Articles Posted in Labor and Employment Law

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The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

The New Jersey Arbitration Act and Federal Arbitration Act generally require enforcement of agreements to arbitrate disputes.  This extends to the enforcement of arbitration agreements in employment contracts.

However, in response to the #MeToo Movement, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.  The EFAA provided:new-york-county-courthouse-1540991328RMS-300x200

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The State Board of Examiners, which operates within the New Jersey Department of Education, is the agency charged with licensing New Jersey educators.  It determines educator fitness and issues certifications required for New Jersey teachers and other teaching staff members.  It also has the authority to revoke or suspend certificates in appropriate circumstances.  The New Jersey Supreme Court recently examined the limits of the Board’s authority in the case of In the Matter of the Certificates of Nicholas Cilento, State Board of Examiners, New Jersey Department oftess-225x300 Education.

Background

Nicholas Cilento was a special education teacher with the Woodbridge Township School District.  On May 21, 2019, he was relieved of his teaching responsibilities because it was alleged that he consumed alcohol on school grounds.  Tenure charges were filed in November 2019.  Cilento appealed the charges and after an evidentiary hearing in which Cilento admitted struggling with alcoholism and consuming alcohol on school grounds, an arbitrator upheld charges of conduct unbecoming, violations of state and municipal law, violations of District policy.  The arbitrator imposed a three-month unpaid suspension and reinstatement on a “last chance” basis.

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A New Jersey employment law decision recently examined the effect of a conviction under the newly enacted New Jersey Police Training Act and with the New Jersey Police Training Commission in the case of Garcia vs. New Jersey Police Training Commission. 

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Background

Gregory Gacia was a police officer with the Wharton, New Jersey, Police Department.  As a result of a search of his residence, he was charged with false representations and gun possession offenses.  Thereafter, on November 14, 2022, he entered into a plea agreement whereby he pled guilty to one count of possessing a large capacity ammunition magazine in the fourth degree.  He was sentenced to one year of probation, with the judgment of conviction entered on January 13, 2023.  Garcia appealed his decision to the Appellate Division of the Superior Court of New Jersey, when affirmed his conviction on October 7, 2024.  He thereafter appealed to the Supreme Courts of New Jersey and the United States, both of which refused to hear his appeal.

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New Jersey employment law provides that non-tenured educators must receive written notice that their employment contracts will not be renewed by May 15th or their contracts will be deemed to be renewed for the coming school year.  A New Jersey appeals court recently issued a decision examining the procedure and consequences of the non-renewal of an assistant principal after failing to give her the required timely written notice in the case of Adeyin vs. Board of Education of the City of Orange.supreme-court-building-1209701__340-300x200

Background

Ehimwenma Adeyin was a non-tenured assistant principal at Rosa Parks Community School in Orange, New Jersey.  She began work in 2023, and her contract was renewed for the 2023-2024 school year.  She was permitted to participate in a two-year program to obtain a certificate from the New Jersey Department of Education for the position of principal.

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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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