Articles Posted in Labor and Employment Law

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An appeals court recently issued an opinion in the case of Hand v. Borough of New Providence, examining the rights of New Jersey police officers facing discipline in non-civil service jurisdictions

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The opinion explained that Michael Hand was a corporal with the New Providence Police Department, with thirteen years of service.  On May 17, 2019, he was eating dinner with his wife at a diner during a meal break when a call came for him to respond to a domestic incident.  Another officer, Patrolman Lunch responded.  Plaintiff texted Lynch and his supervisor to see if they needed him but they did not respond, so he did not go.  The supervisor, Sergeant Diamond, who was not called, terminated a traffic stop to respond when he saw on GPS that Hand was not responding.  At the scene, a juvenile experienced a mental health crisis and the situation escalated; Diamond called Hand on the radio and Hand then responded 13 minutes after the original call.

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New Jersey’s whistleblower law was recently amended to further protect New Jersey private and public sector employees from being forced by their employers to sit through required “captive audience” meetings in an attempt to improperly coerce their employees from exercising their rights.

The Conscientious Employee Protection Actcapt-andrew-209x300

The Conscientious Employee Protection Act (CEPA) is New Jersey’s whistleblower law.  Considered one of the United States’s strongest whistleblower protection laws, it forbids employers from retaliating against their employees for disclosing, objecting to, reporting or refusing to participate in activities which they reasonably believe are illegal, fraudulent, constitute improper patient care, or violate established public policy.

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In a recent New Jersey employment law decision regarding disability discrimination and employer’s duty to provide reasonable accommodations for disabled employees, a New Jersey appeals court explained in the case of Gould v. New Jersey Department of Transportation the requirement for employers to engage in a good faith “interactive process” with their disabled employees to determine what reasonable accommodations can be provided to allow the employee to continue working.6-300x225

Background

Leroy Gould worked for the New Jersey Department of Transportation from 2001 until he retired in 2021.  He was a transit planner and coordinator, coordinating bus and rail service.  In 2012, Gould was diagnosed with prostate cancer, undergoing surgery and radiation which caused incontinence.  As a result, he usually had to go to the restroom immediately upon arrival to work.  He drove to a main parking lot, then took an employee van to his office building; the drop-off point was only a two-minute walk, which worked fine.  He was allowed to wear jeans because the fabric soaked up urine quickly and prevented rashes, and he received a standup desk because of vascular issues.

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New Jersey civil service law and education law provide that employee disciplinary charges can be settled.  This applies to New Jersey governmental jurisdictions which are not covered by civil service or education law as well.  One of the tools which are sometimes used for these settlements are “last chance agreements.”courthouse-1223280__340-300x200

Last Chance Agreements

A last chance agreement is essentially a settlement agreement which suspends disciplinary proceedings for a specified time frame, essentially a probationary period, which gives the employee a “last chance” to improve her performance. Thus, if the employee violates the last chance agreement during the specified period the employer may impose the suspended discipline or other discipline as appropriate.  The agreement is to be construed under the normal rules for contract interpretation.  The New Jersey Supreme Court and Appellate Division of the Superior Court of New Jersey have addressed last chance agreements in separate decisions in the case of Horace Watson vs City of East Orange.  The Appellate Division also addressed the matter in the case of A.D.P. v. ExxonMobil Research and Engineering Company, in which the court examined last chance agreements and their application in private sector employment.

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Restrictive Covenants and Non-Compete Agreements

Restrictive covenants are clauses in contracts where the parties agree that one or both of the parties agree to restrict their ability to act in certain ways during or after the term of the contract.  There are a variety of restrictive covenants, such as “non-poaching” agreements, were a party agrees not to employ the other party’s employees; non-disclosure agreements, or NDAs, where the parties agree not to disclose the other’s confidential information or trade secrets; and non-solicitation agreements, where one or more of the parties agree not to solicit or do business with thesupreme-court-building-1209701__340-300x200 other party’s customers or clients after the expiration of the contract.

In the employment context, the most common restrictive covenant is a non-competition agreement, in which an employee agrees that during or after their employment with the other party, they agree not to compete against it.  Restrictive covenants are enforceable under New Jersey employment law, provided they meet certain requirements.  The Appellate Division of the Superior Court of New Jersey recently addressed when an employee may challenge the validity of a non-compete agreement in court in the case of Ondik vs. Princeton Eye and Ear, LLC.

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A recent New Jersey employment law decision found that even where harassment is not by a co-employee, her employer may still be liable if the victim worked closely with the harasser in her workplace.

Background

Kristine Bodner was a certified alcohol and drug counselor employed by the Center for Family Services (the “Center”), a private nonprofit social services provider. The Center is a “provider agency” for the New Jersey Department of Child Protection and Permanency (the “Department”).  She was assigned to work at the Burlington office of the Department, a department of New Jersey state4-225x300 government.  She worked closely with the Department’s supervisors.  Clients were sent by Department to the Center.  The Center would assign clients to Bodner.  She assessed clients to see if they had substance abuse issues and if so to recommend the appropriate level of care, and report them to the case workers.  She would conference cases with Department case workers.

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McLaughlin & Nardi, LLC is pleased to announce that Brooke Fulmer will be joining us as a law clerk.  She will be full-time during the Summer, and part-time during the school year.

Brook is heading into her third year at New York Law School where she is an editor for the New York Law School Family Law Quarterly.  (New York Law School is something of a farm team for our firm with four of our attorneys having earned their J.D.s from there.)

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Brooke is a summa cum laude graduate of Monmouth University where she majored in criminal justice with a minor in legal studies.  While at Monmouth University she was awarded the Academic Excellence Scholarship. She presented her research study during Scholarship Week.

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What is Whistleblower Law?

In New Jersey, “whistleblower law” refers to a body of law which protects employees who engage in “whistleblowing activity.”  There are two basic sources of New Jersey whistleblower law: the statutory protections of the New Jersey Conscientious Employee Protection Act (CEPA); and the common law protections under the case of Pierce v. Ortho Pharmaceuticals (Pierce), which provides similar protections.4-225x300

Who is considered a whistleblower?

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Several New Jersey employment laws govern the payment of wages.  The New Jersey Wage and Hour Law (along with the Federal Fair Labor Standards Act) governs minimum wage and overtime.  The New Jersey Wage and Hour Law governs what are considered wages and whendc-court-appeals-district-columbia-building-abraham-lincoln-statue-74985350 they must be paid.  The Supreme Court of New Jersey considered whether and under what circumstances “commissions” are considered “wages” protected by the Wage Payment Law.

Background – PPE Sales at Suuchi, Inc., During the Pandemic

Suuchi, Inc. sells a software-driven platform.  Its salespeople are paid commissions of 1.75 percent for the first $729,167 of sales based on annual recurring revenue, and 4 percent beyond that.  Suuchi’s plan stated that it was “intended to cover all sales situations.”  During the Covid Pandemic, Suuchi branched out into selling personal protective equipment (PPE).  The company sent an email advising its sales people that commissions would be based on net revenue, and commissions would be 4 percent when net revenue generated on PPE.  However, the chief executive officer sent a follow-up email clarifying that “we are providing the same commissions on these one time orders and not penalizing for not being [annual recurring revenue].”

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What is the New Jersey Law Against Discrimination?

The New Jersey Law Against Discrimination (LAD) is a state law that prohibits discrimination in employment based on certain of an employee’s immutable qualifications.  It is one of the1-300x225 strongest employee protection laws in the country.

Who is protected under the New Jersey Law Against Discrimination?

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