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A collective bargaining agreement (CBA) is a contract between a labor union, which is legally authorized to negotiate on the employees’ behalf, and the company that employs the union’s members. When ownership of a business changes hands, the new owner is only subject to all of the terms of an existing CBA if it is a “perfectly clear successor” to the previous owner. The National Labor Relations Board (NLRB) developed a set of guidelines, known as the “perfectly clear successor” (PCS) rule, based on a 1972 ruling by the U.S. Supreme Court. In April 2019, the NLRB issued a ruling that seems to limit the scope of the PCS rule.

The National Labor Relations Act (NLRA) prohibits employers from interfering with or restraining efforts by employees to organize for the purpose of collective bargaining, either by forming a union or joining an existing organization. Employers may not discriminate or retaliate against employees who exercise any of the rights protected by the statute. Once an employer and a union enter into a CBA, the employer commits an unlawful act if it refuses to negotiate with its employees’ authorized representative.

In 1972, the Supreme Court ruled that a successor employer must recognize a union’s authority when it has retained a majority of the union members as employees. This does not mean, however, that the successor employer is bound by the substantive terms of its predecessor’s CBA. The court held that a successor is not bound by the old CBA and is therefore free to set the initial terms for employment, unless “it is perfectly clear that the new employer plans to retain all of the employees in the unit.” NLRB v. Burns Int’l Security Services, Inc., 406 U.S. 272, 294-95 (1972).

The NLRB described the PCS rule in 1974 as a narrow exception that only requires a successor to negotiate under the terms of the prior CBA when it has “misled employees into believing they would all be retained without change in their wages, hours, or conditions of employment.” It has adjusted the rule at various times since then. In 1996, for example, the NLRB ruled that a successor employer is bound by the prior CBA “in situations where there is a virtual certainty that the union’s majority status will continue.”

The 2019 NLRB decision addressed a situation where the successor employer told the union that it intended to retain “99.9%” of union member employees, and that the existing CBA would remain in force. It ultimately retained only forty-nine employees who were union members and hired fifty-two new employees. It specifically refused to hire four union employees. This left the union without majority representation.

The NLRB found that the successor employer committed an unfair labor practice under the NLRA by refusing to hire the four union members. It ruled that the employer was therefore obligated to bargain with the union. The employer was not, however, bound by the previous owner’s CBA. The NLRB held that the PCS rule did not apply to the successor, finding that the successor did not create “uncertainty whether it would…have hired all or substantially all of the predecessor unit employees.”

If you are dealing with a dispute with an employer in New Jersey or New York, the employment attorneys at the Resnick Law Group are available to answer your questions and discuss your rights and options. Please contact us at 973-781-1204, at 646-867-7997, or through our website today to schedule a confidential consultation with a member of our team.

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Federal employment anti-discrimination law identifies five protected categories: race, color, religion, national origin, and sex. Court decisions have added nuance to these categories, particularly with regard to sex discrimination. Most courts, in interpreting federal law, have been unwilling to extend the law’s prohibition against discrimination on the basis of sex to include factors like sexual orientation or gender identity. New Jersey and other states have amended their own anti-discrimination laws to include specific protections against these forms of discrimination in employment, housing, and other areas. The U.S. House of Representatives passed H.R.5, known as the Equality Act, in May 2019. The bill would amend federal law to match anti-discrimination laws in states like New Jersey.

The New Jersey Law Against Discrimination (NJLAD) includes “affectional or sexual orientation,” “sex,” and “gender identity or expression” in its list of protected categories. N.J. Rev. Stat. § 10:5-12(a). The law defines “affectional or sexual orientation” as a person’s actual, perceived, or presumed orientation with regard to “affectional, emotional or physical attraction or behavior” towards members of the opposite gender, one’s own gender, or either gender. Id. at § 10:5-5(hh) – (kk). “Gender identity or expression” refers to a person’s actual or perceived identity or mode of expression that might not be “stereotypically associated with a person’s assigned sex at birth.” Id. at § 10:5-5(rr). This may include people who identify with a different gender than the one assigned at birth, or people who identify as non-binary.

Title VII of the Civil Rights Act of 1964 does not include protections against discrimination based on sexual orientation or gender identity or expression, at least officially. The Equal Employment Opportunity Commission has taken the position that the statute’s prohibition on sex discrimination includes prohibitions on both additional forms of discrimination. The Seventh Circuit Court of Appeals reached the same conclusion regarding sexual orientation in 2017, followed by the Second Circuit in 2018. The U.S. Supreme Court has agreed to hear the appeal of the Second Circuit’s ruling, alongside the appeal in an Eleventh Circuit case that reached the opposite conclusion. It will also hear the appeal of a Sixth Circuit decision applying Title VII to a gender identity discrimination claim.

Several of these court rulings were based, at least in part, on a Supreme Court decision about discrimination on the basis of “sex stereotyping,” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). That case found that discrimination based on a failure to conform to various gender stereotypes, such as how a member of a particular gender should act or dress, violates Title VII. Many incidents of discrimination based on sexual orientation, gender identity, and gender expression are fundamentally about gender stereotypes, according to these rulings.

Section 2 of the Equality Act describes how sex stereotyping can lead to discrimination against LGBTQ individuals in employment and elsewhere. The bill amends Title VII by replacing the word “sex” with “sex (including sexual orientation and gender identity).” H.R. 5 § 7(b) (116th Cong., May 17, 2019). It also adds definitions of these terms, which are similar to those found in the NJLAD. Its companion bill, S. 788, is unlikely to receive a vote any time soon, but the House’s passage of the bill is still an important step forward.

The knowledgeable and experienced employment lawyers at the Resnick Law Group advocate for the rights of workers in New Jersey and New York. Please contact us at 973-781-1204, 646-867-7997, or online today to schedule a confidential consultation to see how we can help you.

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The Resnick Law Group recently represented a teacher in a disability discrimination case at the New Jersey Superior Court, Appellate Division, and obtained a reversal of a lower court order dismissing the case. The teacher alleges that her employer’s failure to provide a reasonable accommodation for her disability caused her to suffer injury when she collapsed at work. One of the questions before the court involved whether she could assert a cause of action for disability discrimination under the New Jersey Law Against Discrimination (NJLAD) without evidence of an “adverse employment action.” The court held that she could.

The NJLAD prohibits discrimination on the basis of actual, perceived, or past disabilities. N.J. Rev. Stat. § 10:5-12(a), N.J.A.C. § 13:13-1.3. This includes a requirement that employers provide “reasonable accommodations” to employees with disabilities, which would allow them to perform the functions of their jobs. The plaintiff taught science at a middle school in the defendant’s school district. She had Type 1 diabetes, which means that she must eat on a rather strict schedule to prevent her blood sugar from getting too low. The defendant denied requests to modify her class schedule so she could always have an early lunch period. She alleges that, as a result, she suffered a hypoglycemic episode in front of her students. She fell and hit her face and head on a table and the floor. After a successful claim for workers’ compensation, she filed suit under the NJLAD.

The trial court dismissed the plaintiff’s NJLAD failure to accommodate claim, finding that she had failed to establish an adverse employment action. The Appellate Division identified three questions it had to address:
1. Does a plaintiff alleging failure to accommodate a disability have to establish an adverse employment action in order to avoid summary judgment dismissal?
2. If not, is a bodily injury claim brought under the NJLAD barred by the Workers’ Compensation Act (WCA)?
3. If the case were to proceed, should any recovery be offset by workers’ compensation payments?

The court answered “no” to question #1, finding that the defendant’s denial of an accommodation placed her in an “unusual situation” in which she was “forced..to soldier on without a reasonable accommodation.” It cited a 2010 decision by the New Jersey Supreme Court, which specifically declined to hold that an adverse employment action is a necessary element of a failure to accommodate claim. The Appellate Division did not find that the denial of an accommodate constituted an adverse employment action in itself. It ruled that her NJLAD claim could proceed, though, without evidence of a specific adverse action.

On question #2, the court found that the plaintiff’s claims are not barred by the WCA’s exclusive-remedy provisions. It noted that the purpose of those provisions was to provide compensation for injuries that “constitute a simple fact of industrial life.” The plaintiff’s injuries, the court found, resulted from an intentional decision made with “substantial[] certain[ty]” that she could suffer injury as a result. “This is not the ‘simple fact of industrial life’ envisioned by the” WCA, the court held. The court also answered “no” to question #3.

The Resnick Law Group’s team of experienced and knowledgeable employment attorneys are available to assist you in your dispute with an employer in New Jersey or New York. To schedule a confidential consultation to see how we can help you, please contact us today online, at 973-781-1204, or at 646-867-7997.

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The Resnick Law Group recently won a notable victory for New Jersey employees related to a failure to accommodate an employee’s disability. This post discusses the legal background of the case, while a subsequent post will cover the court’s opinion. The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination on the basis of disability, among many other factors. This includes terminating or refusing to hire a person because they have a disability, Under rules found in the New Jersey Administrative Code, disability discrimination also includes refusing to provide a reasonable accommodation to an employee with a disability. One of our attorneys recently argued a case before the New Jersey Superior Court, Appellate Division, on behalf of an employee who was denied an accommodation for a chronic illness. After the defendant allegedly denied the employee’s request for an accommodation, she collapsed at work and suffered injuries. The appeal involved questions of whether a failure to accommodate claim under the NJLAD could proceed without evidence of an “adverse employment action,” and whether state workers’ compensation law barred her bodily injury claims. In early June 2019, the Appellate Division ruled that the employee’s lawsuit could move forward.

The term “disability” has a very broad definition under the NJLAD. In additional to various injuries and congenital conditions, it includes “physical…infirmity,…which is caused by…illness.” N.J. Rev. Stat. § 10:5-5(q). State regulations adopt this definition, but also add the perception or belief that a person has a disability, regardless of whether they actually do, and a history of “ha[ving] been a person with a disability at any time.” N.J.A.C. § 13:13-1.3.

The statute requires employers to “make a reasonable accommodation to the limitations of an employee…who is a person with a disability.” Id. at § 13:13-2.5(b). The employee in the Appellate Division case referenced above has Type 1 diabetes and needs accommodations in the daily work schedule to manage their blood sugar. State regulations include “modified work schedules” among the accommodations employers must consider for employees with disabilities. Id. An employer can avoid the obligation to provide a reasonable accommodation only if they “can demonstrate that [it] would impose an undue hardship on the operation of its business.” Id.

The other statute at issue in the case was the Workers’ Compensation Act (WCA), which, as the name suggests, provides compensation to workers who are injured on the job. The plaintiff had received compensation under the WCA. The statute includes an “exclusive remedy” provision, which states that a worker who accepts compensation under the WCA waives the right to any other claim for damages. N.J. Rev. Stat. § 34:15-8.

The plaintiff worked as a middle school science teacher. Because of her Type I diabetes, she needed to eat at regular times in order to maintain her blood sugar. She requested a schedule that allowed her to eat lunch as close to noon as possible. This request was not granted during all quarters of the school year. The plaintiff experienced a hypoglycemic event during class, which caused her to collapse and strike her head on a table, and then the floor. She filed a workers’ compensation claim and collected benefits. She then filed a complaint alleging disability discrimination and failure to accommodate under the NJLAD.

The Resnick Law Group’s knowledgeable and experienced employment attorneys represent workers in New Jersey and New York, advocating for their rights in claims for unlawful employment practices like disability discrimination. To schedule a confidential consultation with a member of our team, please contact us today online, at 973-781-1204, or at 646-867-7997.

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The New Jersey Superior Court, Appellate Division has revived a lawsuit alleging employment discrimination on the basis of gender under state and federal laws. The plaintiffs allege that a set of “personal appearance standards” (PAS) maintained by their employer, an Atlantic City casino, discriminated on the basis of gender. They further claim that the defendant enforced the PAS in a harassing manner. The case has followed an unusual path. In 2015, the Appellate Division partially reversed a Law Division order granting summary judgment to the defendant. The Law Division proceeded to grant summary judgment to the defendant again in July 2016. The Appellate Division reversed the Law Division’s order in May 2019. It found that the Law Division was bound by the 2015 ruling and that the court erred by dismissing the case on remand. The appellate court remanded the case once more, ruling that “after a decade of motion practice and appeals, plaintiffs are entitled to their day in court.”

State and federal employment statutes in New Jersey prohibit employment discrimination on the basis of sex and gender. Court decisions and statutes have defined multiple forms of unlawful sex discrimination. These include “hostile work environment,” a form of sexual harassment in which pervasive and unwelcome sexual remarks or behavior render an employee unable to perform their job duties. Discrimination on the basis of “sex stereotyping,” in which an employer takes an adverse action against an employee because they do not fit certain stereotypes about members of their sex, is also unlawful. In some situations, employees can establish violations of anti-discrimination laws based on the disparate impact of a policy or practice, even if the employer did not intend to discriminate on the basis of sex or another factor.

The plaintiffs in the above-described lawsuit worked as “costumed beverage servers.” They had to agree to the PAS as a condition of employment. The PAS mandated specific features like “a natural hourglass shape” for women and “a natural ‘V’ shape with broad shoulders and a slim waist” for men. The defendant reportedly modified the PAS in February 2005 in order “to elucidate the ‘weight proportioned to height’ standard.” The revised PAS stated that employees’ weight could not increase by more than seven percent, as compared to their weight when they were hired. Weigh-ins occurred at seemingly random times. These changes formed the basis of many of the complaints leading to the lawsuit.

Twenty-one women sued the casino for alleged sex stereotyping discrimination, hostile work environment, and disparate impact. After the trial court dismissed the plaintiffs’ complaint, the Appellate Division partially reversed that order in 2015. It found that the trial court had properly dismissed the sex stereotyping claims, mostly on procedural grounds. It reinstated the plaintiffs’ claims for hostile work environment, finding that the plaintiffs had produced sufficient evidence that the defendant enforced the weight policy “in a discriminatory, harassing manner, targeting women returning from maternity and medical leave.”

On remand, the Law Division granted summary judgment on the sexual harassment claims again in July 2016. The plaintiffs appealed anew, arguing that the Appellate Division’s 2015 ruling “was binding on the trial court.” The Appellate Division agreed in a per curiam opinion issued in May 2019. While the 2015 ruling stated that the remand was “for further proceedings,” this ruling specified that the remand was for trial.

The knowledgeable and experienced workplace harassment attorneys at the Resnick Law Group represent workers in New Jersey and New York. Contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to see how we can help you.

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Employment in New Jersey is considered to be “at will,” meaning that an employer can terminate an employee for any reason, or no reason at all, as long as they do not violate any employment statutes or contractual provisions. Some government employees have an additional layer of protection under the Due Process Clause of the Fourteenth Amendment, or the Fifth Amendment in the case of federal government employees. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, ruled on a Due Process claim against Passaic County and several county officials in early May 2019. The ruling, along with several earlier Third Circuit decisions, offer some ideas about how a civil service employee could assert a constitutional claim based on deprivation of a property interest.

The Due Process Clauses of the Fifth Amendment and the Fourteenth Amendment prohibit the government, its agencies, and its officials from depriving people “of life, liberty, or property, without due process of law.” An employee must establish that they have a property interest in some aspect of their employment, and that their employer wrongfully deprived them of it. A 1972 decision by the U.S. Supreme Court, Bd. of Regents v. Roth, found that establishing a property interest requires “a legitimate claim of entitlement,” rather than merely “a unilateral expectation.”

The Third Circuit cited Roth in a 2006 decision holding that, in an at-will employment state, a person’s job is not inherently a property interest protected by the Constitution. The court ruled that the question of entitlement to a benefit, including retaining one’s job, is a matter of state law. Since the case originated in an at-will employment state, the plaintiff did not have a protected property interest in their job. The court also found that an employee could still demonstrate the deprivation of a constitutionally-protected liberty interest, based on the manner in which their employer terminated them or took some other adverse action. That particular case involved a claim of defamation against the employer. The court left open the possibility that various claims in tort or other law could support a Due Process claim.

A decision issued by the Third Circuit in February 2019 took a deeper look at state law than the 2006 case. Whether an employee has a constitutionally-protected property interest in an employment benefit, the court held, depends on how much discretion state law gives an employer or agency over that benefit. The broader the government’s discretion to grant or deny a benefit, the less likely it is that the employee has a protected property interest.

The May 2019 decision mentioned earlier based its ruling in substantial part on the February case. The plaintiffs had previously worked for the county but had been terminated for performance-related reasons. They alleged that the county violated their Due Process rights by removing their names from a “rehire list” maintained by the New Jersey Civil Service Commission (CSC). The court found that state regulations give the CSC very broad authority to place people on the list, remove people from the list, or decide not to have a list at all. Based on this, the court ruled for the county.

If you and your employer are involved in a dispute in New Jersey or New York, the Resnick Law Group’s employment attorneys are available to answer your questions, discuss your options, and advocate for your rights. Please contact us today at 973-781-1204, at 646-867-7997, or through our website to schedule a confidential consultation to see how we can help you.

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The New Jersey Law Against Discrimination (NJLAD) bars employers from discriminating against their employees on the basis of factors like age, race, sex, and disability. This includes terminating an employee, refusing to hire a job applicant, demoting or declining to promote an employee, and many other decisions involving employment benefits and conditions. The New Jersey Appellate Division recently ruled (the “Opinion”) that a woman’s claims for age and disability discrimination can move forward, finding that she had raised sufficient questions of fact about the defendant’s claimed reasons for terminating her employment.

The NJLAD prohibits discrimination on the basis of numerous factors, including age and disability. In the Opinion, the court reviewed the process for a claim under the NJLAD. A plaintiff must establish four elements: (1) they are part of a protected class and (2) are qualified for the position they held; and (3) the employer took an adverse employment action and (4) replaced the plaintiff with someone who is not part of the protected class. The burden of proof then shifts to the defendant to “articulate a legitimate, nondiscriminatory reason” for the adverse action. Finally, the plaintiff must demonstrate that the defendant’s alleged reason was pretextual, meaning that it was merely cover for a discriminatory purpose.

Reportedly, the defendant terminated the plaintiff shortly after she underwent gallbladder surgery. She was fifty years old at the time and had recently received “a ‘strong performance’ evaluation” from the defendant. She alleged that the defendant replaced her with “a person nearly half her age.” The reason given by the defendant for the termination involved a claim that she “attempted to defraud [the defendant] by failing to take steps to remove her ex-husband from the company’s health insurance plan.”

The plaintiff sued for age and disability discrimination under the NJLAD, as well as aiding and abetting, and punitive damages. She also asserted causes of action for defamation and intentional infliction of emotional distress. The trial court granted summary judgment for the defendant on all claims. The plaintiff only appealed on the NJLAD claims, aiding and abetting, and punitive damages.

The Appellate Division concluded that a genuine issue of fact existed as to whether the defendant’s reason for termination was pretextual. It noted that the plaintiff had produced evidence that she had notified the defendant of her divorce shortly after it was finalized. On the question of whether her surgery met the definition of “disability” in the NJLAD, the court found that the statute defines the term broadly. It is not, the court held, limited to “severe or immutable disabilities.” 

The court reversed summary judgment on the discrimination claims. Since those claims should have been allowed to proceed, it also reversed the trial court’s dismissal of the aiding and abetting and punitive damages claims.

If you need assistance in a dispute with your employer in New Jersey or New York, the employment lawyers at the Resnick Law Group are available to help you understand your legal rights and options. Please contact us today at 973-781-1204, at 646-867-7997, or through our website to schedule a confidential consultation to see how our team can help you.

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When an employee begins working for an employer, they are often required to sign an employment agreement that establishes numerous features of the employer-employee relationship. Most provisions involve standard matters like job expectations, wages, and termination of the employment relationship. Employment agreements may also include provisions for nondisclosure of various types of information, as well as waivers of certain rights. When employers and employees enter into settlement agreements to resolve disputes, an employer may seek a nondisclosure clause as well. Provisions like these may hinder individuals’ ability to assert their rights under employment statutes like the New Jersey Law Against Discrimination (NJLAD). At least partly in response to increased attention on sexual harassment in the workplace, the New Jersey Legislature enacted a bill in January 2019 that amends the NJLAD to prohibit enforcement of certain nondisclosure agreements, as well as waivers of rights under the NJLAD or similar statutes.

The NJLAD prohibits employers from discriminating against employees on the basis of race, religion, sex, age, sexual orientation, gender identity or expression, and many other factors. Courts have held that prohibitions on sex discrimination in the NJLAD and other laws cover sexual harassment, as well as harassment based on other protected factors. Unlawful harassment generally includes two scenarios: (1) acquiescence to or tolerance of harassing behavior, including sexual advances, is made a condition of employment; and (2) pervasive and unwelcome harassing behavior creates a hostile work environment that interferes with an individual’s ability to perform their job duties.

The #MeToo movement has allowed people all over the country to come forward with their own experiences, when many of them might have been afraid to do so before. Nondisclosure agreements (NDAs) in discrimination and harassment cases may prevent people with similar experiences from sharing their stories. Last year, California and New York enacted limits on NDAs in situations involving alleged sexual harassment. California now prohibits NDAs that purport to “prevent[] the disclosure of factual information related to a” lawsuit or administrative complaint alleging sexual harassment. New York now has similar provisions in its laws barring NDAs in settlements and other resolutions of sexual harassment disputes.

New Jersey’s new law, which went into effect in March 2019, states that an NDA provision is unenforceable against an employee if it “has the purpose or effect of concealing the details relating to a claim” of any unlawful employment practice covered by the NJLAD, not just sexual harassment. The law also prohibits provisions in employment contracts that waive employees’ rights under the NJLAD.

An employee may still be able to enforce an NDA against an employer, but the new law state that an employee waives enforcement if they disclose enough information about a dispute “so that the employer is reasonably identifiable.” If an employer tries to enforce an NDA deemed void under the new law, the employee can recover attorney’s fees and costs. Employers may not retaliate against an employee or other person for refusing to sign an unenforceable NDA.

If you are involved in a dispute with your employer in New Jersey or New York, the Resnick Law Group’s knowledgeable and experienced sexual harassment lawyers are available to discuss your rights and options. Please contact us at 973-781-1204, at 646-867-7997, or online today to schedule a confidential consultation.

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New Jersey is among the more than half of all U.S. states that allows the possession and use of small amounts of marijuana for medical purposes, under the supervision of a physician. Recreational use is still prohibited by state law, and federal law still prohibits possession and use for any purpose. Conflicts among various laws have led to much confusion. The New Jersey Superior Court, Appellate Division recently ruled on how this state’s marijuana laws affect employment discrimination laws. The court reversed the dismissal of a lawsuit brought by an individual whose cancer treatment plan included a medical marijuana prescription. The plaintiff alleged that his former employer fired him in violation of state laws prohibiting disability discrimination. Published Decision (the “Decision”).

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of factors like race, religion, sex, and disability. N.J. Rev. Stat. § 10:5-12(a). It defines the term “disability” to include “physical disability [or] infirmity…which is caused by…illness.” Id. at § 10:5-5(q). This includes many the physical and other symptoms caused by many forms of cancer.

A plaintiff alleging disability discrimination under the NJLAD must prove four elements:
1. The employee had a disability, or the employer perceived the employee as having a disability;
2. The employee was still qualified to perform, and was still performing, “the essential functions of the job”;
3. The employee suffered “an adverse employment action” because of the actual or perceived disability; and
4. The employer “sought a similarly qualified individual” to replace the employee.

In 2009, the Legislature enacted the New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA). The statute allows the production, distribution, sale, and use of small amounts of marijuana with a doctor’s prescription. The issue in the Decision was a provision stating that the law should not “be construed to require…an employer to accommodate the medical use of marijuana in any workplace.” N.J. Rev. Stat. § 24:6I-14.

According to his complaint, the plaintiff in the Decision began working for the defendant as a funeral director in 2013. In 2015, he was diagnosed with cancer. His doctor wrote a prescription for medical marijuana, as allowed by the NJCUMMA. The defendant learned about the plaintiff’s marijuana use the following year. The plaintiff asserted that he only used marijuana outside of work hours for pain management purposes. The defendant terminated the plaintiff several days later.

The trial court dismissed the plaintiff’s lawsuit on the ground that § 24:6I-14 meant that an employer could not be required to accommodate medical marijuana use. The Appellate Division disagreed, holding that this provision does not “immunize[] employers from obligations already imposed elsewhere,” such as the NJLAD’s provisions on disability discrimination and accommodation. Decision, slip op. at 3. The court noted that the plaintiff did not seek an accommodation for use of marijuana in the workplace. He only asked the defendant to “allow his continued use of medical marijuana ‘off-site’ or during ‘off-work hours.’” Id. at 22.

The knowledgeable and experienced employment lawyers at the Resnick Law Group advocate for the rights of workers in New Jersey and New York, helping them assert claims in state and federal court. Please contact us at 973-781-1204, at 646-867-7997, or online today to schedule a confidential consultation with a member of our team.

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The Fair Labor Standards Act (FLSA) requires employers in New Jersey and around the country to pay overtime to non-exempt workers when they work more than forty hours in a week. Employers are not obligated to pay overtime to individuals who work “in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) has developed a definition of executive, administrative, and professional (EAP) jobs. It includes a requirement that a worker receive a minimum salary amount, currently set at $455 per week, or $23,660 per year. In 2016, the WHD sought to increase this minimum threshold, but a federal judge struck that rule down. A new proposal from the WHD, published in March 2019, would increase the minimum amount, but not nearly as much as the 2016 proposed rule. 84 Fed. Reg. 10900 (Mar. 22, 2019).

Employers must pay overtime to non-exempt workers at a rate of at least one-and-a half times their regular hourly rate. See 29 U.S.C. § 207(a)(1). The FLSA itself does not define the terms “executive,” “administrative,” or “professional.” The WHD has established guidelines for determining when an individual could legitimately be deemed to hold an EAP position that is exempt from the FLSA’s overtime rule. The guidelines are intended to prevent employers from labeling a job as an “executive” position for the sole purpose of avoiding overtime. The regulations specify that job titles are “insufficient to establish the exempt status of an employee.” 29 C.F.R. § 541.2. Among other criteria, a position must have a salary of at least $455 per week. Id. at §§ 541.100, 541.200, 541.300. The WHD set this minimum salary rate in 2004. 69 Fed. Reg. 22121 (Apr. 23, 2004).

The WHD sought to increase the minimum salary rate for EAP employees to $913 per week, or $47,476 per year, in 2016. 81 Fed. Reg. 32391 (May 23, 2016). This would be slightly more than double the existing rate. The previous increase in 2004 more than tripled the then-existing rate of $155 per week, which had been in place since 1975. 69 Fed. Reg. 22122. A group of state governments and business organizations filed suit against the DOL, which was part of the Obama administration at the time, seeking to block the new rule. A federal district court granted a preliminary injunction in Nevada, et al v. U.S. Dept. of Labor, et al, 218 F.Supp.3d 520 (E.D. Tex. 2016). In August 2017, the court granted summary judgment to the defendants, finding the rule invalid.

The DOL, now under the Trump administration, appealed the summary judgment ruling, but obtained a stay of the appeal in order to try issuing a new rule. The proposed new rule published in March would increase the minimum rate for EAP workers to $679 per week, or $35,308. This is slightly less than midway between the existing rate and the now-defunct 2016 proposed rule. Critics allege that, had the WHD allowed the 1975 rate keep pace with inflation, the minimum EAP salary would be more than $55,000 today.

The employment attorneys at the Resnick Law Group advocate for the rights of workers in New Jersey and New York. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation with a member of our knowledgeable and experienced team.

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