New Jersey Employment Lawyer Blog

New Jersey Supreme Court Clarifies Sexual Harassment Standard: Repeatedly Asking For Dates is Not Sexual Harassment

October 10, 2008 | by Jonathan I. Nirenberg

On August 4, 2008, the New Jersey Supreme Court ruled that repeatedly asking a woman out on a date, even when she repeatedly declines the invitations, does not constitute unlawful sexual harassment. More specifically, New Jersey’s highest Court ruled the harassment alleged was not severe or frequent enough to be legally actionable.

The case, Godfrey v. Princeton Theological Seminary, involved Beth Godfrey and Jennifer Kile, two graduate students in their mid twenties, who were repeatedly asked out on dates by William Miller, a tenant of the Seminary who was in his upper sixties. Godrey and Kile sued the Princeton Theological Seminary for permitting a sexually hostile environment.

Since Godfrey and Kile were not employees of the Seminary, they sued under a section of the New Jersey Law Against Discrimination that states that “[a]ll persons shall have the opportunity . . . to obtain all the accommodations, advantages . . . and privileges of any place of public accommodation. . . without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex , gender identity or expression.” Among other things, that section prohibits sexual harassment in many public places. Godfrey and Kile also sued under Title IX of the Education Amendments of 1972, and for breach of contract.

What You Should Bring to Your Initial Consultation With an Employment Lawyer

October 10, 2008 | by Jonathan I. Nirenberg

If you have experienced workplace discrimination, harassment, or retaliation, a breach of your contract, or another violation of your employment law rights, you might want to meet with an experienced employment lawyer to discuss your employment law rights. But what should you bring to your initial consultation with an employment lawyer? The answer varies depending on the type of case you have. For example, someone with a case would probably want to bring different documents to the meeting than someone who is looking to enhance a severance offer. The following are some of the most important documents a client might want to bring to the first meeting with an employment lawyer.

Chronology or Timeline

In most cases, it is helpful to prepare a chronology or timeline of the relevant events for your employment lawyer. Generally, the chronology should be brief — in most instances between 1 and 3 pages. It should list the most important events relating to your employment issue, and identify the names and job titles of the people involved in those events. When possible, the chronology should provide the dates of the key events, and ideally should be in chronological order.

When Can A Private Company Require Random Drug Testing in New Jersey?

October 2, 2008 | by Jonathan I. Nirenberg

From the standpoint of employees, random drug testing policies can be invasive, offensive, and a violation of their right to privacy. For example, drug testing can reveal information about an employee’s medical condition or prescribed medication, even when the employer has no legitimate right to that information. In contrast, from the standpoint of a private company, random drug testing can be an effective tool to limit workplace accidents, theft, and poor job performance.

Given those competing interests, when determining whether a private company’s random drug testing policy is an impermissible invasion of privacy, New Jersey law requires a balance between the employee’s privacy interests against the public interest being advanced by the employer. In New Jersey, an employee who is fired for refusing to participate in a private company’s random drug testing program may have a legal claim for wrongful discharge in violation of public policy if the employee was fired for refusing to submit to random drug testing and the employee’s privacy interest outweighs the public interest in favor of the testing.

Determining if the public interest outweighs the right to privacy for a particular random drug testing program is a difficult question. To make that determination, a court has to balance the employee’s right to privacy with employer’s reason for testing. For example, the New Jersey Supreme Court has found that if an employee’s duties are “so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large, then the employer must prevail.” Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). Some of the factors used to determine the public policy interest in favor of testing include whether there is any evidence of drug use by employees, the potential dangers of the employee’s job, how long the drug testing program has been in place, and whether the employer can effectively detect drugs without testing, such as by having supervisor observe employee behavior.

President Signs Law Expanding Scope of Americans With Disabilities Act

September 25, 2008 | by Jonathan I. Nirenberg

Today, President George W. Bush signed the ADA Amendments Act of 2008 into law. As previously discussed, the Act restores the original intent of the Americans with Disabilities Act of 1990 (the ADA), and is intended to increase protection for disabled employees from discrimination. Among other things, it substantially expands the definition of disability and greatly increases the number of disabled individuals who are protected against discrimination in employment and places of public accommodation. The ADA Amendments Act will go into effect on January 1, 2009.

The United States House of Representatives overwhelmingly approved the ADA Amendments Act of 2008 on June 25, 2008, and the United States Senate unanimously approved a slightly different version of the Act on September 11, 2008. The House of Representatives then approved the Senate’s version of the Act on September 17. Later that day, the White House released the following statement:

The Americans with Disabilities Act of 1990 is instrumental in allowing individuals with disabilities to fully participate in our economy and society, and the Administration supports efforts to enhance its protections. The Administration believes that the ADA Amendments Act of 2008, which has just passed Congress, is a step in that direction, and is encouraged by the improvements made to the bill during the legislative process. The President looks forward to signing the ADAAA into law.

Senate Passes Amendment to Restore Americans With Disabilities Act to Protect Disabled Employees From Discrimination

September 13, 2008 | by Jonathan I. Nirenberg

On September 11, 2008, the Senate unanimously voted in favor of the ADA Amendments Act of 2008. If it were to become law, the Act would “restore the intent and protections of the Americans with Disabilities Act of 1990” (the ADA) by protecting many more disabled individuals from discrimination. The ADA is a federal employment law that prohibits discrimination against individuals with disabilities, both in the context of employment and places of public accommodation such as restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. However, the ADA has been interpreted so narrowly that the vast majority of cases brought under it are dismissed, primarily because the individuals suing are unable to meet the statute’s definition of”disability.”

As discussed in a previous article, on June 25, 2008 the United States House of Representatives overwhelmingly approved a slightly different version of the ADA Amendments Act, called the ADA Restoration Act. If the House of Representatives approves the Senate’s version of the Act, which seems likely, then the President would need to sign it into law before it would go into effect.

The ADA Amendments Act would reverse many United States Supreme Court cases which have interpreted the ADA narrowly and limited the scope of its protection. For example, it would amend the ADA to make it clear that:

Employee Does Not Always Have to Request Accommodation to Trigger Interactive Process

September 13, 2008 | by Jonathan I. Nirenberg

Employers must Offer Reasonable Accommodations
If it Is Obvious Disabled Employee Needs One

An employer is required to provide a reasonable accommodation for a disabled employee if it is obvious the employee needs a reasonable accommodation to perform the essential functions of his or her job, even if the employee never requested an accommodation or does not think he needs one. That was the ruling reached by the United States Court of Appeals for the Second Circuit on July 2, 2008.

In that case, Brady v. Wal-Mart Stores, Inc<, Patrick S. Brady sued Wal-Mart and two of his supervisors under the Americans with Disabilities Act (“ADA&”), 42 U.S.C. 12101 et seq., and the New York Human Rights Law, N.Y. Exec. Law 290, et seq.

Employee Rights Laws Part 4: Overview of New York Employment Law Statutes

September 7, 2008 | by Jonathan I. Nirenberg

Employee Rights Laws
Part 4: Overview of New York Employment Law Statutes

In most states, including New York, unless you have a written employment contract, are a member of a labor union, or are a civil service employee, you are probably an employee at will. Employment at will is the general principal that your company can fire you for any reason, or even for no reason at all. It also means you can quit your job for any reason.

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the fourth and final part of a four part series, looks at employee rights under New York State and New York City law. The first part of the series discusses some of the most important federal anti-discrimination laws. The second part describes many other important federal employment laws. Part three addresses many important exceptions to employment at will under New Jersey law.

Employee Rights Laws Part 3: Overview of New Jersey Employment Law Statutes

September 1, 2008 | by Jonathan I. Nirenberg

Employee Rights Laws Part 3: Overview of New Jersey Employment Law Statutes

In most states, unless you have a written employment contract, are a member of a labor union, or are a civil service employee, you are probably an employee at will. Employment at will is the general principal that your company can fire you for any reason, or even for no reason at all. It also means you can quit your job for any reason.

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the third part of a four part series, discusses some of the most important exceptions to employment at will under New Jersey. The first part of the series discusses some of the most important federal anti-discrimination laws. The second part describes many other important federal “wrongful termination” laws. Part four reviews employee rights under New York State and New York City law.

Employee Rights Laws Part 2: Overview of Other Federal “Wrongful Termination” Employment Laws

August 24, 2008 | by Jonathan I. Nirenberg

Employee Rights Laws Part 2: Overview of Other Federal “Wrongful Termination” Employment Laws

In most states, including New York and New Jersey, unless you have a written employment contract, are a member of a labor union, or are a civil service employee, you are probably an employee at will. Employment at will is the general principal that your company can fire you for any reason, or even for no reason at all. It also means you can quit your job for any reason.

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the second part of a four part series, discusses many other important federal wrongful termination” laws. The first part of the series discusses some of the most important federal anti-discrimination laws. Part three addresses some of the most important exceptions to employment at will under New Jersey law. Part four reviews employee rights laws under New York State and New York City law.

Employee Rights Laws Part 1: Overview of Federal Anti-Discrimination Employment Laws

August 17, 2008 | by Jonathan I. Nirenberg

Employee Rights Laws Part 1: Overview of Federal Anti-Discrimination Employment Laws

In most states, including New York and New Jersey, unless you have a written employment contract, are a member of a labor union, or are a civil service employee, you are probably an employee at will. Employment at will is the general principal that your company can fire you for any reason, or even for no reason at all. It also means you can quit your job for any reason.

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the first part of a four part series, discusses some of the most important federal anti-discrimination laws. The second part describes many other important federal “wrongful termination” laws. Part three addresses some of the most important exceptions to employment at will under New Jersey law. Part four reviews employee rights laws under New York State and New York City law.

Federal Anti-Discrimination Employment Laws

The following is an overview of some of the most important federal anti-discrimination laws. This is not intended to be a comprehensive list of all federal laws prohibiting discrimination in employment. It is also important to understand that not every federal employment law applies to every employee. If you believe your employment law rights have been violated, you should contact a knowledgeable, dedicated and experienced employment lawyer.

Age Discrimination in Employment Act of 1967 (ADEA)

Protects employees who are at least 40 years old from age discrimination.

Prohibits employers from harassing employees who are 40 years old or older because of their age.

Makes it unlawful to retaliate against individuals who object to age discrimination.

Americans with Disabilities Act of 1990 (ADA)

Prohibits employers from discriminating against employees who are disabled, perceived to be disabled, or have a record of a disability.

Requires employers to provide reasonable accommodations to allow disabled employees to perform the essential functions of their jobs.

Protects individuals who complain aboutdisability discrimination or who request a reasonable accommodation for a disability, by prohibiting retaliation.

Equal Pay Act of 1963 (EPA)

Prohibits employers from discriminating between men and women in terms of salary and other wages if they hold the same job under similar working conditions.

False Claims Act of 1986 (FCA)

Allows individuals to file whistleblower actions (called qui tam actions) against individuals who defrauded the federal government, including health care fraud, fraud by defense contractors, and fraud in other federal spending programs.

Permits some whistleblowers who bring successful claims under the False Claims Act to receive a portion of any damages recovered.

Genetic Information Non-Discrimination Act of 2008 (GINA)

Prohibits employment discrimination on the basis of genetic information. Additional information about GINA is available in a previous article.

Occupational Safety & Health Act of 1970 (OSHA)

Requires employers to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.

Makes it unlawful for employers to fire or otherwise discriminate against employees who file complaints, testify, or exercise other right under OSHA.

Older Workers Benefit Protection Act of 1990 (OWBPA)

Prohibits companies from denying employee benefits to older employees because of their age, with limited exceptions.

Adds numerous requirements before a settlement of an age discrimination claim to be enforceable under the ADEA, such as requirements that the employee is:
1. Provided the ages of employees who were laid off and retained in a reduction in force;
2. Provided at least 21 days to review the agreement (45 days in the case of a mass layoff);
3. Given at least 7 days to revoke the agreement after signing it; and
4. Advised to consult a lawyer before accepting a severance offer that contains a waiver of rights.

Pregnancy Discrimination Act (PDA)

Prohibits discrimination on the basis of pregnancy, childbirth and related medical conditions, as forms of unlawful.

Section 1981 of the Civil Rights Act of 1866 (Section 1981)

Prohibits discrimination due to race or ethnicity in the making, performance, modification, and termination of contacts, including employment contracts, or with respect to the benefits, privileges, terms, and condition of a contractual relationship.

Title VII of the Civil Rights Act of 1964 (Title VII)

Prohibits discrimination on the basis of race, sex (gender) color, national origin, and religion.

Makes it illegal for an employer to harass an employee due to race, sex (gender) color, national origin, or religion, including prohibiting sexual harassment.

Protects individuals who make complaints of discrimination or harassment based on race, sex (gender) color, national origin, and religion, by prohibiting retaliation.

Uniformed Service Employment and Reemployment Rights Act of 1994 (URESSA)

Prohibits employers from discriminating against an employee because of his or her service in the Armed Forces Reserve, the National Guard, or other uniformed services.

Entitles veterans, reservists, National Guard members, and other members of the uniformed services to return to their jobs in the private sector after an absence for military service or training.

Worker Adjustment and Retraining Notification Act of 1994 (WARN Act)

Requires most companies with 100 or more employees to provide at least 60 days advance notice of a mass layoff or plant closing.