientation and gender identity or gender expression. Many state laws, including the New Jersey Law Against Discrimination include both of these as separate categories in addition to sex or gender. While Title VII of the Civil Rights Act of 1964 does not expressly include either, the Supreme Court’s 6-3 ruling in Bostock v. Clayton County, Georgia holds that Title VII’s prohibition on sex discrimination includes both categories. Justice Gorsuch’s majority opinion applies textual analysis to Title VII to determine that an employer that fires or otherwise discriminates against someone because of their sexual orientation, or because they are transgender, has discriminated against them because of sex. If you feel you have suffered discrimination on the basis of sex, it is recommended that you contact a New Jersey sex discrimination attorney as soon as possible.

Sex Discrimination Under Title VII

The meaning of “sex,” as used in Title VII, has grown over the years through both legislation and court decisions. Sex discrimination under Title VII includes discrimination on the basis of pregnancy thanks to the Pregnancy Discrimination Act of 1978. It has included sexual harassment since the Supreme Court’s 1986 decision in Meritor Savings Bank v. Vinson.

The majority opinion in Bostock identified three decisions that also expanded the meaning of sex discrimination under Title VII:
– In Phillips v. Martin Marietta Corp. (1971), the court found that even though the employer hired more women than men overall, its policy against hiring mothers of young children violated Title VII.
– A requirement that women pay more into a pension fund than men because of longevity statistics constituted sex discrimination, according to the court’s ruling in Los Angeles Dept. of Water and Power v. Manhart (1978).
– The court found that Title VII prohibits sexual harassment between members of the same sex in Oncale v. Sundowner Offshore Services (1998).

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New Jersey has allowed medical marijuana use since 2009, when a bill originally known as the New Jersey Compassionate Use Medical Marijuana Act (CUMMA) became law. As written, the law did not specify how an individual’s use of medical marijuana would affect their employment. If an employer fires an employee because of their medical marijuana prescription, are they discriminating against the employee for the underlying medical condition? Is this unlawful disability discrimination under the New Jersey Law Against Discrimination (NJLAD)?

Two events in the last year have made the situation clearer, at least at the state level. In 2019, the Legislature passed the Jake Honig Compassionate Use Medical Cannabis Act (CUMCA), which contains express protections for employees and replaces CUMMA. This year, the New Jersey Supreme Court ruled that a claim for disability discrimination was possible under CUMMA. If your employment was recently terminated for having a medical marijuana prescription, it is important that you reach out to a New Jersey disability discrimination lawyer as soon as possible to discuss your legal options.

Ambiguity in the Compassionate Use Medical Marijuana Act

Sections 8 and 16 of CUMMA, codified at N.J. Rev. Stat. §§ 24:6I-8 and 24:6I-14, left employers and employees uncertain about the rights of medical marijuana patients. Section 8 stated that the law does not permit anyone to operate a vehicle or perform certain other tasks “while under the influence of marijuana.” Section 16 stated that the statute did not “require…an employer to accommodate the medical use of marijuana in any workplace.” The statute made no mention of employees’ rights.

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The coronavirus pandemic has hit New Jersey harder than most U.S. states, and the economy will surely take some time to recover. The New Jersey Legislature has passed multiple bills in recent months intended to help workers affected by the pandemic. Notable bills include one that modifies the state’s temporary disability insurance system and one that addresses retaliation by employers against quarantined workers. If you feel you may need or have had to take leave from work due to the coronavirus pandemic and have concerns regarding your employment status or benefits, please contact a New Jersey employment attorney as soon as possible.

State of Emergency

Several new laws make changes that only apply during a public health emergency. The governor first declared an emergency in relation to the coronavirus on March 9, 2020. A declaration of emergency expires after thirty days unless extended by the governor. He has extended the March 9 declaration twice so far, on April 7 and May 6.

Temporary Disability Insurance

The New Jersey Temporary Disability Benefits Law (TDBL) provides disability coverage for workers who are unable to work because of “an accident or sickness” that is not due to an on-the-job incident, and which is not otherwise covered by the state’s workers’ compensation law. N.J. Rev. Stat. § 43:21-29. It also allows “family temporary disability leave” for a worker who must care for a family member with a “serious health condition,” defined to include conditions requiring inpatient care or other ongoing medical care. Id. at §§ 43:21-27(o)(1), (s). Under ordinary circumstances, no benefits provided by the TDBL are payable for the first seven days of a disability period. Id. at § 43:21-39(a).
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New Jersey remains in a public health emergency because of the global coronavirus pandemic. “Stay at home” orders appear to have slowed the spread of the virus, but they have also led to widespread economic problems. S2304, a bill expanding earned sick leave (ESL) and family leave benefits in New Jersey, became law on March 25, 2020. The bill addresses the availability of these benefits during a state of emergency or when public health officials or healthcare providers have ordered someone into quarantine or isolation.

Public Health Emergency

The governor first declared a state of emergency on March 9, 2020. He extended the public health emergency on April 7, and again on May 6. A declaration gives the governor authority to direct resources towards dealing with the emergency. This can include ordering businesses to close and ordering individuals to remain at home.

New Jersey’s Earned Sick Leave and Family Leave Laws

The ESL law took effect in November 2018, six months after the governor signed the bill. It provides workers with one hour of paid sick leave for every thirty hours that they work, at the same rate of pay as if they were at work. Employees may carry up to forty unused hours over from one year to the next.

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On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) became law. This bill is not as comprehensive as other bills that Congress has passed in response to the global COVID-19 pandemic, but it has some of the most important provisions affecting employment law. New Jersey employment law provides paid sick leave for workers and is one of few states to do so. The FFCRA establishes a temporary nationwide system of paid sick leave. It also temporarily expands the unpaid leave that is available under the federal Family and Medical Leave Act (FMLA). These provisions have several important limitations, including the total exclusion of employers with five hundred or more employees. A new temporary rule from the Department of Labor’s Wage and Hour Division (WHD) limits some workers’ ability to enforce their rights under the system of expanded FMLA leave.

FMLA Enforcement at Normal Times

The FMLA applies to employers with fifty or more employees, and employees who have worked at least 1,250 hours during the previous twelve months. In any twelve-month period, an eligible worker may take up to twelve weeks of unpaid leave for certain purposes, including a “serious health condition” and the need to care for a family member with such a condition.

Employers may not interfere with an eligible employee’s use of authorized leave, nor may they retaliate against an employee for taking leave. The employee’s job is protected during their leave. Employees may file a civil lawsuit against an employer who violates these provisions, and may recover damages including lost wages and benefits.

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Medical marijuana use is legal to varying degrees in more than half of the states in the U.S., including New Jersey. The Compassionate Use Medical Marijuana Act (CUMMA), which was first enacted in 2009, allows individuals to purchase, possess, and use marijuana products under the direction of a physician. Prior to 2019, the text of the statute was rather ambiguous about how it impacted employees’ rights in the workplace. The New Jersey Supreme Court recently ruled on a case that began in 2017, in which the plaintiff alleged that the defendant fired him because of his lawful medical marijuana use, in violation of the New Jersey Law Against Discrimination (LAD). The court affirmed a decision from the Appellate Division that allowed the case to go forward.

Two provisions of CUMMA appear to implicate employees’ rights. Section 8 of the statute states in part that the law does not allow an individual to operate any sort of vehicle or heavy machinery “while under the influence of marijuana.” Section 16 provides that the law does not require “an employer to accommodate the medical use of marijuana in any workplace.”

The LAD prohibits employers from firing an employee or subjecting them to other adverse or disparate treatment because of a disability. The statute defines “disability” to include “physical…mental, psychological or developmental disabilit[ies]” that are “demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.” The definition of “debilitating medical condition” provided by CUMMA overlaps with the LAD’s definition of “disability” in numerous areas.

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The coronavirus and the illness that it causes, COVID-19, have made vast changes to workplaces in New Jersey, the U.S., and worldwide over the course of less than a month. Public health experts have recommended “social distancing” as a way to slow the spread of the virus while the healthcare system rushes to get ready. The governor of New Jersey has issued a series of executive orders (EOs) closing many “non-essential” businesses and instructing others to allow remote working whenever possible. The EOs direct businesses to follow public health guidelines in order to protect workers who must report to their workplaces. This raises important legal questions that have no clear answers yet.

In this environment of social distancing, what are employees’ rights if their employer requires them to come to work when their business is not “essential”? What if their employer will not allow them to work remotely, even though doing so would be feasible? What if an employer endangers employees’ health by failing to follow public health officials’ recommendations?

Executive Orders and the Effect on New Jersey Businesses

EO 104, signed on March 16, ordered certain businesses to close their facilities to the public, including gyms, movie theaters, and nightclubs. Restaurants could only remain open for take-out orders and food delivery. “Non-essential” retail businesses were ordered to cut their hours. Retail operations deemed “essential” include:
– Grocery stores;
– Pharmacies;
– Healthcare facilities; and
– Gas stations.
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American society often takes an odd view of sick leave. A common way for someone to demonstrate their dedication to their job is to say that they have “never taken a sick day.” The implication behind this claim is not necessarily that they never got sick, but rather that they continued showing up to work even if they were sick. Everyone gets sick at some point, though, whether it is a minor cold, a major flu, or something even worse. Some people might never take sick leave because they feel like they should not, while other people might not have the option of missing work. From an employee’s point of view, New Jersey employment laws are more generous than those of many states in this regard.

Showing up to work regardless of illness might seem like an admirable display of determination, but it could put one’s co-workers at risk of getting sick. This is especially true in early 2020, when COVID-19, also commonly known as the coronavirus, has led public health officials to advise people displaying certain symptoms to stay home or seek immediate medical attention. Unfortunately, not everyone can do this.

Many workers in the U.S. have little to no available sick leave, paid or unpaid. Even if they have the means to see a doctor, they might believe that they have no choice but to go to work. Workers in New Jersey need to know their rights under state and federal sick and medical leave laws, so that they can better understand their options if they need to isolate themselves.

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Federal and New Jersey wage and hour laws require employers to pay overtime rates to their non-exempt employees for any time they spend working over forty hours in a week. The amount of overtime pay is based on the employee’s “regular rate” of pay. Under federal law, some payments and perks are not included in employees’ regular rate for the purpose of calculating overtime pay. The U.S. Department of Labor (DOL) issued updated rules clarifying what is included in and excluded from an employee’s regular rate. They took effect in January 2020. The purpose of these updates, according to the DOL, is to “encourage employers to provide additional and innovative benefits” to their employees while complying with federal overtime law. 84 Fed. Reg. 68736 (Dec. 16, 2019). Employees should also be aware of what is counted in their regular rate of pay.

Overtime Rate of Pay

The federal Fair Labor Standards Act (FLSA) states that employers must pay overtime to non-exempt workers for time spent working in excess of forty hours in a week. 29 U.S.C. § 207(a). The statute sets the overtime rate at one-and-a-half times an employee’s “regular rate.” An employee with a regular hourly rate of $15 per hour would therefore be entitled to $22.50 per hour for overtime work.

Exclusions from “Regular Rate”

An employee’s regular rate, according to the FLSA, is anything paid to the employee that is not specifically excluded by the statute. Exclusions include various payments and other things of value provided to employees. Some exclusions do not provide any credits to offset an employer’s responsibility to pay overtime:
– Bonuses for special occasions, such as Christmas bonuses, that are not tied to performance in any way;
– Payments for periods when the employee is not working, such as vacation or sick time;
– Additional payments made in the employer’s sole discretion, not as part of an employment contract, “in recognition of services performed during a given period”;
– Employer contributions to a retirement plan, health insurance policy, or other benefit; or
– The value or income from a stock option or stock appreciation plan.
Id. at §§ 207(e)(1) – (4), (8).

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