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EMPLOYMENT LAW A Year in Review - 2019 Edition

EMPLOYMENT LAW - YEAR IN REVIEW

PORZIO, BROMBERG & NEWMAN, P.C.

Discrimination • New Jersey Invalidates Non-Disclosure Provisions In Discrimination, Harassment, and Retaliation Settlements, and Prohibits Preemptive Waiver of Statutory Rights • “Trenton Makes, The World Takes:” Implications of the Court’s Recent Application of NJLAD to Out-of-State Employees • Appellate Division Confirms that “Magic Words” Are Not Necessary For Law Against Discrimination Claims • The Appellate Division Gives Employers a “Fat” Chance • Why New Jersey’s Reverse Age Discrimination Standard Creates Difficulties for Both Employers and Employees

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Work Place Accommodations • New Jersey Becomes More Accommodating For Discrimination Suits Based on Failure to Accommodate Disability • Third Circuit Provides Guidance on When a Request for a Religious Accommodation Can Be Denied • Fat-Shaming in the Workplace: It’s Not Nice, But is it Unlawful? • Employers May Have To Accommodate Off-Duty Medical Marijuana Use • Parental Leave Policies: Getting Yours Just Right

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Wage & Hour • Minimum Wage in New Jersey Expected to Increase Beginning July 2019 • Equal Pay For Equal Work? Employers Need To Prepare For New Jersey’s Equal Pay Act • New Jersey Employers May Not Inquire About Salary History

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Work Place Issues • I Hear You Knocking . . . But You (OSHA) Can’t Come In! • For Whom, What, and Where the Whistle Blows: Exploring the Impact of Gaughan v. Deptford on the Scope of N.J.S.A. 34:19-3(c)

Author Profiles

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New Jersey Invalidates Non-Disclosure Provisions In Discrimination, Harassment, and Retaliation Settlements, and Prohibits Preemptive Waiver of Statutory Rights Employment Law Monthly - March 2019 Authored by Kathryn K. Forman As of March 18, 2019, employers covered by New Jersey law can no longer enforce employment contracts or settlement agreements that conceal the details of alleged claims of discrimination, harassment, or retaliation. This change in the law comes as an amendment to the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1, et seq. The amendment, which was brought about by Senate Bill 121, and signed into law by New Jersey Governor Phil Murphy, also renders unenforceable any contractual provision wherein an employee agrees to waive any substantive rights relating to claims of discrimination, retaliation, or harassment, including any prospective waiver of rights under NJLAD, or any other statute or case law. Employees, on the other hand, still can enforce non-disclosure agreements against employers, but waive their right to do so in the event that the employee “publicly reveals sufficient details of the claim so that the employer is reasonably identifiable.” Any settlement agreement resolving a claim of discrimination, retaliation, or harassment must contain a bold, prominently placed notice setting forth the employee’s right to enforcement as well as this limitation. Employers are prohibited from retaliating against an employee who refuses to enter into an agreement that would be unenforceable under the new law, and an employer who attempts to enforce such an agreement against an employee must pay the employee’s reasonable counsel fees and costs. Notably, the Legislature specifically carves out certain exceptions, expressly stating that the law does not apply to the terms of collective bargaining agreements, non-compete agreements, and non-disclosure agreements that prohibit only the disclosure of proprietary information, which is limited to include only “non-public trade secrets, business plan and customer information.” Consistent with NJLAD, the new law contains a two-year statute of limitations and awards counsel fees to a prevailing plaintiff who claims to be aggrieved by a violation of the law. The amendment diverges from NJLAD’s other employment law provisions where it entitles aggrieved employees to common law tort remedies rather than statutorily recognized emotional distress damages. The law takes effect immediately and applies to “all contracts and agreements entered into, renewed, modified, or amended on or after the effective date.” The general prohibition on waiver of statutory rights does not mark a new direction for New Jersey anti-discrimination law. Employee agreements to shorten statutes of limitations, for example, have been unenforceable in New Jersey since 2016. See Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 343 (2016). Additionally, nondisclosure provisions in settlement agreements resolving discrimination, harassment, and retaliation claims long have been prohibited in matters involving public entities. The greatest impact of the new law likely will be felt by private employers who previously have been able to negotiate for the discretion of former employees in severance and settlement agreements, and 2019 EDITION

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by employees who otherwise might have sought to offer their silence as a bargaining chip. However, private employers are not left without incentive to settle cases, as fee-shifting provisions in NJLAD, Title VII, the New Jersey Conscientious Protection Act (NJCEPA) and related legislation likely are to continue to encourage dispute resolution. It is unclear whether the amendment will be held to invalidate jury waivers, class action waivers, or arbitration agreements. While the Amendment’s broad language can be read to support a conclusion that such provisions now will be unenforceable, precedent in New Jersey and federal courts discourages such an interpretation. In 2017, the United States Supreme Court overturned a ruling of the Kentucky Supreme Court, holding that the Federal Arbitration Act preempts state-level actions that treat arbitration agreements less favorably than other contracts. See Kindred Nursing Centers, L.P. v. Clark, 137 S.Ct. 1421 (2017). Additionally, prior decisions from the New Jersey Supreme Court and the District of New Jersey have distinguished arbitration agreements from other substantive rights addressed in the new law. For example, in Rodriguez, supra, the New Jersey Supreme Court distinguished arbitration agreements from agreements to limit the statute of limitations on employment discrimination claims, stating, “[T]he employment application at issue in [Martindale v. Sandvik, Inc., 173 N.J. 76 (2002)] did not restrict the rights of employees to bring claims; it merely utilized an arbitration clause to agree in which forum to bring them.” Rodriguez, 225 N.J. at 367 (2016). The United States District Court for the District of New Jersey since has declined to interpret Rodriguez as a per se bar to arbitration agreements in NJLAD cases. See Allen v. Bloomingdales, Inc., 225 F. Supp. 3d 254, 260-261 (D. N.J. 2016). Although the new law does not expressly apply retroactively, employers should take care to note that its mandate will be triggered by any contractual modification. Employers, therefore, would be wise to review existing contracts for compliance, and should engage legal counsel with specific knowledge of state and federal antidiscrimination, anti-harassment, and anti-retaliation laws to review any agreements that limit the rights of employees in any substantive way. This would include severance agreements. Employers who find themselves litigating claims arising under those laws also are encouraged to be informed about the limitation on their rights to enforce non-disclosure agreements prior to commencing settlement negotiations.

“Trenton Makes, The World Takes:” Implications of the Court’s Recent Application of NJLAD to Out-of-State Employees Employment Law Monthly – September 2019 Authored by Kathryn K. Forman In June of this year, the Appellate Division of the New Jersey Superior Court extended the protections of the New Jersey Law Against Discrimination (NJLAD) to an employee who lived and worked in Illinois, for a subsidiary of a New Jersey company, and who applied for another position in New Jersey. In the recent case of Calabotta v. Phibro Animal Health Corporation, the court appears to have created a bright-line rule that NJLAD governs a job candidate’s application to a position located in New Jersey, regardless of where the applicant resides. Calabotta v. Phibro Animal Health Corp., ___ N.J. Super. ___, No. A-1576-17T3, (N.J. Super. Ct. App. Div. Jun. 27, 2019). However, the decision seems to require a fact-sensitive approach in other circumstances. In Calabotta, the plaintiff alleged that the defendant failed to promote him, and later wrongfully terminated him, on the basis of his association with his terminally ill wife. The promotion Plaintiff sought was a position with the employer’s parent company in New Jersey. In his complaint, the plaintiff alleged that the failure to promote violated the NJLAD’s protection against associational

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discrimination, which does not have an Illinois counterpart. The Appellate Division analyzed the facts of the case under the choice-of-law factors set forth in the Restatement (Second) of Conflict of Laws (Am. Law Inst. 1971). Ultimately, the court held that NJLAD applied to the Plaintiff’s failure to promote claim. In so holding, the court emphasized that the position allegedly sought by the employee was located in New Jersey and opined, “If a job vacancy is in New Jersey, it would be unwieldy for an employer to have each applicant’s quest for the position individually governed by the law of the state or country in which he presently happens to live.” The court distinguished this holding from its decision in the case of Buccilli v. Timby, Brown & Timby, where an employee who lived in New Jersey and worked in Pennsylvania attempted to claim other protections of NJLAD, solely on the basis of her residence in New Jersey. Buccilli v. Timby, Brown & Timby, 283 N.J. Super. 6 (App. Div. 1995). Notwithstanding its decision concerning the failure to promote claim, the Appellate Division remanded the wrongful termination claim to the trial court. The court was not prepared to create a bright-line rule for termination claims under the NJLAD, as it did for failure to promote claims. Instead, it remanded the case for further development of critical facts, including “the locations of the persons within the company who took part in the decision to terminate plaintiff; the sole or dominant place, if any, that the decision was made; and the locations of Plaintiff’s conduct that precipitated his discharge.” Many New Jersey-based companies employ workers all over the country, so it is critical to understand where the limitations lie with respect to NJLAD’s geographical reach. As the law stands following Calabotta, employers located in New Jersey must comply with NJLAD as it relates to applications for New Jersey positions. However, the law is more nuanced in the absence of such a connection.

Takeaway New Jersey-based employers making employment decisions that may implicate protections of NJLAD and impact employees who live and work outside the state should confer with legal counsel to analyze what, if any, connections to New Jersey might affect the outcome of a choice-of-law analysis, and might require the employer to ensure compliance with New Jersey law, irrespective of the employee’s location.

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Appellate Division Confirms that “Magic Words” Are Not Necessary For Law Against Discrimination Claims Employment Law Monthly – November 2019 Authored by: Thomas J. Reilly In the recent case of Mallon v. Hudson Savings Bank, No. A-4438-16T1 (App. Div. July 23, 2019), the Appellate Division reaffirmed the principle that no “magic words” are necessary for an employee to invoke the protections of the New Jersey Law Against Discrimination (“NJLAD”). The plaintiff began working for the defendant bank in 1975. After multiple promotions, she attained the position of First Vice President in 2004. Over the ensuing years, the plaintiff sought further promotions and believed that a “glass ceiling” kept her from rising any higher in the ranks. After an ethics complaint was lodged against her in 2011, the bank’s management transferred the plaintiff to the human resources department and reduced her management responsibilities. The plaintiff maintained her title and salary. After her change in position, the plaintiff sent a memo to several of the bank’s executives in which she stated that she considered the change in position to be a “punishment” and a “demotion” made in response to her continuous requests for a promotion. The executives believed the memo did not constitute a valid complaint of discrimination and therefore did not require an investigation. The bank’s chief operating officer responded to the letter stating that the plaintiff’s claims were “spurious.” Thereafter, the bank discovered further evidence that the plaintiff had engaged in various improper practices. Plaintiff then had a contentious meeting with the bank’s head of human resources, at which she was accused of engaging in improper conduct. She, in turn, accused the bank of discriminating against her, and the head of human resources allegedly responded by laughing at the allegation. The bank later fired her, citing multiple violations of its policies. The bank never investigated her complaints of discrimination. The plaintiff later sued for gender and age discrimination and retaliation under the NJLAD. After a jury trial, the plaintiff was awarded nearly $1 million in damages. The bank appealed on multiple issues. Among the bank’s chief arguments was that the plaintiff had not engaged in “protected conduct” under the NJLAD and therefore, could not prevail on her retaliation claim. To prove a claim of retaliation, a plaintiff must establish: (1) he or she engaged in a protected activity known to the employer, such as making a good faith complaint of unlawful discrimination; (2) an adverse employment action; and (3)

causation. Carmona v. Resorts Int’l Hotel, Inc., 189 N.J. 354, 372-73 (2007). In essence, the bank argued that the plaintiff’s complaints were general claims of unfair treatment rather than actual claims of discrimination and that the claims were contrived in response to the 2011 ethics complaint. The Appellate Division disagreed, explaining that “there are no magic words for expressing a complaint of discrimination,” and that it was clear from the bank executive’s conduct and from internal documents that the executives understood her complaints to be complaints of discrimination. In reaching that conclusion, the court noted that “our case law cautions against a narrow reading of the LAD’s protections.” Moreover, the court determined there was sufficient evidence in the record to uphold the jury’s verdict that the plaintiff’s complaint was made in good faith and not as a response to the allegations of improper conduct made against her. This case makes clear that employers must take seriously and investigate an employee’s claims of improper treatment, even where the employee in question does not specifically allege -- or the employer does not believe the claim entails -- a form of discrimination, and even where the employee in question has struggled with performance or other issues. The bank here introduced compelling evidence that the plaintiff was a problematic employee with a history of troubling conduct and that any adverse action taken against her was due to that troubling history. However, the jury perhaps was not as easily swayed as it might have been because the bank did not take the plaintiff’s complaints seriously, never investigated the complaints, and engaged in a contentious course of conduct with the plaintiff.

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The Appellate Division Gives Employers a “Fat” Chance Employment Law Monthly - April 2019 Authored by Janelle Edwards-Stewart The Appellate Division has drawn a line in the sand. Obesity, on its own, is not a disability protected under the New Jersey Law Against Discrimination (“LAD”).

Background Defendants, Community Bus Lines et al. (“Community”), hired Plaintiff in 2005. Plaintiff then worked for Defendants as a bus driver for the ensuing 10 years. During that time, Plaintiff weighed between 500 and 600 pounds. His position required him to maintain a valid Commercial Driver’s License (“CDL”), which in turn required passage of a medical examination and attainment of a medical certification card every two years, in accordance with Department of Transportation (“DOT”) mandates. Since the start of his employment with Defendants, Plaintiff passed his medical exams routinely. Plaintiff also demonstrated solid work performance, even earning several accolades from his supervisors. Plaintiff’s lateral colleagues appeared to regard him favorably as well. They did, however, make disparaging comments to Plaintiff about his weight. They referred to him as “fat,” said he “must weigh a thousand pounds,” and described him being “as big as a bus.” For his part, Plaintiff teased his colleagues as well, and he referred to himself in a similar manner, calling himself “fat boy” when among his peers and “fat” on his Facebook page to which the colleagues he had “friended” had access. Plaintiff later claimed to have complained to his supervisors about his colleagues’ remarks. However, he had no record of any such complaints and instead reported that he regarded his colleagues as friends. In April 2015, a doctor and DOT medical examiner examined Plaintiff based on the DOT’s standards and the criteria provided by the Motor Carrier Safety Administration. The examiner found, among other things, that Plaintiff was unable to bend over to take off his shoes and had “a massive pedal edema and venous stasis.” The examiner disqualified Plaintiff temporarily from driving a bus pending further testing. The examiner, who was not Plaintiff’s primary care physician, did not assess Plaintiff for a disability, determine whether Plaintiff was disabled, or write Plaintiff a prescription for the recommended testing. Plaintiff did not elect to pursue the testing, despite having health insurance. Consequently, his supervisors deemed him “out of service,” pending his receipt of the requisite testing and a medical certification card. Plaintiffs’ supervisors then sent him for a second opinion with a board-certified physician in preventative medicine. This second physician affirmed the DOT examiner’s findings and confirmed that further testing was needed. The second physician also noted swelling in Plaintiff’s legs and advised that it could be an indicator of heart disease. The second physician further noted that Plaintiff’s weight might aggravate health conditions, such as sleep apnea. This second physician, who also was not Plaintiff’s primary care physician, did not assess Plaintiff for a disability, determine whether Plaintiff was disabled, or write Plaintiff a prescription for the recommended testing. Finally, Plaintiff saw his own physician who confirmed both the DOT examiner’s and the second physician’s recommendations for further testing. Still Plaintiff did not obtain the testing. Rather, he remained on leave from Community. Then he filed a complaint against it in February 2016. Among other things, Plaintiff’s complaint alleged discrimination based upon weight, a failure to provide reasonable accommodations, retaliation, intentional infliction of emotional distress, hostile work environment, constructive discharge, and wrongful termination. In connection with the litigation, Community noticed Plaintiff in July 2017 for an Independent Medical Examination. Plaintiff submitted to same and was diagnosed with obstructive sleep apnea. He suffered a stroke two days later. Then, in April 2018, Plaintiff’s own cardiologist diagnosed him with obstructive sleep apnea, peripheral edema, morbid obesity, chronic congestive heart failure, and myocardial systolic dysfunction among other ailments.

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Defendants filed a motion for summary decision, and Plaintiff opposed it by claiming that his obesity was a disability under the LAD, and he had been subjected to a hostile work environment due to his weight. As to Plaintiff’s disability claim, the trial court considered, Schiavo v. Marina District Developmental Co., LLC, which found that obesity alone was not a protected class under the LAD. It also considered Viscik v. Fowler Equipment Co., which held that that obesity could only constitute a disability under the LAD if Plaintiff could demonstrate, through expert medical evidence, that the condition was “caused by bodily injury, birth defect[,] or illness,” such as a genetic metabolic condition. While Plaintiff had established his obesity, through expert testimony, he had presented no expert evidence establishing that his obesity was caused by an underlying medical condition. Plaintiff also failed to present evidence that Defendants had perceived him as “disabled.” On the contrary, the evidence showed that Defendants had awarded Plaintiff for his work performance, maintained his regular driving route throughout his tenure, and supported him towards fulfilling his DOT requirements. Plaintiff’s hostile work environment claim was similarly undermined by the record evidence. This claim required Plaintiff to make prima facie showing that [he was] initially protected under [the LAD] and that the “complained - of conduct (1) would not have occurred but for the employee’s [protected class]; and it was (2) severe or pervasive enough to make a (3) reasonable [person] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.” Cutler v. Dorn, 196 N.J. 419, 430 (2008). “Severity and workplace hostility are measured by surrounding circumstances.” Taylor v. Metzger, 152 N.J. 490, 506 (1998).

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Aside from being unable to establish his membership in a protected class, such as a disabled person, Plaintiff’s colleagues’ comments were not taken to support his claims. In reviewing the surrounding circumstances, the trial court noted that although Plaintiff’s colleagues had made hurtful comments, Plaintiff made similar comments about himself to their awareness. Plaintiff’s colleagues’ comments thus did not alter the conditions of Plaintiff’s employment. The trial court granted summary judgement to Defendants on Plaintiff’s LAD and hostile work environment claims. Plaintiff appealed the latter. The Decision The Appellate Division reviewed Plaintiff’s hostile work environment claim de novo. The Court noted that, on appeal, Plaintiff had shifted from arguing that he was protected under the LAD due to a disability to arguing that he was protected under the LAD because his excess weight had caused Defendants to perceive him as having a disability. The Court agreed fully with the trial Court’s assessment. It found that Plaintiff could not show that he suffered from a disability, such as medically induced obesity, under the LAD or that Defendants perceived Plaintiff to have had a disability under the LAD. Additionally, the Court found that Plaintiff’s co-workers’ comments did not subject him to a hostile work environment, since their comments were not severe or pervasive but instead were in line with Plaintiff’s own self-deprecating remarks. The Court thus concluded that the trial court had properly dismissed Plaintiff’s hostile work environment claim.

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Takeaway Obesity alone is not a disability under the LAD. Employers should alert their human resources (“HR”) staff to this outcome. HR staff also should be advised of the implications this decision has for reasonable accommodations under the LAD. While obese employees are not disabled under the LAD, obese employees whose obesity is the result of a medical condition are; so these employees may be entitled to reasonable accommodations. HR staff should be prepared to engage in more searching inquiries with such staff in order to ascertain whether they have a disability recognized under the law.

Why New Jersey’s Reverse Age Discrimination Standard Creates Difficulties for Both Employers and Employees New Jersey Lawyer – October 2019 by David L. Disler and Thomas J. Reilly One of the most significant obstacles facing young professionals is overcoming the perception that they are less capable of performing their job because of their age. It is not uncommon for people to reject medical advice from a young doctor or for employees to ignore directives from younger managers due to the individual’s age. The reason in each of these instances is simple—people equate youth with inexperience and inability. For example, a few months ago the author received a call from a former law school classmate looking for advice. One of her colleagues—a female in her late-20s—had been practicing law for about five years, all at the same firm. An issue arose when her firm hired a first-year associate in her mid-30s (the new associate had spent several years working in another industry before going to law school). After only a few months on the job, the younger attorney felt that the more sophisticated assignments were going to the older, less experienced attorney, mainly because the assigning attorneys felt more comfortable giving these higher-level assignments to an ‘older’ employee. Unfortunately, this employee’s story is not unusual or uncommon. While this may seem unfair, the more pressing question for her was whether it was unlawful.

Federal Age Discrimination Law The federal Age Discrimination in Employment Act (ADEA) prohibits discrimination in employment resulting from an “individual’s age.” However, one caveat of the ADEA is that the individual bringing the lawsuit must be 40 years of age or older. For several years, there was a split among the circuits on whether the ADEA allowed for reverse age discrimination claims from plaintiffs who are under 40 years old.

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The Supreme Court decided the issue by determining that these claims could not be brought. Specifically, in General Dynamics Land Systems, Inc. v. Cline, the employer and labor union entered into a collective bargaining agreement that eliminated the company’s obligation to provide health benefits to retired employees. However, an exception was made for employees who were at least 50 years old when the agreement was signed. These employees were grandfathered into the old provision and were provided health benefits upon their retirement. In response, a group of employees in their 40s claimed the provision violated the ADEA because it discriminated against younger employees. In dismissing their lawsuit and finding that the ADEA does not permit reverse age discrimination claims, the Supreme Court held that the “text, structure, purpose, and history of the ADEA” does not prohibit “an employer from favoring an older employee over a younger one.”

State Age Discrimination Laws Unlike their federal counterpart, a number of states permit reverse discrimination claims. The Court of Appeals of Michigan held that the state’s Civil Rights Act does not limit its protections for age discrimination to older workers. The Michigan court explained that “[i]f an employer disfavors an employee because the employer perceives the employee as being too young, the employer has plainly disfavored that employee on the basis of the employee’s chronological age just as much as if the employer disfavored the employee for being perceived as too old.” Similarly, states such as Maine and New York explicitly protect younger employees by permitting reverse age discrimination claims by statute.

New Jersey Age Discrimination Law New Jersey joined this group when the New Jersey Supreme Court held that a plaintiff can pursue claims of reverse age discrimination under the New Jersey Law Against Discrimination (NJLAD). In Bergen Commercial Bank v. Sisler, Michael Sisler alleged that he wrongfully was terminated because of his employer’s perception that he was too young for the job, in violation of the NJLAD. Sisler was 25 years old when he was hired for a vice president position. Shortly before beginning his employment, he met with his employer’s chairman for lunch. During the lunch meeting, the chairman was “shocked” to learn that Sisler was only 25 years old, and requested that he not share his age with anyone else because it might be “embarrassing.” One week after Sisler began his employment, he had a discussion with the company president and chairman, during which they informed him that his employment was not going to work out and that he might be terminated. Thereafter, he was offered an alternative position, which he rejected. Five months later, with no warning, he was terminated and replaced with an employee in his 30s. The New Jersey Supreme Court found the NJLAD affords protection to any employee who suffers an adverse employment action because of age. The Court found it “entirely consistent” that New Jersey’s Legislature intended the NJLAD to protect all employees within the state, regardless of age. Specifically, the Court noted that unlike the ADEA, the NJLAD’s “prohibition against age discrimination is broad enough to accommodate [a] claim of age discrimination based on youth” because the statute does not contain the “express limitation” of protecting workers over a certain age. Although the Court was willing to open the door to claims of reverse age discrimination, the test it created for making a prima facie case for such claims created a high bar. Specifically, where a plaintiff cannot show direct evidence of causation, the claims must be evaluated under a modified form of the McDonnell Douglas test. The Court explained that under this “heightened” standard, a plaintiff must show: 1) background circumstances supporting the suspicion that the defendant is the unusual employer who discriminates against the majority; 2) that he or she was performing at a level that met the employer’s legitimate expectations; 3) that he or she was nevertheless fired; and 4) that he or she was replaced with a candidate sufficiently older to permit an inference of age discrimination.

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Despite the New Jersey Supreme Court opening the door to claims of reverse age discrimination, such claims are sparse, and case law of any kind on the issue is limited. This is in stark contrast to claims of reverse race and gender discrimination, which are rather common. Why the disparity? In establishing the ‘background circumstances’ prong of its modified test for reverse age discrimination, the Court borrowed from the language used for assessing claims of reverse race and gender discrimination. In proving such background circumstances in reverse gender and race discrimination claims, the plaintiff usually is required to show that he or she was “better qualified for the position than the minority candidate selected or that the defendant had some reason or inclination to discriminate against the majority class.” The Court applied the same test to cases of reverse age discrimination, explaining that while Sisler “need not show that he was replaced by a worker of equal or lesser qualifications,” he could satisfy the burden of proving the first element by showing that “the defendant had some reason or inclination to discriminate” against younger workers.

Conclusion It is logical to assume that use of the same test for reverse age discrimination claims would result in similar numbers of lawsuits as reverse race and gender discrimination claims. However, that is not the case. That fact raises serious questions regarding whether the direct import of the test for reverse gender and race discrimination is appropriate for claims of reverse age discrimination. Although using the same test makes intuitive sense on the surface, and while there are analogues between different forms of reverse discrimination, reverse age discrimination is particularly difficult to prove under the existing reverse discrimination framework. To begin, younger employees are at a distinct disadvantage in the sense that it will be difficult for them to prove they are better qualified than an older candidate, a claim that typically supports a large number of race and gender discrimination suits. Plaintiffs in reverse age discrimination suits are left with the unhelpfully vague task of showing that the employer had “some reason or inclination to discriminate” against younger workers. While this may be demonstrated in reverse race and gender discrimination suits by showing that a particular

race or gender makes up a large portion of the workforce in a particular case, the age range of any particular workforce likely will vary. Also, the animus that typically animates race and gender discrimination is unlikely to appear in reverse age discrimination claims, where employers are more easily able to point to a lack of experience. Another reason for the sparse number of claims relates to the practical implications of bringing such a lawsuit—most notably the impact it will have on the rest of the individual’s career. The anticipated defense in most cases is that the younger employee simply was not as good at performing his or her job. Should that defense become public record, it has the potential to negatively affect the individual’s future job prospects, especially as more employers are running basic internet searches on their potential candidates. In sum, while New Jersey permits claims of reverse age discrimination, the standard for proving such claims imposes a heavy burden on plaintiffs, who may need some form of smoking gun evidence to succeed on their claims. Nevertheless, while the relative lack of reverse discrimination lawsuits may suggest that such claims are uncommon, employers can still be liable for such claims where their conduct displays an animus toward younger employees. As a result, all employment-related decisions should be made based on an individual’s credentials, and should be properly documented so employers can easily defend against such discriminatory allegations. Furthermore, employers discriminating against younger employees run the risk of losing highly qualified employees. Several weeks after providing the above information to the author’s former law school classmate, the author was told that her colleague had decided against filing a lawsuit based on the reasons listed above. Instead, she simply sought employment elsewhere. While her employer may have dodged the significant expense of defending against a lawsuit, it still had to incur the unexpected cost of replacing an individual the company invested five years into training. The lesson is that discrimination, whether intentional or perceived, works hardships on both employers and employees, and this is equally true of legally and factually murky forms of discrimination such as reverse age discrimination. Employers must, therefore, be both diligent and transparent in their policies and procedures to ensure their employees feel that employment decisions are based on objective criteria and merit, and are not at all tied to assumptions about age or other such characteristics. Reprinted with permission from the October 2019 edition of the New Jersey State Bar Association’s New Jersey Lawyer.

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New Jersey Becomes More Accommodating For Discrimination Suits Based on Failure to Accommodate Disability Employment Law Monthly – July 2019 Authored by Vito A. Gagliardi, Jr. Last month, a New Jersey Appellate Court reinstated a dismissed lawsuit brought under the Law Against Discrimination (“LAD”). The case had been dismissed because the plaintiff could not articulate an adverse employment action, which had been perceived as a prerequisite to pursuing such a claim. In stating that such adverse action was not a prerequisite, the appellate court seemed to create new law. Indeed, state and national media outlets boldly proclaimed that was the case. However, on closer examination, very little new ground was broken with this decision. The case at issue is Richter vs. Oakland Board of Education, (Superior Court of New Jersey, Appellate Division, Docket No. A-0102-17T2). Ms. Richter, a teacher who suffered from diabetes, requested the accommodation of an earlier lunch period to avoid a negative effect on her blood sugar level. Her request was denied and, later in the school year, she suffered a hypoglycemic-related seizure in front of her students. She struck her head and face on a table and the floor, became unconscious, and bled extensively. She suffered several serious and permanent injuries and sued the Board of Education and her principal, alleging disability discrimination and violation of the LAD due to an alleged failure to accommodate her medical condition. After discovery, defendants moved for summary judgment, claiming that Ms. Richter failed to establish a prima facie claim of disability discrimination under the LAD, for failure to accommodate her disability because she suffered no adverse employment action.

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Generally, being fired or reassigned is an adverse employment action. Here, there was no such action, and as a result the trial judge found that “even though plaintiff’s injuries were unfortunate, they were not due to defendants’ inactions….” On appeal, the Appellate Division began its analysis with a Supreme Court case issued over ten years ago, Victor v. State, 203 N.J. 383 (2008), where a New Jersey state trooper had requested administrative duties because he claimed a back injury made it difficult for him to wear a required protective vest. While denying Mr. Victor relief on other grounds, the Supreme Court acknowledged that the LAD does not directly answer the question as to whether a disabled plaintiff must prove adverse employment action “because its reasonable accommodation protections are not explicit.” In Victor, the Supreme Court determined there was insufficient proof the state trooper actually sought a reasonable accommodation. Nonetheless, the Court recognized that, under the right set of facts, the LAD might cover a disability discrimination claim for failure to accommodate, absent adverse employment action: Perhaps in those circumstances the employee could demonstrate that the failure to accommodate forced the employee to soldier on without a reasonable accommodation, making the circumstances so unbearable that it would constitute a hostile employment environment. But there also might be circumstances in which such an employee’s proofs, while falling short of that standard, would cry out for a remedy. We cannot foresee all of the factual settings that might confront persons with disabilities and, although hard to envision, we therefore cannot entirely foreclose the possibility of circumstances that would give rise to a claim for failure to accommodate even without an identifiable adverse employment consequence. Given the simple nature of Ms. Richter’s request -- an earlier lunch hour -- and given the severity of her injuries, the Appellate Division clearly found that Ms. Richter’s case was one that “would cry out for a remedy.” However, this is not a retreat from the general rule that a discrimination claim must include some type of identifiable adverse employment action. The holding is specifically limited to failure-to-accommodate claims under the LAD which now require proof a plaintiff (1) qualifies as an individual with a disability or is perceived as having a disability, as defined by statute; (2) is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without reasonable accommodations; and (3) suffered from the defendant’s failure to reasonably accommodate plaintiff’s disabilities. Even the Appellate Division acknowledged that Ms. Richter’s circumstances were “an unusual situation.” In short, the decision in Richter v. Oakland Board of Education did not open the floodgates to discrimination cases of all types being allowed to proceed even if a plaintiff cannot identify an adverse employment action. Instead, this is an unusual situation specifically involving an employee with a disability who sought and did not receive a reasonable accommodation. Prudent employers would be well served to revisit how requests for accommodations are received and assessed. The potential for liability under the state and federal law is vast, but not necessarily more so because of the holding in Richter.

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Third Circuit Provides Guidance on When a Request for a Religious Accommodation Can Be Denied Employment Law Monthly – October 2019 Authored by David L. Disler For employers, denying an employee’s request for a religious accommodation can seem daunting. Stories of costly, drawn-out lawsuits, that resulted in a jury finding for the employee, have caused many employers capitulating to their employees’ requests, regardless of its reasonableness. Fortunately, the United States Third Circuit Court of Appeal’s recent decision in Miller v. Port Auth.1 reminds employers they can prevail on failure to accommodate lawsuits if they follow the proper procedure and provide their employees with reasonable alternative accommodations.

Background Gary Miller worked for the Port Authority of New York and New Jersey as a mechanic at Newark Airport. He followed the Jewish faith, which prevented him from working from sunset on Friday through sunset on Saturday. As an airport mechanic, Miller was part of a 14-person union, labeled the Mechanical Maintenance Unit. Employees in this union were responsible for the operation, maintenance, and repair of utility systems and related equipment at the airport. Due to the nature of the airport and the importance of this position, mechanics had to be on duty all hours of the week. As part of negotiations, the union and the Port Authority agreed to a 24/7 work schedule to accommodate this requirement. Notably, the four most senior mechanics worked Monday to Friday from 7:00 AM to 3:00 PM. The remaining ten mechanics rotated between these three shifts: “A” Shift: Seven consecutive workdays from 11:00 PM to 7:00 AM, followed by two days off. “B” Shift: Six consecutive workdays from 7:00 AM to 3:00 PM, followed by three days off. “C” Shift: Seven consecutive workdays from 3:00 PM to 11:00 PM, followed by two days off. Since the shifts were negotiated, the Port Authority could not unilaterally change the work schedules. Of particular importance, the parties also negotiated that the mechanics received personal days and vacation days, and that the mechanics could voluntarily swap working days or shifts. As the least senior employee, Miller was part of the three-shift rotation. Unfortunately, certain shifts required that Miller works on Friday evenings or Saturdays. He, therefore, requested a religious accommodation that would allow him to leave work four hours before sunset on Fridays and not commence work any sooner than two hours after sunset on Saturdays. In practice, this meant he would not work the “B” or “C” shifts on Fridays, and none of the three shifts on Saturdays. Since the Port Authority could not unilaterally modify the shift schedule, it would have to pay other employees overtime to meet this request. Upon receiving this request, the department manager discussed this accommodation request with the department supervisor, the employee’s direct supervisor, the Port Authority’s Office of Equal Employment Opportunity, the Human Resources Department, and the Law Departments. Upon consultation with these departments, it was determined that the request should be denied because: (1) the position provided critical functions at the airport that required continuous coverage; (2) there were significant restraints placed on what the Port Authority could offer based on the collective bargaining agreement; (3) the overtime costs in accommodating the request; and (4) the effect on employee morale if other mechanics were required to work additional weekend shifts.

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Following the accommodation being denied, Miller used his personal days when his shift fell on Friday evening or Saturday. However, once he ran out of personal days, Miller did not show up for his shift and refused to use his vacation days. As a result of his failure to show up for his shift, the Port Authority had to pay overtime to another mechanic to cover the shift. This occurred on four more occasions, in which Miller did not use vacation days, nor did he utilize the option of mutual swaps to cover his shifts. Based on his excessive unexcused absences, the Port Authority terminated Miller. Miller sued the Port Authority for failure to provide a reasonable accommodation.

Court’s Decision The Court ruled for the Port Authority, finding it offered Miller a reasonable accommodation. The Court noted that a sufficient reasonable accommodation need not be the “most” reasonable accommodation (in the employee’s view), the accommodation that the employee suggests or prefers, or the one that least burdens the employee. Instead, the accommodation must only be “reasonable.” Here, the Third Circuit determined that the employee’s accommodation package -- that included use of vacation days, the use of personal days, and the ability to voluntarily swap shifts with other mechanics -- was a reasonable accommodation.

Takeaways This case epitomizes the significance of following the appropriate steps when considering an employee’s accommodation request. Of particular importance, the Court found these factors important in ruling in the employer’s favor: 1. Spend Time Determining the Impact of the Request: Before denying the request, the department manager consulted with a vast array of individuals/departments to determine the request’s impact. Specifically, the department manager spoke with: (1) the department’s supervisor, (2) employee’s direct supervisor, (3) the Port Authority’s Office of Equal Employment Opportunity, (4) the Human Resources Department, and (5) the Law Departments. This process demonstrated to the Court that the accommodation request was taken seriously, fully considered, and its impact properly examined. 2. Provide Several Reasons for Denying the Accommodation: Courts traditionally are exceedingly reluctant to find a request unreasonable when the sole reason given is the monetary impact on the employer. Instead, employers are far more likely to prevail against a failure to accommodate claim when several justifications are provided, which include several non-monetary reasons. Here, the Port Authority provided one monetary reason (granting the request would cause greater overtime costs), along with several nonmonetary reasons (which included the constraints imposed by the collective bargaining agreement and the effect on employee morale in forcing employees to take on additional weekend shifts). 3. Provide an Accommodation Package: Employers are not limited to countering an employee’s request with a single accommodation. Instead, employers can provide employees with a package of accommodations or alternative accommodations. In this case, the Port Authority offered to accommodate Miller’s request by allowing him to use vacation days, personal days, or to find another mechanic who would voluntarily swap shifts. The Court made clear that despite Miller wanting to challenge the Port Authority’s “accommodations in isolation, we need not decide whether each accommodation was reasonable in isolation because they were all offered as part of the Port Authority’s attempt to accommodate Miller’s religious practices.” While each accommodation taken individually may have failed the reasonableness standard, taken together the Court found that the Port Authority fulfilled its legal obligation in offering a reasonable accommodation. Miller v. Port Auth. of New York & New Jersey, No. 18-3710, 2019 WL 5095749 (3d Cir. Oct. 11, 2019)18-3710, 2019 WL 5095749 (3d Cir. Oct. 11, 2019)18-3710, 2019 WL 5095749 (3d Cir. Oct. 11, 2019) 1

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Fat-Shaming in the Workplace: It’s Not Nice, But is it Unlawful? New Jersey Lawyer – October 2019 Authored by Melanie D. Lipomanis According to the Centers for Disease Control and Prevention (CDC), approximately 40 percent of American adults are obese, which is defined as having a body mass index (BMI) of 30 or higher. Studies also show the prevalence of obesity is substantially higher among women and in minority populations. No federal legislation protects employees from discrimination due to their excess weight, and only the state of Michigan, along with a sprinkling of local governments, have enacted laws that explicitly prohibit employers from discriminating based on weight. However, the Americans with Disabilities Act (ADA), as amended, and the New Jersey Law Against Discrimination (NJLAD) may protect overweight or obese employees from discrimination in the workplace, in certain circumstances. This article examines those circumstances and the applicable legal standards used in determining whether an overweight employee is a member of a protected class under federal or state law and, thus, afforded protection from discriminatory employment practices.

The Americans with Disabilities Act as Amended With a rise in the prevalence of obesity over the past two decades, there has been a fair amount of litigation involving discrimination claims based on obesity as a disability. The success of those claims turns on whether the plaintiff can establish a prima facie case under the ADA. In order to establish a prima facie case of disability discrimination under the ADA, a plaintiff must demonstrate by a preponderance of evidence that: “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.” As a threshold matter, the ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities,” having “a record of such an impairment,” or “being regarded as having such an impairment.” Major life activities include walking and standing. The disability must “limit[ ] the ability of an individual to perform a major life activity as compared to most people in the general population.” The Equal Employment Opportunity Commission (EEOC) has issued interpretive guidance that provides some physical characteristics, such as weight or obesity, can qualify as disabilities if they are outside of a ‘normal’ range and result from a physiological disorder. The EEOC Compliance Manual has indicated extreme obesity, alone, could meet the definition of a disability under the ADA. Notwithstanding the EEOC’s expansive view, the majority of federal courts to have considered obesity discrimination claims have relied upon the statutory definition of disability and concluded that obesity that does not substantially limit a major life activity may not support a disability claim under the ADA. At least one court, the Eighth Circuit Court of Appeals, however, included the EEOC’s guidance in its consideration. In Morriss v. BNSF Railway Company, the Court specifically held that severe obesity will not qualify as a disability unless it results from an underlying physiological disorder. More commonly, the holdings are similar to those in Lescoe v. Pa. Dep’t of Corr.-SCI Frackville, in which the Third Circuit Court of Appeals considered whether a corrections officer who weighed approximately 300 pounds was disabled within the meaning of the ADA. The plaintiff’s medical records indicated he was morbidly obese, and “his lower back and feet become painful after standing for long periods” as a result of his obesity. The plaintiff claimed he was entitled to sit in a chair while working as a reasonable

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accommodation. The court held the plaintiff “failed to establish by a preponderance of the evidence a prima facie case that he was a qualified individual with a disability under the ADA.” The court so found because the plaintiff “did not establish any major life activities that were adversely affected by his weight,” or “that the limitation on the major life activity is substantial.” The District Court of New Jersey likewise has dismissed ADA claims based on obesity where the plaintiffs’ weight was not shown to substantially limit a major life activity.

The New Jersey Law Against Discrimination The NJLAD has been interpreted so broadly that a large segment of any workforce within the state will fall within one or more of its protected classes. As with the ADA, the protections of this legislation are not afforded to individuals based upon weight alone. However, a claim of obesity discrimination more likely will survive under the NJLAD than its federal counterpart, because the NJLAD definition of ‘handicapped’ does not require the disability to be ‘severe or ‘immutable’ and does not incorporate the requirement that the condition result in a substantial limitation on a major life activity. Instead, a physical disability under the NJLAD must merely prevent the “normal exercise of any bodily or mental function[].”

The NJLAD prohibits an employer from discriminating against an employee due to their disability or a perceived disability. In Clowes v. Terminix Int’l, Inc., the New Jersey Supreme Court refined the federal elements required to state a claim of disability discrimination. To establish a prima facie case of disability discrimination under the NJLAD, a plaintiff must demonstrate “[1] that he was [handicapped], [2] that he was performing his job at a level that met his employer’s legitimate expectations, [3] that he nevertheless was fired, and [4] that [the employer] sought someone to perform the same work after he left.” Thus, similar to ADA claims, the threshold inquiry in a disability discrimination case brought under the NJLAD remains whether the plaintiff can establish that he or she has a condition recognized in the statutory definition of disability. There are two distinct categories of disability: physical and non-physical. When addressing obesity as a possible handicap under the NJLAD, New Jersey courts have applied the physical disability standard. To meet the physical standard, “a plaintiff must prove that he or she is (1) suffering from physical disability, infirmity, malformation or disfigurement (2) which is caused by bodily injury, birth defect or illness including epilepsy.” Where the existence of a handicap is not apparent, a plaintiff is required to support his or her claim with expert medical evidence. The first element, whether the plaintiff has a recognized disability, is the dispositive factor of the majority of obesity discrimination cases. As previously noted, obesity alone is not a handicap. The condition must be coupled with some underlying medical causation, such as birth defect or illness, or other recognized disability that prevents a normal bodily or mental function. The following cases are illustrative of how the foregoing framework and tests are applied. The New Jersey Supreme Court first recognized morbid obesity as a handicap under the NJLAD in Viscik v. Fowler Equipment Company. Viscik weighed approximately 400 pounds. She was terminated from her position as a billing clerk after only four days on the job, allegedly due to her inability to move around the office well. There, the court found the plaintiff’s “obesity-based arthritis, heart condition and obstructive lung disease [were] clearly ‘physical infirmities’ under the first prong of the physical handicap test.” With respect to the second prong—that the infirmity be caused by “bodily injury, birth defect or illness”—the plaintiff’s expert testified the plaintiff’s “metabolic condition is genetic, that she suffered from it since birth, and that it is a direct cause of the obesitybased infirmities.” While the Supreme Court remanded the case due to the lower court’s erroneous jury instructions, it agreed with the lower court’s finding the plaintiff had established that her morbid obesity met the definition of a disability under the NJLAD, noting “the term ‘morbid’ means ‘diseased or pathologic.’” And that “‘Morbid obesity’ means ‘obesity sufficient to prevent normal activity.’”

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Recently in Dickson v. Cmty. Bus Lines, Inc., the Appellate Division examined whether a claim of hostile work environment could arise from obesity discrimination based upon a perceived disability. There, the plaintiff worked as a bus driver for 10 years. He was well liked by his coworkers, and he was a good employee who earned recognition awards from his employer. Despite weighing between 500-600 pounds, Dickson passed a medical examination every two years, as was required by the Department of Transportation to maintain his commercial driver’s license (CDL). In April 2015, the physician performing Dickson’s mandated medical examination concluded additional testing was required before he could recertify Dickson to maintain his CDL. The physician referred Dickson to his personal doctor for this additional medical testing. The employer sent the plaintiff for a second opinion with another physician, who reached the same conclusion. Importantly, neither of the certifying physicians diagnosed Dickson with any disability or condition related to his obesity. Dickson did not seek additional medical testing and, instead, filed a complaint alleging, among other counts, hostile work environment based upon a perceived disability due to his obesity. Although the plaintiff was undoubtedly morbidly obese, he proffered no expert medical report or testimony to survive the threshold inquiry of whether he could meet the statutory definition of disability. The Appellate Division found the plaintiff had failed to establish his obesity was caused by “bodily injury, birth defect, or illness, such as a genetic metabolic condition that caused” his obesity. The plaintiff admitted he had never been diagnosed with a medical condition that caused his obesity or taken any medication that could have contributed to the condition. Nor could the plaintiff establish that his coworkers’ jokes and comments regarding his size and weight could be the basis of a hostile work environment claim. While the comments and jokes may have been unkind, they were not severe or pervasive, and Dickson conceded he himself joked about being overweight with his coworkers.

Disparate Impact Employers who refuse to hire or promote overweight individuals may be exposed to race or gender discrimination claims based on a disparate impact theory. As previously noted, the prevalence of obesity is higher among women and minority groups. A disparate impact claim could be made against an employer who, as a matter of practice, does not hire or promote people because they are overweight. This practice may have the unintentional effect of excluding women and minorities from consideration in employment opportunities.

Takeaway In the employment context, discrimination against overweight applicants or employees may not be fair, but it does not necessarily violate state or federal law. As it now stands, employees may not bring weight discrimination claims under NJLAD, unless the obesity is associated in some way with an underlying physical or mental condition that contributes to the obesity, or prevents the normal exercise of any bodily or mental functions. Nonetheless, an employer should not make employment decisions based solely on an employee’s excess weight unless it is clear the employee cannot perform the essential functions of the job, with or without a reasonable accommodation that would not pose an undue burden on the employer. Employers also should not make assumptions concerning an overweight employee’s performance or abilities based upon weight alone. The best practice is to do an individualized analysis of whether the employee is capable of performing the essential job duties. According to the studies, the prevalence of obesity among American adults is not a fleeting problem. Many obese individuals do not have any limiting conditions and, in fact, prove themselves to be highly productive, successful employees when given the opportunity. Employers seeking to obtain diversity in their workforce need to be mindful of their own hidden bias against overweight individuals in their hiring and promotion practices. Employers can discourage so-called ‘fat-shaming’ and other discriminatory behavior in their workforce through education by including the topic in their anti-discrimination and diversity and inclusion training programs. Reprinted with permission from the October 2019 edition of the New Jersey State Bar Association’s New Jersey Lawyer.

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Employers May Have To Accommodate Off-Duty Medical Marijuana Use Employment Law Monthly - May 2019 Authored by David L. Disler New Jersey’s marijuana legislation has been in constant flux throughout the first half of 2019. In February, Governor Murphy and various legislative leaders, including Senate President Steven Sweeney, reached an agreement on the two issues that many believed were preventing the adultuse marijuana bill from becoming law. At that point, many felt legalization was a done deal, leading to such headlines as “At last! N.J. Close to Legalizing Weed as Murphy and Top Democrats Have a Deal.”1 However, just one month later, Senate President Sweeney postponed the legalization vote scheduled to take place in March after it was clear there were not enough votes for it to pass. In May, Senate President Sweeney held a press conference to announce the Legislature was not moving forward with its efforts to pass legalization legislation. Instead, the issue would be decided by the voters during the 2020 election. The new focus would be on legislation that expands the State’s medical marijuana program and expunges existing marijuana convictions. Not to be outdone by the Legislature, New Jersey courts also have been busy attempting to grapple with many issues that have arisen resulting from constant changes to the law. One of the most pressing issues was whether employers had to accommodate an employee’s request to use medical marijuana. The New Jersey Appellate Division recently answered this question by holding that employers must accommodate requests made by medical marijuana users in certain circumstances.

Medical Marijuana New Jersey became the 29th state to decriminalize the use of medical marijuana when it passed the Compassionate Use Medical Marijuana Act (“CUMMA”) in 2010. To qualify for medical marijuana, patients must demonstrate that they have a debilitating medical condition. Examples of qualifying illnesses include epilepsy, cancer, muscular dystrophy, or inflammatory bowel disease. Due to the serious nature of these medical conditions, they also likely fall within the Americans with Disabilities Act’s broad definition of a disability. The question many employers now are facing is how to respond to a request by an employee to use medical marijuana to accommodate an employee’s disability. Unfortunately, case law across the country is inconsistent. While some states have found that an employer has no obligation to accommodate, the recent trend is to require employers to provide an accommodation.

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Reasonable Accommodation The New Jersey Appellate Division recently addressed whether an employer must accommodate an employee’s request for a medical marijuana accommodation in the case Wild v. Carriage Funeral Holdings, Inc.2 Justin Wild was diagnosed with cancer and prescribed medical marijuana. Sometime thereafter, he was involved in a workplace accident (while driving a vehicle he was struck by another car that ran a stop sign). Prior to returning to work, Wild was required to pass a drug test. At that point, Wild disclosed his medical marijuana use to his employer, but claimed he was not under the influence during the accident because he only used marijuana at night. Upon failing the drug test, he was terminated for violating his employer’s drug and alcohol policy. Wild sued. The case was primarily based on claims of disability discrimination and failure to accommodate under the New Jersey Law Against Discrimination. The Appellate Division determined that Wild’s allegations, if true, were sufficient to bring a lawsuit under the New Jersey Law Against Discrimination. To bring such a lawsuit, employees must allege: (1) they have a disability; (2) they can perform the essential functions of the job; and (3) an adverse employment action was taken against them due to their disability. The first two prongs were not overly difficult for Wild to demonstrate in the pleadings stage since he: (1) has cancer, and (2) was able to continue to work as a funeral director. However, the third prong was where the confusion arose, as it involved the Court deciding whether terminating an employee who uses medical marijuana to treat their cancer is appropriate because it violates the company drug policy or inappropriate because it is an adverse employment action based on an individual having cancer. The Court determined that medical marijuana was part of Wild’s cancer treatment and, therefore, terminating him for using his medication was the same as terminating the employee for having cancer. As a result, it found that Wild met his initial burden and could proceed with his lawsuit against his employer for failing to accommodate his disability by not waiving its drug test requirement.

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Of particular importance, however, was that Wild only used medical marijuana outside of the workplace and during non-working hours. The Court made clear that it may have reached a different decision had Wild sought an accommodation for his use of medical marijuana in the workplace.

Takeaway Being under the influence of marijuana at work still is a legally-permissible reason to take adverse employment action against an employee. However, based on Wild2, New Jersey employers should accommodate employees who request to use medical marijuana outside the workplace and during non-working hours, so long as there is no impact on the employee’s ability to perform the essential functions of their job. This may include waiving the requirement that an employee pass a drug test. This does not mean that employers must allow employees to be under the influence during the workday or accommodate a request to use marijuana while at the office. In most (if not all) cases, such requests would be considered to be unreasonable. The other important takeaway is that employers should treat medical marijuana as they would other medications that have impairment as a side effect by engaging with the employee in the interaction process to find a reasonable accommodation satisfactory to both the employer and employee. Keep in mind that under CUMMA, individuals may obtain medical marijuana only if they have a “debilitating medical condition.” An individual who qualifies for medical marijuana under CUMMA likely also has a “disability” under the Americans with Disabilities Act or the New Jersey Law Against Discrimination. As a result, employers who learn an employee utilizes medical marijuana should assume that employee has a disability. When a request for an accommodation is made, employers should engage in the interactive process with these employees to determine whether they can perform essential job functions with reasonable accommodation. As of now, a reasonable accommodation includes permitting employees to use medical marijuana during non-working hours and outside of the workplace, so long as the employee is not impaired when they are working.

At Last! N.J. Close to Legalizing Weed as Murphy and Top Democrats Have a Deal, Advance Media for NJ.com (February 16, 2019) available at https://www.nj.com/ marijuana/2019/02/at-last-nj-close-to-legalizing-weedas-murphy-and-top-democrats-have-a-deal.html. 1

Wild v. Carriage Funeral Holdings, Inc., Docket No. A-3072-17T3 (N.J. App. Div. March 27, 2019). 2

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Parental Leave Policies: Getting Yours Just Right Employment Law Monthly – June 2019 Authored by Melanie D. Lipomanis Background It is unlawful for an employer to discriminate in any employment related action -- including the payment of wages, grant of benefits, or other terms, conditions and privileges of employment -- on the basis of any of the protected classes defined by federal, state and local laws. Those protected classes include race, color, religion, sex -- including sexual orientation, gender identity, and pregnancy, national origin, age, disability, genetic information as referenced in the Genetic Information Nondiscrimination Act, military service veteran status, marital status, or any other protected characteristic. These categories are defined by laws and regulations such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the New Jersey Equal Pay Act, the Age Discrimination in Employment Act of 1967, the Pregnancy Discrimination Act of 1978, the Immigration Reform and Control Act of 1986, the Americans with Disabilities Act as Amended, Executive Order 11246 of 1965, the Family and Medical Leave Act of 1993, the Uniformed Services Employment and Reemployment Rights Act of 1994, and the New Jersey Law Against Discrimination. Paid time off provided by an employer’s policy is a privilege of employment and a form of compensation. Although many working parents in the U.S. do not have access to employer-paid parental leave, according to the Bureau of Labor Statistics, up to one-quarter of medium to large employers currently provide their employees access to some form of paid parental leave for the birth or adoption of a child. While such benefits go a long way in recruiting and retaining employees and promoting work-life balance, problems arise when parental leave policies are applied disparately between biological mothers, fathers, adoptive parents, same sex couples, and other non-parent employees. It is essential that employers review their policies to avoid unintentional and unlawful bias in their application.

Case Examples In May, 2019, JP Morgan agreed to pay 5 million dollars to settle a class action lawsuit arising from allegedly discriminatory application of its parental leave policies. A discrimination claim originally was filed with the Equal Employment Opportunity Commission (“EEOC”) by employee Derek Rotondo who claimed he was denied 16 weeks of paid parental leave offered to “primary caregivers” under JP Morgan’s policies. The policies at issue provided biological mothers up to 16 weeks off as the infants’ presumptive “primary caregivers” but permitted biological fathers only 2 weeks off as presumptive “non-primary caregivers.” The class action was filed on behalf of Rotondo and other similarly situated male employees alleging gender discrimination in violation of Title VII of the Civil Rights Act of 1964, and 19 corresponding state laws. The settlement required JP Morgan to revise its policies to afford male employees equal bonding time, and compensate several thousand male employees to whom the bank had denied paid paternity leave between 2011 and 2017. Similarly, in July 2018 the cosmetics giant Estée Lauder settled a class action lawsuit brought by the EEOC, in the U.S. District Court for the Eastern District of Pennsylvania, for Sex Discrimination based upon nearly identical parental leave policies. In 2013, Estée Lauder implemented a generous new parental leave program that provided new biological mothers paid time off for childbirth recovery, plus an additional six weeks for bonding, and temporary modified flex-schedules upon their return to work to allow them to ease into their responsibilities as a new parent. To be sure, it was an admirable effort on the company’s

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part to assist employees during their transition into parenthood. Like JP Morgan, however, Estée Lauder’s employees who became new fathers only received two weeks paid time off for child bonding purposes, and no flex-schedule upon their return to work. The EEOC alleged that Estée Lauder’s paid parental leave policy unlawfully discriminated against male employees on the basis of gender in violation of Title VII and the Equal Pay Act. Estée Lauder settled that matter by paying $1.1 million to the class and revising its policies to allow all employees equal access to paid time off to bond and care for a child following a birth or adoption. The foregoing cases are based upon employees obtaining gender-neutral access to paid time off for bonding with a child under the employers’ policies. However, employers also may encounter gender discrimination claims based upon the medical recovery provisions of their paid time off parental leave policies. If an employer’s policy provides paid time off for the mothers’ medical recovery from childbirth and/or pregnancy complications, the employer also must provide an equal amount of paid time off to its employees for other, gender-neutral medical conditions. The main concept, here, is that the terms, benefits and other perquisites of employment must be applied equally without more or less favorable application to one group of employees over another based upon a protected class such as gender.

Takeaway Sex-based pay discrimination includes benefits such as paid leave. It is, therefore, essential that parental leave policies be gender-neutral. When reviewing your current parental leave policies, or if you are considering implementing a new one, keep the following factors in mind: 1. Provide male and female employees the same amount of time to bond with their child, or better yet, adopt a non-genderbased parental leave policy applicable to all employees. 2. Ensure the policies clearly distinguish paid time off for the mothers’ medical recuperation from pregnancy and/or child birth complications from time off for the purpose of child bonding. 3. Avoid using facially neutral terminology that implies gender-based stereotype biases such as “primary caregiver” and “secondary caregiver” designations. 4. If your maternity leave provides paid time off for the biological mother’s medical recovery from pregnancy and/or child birth complications, ensure all employees also have access to an equal amount of paid time off for medical recovery from gender-neutral medical conditions.

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Minimum Wage in New Jersey Expected to Increase Beginning July 2019 Employment Law Update – January 2019 Authored by David L. Disler The first step toward the minimum wage increasing to $15 an hour took place last Thursday. A new bill that was introduced and approved by the Assembly Labor Committee would incrementally increase the minimum wage, now at $8.85 an hour, to $15 an hour by 2024. The bill only has a few exceptions for seasonal workers, agricultural workers, tipped employees, and new hires enrolled in a training program. This is the first significant change to the State’s minimum wage since New Jersey voters approved a constitutional amendment in 2013 that increased the minimum wage to $8.25 and indexed the State’s minimum wage rate to the consumer price index. Both the Senate and the Assembly are expected to vote and pass the bill during legislative session on January 31, 2019. “The bill will then head to the Governor’s desk, where we expect Governor Murphy to sign it in the near future, leaving businesses only a few months to accommodate for the increased costs” said Sal Anderton, a member of Porzio Government Affairs. As presently written, the bill establishes the following minimum wage increase: July 1, 2019:

$10.00 per hour

January 1, 2020:

$11 per hour

January 1, 2021:

$12 per hour

January 1, 2022:

$13 per hour

January 1, 2023:

$14 per hour

January 1, 2024:

$15 per hour

Businesses impacted by the changes to the minimum wage rate should immediately begin preparing how to handle the increased labor costs. “Unfortunately, this may include adjustments to staffing levels or a decrease in the benefits provided to their employees.” said David Disler, a member of Porzio’s employment team. “In making these adjustments, employers should document their reasoning in order to avoid potential lawsuits under such laws as the New Jersey Law Against Discrimination or New Jersey’s Equal Pay Act.”

Equal Pay For Equal Work? Employers Need To Prepare For New Jersey’s Equal Pay Act New Jersey Law Journal – March 12, 2019 Authored by Kerri A. Wright and David L. Disler On April 24, 2018, Governor Phil Murphy signed into law what he described as the “most sweeping equal pay legislation in America.” This legislation, known as The Diane B. Allen Equal Pay Act (the “Act”), seeks to eliminate the pay disparity gap. While it is hard to argue with the Act’s good intentions, many unintended consequences are anticipated due to its expansive nature. For this reason, Governor Christie vetoed a similar bill because he recognized that it would “punish as discriminatory, otherwise innocuous conduct.” The most significant consequence is the expected increase in litigation against employers. Notably, under the law, current or former employees may file lawsuits easily, years or even decades after the initial allegedly discriminatory wage-related decisions

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were made. These lawsuits will be difficult to defend and have the potential for significant damages. Thus, New Jersey businesses of all sizes must take steps to prepare themselves, as best they can.

Easy To Bring A Lawsuit The Act was written intentionally to apply broadly and to make it easy to file a claim. Importantly, it applies to all businesses in New Jersey, regardless of size, number of employees, or type of employer, public or private. As an amendment to the New Jersey Law Against Discrimination, the Act prohibits an employer from paying an employee, who is a “member of a protected class,” a lower rate of compensation than an employee who is not a member of the same protected class “for substantially similar work.” To bring a lawsuit, all that is required of an employee is to show: (1) s/he is a member of a protected class; (2) is paid less than an employee who is not a member of the same protected class; and (3) is doing work that is substantially similar to the other employee. Breaking down each requirement further demonstrates the broad nature of the law. Protected Class: The Act is not limited to gender discrimination, but includes every class protected under the Law Against Discrimination. This expansive list includes race, sex, religion, disability, age, sexual orientation, pregnancy, and gender identity (among others). Simply stated, the first prong seemingly always will be met, as employers will be hard-pressed to find an employee who does not fall into one of the many categories of protected classes. Paid Less: The Act does not limit compensation to only salary. “Compensation” includes any benefit an employee receives, such as bonuses, paid time off, expense accounts, or retirement plans. Similar Work: While most have heard of the famous slogan, “equal pay for equal work” used to pass the federal Equal Pay Act, the New Jersey version is far broader. Instead of “equal work,” all that is required is “substantially similar work.” As a result, job titles will not be dispositive. Instead, courts will examine the actual job functions of the employees -- including the skill, effort, and responsibilities of the position -- to determine whether the work they are performing is “substantially similar.”

Difficult to Defend Against A Lawsuit The part of the Act with which most employers seem to struggle the most is that intent and knowledge are irrelevant. It does not matter that a business did not intend to pay an employee less because of the employee’s sex or religion, or that the employer may not even have been aware that the employee was a member of a protected class. Instead, all that matters is that an employee meets the three-part test. Since an extensive number of lawsuits under the Act are expected in the upcoming years, employers must be prepared with a defense. Unfortunately, the Act only permits three defenses: (1) seniority system; (2) merit system; and (3) meeting a five-part test. The Act does not define a seniority system or a merit system. However, the key takeaway is that a structured “system” must be in place, likely in either a company policy or in a union contract. To support a valid defense, the courts likely will require that these systems permit the employer to exercise little (if any) discretion over the salary decisions and must be based on strict guidelines established in the “system” put into place. Since most employers prefer having significant control over their salary decisions, the five-part test likely will be the most viable. Under this test, the employer must demonstrate all of the following: (1) the difference in pay is based on one or more “legitimate bona fide factors” (the law provides a nonexhaustive list that includes training, education, experience, or quantity/quality of production); (2) the factors cannot be based on or perpetuate a differential in compensation based on a characteristic of a protected class; (3) the factors must be applied reasonably; (4) the factors must account for the entire wage differential; and (5) the factors must be related to the job and based on legitimate business necessity. While meeting one factor may seem reasonable, it is difficult to meet all five. For example, the “bona fide factor” given by the employer may be that one employee has a college degree, while another does not. Given our culture’s emphasis on education, in most situations this would seem reasonable.

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However, under this test, the employer has the burden to demonstrate that paying an employee more for having a college degree does not perpetuate a salary differential based on a characteristic of a protected class (which may be difficult considering certain groups historically have been less likely than others to attend college) or that the college degree is sufficiently related to the job. It remains to be seen how courts will grapple with these challenging issues.

Extensive Damages Not surprisingly, the Act greatly expanded the Law Against Discrimination’s statute of limitations from two years to six years for equal pay claims. Even more troubling for employers is that the six-year statute of limitations period restarts every time an employee receives an allegedly “discriminatory” paycheck. The impact on this extended limitations period is significant, as it has the potential to require employers to defend salary decisions made decades earlier by supervisors or managers who are no longer with the company. For example, an employee who has been with a company for 25 years can challenge the initial salary offer made by the company. In defending against such a lawsuit, the employer would have to explain a decision made a quarter of a century earlier by meeting all five prongs of the five-part test. Naturally, it is anticipated that many of the key witnesses would have little memory of the decision (assuming they still are alive or can be located), while much of the evidence may have been lost or destroyed. As a result, the statute of limitations merely represents a cap on damages (rather than an actual limitation to filing a claim), since its only true impact is to limit the damages to six years, rather than prevent claims that occurred outside the limitations period. Assuming it cannot meet the five-part test (or establish a seniority or merit system), the damages can be staggering. For the six-year period, the employee would be entitled to back pay, front pay, compensatory damages, and possibly punitive damages. In addition to these traditional damages, the Act also grants a plaintiff treble damages (i.e. 3 times the monetary damages), regardless of any finding of malice or intent. As a result, if damages are established at $100,000, the employer must pay $300,000 in damages.

Limit to the Law’s Immediate Impact New Jersey businesses received some good news when a recent New Jersey District Court decision found that the Act would not apply retroactively. In Perrotto v. Morgan Advanced Materials, United States District Judge William J. Martini held that the Act “is not retroactively applicable to conduct occurring prior to its effective date.” The facts in Perrotto are rather straight-forward. The employee was terminated from her employment on April 5, 2018 (before the enactment of the Act), but filed her lawsuit on July 27, 2018 (after the effective date of the Act). In a well-researched decision, the Court found that the Legislature intended the Act to apply only prospectively to claims arising after the Act’s effective date. The impact of this decision is that employers’ immediate liability is limited to conduct occurring after July 1, 2018. However, while it is persuasive authority, this federal court decision is not binding on state courts. It also is noteworthy that because the employee was terminated before the Act went into effect, she never received a “discriminatory” paycheck -- thereby triggering the six-year statute of limitations. While the court’s reasoning suggests this fact is irrelevant, a state court might find that any paycheck received after the effective date of the Act is sufficient enough to trigger the statutory protections and allow a claim to proceed in spite of the otherwise prospective intent of the Legislature.

Proactively Preparing a Defense Given the Act’s expansive nature, it appears more a question of “when” than “if” employers must have defend their actions in a lawsuit brought under this Act. As such, it would behoove employers to proactively review their current and former salary decisions and take

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steps to shore up their defenses. The following steps should be considered by all employers: 1. Update job descriptions to reflect accurately the job duties of each category of employee; 2. Conduct an audit of the salaries and benefits of all current employees; 3. Review or create policies and procedures for making and documenting salary decisions; 4. Provide management training to ensure compliance with company procedures with regard to salary determinations; and 5. Consider and implement proactive adjustments to any salaries found to be unequal (or without sufficient documented justification for any disparity). Documentation outlining the basis for each salary decision (both initial salary offers as well as annual raises/bonuses) will be critical to establishing a defense under this Act. Keep in mind that employers could be documenting decisions made today that may not be challenged for years to come. Reprinted with permission from the March 12, 2019, issue of the New Jersey Law Journal. © 2019 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

New Jersey Employers May Not Inquire About Salary History Employment Law Monthly – August 2019 Authored by Thomas J. Reilly On July 25, 2019, Acting Governor Sheila Oliver signed Assembly Bill 1094 into law. This new legislation prohibits any employer from asking for a prospective employee’s wage, salary, or benefit history and is part of the State’s continuing effort to close the gender wage gap. Previously, employers could inquire about an applicant’s salary history. Now, any employer who asks or otherwise attempts to obtain an applicant’s salary history will be subject to a civil penalty of up to $1,000 for a first offense, $5,000 for a second offense, and $10,000 for any subsequent violations. Although the new law prevents employers from asking for prior compensation history, it does not prevent job applicants from voluntarily—meaning “without employer coercion”— providing their prospective employers with written authorization to inquire about the applicant’s salary history. Even so, employers are prohibited from “screen[ing]” a job applicant based on the applicant’s compensation history, cannot require that a job applicant’s previous compensation “satisfy any minimum or maximum criteria,” and cannot at any stage in the hiring process rely on the applicant’s compensation history in determining the applicant’s salary. The State is likely to expand on the meaning of some of these provisions and terms through future regulations and administrative guidance. For now, the immediate takeaway is clear: employers can no longer inquire about a job candidate’s compensation history. This is not just limited to salary or wages, but also includes benefits and commission. And even when prospective employees voluntarily disclose such information, employers are prohibited from using that information as part of the hiring process, including in determining how much to pay a prospective applicant the employer plans to hire. Employers immediately should review their hiring practices, including review of any standard questionnaires or job applications to remove any inquiry relative to prior compensation or benefits. Employers also should immediately train any employees engaged in the interviewing or hiring process to ensure universal awareness of this new prohibition.

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I Hear You Knocking . . . But You Can’t Come In! Employment Law Monthly - February 2019 Authored by Melanie D. Lipomanis The time to plan and implement procedures for handling a worksite inspection is definitely not when the Occupational Safety and Health inspector, known as a compliance safety and health officer (“CSHO”), is knocking on the door. Frequently, employers permit CSHOs to expand their inspection to areas in the workplace that are not specifically related to the injury or illness under investigation. Since the inspectors can cite any violations they see in “plain view” regardless of the purpose of the inspection, permitting them unfettered access to the entire worksite can lead to additional citations and penalties. Limiting negative outcomes after being targeted for an inspection is possible only when an employer’s management team has been properly trained and understands that OSHA’s authority to inspect its premises is not unlimited. In United States v. Mar-Jac Poultry, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that OSHA could not expand the scope of a narrow injury-based inspection to a facility-wide general inspection based on the employer’s OSHA 300 injury and illness logs.

Facts Mar-Jac operates a poultry plant in Georgia. In 2016, an employee was hospitalized after being burned by an electrical arc flash. The employer reported the incident as required under OSHA regulations. OSHA’s initial inspection uncovered the potential for other electrical hazards in the poultry plant. OSHA sought to expand the scope of the inspection to cover the entire facility and search for additional hazards in the plant that had no relation to the electrical accident whatsoever, including ergonomics, biological hazards, and slips/falls. The employer consented to an inspection of the specific worksite and tools involved in the electrical accident, but refused to allow inspection of any additional areas or hazards. OSHA applied for and was granted a warrant to inspect the entire facility. Mar-Jac filed an emergency motion to quash the warrant. Procedurally, in a warrant application, OSHA must establish probable cause by providing reasonable suspicion that a violation exists. OSHA argued that Mar-Jac’s OSHA 300 injuries and illnesses logs created reasonable suspicion of hazards which suggested the existence of violations. The Eleventh Circuit rejected this argument, holding that a recorded injury or illness does not by itself demonstrate that it resulted from an OSHA violation. The Court distinguished hazards from violations, and explained that the existence of a hazard does not necessarily establish the existence of a violation. OSHA must show a violation to demonstrate reasonable suspicion in a warrant application.

Impact of Mar-Jac Mar-Jac reinforces that there are limits on OSHA’s inspection authority. OSHA cannot expand its inspection of a facility based solely on the existence of an injury or hazard. Rather, OSHA must proffer additional evidence to support its reasonable suspicion of a violation. Although Mar-Jac is an Eleventh Circuit decision and not binding precedent in other jurisdictions, it does offer a valuable lesson for employers to reasonably limit their consent for inspection to the specific area or tools involved in the reported injury or illness.

Employer Takeaway Employers are entitled to Fourth Amendment protection against unreasonable searches and seizures of their workplaces, including inspections by OSHA. Accordingly, a CSHO must obtain either the employer’s consent or an inspection warrant prior to any inspection of the employer’s premises. Frequently, the CSHO will arrive at the worksite unannounced, and unarmed with a warrant. Employers do not want employees to make an all too common mistake of throwing the company doors wide-open when they absolutely have no obligation to do so. The initial contact is the first opportunity the employer has to negotiate with the CSHO to limit the scope of the inspection and control how the inspection process will be carried out. This is where the employer’s advanced planning really will pay off. Section 8(a) of the OSH Act provides: “OSHA may inspect at reasonable times any workplace during regular working hours and at other reasonable times within such reasonable limits and in a reasonable manner.” During

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the initial consultation, the employer should try to come to terms with the CSHO regarding the reasonableness of the scope and limitations of the inspection, i.e., define the equipment, and/or area of the worksite that is to be inspected by the CSHO. Once that is established, the employer should confine the CSHO’s access and travel routes to only the areas within the scope of the inspection. The CSHO’s physical access to the premises should be with a management escort only, including the company compliance officer during any walk around and sample collection activities. The CSHO has the right to interview employees as part of any inspection, however, the employer is entitled, and should insist, to be present for the interviews of any management employees. Because management employees’ statements may be attributed to and used against the employer, the employer has the right to be present when those statements are made. The CSHO may interview hourly employees privately; however, employers should advise their non-management employees of their right to request counsel, or that a union representative be present for the interview, and that they may not be required to sign any statement or the CSHO’s notes of the interview.

[1] 2018 WL 4896339 (11th Cir. Oct. 9, 2018)

For Whom, What, and Where the Whistle Blows: Exploring the Impact of Gaughan v. Deptford on the Scope of N.J.S.A. 34:193(c) New Jersey State Bar Association: Labor & Employment Law Quarterly – May 2019 Authored by Kathryn Kyle Forman An interesting distinction appears among the three subsections of the New Jersey Conscientious Employee Protection Act (CEPA), set forth at N.J.S.A. 34:19-3. CEPA generally prohibits employers from taking an adverse employment action against employees who engage in protected activity as defined by the statute. Subsection (a) shields an employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship that the employee reasonably believes...” violates a law, rule or regulation or is fraudulent or criminal. Subsection (c), however, offers the statutory protection to an employee who “objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes...” violates a law, rule or regulation or is fraudulent or criminal, or is incompatible with a clear mandate of public policy concerning the public health, safety, welfare, or protection of the environment. Seemingly, the language of subsection (c) can be read to protect an employee who objects to any illegal activity, regardless of the activity’s relationship to the employer. Although the Legislature certainly intended for CEPA’s reach to be broad, New Jersey courts have cautioned that it is not boundless. Recently, in Gaughan v. Deptford Township Municipal Utilities Authority, the Appellate Division appears to have established a requirement for demonstrating a nexus between the employer and the complained-of conduct for the complaining employee to receive statutory protection.

Gaughan v. Deptford The facts of Gaughan are somewhat convoluted. The matter involved a group of employees of the Deptford Municipal Utilities Authority (DMUA), and the key players in addition to the plaintiff, William Gaughan, were an employee named B.N.; an employee named S.F.; the executive director (R.H.); the superintendent (E.D.); and S.F.’s father, P.F., who was not an employee of the DMUA. B.N. had a history of disciplinary issues dating back to 2008, and had been involved in a workplace altercation with S.F. in July 2014. During this incident, B.N. allegedly challenged S.F. to a fight, and R.H. separated B.N. and S.F.

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Approximately two months later, B.N. reported to the police that P.F. had punched B.N. while B.N. was sitting in a DMUA vehicle. When the police went to interview P.F., P.F. told the police that he had gone to B.N.’s house in July or August to attempt to resolve the ongoing dispute between B.N. and S.F., and B.N. had put a gun to his head and threatened his life. P.F. did not report this alleged incident to the police at the time he claims it happened. Law enforcement did not find probable cause to charge B.N. with criminal activity, but did charge P.F. with unlawfully entering B.N.’s home. Gaughan was interviewed by the police in connection with this series of events and told the police that B.N. had anger issues, and that he wanted B.N. removed from the workplace because he feared for his own life. In Sept. 2014, the union contacted R.H. and told him that Gaughan, S.F., and another employee (R.M.) had reported that they were fearful of B.N.’s conduct at work. When R.H. interviewed Gaughan, Gaughan refused to answer questions, threw a press clipping about workplace violence on the table, and accused R.H. of “sitting on [his] hands like a little faggot.” Two days later, Gaughan walked off the job, stating he was leaving due to B.N.-related safety concerns. DMUA’s labor counsel later found that the complaints about B.N. were unfounded, and that Gaughan, S.F., and R.M. had filed complaints regarding B.N.’s conduct that “they knew or should have known to be exaggerated or false.” Gaughan was charged with conduct unbecoming, insubordination, violation of the DMUA’s collective negotiation agreement, and violation of DMUA standards. A hearing officer sustained all the charges and found that Gaughan walked off the job for no reason and made derogatory and offensive comments to R.H. In light of two prior disciplinary issues, Gaughan was issued a 10-day suspension.

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Gaughan sued DMUA and alleged it suspended him in retaliation for complaining about B.N.’s illegal activity. The Appellate Division upheld the trial court’s grant of summary judgment in favor of DMUA. The issues on appeal were whether Gaughan’s claim met the first and fourth elements necessary to establish a prima facie CEPA claim: whether Gaughan “reasonably believed that his employer’s conduct was in violation of a law, rule, or clear mandate of public policy,” and whether “his whistle-blowing activity was causally connected to” his suspension.

A Nexus between the Conduct and the Employer In reaching its decision, the court could have relied upon any one of several reasons to affirm summary judgment. First, to the extent that Gaughan alleged he blew the whistle on conduct that violated public policy, the court found that Gaughan failed to identify a clear mandate of public policy in his objection to his employer’s response to B.N.’s alleged conduct, and relied instead on DMUA’s internal policies and procedures, which cannot support the reasonable belief required to establish a CEPA case. The court also noted that a jury would be unlikely to find that Gaughan reasonably believed that B.N. had engaged in criminal activity by threatening P.F. with a gun because Gaughan did not witness the incident, relied only upon what P.F. told him, and the police did not find probable cause to charge B.N. with a crime. Perhaps most importantly, the court also found that Gaughan’s report of B.N.’s conduct was exaggerated or false. This lack of good faith certainly could and should have divested Gaughan of any protection to which he would otherwise have been entitled under CEPA. Furthermore, with respect to the element of causation, the court held that Gaughan’s undisputed conduct of leaving work without being excused and calling R.H. a derogatory name established a legitimate, non-retaliatory basis for Gaughan’s suspension, and Gaughan could not present evidence that such a basis was pretextual. The Gaughan court further articulated a holding that requires a whistleblowing employee to establish a nexus between the employer and the complained of conduct that goes beyond the mere fact that an employee of the employer engaged in the conduct. In deciding that Gaughan did not establish a reasonable belief to support a prima facie case, the court expressly referenced Gaughan’s failure “to cite to any authority that holds he may assert a cognizable CEPA claim by reporting a co-employee’s offduty unlawful conduct that does not involve another co-employee, workplace activity or the employer’s business.”

Gaughan’s Application Although the Gaughan court did not provide guidance on the practical application of its holding, it makes sense to read Gaughan in connection with the New Jersey Supreme Court’s decision in Blakey v. Continental Airlines. In Blakey, in the context

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of harassing conduct implicating the New Jersey Law Against Discrimination (NJLAD), the Court distinguished between private communications of employees and those that permeate the work environment, cautioning that although “employers do not have a duty to monitor private communications of their employees; employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace.” In the context of the Supreme Court’s holding in Blakey, the Gaughan decision can be understood to require that an employee is not shielded by CEPA when the employee objects to the conduct of a co-worker that, although unlawful, is generally private in nature, and neither takes place in the workplace nor in workplace-related settings, nor involves other employees, nor the employer’s business. Examples of such private unlawful conduct could, in theory, include an employee’s involvement in a domestic altercation or drug-related activity while off duty. However, neither Gaughan nor Blakey create a bright-line rule: Objecting to a domestic altercation that victimizes a co-worker or takes place at a work-related event, or to drug-related activity that involves co-workers or takes place in an environment connected with the workplace would still likely be fair game for CEPA protection under Gaughan’s holding. A prudent application of Gaughan would be a fact-sensitive test that evaluates the relationship between the alleged unlawful conduct and the employer based on the totality of the circumstances, taking into consideration the extent to which the complained of conduct: 1) occurred in the workplace; 2) occurred in a setting related to the workplace or in connection with an activity related to the workplace; 3) directly involved one or more of the employer’s employees; and 4) utilized the resources of the employer’s business. Such a test would arguably further the purpose and intent of CEPA without improperly expanding its scope.

Gaughan’s Implications The Gaughan holding does not reflect a zero sum game. While it may be a boost for employers, it is not likely to result in a big loss for workers. In the author’s view, it simply reflects a common sense approach to CEPA, which was drafted specifically to target retaliation against whistleblowers who object to or report an employer’s unlawful activity. From a practical standpoint, the Gaughan decision may be most useful to support employers in situations similar to the one faced by the DMUA, where an adverse action against an employee is necessary, but the employee attempts to leverage his or her past objection to a co-worker’s private unlawful conduct to allege that the action is retaliatory. In that vein, proper application of the Gaughan decision may also dissuade employees from relying on CEPA in furtherance of their own personal agendas, attempting to use the statute as a shield as they ‘dig up dirt’ regarding their colleagues and bring that dirt into the office under the guise of objecting to unlawful activity. The author believes the Gaughan decision should not be viewed as a limitation of the rights bestowed upon employees by CEPA; instead it should be viewed as a reasonable measure by the Appellate Division to prevent an expansion of CEPA that would contravene the legislative intent and existing interpreting authority. Reprinted with permission from the May 2019 edition of the New Jersey State Bar Association’s Labor and Employment Law Quarterly.

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Author Profiles Vito is Managing Principal of Porzio, Bromberg & Newman. He also serves as President and CEO of the firm’s subsidiaries, Porzio Life Sciences, Porzio Governmental Affairs, and Porzio Compliance Services. He co-chairs the firm’s Litigation Practice Group and the Education and Employment Team.

Vito A. Gagliardi, Jr. Principal vagagliardi@pbnlaw.com 973.889.4151

Vito has a long and distinguished career in New Jersey. He handles an extraordinary variety of employment law matters for the firm’s public and private sector clients in state and federal courts, before state and federal agencies, and before arbitrators. Vito litigates and counsels clients in every area of labor and employment law, including issues of restrictive covenants, harassment, discrimination and whistleblowing. He represents management in labor grievances and before the Public Employment Relations Commission. Vito regularly guides clients through reductions in force and on employment issues related to restructuring and consolidation. He also handles investigations by management into allegations of employee wrongdoing. Vito is certified by the Supreme Court of New Jersey Board on Trial Certification as a Civil Trial Attorney. Vito also serves as Chair of the New Jersey Law Revision Commission.

David L. Disler Associate dldisler@pbnlaw.com 973.889.4133

David is a litigator who partners with private and public entity clients to advise on a variety of employment-related matters. He has authored numerous articles for a variety of publications, including the New Jersey Law Journal, New Jersey Lawyer Magazine, Yahoo Finance, the American Bar Association’s TIPS Employment and Labor Law Committee Newsletter, and the New Jersey Police Chief Magazine. He presently serves on the Board of Trustees for the New Jersey Association of School Attorneys and Roseland Glen Condominium Association, on the Board of Directors for the Lehigh Lawyers Association, and as the Morris County co-coordinator for the Vincent J. Apruzzese High School Mock Trial Competition. He was recognized on the 2019 New Jersey Super Lawyers “Rising Stars” list.

Janelle handles an array of school and employment law matters affecting the firm’s public and private sector clients in federal and state courts as well as before administrative agencies. She has litigation and counseling experience in numerous areas of employment law, including issues involving wage and hour claims, harassment, discrimination, and whistleblowing. Janelle’s work in the areas of harassment and discrimination has given rise to significant demand for employer and employee training to address sensitivity, diversity, and inclusion as a proactive and preventative measure. In addition to corporate clients, Janelle also handles a variety of matters for college, public school board, and private school clients. Clients Janelle Edwards-Stewart particularly enjoy Janelle’s ability to bring about swift, cost-effective, and amicable resolutions to their issues. Counsel jedwardsstewart@pbnlaw.com 973.889.4092

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Author Profiles Kathryn concentrates her practice in the areas of employment and labor law and education law. Kathryn defends employment discrimination, sexual harassment, and whistleblower litigation for public and private sector clients, in all aspects of discovery, motion practice and trial preparation and settlement negotiations. She also has experience with restrictive covenants, employee manuals, and workplace policies, often counseling clients on compliance with employment and labor laws.

Kathryn K. Forman Associate kkforman@pbnlaw.com 973.889.4046

Melanie D. Lipomanis Associate mdlipomanis@pbnlaw.com 973.889.4287

Melanie is a member of the firm’s Litigation Practice Group and concentrates her practice in labor, employment, and education litigation and counseling. She is experienced in representing public and private management in employment and labor matters before the federal and state courts, administrative agencies and in arbitration forums. Melanie partners with human resources and labor relations professionals to provide counsel on all aspects of the employment relationship, and conducts in-house compliance training, and internal investigations in matters arising under state and federal law and labor contracts. Melanie has significant experience in higher education matters and representing employers in contract negotiations, unfair labor practice charges before the NLRB, OSHA, DHS/ICE, and other governmental investigations. She presently serves on the Board of Trustees for a private K-8 school, the Higher Education Special Committee of the New Jersey State Bar Association, and as an employment law instructor at Rutgers University.

Tom concentrates his practice in the areas of employment and labor counseling, and litigation and education law. Before joining Porzio, Tom served as a law clerk to Justice Jaynee LeVecchia of the New Jersey Supreme Court. This unique experience provided Tom with firsthand insight into how the State’s highest court handles employment matters and put Tom on the frontline of evolving matters in New Jersey’s employment landscape.

Thomas J. Reilly Associate tjreilly@pbnlaw.com 973.889.4283

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About the Editor-in-Chief

Kerri A. Wright Principal kawright@pbnlaw.com 973.889.4327

Kerri focuses her practice in the areas of employment and education law, specifically in representation of management in both employment counseling and employment litigation. Kerri handles a variety of employment law matters for the firmâ€™s public and private sector clients in state and federal courts as well as before administrative agencies, including the EEOC, PERC, NLRB, and the New Jersey Department of Labor. She has litigation and counseling experience in numerous areas of employment law, including issues involving wage and hour claims, restrictive covenants, harassment, discrimination, and whistleblowing. She has successfully defended management in class-action wage and hour lawsuits and has handled numerous investigations by management into allegations of employee wrongdoing. She also has represented management in all facets of collective bargaining and labor disputes.

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