BURNHAM DOUGLASS *
Areas of Practice
The world of employment and labor law is ever growing and evolving, and we’re not just talking about laws created by our legislators. With the continual appointments of lawyers who become judges, the ways in which these judges interpret the legions of employment and labor laws, means the world of employment law is ever changing so that the dynamics and complexity of these laws require attorneys who steadfastly keep abreast of every employment law development. We represent employees and employers who require assistance with issues involving a wide range of workplace situations such as termination from employment, severance agreements and whistle blower claims.
An employee may not be discharged for a reason that is contrary to the public policy of the state of New Jersey. Specifically, employees are protected from retaliation for the following protected activities:
Reporting workplace safety violations
Refusing to commit an illegal act
Reporting illegal activity to an outside authority
An employee who reports wrongdoing internally to a supervisor is not protected under the public policy exception because the internal report does not bring the wrongdoing to the attention of a public official. However, in certain instances, an internal report is protected under the general whistleblower protection statute, the Conscientious Employee Protection Act.
Under the Conscientious Employee Protection Act (CEPA) , an employee may not be discharged (or discriminated against) in retaliation for the following activities:
Disclosing, or threatening to disclose, an activity, policy, or practice of the employer (or another employer) that the employee reasonably believes is illegal, fraudulent, or criminal. The disclosure may be made to either a supervisor or a public body (legislative body, judicial officer, grand jury, administrative agency, law enforcement agency, department in the executive branch, or any subdivision; federal, state, or local). However, there is an important caveat for employees who disclose information to a public body (see below).
Providing information or testimony to a public body conducting an investigation, hearing, or inquiry into an employer's violation of law.
Objecting to-or refusing to participate in-an activity, policy, or practice that the employee reasonably believes is illegal, fraudulent, criminal, or incompatible with a clear mandate of public policy. The clear mandate of public policy must concern the protection of the environment or the public health, safety, or welfare.
However, there is an important caveat for employees who disclose information to a public body and seek protection under CEPA. An employee must first inform a supervisor of the alleged violation and then allow the employer a reasonable opportunity to correct the violation. This disclosure to a supervisor must be made in writing. An exception to this requirement is made in two instances: (1) where the employee is reasonably certain that a supervisor is aware of the violation, and (2) where the employee reasonably fears physical harm in retaliation for the disclosure and the situation is emergency in nature. N.J. Stat. § 34:19-4.
Note that CEPA only requires an employee's "reasonable belief" that the employer was violating the law. The employee's suspicion that the employer is violating the law does not need to turn out to be true-an employee is still protected from retaliation if it turns out that the employer was not violating the law, so long as the employee's suspicion was reasonable.
Additional protections for licensed or certified health care professionals are also embedded in CEPA. In addition to the general protections for employees, licensed or certified health care professionals may not be discharged in retaliation for:
Disclosing an activity, policy, or practice that the employee reasonably believes constitutes improper quality of patient care (as defined by statute, rule, regulation, or professional code of ethics)
Providing information or testimony to a public body conducting an investigation, hearing, or inquiry into the quality of patient care
Objecting to an activity, policy, or practice that the employee reasonably believes constitutes improper quality of patient care
Civil Service: An employee may not be retaliated against for disclosing a violation of law, governmental mismanagement, or abuse of authority. N.J. Stat § 11A:2-24.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory practice. Nor may an employee be discharged (or discriminated against) in retaliation for filing a complaint, testifying in a proceeding, or assisting in a proceeding concerning New Jersey's laws against employment discrimination. N.J. Stat. § 10:5-12(d).
Family Leave Act: An employee may not be discharged (or discriminated against) in retaliation for opposing a practice that violates the New Jersey Family Leave Act. Nor may an employee be discharged (or discriminated against) in retaliation for filing a charge, instituting a proceeding, providing information in connection with a proceeding, or testifying in a proceeding under the Family Leave Act. The Family Leave Act allows employees to take time off from work to care for a new-born child or to attend to a serious health condition of a family member. N.J. Stat. § 34:11B-9.
Hazardous Substances: An employee may not be discharged (or discriminated against) in retaliation for exercising a right under the Worker and Community Right to Know Act, a law that regulates the use of hazardous substances N.J. Stat. § 34:5A-17.
Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning minimum wage violations. Also, an employee may not be discharged (or discriminated against) for serving on a wage board. An employer may fined up to $1,000 per violation. N.J. Stat. § 34:11-56a24.
Occupational Health and Safety: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising rights concerning worker health and safety. N.J. Stat. § 34:6A-45.
Schools: An employee of a school may not be retaliated against for reporting harassment or bullying. N.J. Stat. § 18A:37-16.
Ski Lift Safety: An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning ski lift safety. N.J. Stat. § 34:4A-13.
Wage Discrimination (Equal Pay): An employee may not be discharged (or discriminated against) in retaliation for making a complaint, instituting a proceeding, or testifying in a proceeding concerning New Jersey's wage discrimination laws. Under these laws, discrimination in wages on the basis of sex is prohibited. N.J. Stat. § 34:11-56.6.
Workers' Compensation: An employee may not be discharged (or discriminated against) in retaliation for claiming (or attempting to claim) workers' compensation benefits, or testifying in a workers' compensation proceeding. An employer may be fined up to $1,000 and imprisoned for up to 60 days for violations of this statute. N.J. Stat. § 34:15-39.1.
WORK & SCHOOL
Individuals with disabilities often are stigmatized, encountering attitudinal and physical barriers both in work and in daily life. Although federal legislation (e.g., Americans With Disabilities Act of 1990) protects the inherent rights of individuals with disabilities, that legislation cannot always protect them from subtle forms of discrimination and prejudice. School-age students with disabilities often have negative school experiences related to their having a disability, and school counselors, administrators, and teachers can help to create more positive school experiences that promote their academic, career, and personal/social growth. By examining the attitudes and behaviors of school staff and students as well as systemic factors related to the school, school counselors in collaboration with other school personnel can determine areas for intervention and respond accordingly.
The New Jersey Law Against Discrimination (LAD) prohibits employers from discriminating in any job-related action, including recruitment, interviewing, hiring, promotions, discharge, compensation and the terms, conditions and privileges of employment on the basis of any of the law's specified protected categories. These protected categories are: race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses. The LAD prohibits intentional discrimination based on any of these characteristics. Intentional discrimination may take the form of differential treatment or statements and conduct that reflect discriminatory animus or bias.
Moreover, an employment policy or practice that is neutral in its terms may be deemed unlawful if the policy or practice has an adverse impact on protected groups. However, the disparate impact may be lawful if the employment policy or practice meets an important, legitimate business need that cannot be served with a non-discriminatory measure. For example, screening out applicants for employment based on certain physical traits, such as setting a minimum height requirement, may exclude disproportionate numbers of women and people of certain national origins or ancestries. If the height requirement has a disparate impact on a protected group and is not related to an applicant's ability to perform important job duties, it may be deemed unlawful. To establish the lawfulness of a policy or practice that has a demonstrated disparate impact, an employer would have to establish that the policy is job related and consistent with business necessity, and that effective alternative practices are not available.
A physical requirement is more likely to be regarded as unlawful if there is an alternative measure of job related abilities, such as strength or stamina tests, that would provide a more accurate evaluation of a candidate's ability to perform without screening out qualified members of groups that historically have been excluded from particular jobs.
Disability and Medical Leave Laws
Employees are entitled to unpaid medical leave if both they and their employer qualify under the Family Medical Leave Act. Under the Americans with Disabilities Act (“ADA”), unpaid medical leave may be considered a reasonable accommodation to address an employee’s disability or perceived disability.
Federal and state laws entitle eligible employees of covered employers to take an unpaid, protected leave of absence to care for the serious health condition of themselves or for specific family members. For instance, pregnant employees (and their spouses) are entitled to leave for their pregnancy under federal and state laws. These laws also provide guarantees of reemployment to eligible employees who take their job protected leaves of absence and prohibit an employer from retaliating against an employee because of his or her need for a medical leave.
You may be familiar with the word "discrimination." But do you know what it really means? And do you understand how it applies in the context of your job?
To "discriminate" against someone means to treat that person differently, or less favorably, for some reason. Discrimination can occur while you are at school, at work, or in a public place, such as a mall or subway station. You can be discriminated against by school friends, teachers, coaches, co-workers, managers, or business owners.
My Rights Lawyers takes its responsibility seriously to protect your right to be free from any one type of discrimination - employment discrimination and school discrimination because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information. Other laws may protect you from other types of discrimination, such as discrimination at school or discrimination at work because of your sexual orientation.
The laws protect you from employment discrimination when it involves:
Unfair treatment because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information.
Harassment by managers, co-workers, or others in your workplace, because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information.
Denial of a reasonable workplace change that you need because of your religious beliefs or disability.
Improper questions about or disclosure of your genetic information or medical information.
Retaliation because you complained about job discrimination or assisted with a job discrimination proceeding, such as an investigation or lawsuit.
The Family Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.
Eligible employees are entitled to:
Twelve workweeks of leave in a 12-month period for:
The birth of a child and to care for the newborn child within one year of birth;
The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
To care for the employee’s spouse, child, or parent who has a serious health condition;
A serious health condition that makes the employee unable to perform the essential functions of his or her job;
Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).
Public Civil Service Employees are entitled to notice of charges and a disciplinary hearing before major discipline may be imposed. The New Jersey Administrative Code sets forth the process by which an appeal from disciplinary action may be appealed. It is as follows:
4A:2-2.8 Appeals to Civil Service Commission
(a) An appeal from a Final Notice of Disciplinary Action must be filed within 20 days of receipt of the Notice by the employee. Receipt of the Notice on a different date by the employee's attorney or union representative shall not affect this appeal period.
(b) If the appointing authority fails to provide the employee with a Final Notice of Disciplinary Action, an appeal may be made directly to the Commission within a reasonable time.
(c) The appeal shall be substantially similar in format to the Major Disciplinary Appeal Form illustrated in the subchapter Appendix, incorporated herein by reference, and the employee shall provide a copy of the appeal to the appointing authority. The employee shall attach to the appeal a copy of the Preliminary Notice of Disciplinary Action and, unless (b) above is applicable, the Final Notice of Disciplinary Action. The appeal shall also include the following information:
The name, title, mailing address and telephone number of the appointing authority representative to whom the notices were provided;
The employee's name, mailing address and telephone number; and
The action that is being appealed.
(d) The employee should also include a statement of the reason(s) for the appeal and the requested relief.
(e) Failure of an employee to provide the information specified in (c) above shall delay processing of the appeal until the required information is provided, may result in a reduced back pay award pursuant to N.J.A.C. 4A:2-2.10(d)4, or may result in dismissal of the appeal after notice of and a reasonable opportunity to provide the missing information.
(f) See N.J.A.C. 4A:2-2.13 for removal appeals by certain law enforcement officers and firefighters.
Public Employees who are not civil service employees are covered generally under New Jersey Statute Title 40A. The particular provision of Title 40A depends on the career of the employee. For instance, a municipal police officer is covered under Title 40A:14-147 through -155; municipal firefighters are covered under Title 40A:14-22.
Employment contracts take many different forms. All employees at a company may be asked to sign the same form contract, or each employee may have a contract with the employer that is applicable just to his or her employment agreement. An employer and an employee may simply have an oral agreement regarding the kind of work the employee will do, for how long, and at what rate of pay. Sometimes there is no written or oral agreement but the behavior of the employer and the employee can be viewed as an implied employment contract.
Most employment contracts have common elements such as the employee's start date, salary, and benefits. Other provisions that often appear in employment contracts are listed here. You can think about what kind of employment contract is agreeable to you before you sign your next employment agreement. Your attorney can advise you about the pros and cons of agreeing to the various provisions or suggest other terms to include.
CONFIDENTIALITY AGREEMENT: An employee confidentiality agreement is a contract or part of a contract in which the employee promises never to share any information about the details of how the employer's business is conducted, or the employer's secret processes, plans, formulas, data, or machinery used, such as the price the company has charged for its products. Usually a confidentiality agreement lasts even after the employee no longer works for the employer.
NONCOMPETITION AGREEMENT: In the noncompetition clause the employee agrees that for a certain amount of time after he or she stops working for the employer, the employee will not become employed by a rival company or any company engaged in a similar type of business, and the employee will not set up a company that will compete with the employer's business or solicit the employer's customers. Usually the noncompetition clause is limited to a particular geographic area.
OWNERSHIP OF INVENTIONS: This provision applies to employees who invent things as part of their jobs. In this part of the contract the employee agrees that anything he or she invents at work, or during a set period of time after termination, becomes the employer's invention, not the employee's own invention. Additionally, employees usually agree to assign their inventions to the employer, cooperate with the employer in getting inventions patented, and keep information about the invention confidential like any other trade secret. In return, sometimes the employer agrees to share with employee-inventors a percentage of the royalties paid for inventions.
BEST EFFORTS: Although it is often just assumed that the employee will work hard for the employer, sometimes employers add a best-efforts provision to the employment contract. It states that the employee promises to work to the best of his or her ability and to be loyal to the employer. Sometimes it also states that the employee specifically agrees to make suggestions and recommendations to the employer that will be of benefit to the company.
EXCLUSIVE EMPLOYMENT: In this provision, the employee promises that as long as he or she works for the company the employee will not work for anyone else in the same or similar type of business. It may also extend to a promise not to be a shareholder or director in a similar business, or even to provide services voluntarily to a similar or competitor business.
NO ADDITIONAL COMPENSATION: The no additional compensation clause states that if the employee becomes an elected director or officer of the company or serves on a company managing committee, the employee will not be entitled to additional compensation for doing that work.
NO AUTHORITY TO CONTRACT: Sometimes this part of the contract is called the "agency" provision. It makes clear that the employer and employee have an employment relationship only, not an agency relationship; the employee has no right to enter into a contract or otherwise obligate the employer, unless the employer gives express written consent to do so.
TERMINATION: A standard part of any employment contract is the termination clause. It states that either party may terminate the employment contract for any reason by giving a certain amount of notice, such as two weeks' notice. It may also give the employer the right to just terminate the contract without notice if the employee violates the contract in any way. Another aspect of the termination clause is a statement that the employer has the right to terminate the contract if the employee becomes permanently disabled because of ill health or physical or mental disability such that the employee can no longer do the job.
ARBITRATION: Arbitration clauses are found in many types of contracts, including employment contracts. In this provision, the parties agree at the onset of the relationship that if they ever have a dispute about any aspect of the employment relationship, they will submit the dispute to arbitration rather than seek resolution by a court of law. It may include details about the arbitration, such as whether the arbitration decision will be binding and how the parties will find an arbitrator when the time comes.
CHOICE OF LAW: Employment laws vary from state to state. Some states have laws that are generally viewed as more favorable or beneficial to employers than employees or vice versa. This part of the contract is an agreement that if the parties ever have a dispute that results in a lawsuit, it will be governed by the laws of a particular state, no matter where it is filed.
Severance pay is money paid by an employer to a departing employee in exchange for the employee’s promise not to sue the employer. Often departing employees are also required to cooperate in the transition. Here are the basic components of a typical severance package:
Money paid by the employer to the departing employee (typically the amount is expressed in weeks or months of salary);
Continuation of benefits provided to the employee for a set period;
A release of all potential claims an employee may have against the employer;
Confidentiality agreement (employee promises not to tell anyone about the terms of severance agreement);
Promise by the employer not to contest the employee’s application for unemployment benefits;
A set end date of employment;
Procedure for handling employment references;
A promise by the employee not to disclose any confidential company information;
Mutual non-disparagement agreement.
Why Should You Sign a Severance Agreement?
People sign severance agreements because they need the money and benefits provided. However it is possible to increase the amount of severance pay by negotiating more favorable terms.
Six Key Points to Consider when Reviewing a Severance Agreement
1. What is the severance pay schedule? Many companies will propose a payout in 30 or 45 days after execution of the agreement. There is no reason to wait that long and companies will often shorten the payout date to 10 or 15 days upon request. Also, companies often propose a payout over time that basically keeps you on the payroll for a period of time. A Lump sum payment is preferable because you get all of the money immediately. Payouts over time can be disrupted if something comes up – avoid these potential issues by getting a fast upfront payout.
2. Are outplacement services offerred? If so, determine if you need those services. Most people do not want them anymore. If you don’t need those services, ask to have the cash equivalent.
3. Are the severance payments subject to a mitigation offset? For example, if you get a new job within a certain time frame, are you required to pay back an amount or have the payments reduced? Obviously you want to avoid any offsets if you find a new job. If an offset clause is included in your agreement, ask to have it removed. Companies usually agree to do this. The point of a severance package is to end the relationship so why create new ties.
Here is a clause that covers mitigation and offsets:
“The Executive is under no obligation to seek other employment and there shall be no offset against any amounts due to her on account of any remuneration or benefits provided by any subsequent employment she may obtain.”
4. Is there any money owed to you that is independent of the severance package? For example, are expense reimbursements owed or a pending bonus? These payments should be recognized in the agreement. If you know that certain expenses are due, run a report and show it to your employer so the amount owing is known and if any questions arise, try to solve them immediately. Also, if an accrued bonus is due, make sure you put up a good fight to get the bonus paid. The bonus is not part of the severance if it has already been earned. Companies often try to exclude bonuses.
Here is a clause that covers any unreimbursed business expenses:
“Within 15 days of the Separation Date, the Company shall pay to the Executive any expense reimbursements due to the Executive as of the Separation Date pursuant to the applicable plan, program or practice of the Company.”
5. Benefit Continuation. If the company has offerred to continue your health insurance, will this be accomplished by continuing the existing insurance plan or by COBRA reimbursement? This should be set forth clearly in the agreement. If the company has not offerred to extend benefits, you should ask them to do so. Ask to have the benefit continuation mirror the severance period (if the severance offer is 4 months ask for 4 months of continuing health insurance).
6. Job Reference. What type of reference will the company provide to you? If they will agree to a letter of reference, have the letter prepared and attach it to the agreement. Or if a letter cannot or will not be prepared, set out the terms of the reference in the agrement as in this sample.
“The Company agrees to supply a neutral reference letter that includes the Executives title, dates of employment, salary and the reason for separation as resignation.”
When are Severance Pay Offers Made?
Companies typically only offer severance pay as part of a termination. Normally, the employee is advised that their employment will be ending and at that time they are provided with a proposed severance or separation agreement. If you are over 40 years old, you will have 21 days to consider the offer and have a 7 day window to revoke your agreement after signing it.
Need help? Call us: 856.751.5505.
WAGE & HOUR
Wage and hour litigation continues to soar to record highs. So says the federal judiciary’s most recent data on cases filed in federal court over the last federal fiscal year. After hitting an all-time high of 8,160 in FY15, the annual wage and hour caseload spiked another 7.6%—to 8,781—in FY16. In federal court, employers are more likely to face wage and hour claims than any other form of employment litigation.
You may be owed overtime, back pay, penalties or interest under New Jersey overtime laws if you:
Work seven days per week, or more than 40 hours per week, or more than eight hours per day;
Have been mis-classified as an "Independent Contractor";
Have been mis-classified as an "Exempt Employee";
Are a computer industry worker or engineer and work more than 40 hours per week;
Are an inside sales professional and work more than 40 hours per week;
Are an hourly professional in any industry and work more than 40 hours per week;
Have unreported or unpaid withholding taxes;
Have not been given accurate check stubs by your employer;
Have no information about withholding taxes on your check stub;
Have not been paid sales commissions;
Have been refused reimbursement for business travel, mileage or lodging expenses;
Were paid in cash;
Work on a piece-meal basis;
Earned tips but they were not paid to you.