New Jersey Archives - Page 6 of 8

Jersey City Passes Paid Sick Leave Law

Following the lead of its neighbor across the Hudson River [see our earlier coverage of New York’s paid sick leave law here], New Jersey’s second most populated city, Jersey City, has passed an ordinance to require employers with ten or more employees to offer as many as five paid sick days a year. The bill is sweeping in its application, impacting all businesses employing workers who work at least 80 hours a calendar year in Jersey City. However, employee headcount is critical to determining employers’ obligations under the law:

10 Or More Employees In Jersey City: 5 Paid Sick Days
Fewer Than 10 Employees In Jersey City: 5 Unpaid Sick Days

Counting Employees: Full-time, part-time and temporary workers all count toward the total number of employees for purposes of this new law. Further, if an employer’s workforce fluctuates, the number of employees will be calculated based on the average number of employees who worked for compensation during the calendar year.

Accrual and Carry Over: Accrual of paid sick leave is not automatic. Rather, workers earn one hour of sick time, paid or unpaid, for each 30 hours worked, accruing a maximum of 40 hours per year. New workers can only begin to use sick time on the 90th calendar day of employment. Employees may carry over up to 40 hours of sick time into a new calendar year but may not use more than 40 hours of paid sick time in any year. Further, if an employee is separated from employment but later re-hired within six months, the previously accrued but unused sick time must be reinstated. However, the law makes clear that employers need not pay out accrued but unused sick time at separation.

Using Sick Time: Likely inconsistent with many employers’ policies, employees can use sick time in hourly increments or the smallest unit of time the employer uses to account for absences or other time off. Like FMLA leave, Jersey City sick time covers more than an employee’s own illness. It can be used to care for the mental or physical illness, injury or health condition, treatment, medical diagnosis, or preventative care of the employee’s family members. It can also be used due to an employee’s need to care for a child whose school or place of care has been closed by order of a public official due to a public health. The Jersey City leave law is more broad than federal or New Jersey family leave laws, covered family members include a wide range of relations, including, but not limited to, biological, adopted, foster or step child, legal ward, domestic partner, civil union partner, grandparents and spouses.

Requesting Sick Time: Employees need only make a verbal request and must only provide notice “as soon as practicable.” Employers may ask for reasonable documentation if the employee requests more than three consecutive days of sick time. However, employers may not, as a condition of an employee’s taking sick time, require that an employee search for or find a replacement worked to cover the hours during which the employee is absent.

Notices Covered employers must provide employees with written notice of the law at the commencement of their employment. Additionally, notice of the law must be posted in an accessible place. Violation of the notice and posting requirements carries a civil fine of up to $100 per employee and $500 per establishment.

Record-Keeping: Employers must retain records showing the hours worked and paid sick leave taken by all employees for a period of three years. Records must be made available to the Department of Health and Human Services. Under the law, a failure to maintain adequate records creates a rebuttable presumption that the employer has violated the ordinance.

Enforcement and Audits: The Jersey City Department of Health and Human Services is vested with the power to enforce the ordinance, adjudicate complaints, provide information about paid sick leave, create posters and notices and conduct audits. Audits and investigations may include private interviews of employees and former employees. Violations carry fines up to $1,250 and/or a period of community service not to exceed 90 days.

Anti-Retaliation and Private Right of Action: The ordinance also creates a private right of civil action without the need to first file a complaint to the Jersey City Department of Health and Human Services. Further, employers may not retaliate against employees for exercising their rights under the law, including any employee’s request for using sick time or filing a complaint about a violation. The ordinance specifically creates a rebuttable presumption of unlawful retaliation if the employer takes adverse action against an employee within 90 days of filing a complaint, informing any person about an alleged violation, cooperating in the investigation or prosecution of any alleged violation, opposing any policy or practice made unlawful by the law or informing any person of their rights available under the ordinance.

No Duplication of Leave: If an employer already provides a paid leave policy (i.e., paid time off or “PTO”) which provides leave equal to or in excess of what is required under the law, then there is no need to provide additional leave because of this law.

A link to a copy of City Ordinance 13.097 may be found by clicking here: Jersey City Paid Leave Law.

New Jersey Legislative Update: Pay Equity Protection, Social Media and Employer Responses to Unemployment Insurance Requests for Information

August was a busy month for New Jersey lawmakers with Governor Christie signing two bills, one regarding pay equity and one concerning personal social media accounts that he had conditionally vetoed earlier, and a bill regarding the impact of an employer’s failure to respond to a request for information for purposes of unemployment insurance benefits. As described below, each bill will impact an employer’s compliance obligations and should be appropriately integrated into management practices.

Assembly Bill No. 2648 (A-2648), signed by the Governor on August 29, 2013, is a pay equity protection measure amending the New Jersey Law Against Discrimination (NJLAD) to bar employers from retaliating against employees who share information about the job title, occupational category or rate of compensation and other employment matters, or the gender, race or other protected characteristic of current or former co-workers when the inquiries are made to assist in investigating the possibility of unlawful discriminatory treatment in pay, compensation, bonuses, or benefits. It took effect upon enactment.

While the previously vetoed version of A-2468 would have protected those discussions under the State Conscientious Employee Protection Act, Governor Christie suggested that the amendment was more consistent with the underlying goals of the NJLAD, because that is the statute under which workplace discrimination claims are brought. Governor Christie noted that “[t]oo often in our past, women have seen their incalculable contributions to the workplace insufficiently compensated. We cannot allow that progress to succumb to ignorance.”

Assembly Bill No. 2878 (A-2878), also signed by the Governor on August 29, 2013, prohibits employers from requiring or requesting any employee or prospective employee to provide or disclose the user name or password or in any way provide the employer access to a personal account through the use of an electronic communications device. A-2878 further prohibits employers from retaliating or discriminating an individual who has, or was about to:
- Refuse to provide access to a personal social media account;
- Participate in any complaint, investigation, proceeding or action concerning a violation of the act; or
- Otherwise oppose a violation of the act.

Violations under the act are enforced through the Department of Labor and Workforce Development and violating employers could be subject to civil penalties up to a maximum of $1,000 for the first violation and $2,500 for each additional violation. Governor Christie’s veto of the original version of the bill was based on a determination that it was overbroad and needed to provide for specific employer rights.

A key employer protection in A-2878 allows employers to investigate compliance with applicable laws, regulations or “prohibitions against work-related employee misconduct” when the employer receives specific information regarding an employee’s personal social media account, and also to investigate an employee’s actions related to the “unauthorized transfer of an employer’s proprietary information, confidential information or financial data to a personal account.” The bill further clarifies that the employer is not prohibited from “viewing, accessing, or utilizing information about a current or prospective employee” that is available in the public domain.

New Jersey thus became the ninth State this year, and the twelfth State overall to enact legislation prohibiting employers from seeking or accessing current or prospective employees’ personal social media account information. Federal legislation similar to these state social media account password protection laws has been introduced, including: the Social Networking Online Protection Act (HR-537) and the Password Protection Act of 2013 (HR-2077).

Senate Bill No. 2739 (S-2739), signed by the Governor on August 19, 2013, amends the New Jersey Unemployment Compensation Law to ensure that employers promptly respond to Division of Unemployment and Temporary Disability Insurance (Division) requests for information about claims for unemployment benefits. In accordance with this Bill, if the Division erroneously pays a benefit because the employer failed to respond in a “timely or adequate manner” to a Division request for information related to the claim and the employer has an established pattern of failing to respond to these requests, the Division is prohibited from relieving the employer’s account for the charged benefit payments. A benefit payment is “erroneous” when it would not have been made but for the employer’s failure to make a “timely and adequate” response. The “pattern of failing” is established when the employer repeatedly fails to respond to Division requests for information related to a claim for benefits, unless the number of failures is less than three or less than two percent of the number of Division requests, whichever is greater.

The act does not specify what is considered “timely or adequate,” but pre-existing statutory language provides an employer with ten days after the Division request to respond before the Division relies entirely on other sources to make a determination of wages and time worked. Employers who previously may have failed to respond because it might result in a denial of benefits to the claimant now have more of an incentive to comply.

New Jersey Federal Court Finds that the Stored Communications Act Protects Employee’s Non-Public Facebook Wall Posts – But Also Provides Guidance on Whether An Employer Can Take Action Based on The Unsolicited Receipt of An Offensive Post

Facebook continues to be the new “water-cooler” as co-workers regularly “friend” each other and allow access to their “wall” posts. New Jersey’s Federal District Court recently addressed the issue of whether a Hospital’s decision to suspend a nurse based on a post on her Facebook wall – which it received unsolicited from a co-worker who was a Facebook friend of the nurse – violated the Federal Stored Communications Act (“SCA”), 18 U.S.C. § 2701-11. The Court also addressed the nurse’s related invasion of privacy claim. Ehling v. Monmouth-Ocean Hospital Service Corp., 2013 U.S. Dist. LEXIS 117689 (8/20/13). [Opinion]

The nurse was a Hospital employee who maintained a personal Facebook account. She chose privacy settings that limited access to her “wall” to her Facebook ‘friends,” including one of her co-workers. Following the 2009 shooting at the Holocaust museum, the nurse posted the following to her wall:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards….go to target practice.”

Her co-worker took a screen shot of the post, and then showed the post to the nurse’s supervisor. As a result, the Hospital temporarily suspended the nurse, with pay, due to the concern that her comment reflected a “deliberate disregard for patient safety.”

The nurse sued claiming that the Hospital’s reliance on her Facebook post violated the Federal Stored Communications Act – and was an invasion of privacy. The Court first addressed the issue of whether the SCA applied to Facebook wall posts since the SCA was enacted in 1986, before the WorldWideWeb was developed in 1990 and web browsers were introduced in 1999.

The Court did determine that the SCA applied to Facebook posts based on the following analysis: (1) Facebook wall posts are electronic communications as defined by the SCA; (2) Facebook is an electronic communication service provider as defined within the SCA; (3) Facebook wall posts satisfy the “in electronic storage” requirement as they are not held in temporary, intermediate storage before delivery to the website, and are in accessible storage for back-up purposes; and (4) given that the touchstone of the SCA is to protect information that the communicator took steps to keep private, if a Facebook user chose privacy settings that limited access to her “friends,” the post at issue was covered by the SCA. The Court relied on California precedent in reaching this determination. Interestingly, the Court also found that the privacy protection provided by the SCA is not dependent on the number of Facebook friends to whom the user provides access.

However, the Court still granted summary judgment to the Hospital because it determined that the “authorized user” exception applied because the nurse granted her co-worker access to the post by “friending” her and thereby “intending” that her co-worker would view her posts. The Court also rejected the claim that the “authorization was coerced because the supervisor had never asked the co-worker for any information about the nurse, or the nurse’s Facebook activity. The Court also noted that the nurse’s supervisor was not in a position to offer the co-worker any benefit in exchange for the unsolicited presentation of the Facebook post since supervisor worked in a different division and had no control over the co-worker’s compensation.

The Court also dismissed the nurse’s common law invasion of privacy finding that:

“The evidence does not show that Defendants obtained access to Plaintiff’s Facebook page by, say, logging into her account, logging into another employee’s account, or asking another employee to log into Facebook. Instead, the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for. Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else.”

Notably, the nurse also filed a complaint with the NLRB, however the NLRB determined that the Hospital did not violate the NLRA, and that there was no privacy violation because the post was sent, unsolicited, to Hospital management.

What is the take-away from this decision? First, employers have been waiting since the 2009 jury verdict in Pietrylo v. Hillstone Restaurant Group for guidance about what circumstances would qualify as “authorization” under the federal and NJ stored communications statutes. Second, employers should continue to use extreme caution taking adverse action based on employees’ social media activities. This decision, as well as recently enacted state legislation, clearly prohibits employers from directly – or indirectly – demanding access to employees’ social media accounts. As of July, 2013, legislation has been proposed in over 30 states to prevent employers from requesting passwords, and a number of states have enacted such legislation, including California, Illinois, Maryland and Michigan. Facebook has also condemned the practice and has updated its Statement of Rights and Responsibilities to address this issue.

In addition to potential liability under the SCA, the NLRB has been very active with regards to finding that Facebook rants about bosses, work conditions or compensation fall within the realm of protected “concerted activity” under the NLRA. However, even the NLRB has recognized that employers have a legitimate basis to take action in response to negative postings about their customers/clientele. The Office of the General Counsel found no violation for Facebook firings of a bartender who labeled customers as “rednecks” and hoped that they choked on glass, and of an employee of a residential facility for homeless people with significant mental health issues who joked about the condition of the facilities’ clients.

Employer Liability Under State Medical Marijuana Laws

Across the country, employers in states allowing medical marijuana use have been grappling with whether these statutes impact employer policies concerning drug testing and maintaining a drug-free workplace. Though the statutes allow for marijuana use for medical purposes (and some for recreational purposes), these statutes do not consistently address the impact of legal medical marijuana on employers, if at all. And the number of states enacting such legislation is continuing to grow.

Since 1996, 20 states[1] and the District of Columbia have enacted some form of legislation that allows for the non-criminal use of marijuana for medical purposes. In fact, in the last three years, eight states have passed medical marijuana laws – and Illinois became the 21st jurisdiction to legalize medical marijuana when Governor Quinn signed HB 1 into law on August 1.

As such, companies that employ individuals in states with medical marijuana may be uncertain as to whether or under what circumstances they can take action with respect to an employee that fails a drug test or otherwise admits to being a medical marijuana patient.

Civil Protections – Where Do We Stand Today?

Most of the states that have enacted a medical marijuana law have statutory language that is silent about medical marijuana patients’ civil protections. Of the 21 jurisdictions that have medical marijuana on the books, 15 do not provide for any form of employment protections.[2] In fact, supreme courts in California, Oregon, Washington and Montana have all upheld employer decisions to discharge employees that were medical marijuana patients. The plaintiffs in these lawsuits have argued that medical marijuana users are protected under such statutes because the law itself creates the sought-after employment protections, that the employer’s decision to discharge the user violates the public policy of the state, and/or that the employer discriminated against them on the basis of a disability when it failed to accommodate their medical marijuana use. The courts, in response, have held that the medical marijuana statutes in their state only protect patients from criminal sanctions and do not create any civil remedies or protections. As such, the courts have held that these statutes do not create a clear public policy that might otherwise support a wrongful termination claim or establish that medical marijuana users belong to a protected class. With respect to claims based on asserted disabilities, courts, like the Supreme Court of Oregon, have held that federal law preempts any argument that an individual is protected from disability discrimination on the basis that they are a medical marijuana patient.

Another argument that was recently tested by a plaintiff in Colorado is that an employer’s decision to discharge a medical marijuana user who fails a drug test violated the state’s “lawful activities” statute. Colorado, like many states, prohibits employers from taking action against an employee for engaging in lawful activities or using lawful products outside of the workplace. In a decision dated April 25, 2013, the Court of Appeals of Colorado held that the state’s “lawful activities” statute did not bar the employer from discharging an employee who tested positive for marijuana after a random drug test and who was also a licensed patient. Coats v. Dish Network, LLC, case nos. 12CA0595, 12CA1704 (Co. Ct. App. April 25, 2013). The court held that since the Colorado statute did not specify whether an activity’s “lawfulness” was determined by state or federal law, and marijuana is illegal under federal law, employees that use medical marijuana are not shielded by the statute from the risk of termination.

Despite the lack of civil protections in a majority of jurisdictions that have legal medical marijuana, a few states do provide clear restrictions on an employer’s ability to discriminate against a medical marijuana patient. In Connecticut, Maine and Rhode Island, medical marijuana patients are given protected status and employers are prohibited from discriminating against an employee merely due to their status as a medical marijuana patient. Under Illinois’ HB 1, Illinois also now prohibits such discrimination.

In addition, Arizona and Delaware have adopted much more explicit and impactful statutorily language that bars an employer from discriminating against a registered and qualifying patient who has failed a drug test for marijuana metabolites or components. The only exceptions to this rule are that an employer may act upon the results of a failed drug test if the patient “used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment” or failing to do so would jeopardize an employer’s “monetary or licensing related benefit under federal law or regulations.” See ARS 36-2813 and Del. Code Title 16, § 4905A. Neither statute has been tested in the courts, but the language of these statutes appears to plainly prohibit employers from firing an employee who is a qualified medical marijuana patient based solely on a failed drug test. Rather, in these two states, most employers will need to prove that their decision was based on the fact that the employee used, possessed or was impaired by marijuana while on the job.

Uncertainties Around Illinois Statute

Whether Illinois’ medical marijuana statute provides similar protections is a more uncertain question. With regard to employer liability under the proposed statute, HB 1’s provisions are generally couched in what they do not prohibit, leaving open to interpretation what it may bar with regard to workplace decision-making. HB 1 first states that it does not prohibit “an employer from enforcing a policy concerning drug testing, zero-tolerance or a drug free workplace provided the policy is applied in a nondiscriminatory manner.” The bill also states that employers are not limited from “disciplining a registered qualifying patient for violating a workplace drug policy.” These initial provisions suggest that Illinois’ statute is in line with the majority of jurisdictions, but then it goes on to provide that “[n]othing in this Act shall limit an employer’s ability to discipline an employee for failing a drug test if failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding.” This language, like that in Arizona and Delaware, appears to potentially prohibit employers from relying upon a failed drug test for marijuana unless the employer has contrary obligations under federal law or regulation. The statute continues down this road by also stating that it does not create a cause of action against an employer for actions based on a good faith belief that the medical marijuana user used, possessed or was impaired by marijuana while working. It also provides that an employer may consider a patient to be impaired when they exhibit “articulable symptoms … that decrease or lessen [the employee’s] performance of the duties or tasks of the employee’s job position.” This provision further states that if an employee is disciplined under this section, that they must be given an opportunity to contest the employer’s determination.

Taking these latter provisions into account, there are strong arguments in favor of the position that Illinois’ medical marijuana does provide similar civil employment protections as found in Arizona’s and Delaware’s statutes. First, the bill states that employees cannot sue an employer for actions that were based on a good-faith belief that the employee was impaired, that the belief that an employee is impaired must be based on “articulable symptoms,” and that employees must have an opportunity to rebut the idea the they were impaired. These provisions suggest that an employer may be found to have acted in bad faith and subject to liability if it discharges an employee without an articulable basis for why it believed that the employee was impaired or fails to give an employee a chance to challenge an assertion that they were impaired on the job. In addition, the statute appears to tie the ability of an employer to discipline an employee for failing a drug test to an employer’s obligations under federal law. This framework creates a plausible argument that the statute does provide protections for medical marijuana users who do not use or are not impaired by marijuana on the job. However, the pronouncement that employers are not limited in keeping drug testing, zero tolerance, or drug-free workplace policies seems to conflict with such a finding. Perhaps one way to read these provisions consistently is to find that the statute allows employers to maintain such policies, but that they must treat medical marijuana patients in the same manner as other employees that have been prescribed legal medications. In reality, the only way we will know the answer to this question is when the law is inevitably relied upon by a qualified patient who is fired for failing a drug test that is positive for marijuana.

Recommendations for Employers in Medical Marijuana Jurisdictions

So, how should employers respond to these increasingly more common medical marijuana laws? For those employers who have federal contracts or are otherwise subject to federal regulations concerning drug-free workplaces, your practices do not need to change. According to the Department of Transportation, which regulates and provides drug testing requirements for certain safety-sensitive positions, it is “unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s regulations to use marijuana.” Thus, employers subject to such or similar regulations should continue to comply with applicable federal law.

Employers that are not subject to federal drug testing regulations should review their substance abuse policies to ensure compliance with local and state law. Employers in states that generally do not provide for employment protections should still consider whether their state has a “lawful activities” or “lawful products” statute or whether courts in their state may be more favorable to finding a clear public policy protecting medical marijuana users. In light of the holdings of those decisions that have addressed the issue, courts in these states will likely find that their state law does not establish a clear public policy in favor of medical marijuana patients. However, this analysis may differ in Colorado and Washington, both of which now allow for legal recreational use. In those states that do provide for some form of employment protection, you should carefully revise your policies to be consistent with those laws.

Employers should also consider whether or when they will conduct drug testing. With the passage of these laws, employers should expect that more of their employees may be using marijuana outside of the workplace. Similarly, employers should expect more challenges, based on the long period of time that marijuana metabolites remain in an individual’s system, from employees that have failed drug tests but who claim they were not impaired while working. In Arizona, Delaware and Illinois, employers should revise their substance abuse policies to make sure they conform to state law and ensure that employees who are qualified patients are not disciplined solely on the basis of a failed drug test. Lastly, employers should train their supervisors and managers to recognize signs of impairment (whether due to marijuana, alcohol, or other substances) and how to deal with inquiries from employees regarding their use of medical marijuana.

[1] States that provide for some form of legalized medical marijuana states are: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

[2] The six jurisdictions that do provide some level of civil protections are: Arizona, Connecticut, Delaware, Illinois, Maine, and Rhode Island.

New Jersey Safe Act Provides Unpaid Leave For Victims Of Domestic Violence

On July 13, 2013, Governor Chris Christie signed the New Jersey Security and Financial Empowerment Act (New Jersey SAFE Act) into law. Effective on October 1, 2013, the New Jersey SAFE Act, covering public and private employers with 25 or more employees, provides up to 20 days of unpaid leave in one 12-month period when an employee or their child, parent, spouse, domestic or civil union partner has been the victim of a domestic violence incident or a sexually violent offense and the employee has been employed by the employer for at least 12 months and 1,000 base hours during the 12-month period immediately preceding the leave.

Under the New Jersey SAFE Act, each incident of domestic violence or any sexually violent offense constitutes a separate offense for which the eligible employee may take leave, so long as the employee has not already exhausted the allotted 20 days for the 12-month period. The unpaid leave may be taken intermittently in intervals of no less than one day, as needed for the employee or the employee’s family or household member to handle issues arising from the incident such as:

Seeking medical attention for, or recovering from the injures caused by the domestic or sexual violence;

Obtaining services from a victim services organization;

Obtaining psychological or other counseling;

Participating in safety planning, relocation or other activities to increase the safety of the employee or the
employee’s family or household member and to ensure economic security;

Seeking legal assistance to ensure the health and safety of the employee or the employee’s family or household member; or

Attending, participating in, or preparing for a court proceeding related to the incident of which the employee or the
employee’s family or household member was the victim.

An eligible employee may elect, or the employer may require, the employee to use any or all accrued paid time off during any part of the 20-day leave provided under the New Jersey SAFE Act. If the employee’s request for leave under the New Jersey SAFE Act is also covered by the New Jersey Family Leave Act or the federal Family and Medical Leave Act, the leave must count simultaneously against the employee’s entitlement under each law.

Before taking leave under the New Jersey SAFE Act, the employee must give the employer written notice, if the necessity for the leave is foreseeable, as far in advance as reasonable and practical under the circumstances. An employer may also require the employee to substantiate the domestic violence or sexually violent offense which is the basis for the leave. If the employee provides one or more of the types of documentation listed in the Act such as a restraining order or a letter from the prosecutor, it will be deemed sufficient.

All documentation regarding the leave must be retained by the employer in strictest confidence unless the employee voluntarily authorizes disclosure or it is required by federal or State law, rule or regulation.

The employer must conspicuously display notice of employees’ rights and obligations under the New Jersey SAFE Act in a manner to be prescribed by the Commissioner of Labor and Workforce Development, and must use “other appropriate means to keep its employees so informed.” Neither the posting, nor guidance regarding what other appropriate means must be used has been issued.

The New Jersey SAFE Act prohibits discrimination, harassment and retaliation against employees who have exercised their rights under the Act. Aggrieved individuals have a private right of action within one year of the alleged violation to bring suit in Superior Court for recovery of the fully array of damages available to a prevailing plaintiff in common law tort actions, including reinstatement, compensation for lost wages and benefits, an injunction to restrain continued violations and reasonable attorneys’ fees and costs. In addition, the employer may be assessed a civil fine of $1,000 or up to $2,000 for a first violation, and up to $5,000 for any subsequent violations.

Updates regarding employers’ notice requirements and means to keep employees informed will follow when issued.

NJ Supreme Court Expands The Scope Of Retaliation Claims Under The New Jersey Law Against Discrimination

Under the guise of promoting the “broad remedial purposes” of the New Jersey Law Against Discrimination (“LAD”), the New Jersey Supreme Court recently decided that employees may be protected from retaliation under the LAD even when they complain about offensive sexual comments by a supervisor which would not violate the law because they were not heard by any female employee. In Battaglia v. United Parcel Service, Inc., the plaintiff objected to his supervisor’s repeated use of crude sexual language during discussions with other men about women in the workplace, and made a vague reference to that language in an anonymous letter of complaint to management. The employer investigated the complaints raised in that letter, but did not pursue the issue of offensive sexual comments because the letter was too vague to understand that the reference to “language you wouldn’t use [in] your worst nightmare” was about crude sexual comments. Management – including the supervisor in question – figured out that plaintiff wrote the letter. It subsequently conducted a separate investigation concerning certain inappropriate conduct by plaintiff and demoted him from his position as a manager. Plaintiff then sued for retaliation under the LAD, and included a separate cause of action for retaliation under the New Jersey Conscientious Employee Protection Act (“CEPA”) based on other complaints he had raised concerning alleged fraudulent use of corporate credit cards.

Following a jury verdict for plaintiff, the New Jersey Appellate Division affirmed the jury’s verdict for plaintiff under CEPA but reversed with respect to the cause of action for retaliation under the LAD. That court observed that the LAD only protects employees who reasonably believe that the employer is engaged in conduct which would be unlawful under the LAD, and that plaintiff had not engaged in protected activity because there was no discrimination or hostile work environment where the comments by the supervisor were not direct to, or heard by, any female employee.

The Supreme Court reinstated the LAD verdict, but vacated the verdict under CEPA because, among other things, the plaintiff admitted he did not believe the credit card use had been fraudulent. With respect to the LAD cause of action for retaliation, the Court rejected the appellate court’s “narrow interpretation” that the Act only protects employees who complain about “demonstrable acts of discrimination.” Instead, once again invoking the broad remedial purposes of the Act, the Court found that the jury had sufficient evidence to find that the plaintiff had a “good faith belief” that the supervisor’s crude sexual references to women in the workplace was unlawful under the LAD. In this regard, the Court observed: “when an employee voices a complaint about behavior or activities in the workplace that he or she thinks are discriminatory, we do not demand that he or she accurately understand the nuances of the LAD or that he or she be able to prove that there was an identifiable discriminatory impact upon someone of the requisite protected class.”

It has long been clear that an employee may pursue a cause of action for retaliation under the LAD even where the underlying complaint of discrimination has no merit. What is not clear is how an employee could have a reasonable belief that he was complaining about unlawful conduct where that conduct – offensive comments about women made to a group of men – could not possibly be unlawful. That is compounded in this case by the fact that management could hardly be expected to understand that the plaintiff was complaining about unlawful conduct from the vague reference in his letter. The opinion reflects the Court’s determination to continue to read the LAD expansively to protect employees from retaliation. Indeed, the driving factor in this case may be reflected in the Court’s observation that the jury had evidence to support a finding that management not only gave short shrift to the complaints, but responded by imposing discipline against the complainer.