Subscribe to Our FeedHigh Court Defines the Over-70 Exception to the New Jersey Law Against Discrimination
June 15, 2010
Posted by admin
Did you know that New Jersey law permits employers to “refuse to accept for employment” employees over the age of 70? But, what happens when a college Dean, who has worked for a college for more than 26 years under a series of consecutive contracts, is advised after attaining 70 years of age, that her contract will not be renewed again? This was the question presented to the Supreme Court of New Jersey in Nini v. Mercer County Community College. Read more
Tags: Age Discrimination > Discrimination > law against discrimination
Ultrasound Technician does not Get Whistle-Blower Protection for Second-Guessing Doctor
June 10, 2010
Posted by admin
Imagine that one day a pregnant woman goes in for a routine ultrasound. During the exam, she tells the technician that some time earlier in the pregnancy she had an issue with substantial vaginal bleeding. She also explains that her doctor instructed her to just rest in bed. Now, imagine that the technician, genuinely alarmed by this story and concerned for the woman’s well being, tells the woman that her doctor had not done enough for her, and that she should have been directed to the emergency room because of the potential for serious complications with the pregnancy. Then later, the woman calls her doctor, angry that he did not do more to treat her bleeding. The doctor responds by calling the imaging center to complain about the technician’s remarks to his patient, and the technician gets fired because of it. These facts make up the allegations asserted by the plaintiff technician in DiLisciandro v. Atlantic Medical Imaging, a case where a complete dismissal of the wrongful discharge complaint was obtained by our firm for failure to state a valid claim under the law. The dismissal was recently affirmed by the New Jersey Appellate Division. Read more
U.S. Supreme Court Broadens Statute of Limitations for Disparate Impact Claims
May 24, 2010
Posted by admin
Today the Supreme Court of the United States issued an important decision pertaining to the applicable statute of limitations for a claim of disparate impact discrimination (discriminatory impact without the intent to discriminate) under Title VII of the Civil Rights Act. In Lewis v. City of Chicago, the Court declared that the statute of limitations is to be measured from the employer’s adoption of an employment practice and each use of that practice. For instance, if an employer issues a written test which is facially neutral but has a discriminatory impact on a class of employees due to race, gender or other protected characteristic, each subsequent use of the test results will restart the statute of limitations. Read more
COBRA Subsidy and Unemployment Extended Again
April 16, 2010
Posted by Jay S. Becker
Not much of a surprise, the COBRA 65%-35% premium subsidy and unemployment compensation benefits were extended once again.
The Continuing Extension Act of 2010 was signed into law on April 15th, once again extending the COBRA premium subsidy to May 31, 2010. The Act also extended unemployment compensation benefits.
There is also a proposal pending to extend the COBRA premium subsidy and unemployment compensation benefits through the end of the year.
Stay tuned. I am sure that there is more to come.
Employee's Own Statement About Illness Could Qualify For FMLA Leave
March 19, 2010
Posted by admin
The federal Family and Medical Leave Act (FMLA) allows eligible employees up to 12 weeks of leave in a 12-month period for the employee’s own “serious health condition” or to care for a family member with such a condition. One way for an employee to establish their own “serious health condition” is to show a period of incapacitation of more than three consecutive days so long as there is treatment by a health care provider. On March 11, 2010, the U.S. Court of Appeals for the Third Circuit (which covers New Jersey) held in Schaar v. Lehigh Valley Health Services that an employee can establish the required period of incapacitation through their own subjective testimony and diagnosis, even if the doctor’s note indicates a period of incapacitation of less than three days. Read more
COBRA Premium Subsidy extended again
March 12, 2010
Posted by Jay S. Becker
The Temporary Extension Act of 2010 was signed into law on March 2, 2010, effectively extending the COBRA premium subsidy program originally enacted under the ARRA, to March 31, 2010. As you may recall from one of my earlier posts, the COBRA premium subsidy had already been extended once before last month. This second extension was granted to provide Congress with more time to decide if a greater extension of the subsidy should be afforded through the end of the year. Stay tuned.
Proposed New Jersey Bill Would Prohibit Use of Mandatory Arbitration Agreements
March 11, 2010
Posted by admin
Mandatory arbitration agreements in New Jersey have regularly been upheld as enforceable by the courts, including by the Supreme Court of New Jersey. As a result, many employers require employees to sign such agreements as a condition of employment. These agreements generally require employees to waive their rights to bring claims of harassment, discrimination, retaliation, and the like, in state or federal court. Instead of a jury trial, these claims are brought before an arbitrator who presides over a hearing and then renders a decision that is binding upon all parties. Arbitration often is quicker and less expensive than litigation in state or federal court. Read more
Medical Marijuana in the Workplace?
February 17, 2010
Posted by Jay S. Becker
Q: Do New Jersey employer’s need to reasonably accommodate the use of medical marijuana?
A: On July 1, 2010 the New Jersey Compassionate Use Medical Marijuana Act takes effect, which allows for the regulated use of marijuana by patients suffering from debilitating medical conditions. Notably, the law does not require employers to accommodate the medical use of marijuana “in the workplace”. What does that mean? Well, it appears to mean that an employer is not required to provide a registered user any time off during the workday to use marijuana to help alleviate pain. But what is not yet addressed is the issue about what to do about the use of medicinal marijuana before work, during a lunch break, after work and at other off-duty periods. Also, how will the issue about employment drug testing be addressed? What if, for example, a registered marijuana user tests positive for drugs which is contrary to a well established, zero tolerance company policy on drugs and alcohol in the workplace? Can an adverse employment decision be made based on that positive drug test? And, how will an employer balance the rights of a registered user under state and federal disability laws against the employer’s right to maintain a safe and healthy workplace? Read more
UPDATE: Model COBRA Notices Published by the DOL
January 19, 2010
Posted by Jay S. Becker
UPDATE: Model COBRA Notices Published by the DOL
On January 13, 2010, the United States Department of Labor finally published the long awaited model Notices extending the COBRA premium subsidy needed by employers, insurers and health care plan administrators in order to comply with the notification requirements under the 2010 Department of Defense Appropriations Act (“DOD Act”). Three different updated model Notices were released and are to be used depending on the particular circumstance; (i) a General Notice, to be provided to all qualified beneficiaries, (ii) a Premium Assistance Extension Notice, to be provided to those who have already been provided a COBRA election notice which did not include information about the premium subsidy, and (iii) an Alternative Notice, to be provided to those that are eligible for health care continuation coverage under a particular State law. Copies of all three Notices may be found on the U.S. Department of Labor’s website, at www.dol.gov/ebsa/COBRAmodelnotice.html.
New Jersey Court Clarifies Heightened Burden For Employees Claiming Age Discrimination
January 11, 2010
Posted by admin
Until recently, employees claiming discriminatory discharge on the basis of age generally were able to establish a prima facie case of discrimination simply because they were replaced by a “sufficiently younger” person, or because (in the case of a job elimination) their duties were absorbed by younger co-workers. This often made it difficult for employers to obtain dismissal of these claims prior to trial. This also made some personnel decisions more complicated and risky, even when motivated by legitimate business considerations such as performance or productivity. On January 4, 2010, the Appellate Division of the New Jersey Superior Court in Winkel v. Spencer Gifts, LLC declared that even when employees claiming age discrimination under the New Jersey Law Against Discrimination could show they were replaced by sufficiently younger workers, they still must demonstrate to the court additional evidence that the employee’s age was a motivating factor before a prima facie case of age discrimination can be established. This important decision not only changes the current litigation landscape, but it also may change how employers view the risks associated with their decisions to discharge older workers. Read more
Tags: Age Discrimination > Discrimination > law against discrimination
