New Jersey Employment Lawyer Blog

New Jersey Makes It Harder to Receive Unemployment Benefits

August 20, 2010 | by Jonathan I. Nirenberg

On July 2, 2010, Governor Christopher Christie signed into law an amendment to the New Jersey Unemployment Compensation Act, which makes it more difficult for employees fired for work-related misconduct to receive New Jersey unemployment insurance benefits. Specifically, the amended law creates a new category of disqualification for “severe misconduct.” It also extends the period of disqualification for employees fired for misconduct that was not severe by two weeks, bringing the disqualifiaction up to eight weeks in total. Both changes were originally proposed by Governor Christie but not included in the Senate Bill. The Governor subsequently conditionally vetoed the unemployment insurance Bill unless the Senate accepted his revisions.

The first of these changes is likely to have a substantial impact on employees in New Jersey. Before, employees who were fired from their jobs would be completely disqualified from collecting unemployment benefits only only if they committed a crime connected with the work. Now, a complete disqualification also applies to employees who lost their jobs as a result of:

repeated violations of an employer’s rule or policy;

Court Clarifies When Non-Residents Are Protected Under New York’s Anti-Discrimination Laws

August 10, 2010 | by Jonathan I. Nirenberg

In an article I wrote last May, Employees Working in Other States Can Sue Under New York’s Anti-Discrimination Laws, I discussed Hoffman v. Parade Publications. In that age discrimination case, New York’s mid-level appellate court ruled that the New York City Human Rights Law (NYCHRL) applies to non-residents of NYC if the discriminatory decision was made in NYC. It also ruled that the New York State Human Rights Law (NYSHRL) applies to non-residents of NYC if the discriminatory employment decision was made in New York State. However, last month New York’s highest court, the Court of Appeals, reversed that decision and set a new standard.

The Court of Appeals ruled that for the NYSHRL to apply, the employee bringing the discrimination lawsuit must either be a resident of New York State, or show that the impact of the discrimination was felt within New York State. Likewise, it ruled the NYCHRL applies only if the victim of discrimination is a resident of New York City, or the impact of the discrimination was felt in New York City.

The Court of Appeals did not explain what kind of “impact” is necessary for the NYCHRL or the NYSHRL to apply to a non-resident. Presumably, New York law protects employees who primarily work in New York, no matter where they live. However, the Court of Appeals found Mr. Hoffman, who lived and worked in Georgia, was not protected by the NYSHRL or the NYCHRL even though his boss supervised him, made the decision to fire him, and called to fire him, all from the company’s headquarters in New York City. In other words, the court found those facts were not enough to show the discriminatory employment decision had an “impact” on New York.

Department of Labor Says FMLA Covers Non-Traditional Parents

August 2, 2010 | by Jonathan I. Nirenberg

Among other things, the Family & Medical Leave Act (FMLA) allows covered employees to take off up to 12 weeks from work per year to care a newborn, newly adopted or placed child, or to care for a son or daughter with a serious health condition. However, the FMLA does not indicate whether someone who provides care for a child, but is not the child’s biological or legal parent. Among other situations, this arises in same sex marriage and civil union in which only one person is the child’s legal parent or guardian.

To answer this question, on June 22, 2010 the United States Department of Labor (DOL)’s Deputy Administrator issued a formal interpretation of the term “son or daughter” under the FMLA. The DOL indicated that someone is an employee’s son or daughter if they provide either financial support or day-to-day care for the child.

The DOL reached this conclusion because the FMLA defines “parent” to include someone who acts “in Loco parentis.” Someone acts in Loco parentis if they fill the normal obligations of a parent, but are not the child’s biological or adoptive parent. Someone who acts in Loco parentis is entitled to take an FMLA to take care of the child.

The DOL provided an example that an individual who provides day-to-day care for his or her partner’s child could be considered the child’s parent under the FMLA, even if he or she has no legal or biological relationship to the child. It also indicates that this can be true irrespective of whether the child has a biological parent in their home, or already has both a mother and a father.

Even More Ways to Prove Workplace Discrimination

July 26, 2010 | by Jonathan I. Nirenberg

The Timing of the Employer’s Decision

In some instances, the timing of an employment decision can help prove it was discriminatory. While this most frequently comes up in retaliation cases, it also arises in some types of employment discrimination cases. For example, if your boss starts treating you worse soon after you announce you are pregnant, or fires you when you try to return from a maternity leave, that might help prove gender and pregnancy discrimination. Similarly, if your employer demotes or fires you for no good reason after you request time off because of a medical condition, that could help support a disability discrimination claim.

Documents and Witnesses

Additional Ways to Prove Employment Discrimination

July 19, 2010 | by Jonathan I. Nirenberg

The Employer’s Pattern of Discrimination

In addition to the topics discussed in my previous article, How Do I Prove Employment Discrimination? (discriminatory statements of the employer and evidence the employer’s explanation is false), you also might be able to help prove discrimination by a pattern of discrimination. In other words, you can support your discrimination claim if you can show that your company tends to treat people of your race, gender, age, or other legally protected category worse than other employees.

For example, if the last three employees the company fired were in their 60’s, that could support your age discrimination claim. Or, if the company you worked for had a mass layoff or reduction in force, and a significantly greater percentage of African American or Hispanic employees were laid off than the percentage of African American or Hispanic employees at the company, then that could help prove you were the victim of race discrimination.

How Do I Prove Employment Discrimination?

July 10, 2010 | by Jonathan I. Nirenberg

State and federal employment laws in both New York and New Jersey make it illegal for employers to discriminate against employees because of their age, race, gender, pregnancy, disability, color, national origin, sexual orientation, or veteran/military status. But how do you prove your employer’s actions were discriminatory?

The Employer’s Discriminatory Statements

If the employee who took a discriminatory action toward you made discriminatory comments or jokes, then that can help show the decision to fire, demote, or take another adverse employment action against you was discriminatory. Similarly, if your boss called you or other employees in your protected group discriminatory names, that could help support a claim of discrimination. The closer in time the discriminatory comments were to the adverse employment decision, and the more related they were to the adverse decision, the better.

Nursing Mothers Finally Get a Break

June 28, 2010 | by Jonathan I. Nirenberg

Earlier this year, President Obama signed a law which requires employers to provide reasonable break time for nursing mothers. This new employment law right is part of the Patient Protection and Affordable Care Act. It amends the Fair Labor Standards Act of 1938 (FLSA), a federal law which requires employers to pay minimum wage to most employees, and overtime pay to most employees who work more than 40 hours per week.

The new law requires companies to give nursing mothers breaks each time the employee needs to express milk. It applies for up to one year after the birth of a child. However, employers are not required to pay employees during these breaks.

Employers also must give nursing mothers a place that is hidden from view and free from intrusion from other employees or the public. The law specifically says that the place cannot be a bathroom.

Supreme Court Clarifies Filing Deadline for Disparate Impact Cases

June 1, 2010 | by Jonathan I. Nirenberg

What is a Disparate Impact Case?

On May 24, 2010, the United States Supreme Court decided another employment law case. Specifically, in Lewis v. City of Chicago, the Supreme Court clarified how to determine if an employee has met the filing deadline to bring a “disparate impact” discrimination case under federal law.

A disparate impact case is one in which an employee claims the employer’s policy has an unequal negative impact based on an unlawful reason. Unlawful factors include race, national origin, gender, age, pregnancy or disability among others.

For example, an employer might use a test to decide which employees it hires or promotes. Even if the employer has no intent to discriminate, the test might disproportionately select fewer employees in a legally protected group. For example, if a significantly lower percentage of African-American or Hispanic job candidates are hired or promoted based on the test results, then the test might be considered to have a disparate impact based on race. A job criteria that has a disparate impact based on an illegal factor violates the law unless the company can prove it has a “business necessity” for using the criteria.

Side Effects of Medication Can Constitute a Disability under the ADA

May 14, 2010 | by

In a recent federal employment law decision, the Third Circuit Court of Appeals ruled that side effects of medication or other medical treatment can constitute an impairment within the meaning of the Americans with Disabilities Act (ADA). The ADA is a federal law which prohibits employers from discriminating against employees because they are disabled.

To be protected by the ADA, an employee must prove he has a disability, as defined by the statute. Usually, an employee proves he is disabled by showing that his disability substantially limits his ability to perform a major life activity. Major life activities include caring for yourself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

In Sulima v. Tobyhanna Army Depot, the Third Circuit ruled that employees can also prove they are disabled by showing that the effects of their medication or other medical treatment substantially impair a major life activity.

What to Consider Before Accepting a Severance Agreement

May 13, 2010 | by Jonathan I. Nirenberg

Many companies offer severance pay to certain employees who they have laid off, downsized, or fired. For example, some companies pay severance to employees who lose their jobs as part of a mass layoff or other reductions in force. Severance is often based on one or two weeks of pay for each year you worked for the company, but the way severance pay is calculated can vary greatly from one job to the next.

Severance pay can help soften the blow of losing your job. However, most severance agreements require you to sign away important legal rights. As a result, it is very important to make sure you understand all of the terms of your severance offer before you agree to it.

In New York and New Jersey, there is no legal obligation for companies to pay any severance to employees. However, if a company has a severance policy, it must follow it. Similarly, if you have entered into an employment contract which entitles you to severance, then your employer must comply with your contract.