Constitutional Rights

Published on: June 23, 2024

State Cannot Prohibit Government Employee From Discussing Investigations of Harassment and Discrimination Complaints

The New Jersey Law Against Discrimination prohibits discrimination and harassment in the workplace. The New Jersey Civil Service Commission published a regulation incorporating imagesCAWQ89PS this requirement. However, in the case of Savchenko v. State of New Jersey, the New Jersey Supreme Court found that a portion of this regulation which requested that parties and witnesses keep the investigation confidential had a chilling effect on free speech. It therefore struck down that portion of the regulation.

Background

The Civil Service Commission understandably seeks to maintain the confidentiality of these investigations, as publication might discourage witnesses from assisting, and victims from coming forward. The regulation therefore contained a provision which provided that:

Published on: November 1, 2021

New Jersey Appeals Court Closes Door on Challenges to Public Employer COVID-19 Vaccine Mandates

by Maurice W. McLaughlin

The Appellate Division recently issued an employment law decision in the case of Matter of City of Newark and Newark Police Superior Officers’ Association, et al., concerning the ability of public employee unions to challenge the City of Newark’s COVID-19 vaccination us-supreme-court-300x200 requirement. The Court expressly held that the City has the right to require these vaccines as a requirement of continued employment. Moreover, it held that not only does it have that right, but it has no concurrent duty to negotiate with unions over the requirement.

Although this case was decided in the context of whether the vaccine requirement was a matter which needed to be negotiated between the City and its law enforcement employee unions, it appears to slam the door on objections by public employees to employer COVID vaccine mandates, and it probably shuts the door for private sector employees to make that argument as well.

The Appellate Division explained: “When a public health emergency exists, governmental entities, including local authorities, have a recognized right to require vaccinations.” The Appellate Division explained that this right exists even in the absence of a statute giving the City that authority.

Published on: March 7, 2014

Pregnancy Now Protected Under the New Jersey Law Against Discrimination

by Maurice W. McLaughlin

On January 21, 2014, Governor Chris Christie signed legislation amending the New Jersey Law Against Discrimination to include pregnancy, childbirth, and related medical conditions among employees receiving protection against discrimination. The law is effective immediately.

Introduced as bill in September 2013 to combat discrimination against pregnant women and women with medical needs after childbirth, the Act requires employers to make reasonable accommodations to pregnant women and those recovering from childbirth. Accommodations can include restroom breaks, breaks for increased water intake, periodic rest, help with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or less hazardous work. The bill referred to reports that women who requested an accommodation in the workplace to help them maintain a healthy pregnancy or who needed a reasonable accommodation as they recovered from childbirth were being removed from their positions, placed on unpaid leave, or fired.

In urging the New Jersey Senate to pass the bill, the American Civil Liberties Union of New Jersey (ACLU)identified some examples of women who were denied reasonable accommodations because of their pregnancy. Before the amendment of the New Jersey Law Against Discrimination, those employer actions were legal. Examples include a pregnant security worker who was denied a stool to sit on at her job, a pregnant cashier who was not allowed to keep a water bottle at her workstation and collapsed at her register, and a pregnant line cook who was denied additional restroom breaks.

The ACLU Public Policy Director also cited a New Jersey Supreme Court case that held that it was legal for a casino to fire a pregnant worker whose doctor instructed her not to return to work after discovering a serious problem with one of the twins that she was carrying. Said the Director, “What does it say about our state’s values that our laws ask a woman to make the choice between doing what’s needed to protect her pregnancy, and keeping her job?”

Employers are not to apply workplace accommodations “in a manner less favorable than accommodations or leave provided to other employees not affected by pregnancy but similar in their ability or inability to work.” Further, the Act does not intend to impact the amount of employees’ rights to paid or unpaid leave under the law.
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Published on: October 21, 2013

Defamation on the Internet: Accommodating the Growth of Social Media

by Pauline M.K. Young

A person may be a victim of defamation when another person has said something false about her. Defamation is a generic term for libel (a defamatory statement that is written) and slander (a defamatory statement which is spoken). The statement cannot be a joke or an expression of opinion; it must be something that is capable of being proven true or false, and which is actually false. Further, the statement must actually be harmful to the victim’s reputation or have caused monetary losses. In most cases, the victim must be able to identify and quantify her actual damages, hurt feelings are often insufficient.

In order to be considered defamation, one person or entity must make false factual statements about another and communicate (or “publish”) those statements to a third party. The statement cannot be a joke or an expression of opinion; it must be something that is capable of being proven true or false, and it must actually be false. When the statement involves public figures or issues of public concern – such as with political candidates – in order to protect the open debate and discussion regarding these public figures, there must also be some malicious intent and affirmative knowledge that the statement is false.
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Published on: August 26, 2013

New Jersey Court Rules – Changes for 2013 and 2014

by Pauline M.K. Young

New Jersey’s Constitution tasks the State’s Supreme Court with creating rules to govern the practices and procedures in the New Jersey court system. The first set of rules went into effect on September 15, 1948.

Every year thereafter, the Supreme Court organizes an annual Judicial Conference to consider new amendments and improvements to the Court Rules. Two comprehensive revisions have previously taken place in 1953 and 1969. However, more minor revisions and amendments are made as deemed appropriate and practical. Changes are made at least once every year.

Recently, the Supreme Court’s Revision Committee has made several amendments
which will take effect on September 1, 2013. It is important for attorneys to be aware of and comply with these rules to avoid any filing issues with the court. While many amendments have been made, the following are some of the amendments more widely applicable to civil cases.
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Published on: March 20, 2012

Free Speech Versus False Statements: New Jersey’s Libel, Slander, and Defamation Law

by Pauline M.K. Young

Just about everyone has been called a name or had someone say something about them that wasn’t true, but when does that false statement become actionable defamation?

Under the law in New Jersey, defamation requires at least three people. It occurs when someone (“A”) makes a specific factual assertion about another (“B”) to a third person (“C”). The statement cannot be a joke or an expression of opinion; it must be something that is capable of being proven true or false, and which is actually false.

To establish a claim for defamation, B must show that A made an untrue statement of fact to C, that this statement included assertions that were “defamatory,” meaning they were negative and harmful to B’s reputation or caused monetary losses, and that A made this statement either knowing it was false, or while failing to exercise care in determining whether it was true or false. In some cases, B must also show and prove that she had incurred actual damages.

Therefore first, the statement must be “published,” i.e. made to a third party. Although it need not be publicized for the world to read in Time Magazine or hear on the six o’clock news, someone else must hear or read it. (If the third person reads the defamatory statement, the defamation is called “libel,” if she hears it, it’s called “slander.) Thus, A calling B a derogatory term or making a false statement of fact directly to B, is not defamation, because no third party heard it.

Next, the statement must be false. Even if harmful to a person’s reputation, a statement that is true is absolutely immune from a defamation claim by the First Amendment of the United States Constitution which protects free speech. Therefore, “truth” is a nearly unbeatable defense to a defamation claim.
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