Author: Richard S. Zackin

The New Jersey Cannabis Regulatory Commission Issues Much-Needed Interim Guidance on Managing Employees Working While Under the Influence of Cannabis Products

The enactment of the New Jersey Cannabis Regulatory Enforcement, Assistance, and Marketplace Modernization Act (CREAMMA), signed into law in February 2021, legalized the recreational use of marijuana for adults ages 21 and older in New Jersey. However, the right to marijuana use is not unfettered, and an employer’s right to maintain a drug-free workplace is often easier said than done where cannabis is concerned. Under CREAMMA, an employer cannot discharge or take any other adverse action against an employee because the employee uses cannabis items outside of the workplace. An employer may, however, require an employee to undergo a drug test: Upon reasonable suspicion of an employee’s use of a cannabis item while performing his or her work responsibilities, or Upon finding any observable signs of intoxication related to use of a cannabis item, or Following a work-related accident subject to investigation by an employer In this regard, CREAMMA directs the Cannabis Regulatory Commission (CRC), the entity tasked with crafting and enforcing rules and regulations governing the sale and use of cannabis in New Jersey, to prescribe regulations for issuing a Workplace Impairment Recognition Expert (WIRE) certification to full- or part-time employees or others contracted to provide services on behalf of an employer. Through education and training, a WIRE becomes certified in detecting and identifying...

The New Jersey Appellate Division Expands Hostile Environment Liability Under the LAD

On June 2, 2022, in Morris v. Rutgers-Newark University, the New Jersey Appellate Division decided, in a case of first impression, the extent to which a plaintiff alleging harassment in violation of the New Jersey Law Against Discrimination (“the LAD”) can use acts of harassment against others to establish the existence of a hostile environment. The case involved claims brought by members of the women’s basketball team of Rutgers-Newark University (“the University”), who were subjected to a hostile educational environment by the Interim Head Coach of the team. Although the case involved allegations of a hostile educational environment, the court’s decision is likely to be viewed equally applicable to hostile work environment claims and thus is one employers should be aware of. Background The plaintiffs included five players and the team manager for the University’s women’s basketball team for the 2014-2015 season, five of whom identified themselves as Black or African American while one identified as Hispanic. Four of the plaintiffs identified themselves as either lesbian, gay, or bisexual. In addition to the University, the defendants included the team’s Interim Head Coach for that season, the University’s Athletic Director, and the University’s Associate Provost. The plaintiffs brought suit in the Law Division of the Superior Court under the LAD alleging they were the victims of...

Third Circuit Enforces Delegation Provision in Arbitration Agreement

A “delegation provision” in an arbitration agreement authorizes the arbitrator to decide issues concerning the arbitrator’s own jurisdiction over disputes before him or her. Absent a delegation provision, such jurisdictional issues are for courts to decide when adjudicating motions to compel arbitration. In its recent decision in Carrone v. United Health Care Group Inc., the United States Court of Appeals for the Third Circuit clarified the circumstances under which courts may entertain challenges to arbitration agreements with delegation provisions. Background Michele Carrone filed suit in federal district court in New Jersey charging her employer and coworkers with discrimination. The defendants moved to compel arbitration. The parties’ arbitration agreement incorporated by reference the Employment Dispute Resolution Rules of the American Arbitration Association (AAA). Rule 6(a) of those rules sets forth a “delegation” provision, to wit: “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement”; and, further: “The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.” Carrone opposed the motion to compel arbitration on the grounds that “(1) the arbitration agreement’s amendment provision rendered the agreement illusory, (2) the arbitration agreement as a...

Supreme Court Limits Scope Of The Computer Fraud And Abuse Act

The Consumer Fraud and Abuse Act, 18 U.S.C. §1030 (CFAA) is a federal statute that imposes criminal penalties and provides for a civil cause of action against individuals who obtain information from a computer by intentionally accessing the computer without authorization or by exceeding authorized access. The statute has been used to criminally prosecute and bring civil actions for damages and losses against employees who have misappropriated their employers’ trade secrets or other confidential information. Those damages and losses may include attorneys’ fees expended by the employer to investigate violations of the statute. In its recent opinion in Van Buren v. United States, the United States Supreme Court resolved a disagreement among the lower federal courts over the scope of the CFAA’s “exceeds authorized access” clause. Does an employee with authorized access to his employer’s computers “exceed authorized access” only when accessing specific computer files the employee has not been authorized to access, or does the employee also “exceed authorized access” when accessing files for which the employee has authorization, but uses the information for an unauthorized purpose? In Van Buren, the Supreme Court ruled in favor of the more limited scope of the “exceeds authorized access” clause. Background When employed as a police officer in Georgia, Nathan Van Buren was the target of an...

The New Jersey WARN Act and the Coronavirus Epidemic – Update II

On January 21, 2020, New Jersey Governor Phil Murphy signed into law major amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act, more commonly referred to as the New Jersey WARN Act (“the Act”). These amendments require employers with 100 or more employees to give 90-days’ advance notice to the affected employees of any reduction in force involving at least 50 employees. Employees not given the required notice may bring a civil action for damages. Even when the employer complies with the Act’s notice requirements, the amendments require the employer to pay the affected employee severance in an amount equal to one week of pay for each year of service. Failure to comply with the notice requirements will entitle each affected employee to an additional four weeks of severance pay. A fuller discussion of the amendments can be found here. The amendments were to take effect on July 19, 2020, but, because of subsequent actions by the legislature in response to the coronavirus pandemic (see here), the effective date was changed to the 90th day after the termination of Governor Murphy’s Executive Order 103, issued on March 9, 2020, which declared a Public Health Emergency and State of Emergency due to the coronavirus outbreak. Until recently, Executive Order 103 remained in place without...

Employers and the American Rescue Plan Act of 2021 (ARPA)

The recently enacted American Rescue Plan Act of 2021 (ARPA) is an economic stimulus bill that will inject $1.9 trillion into the American economy to accelerate the recovery from the economic downturn and health emergency caused by the COVID-19 pandemic. Of special interest to employers, the ARPA in a number of respects expands legislation enacted in 2020 to address the COVID-19 crisis, such as the CARES Act and Families First Coronavirus Response Act (FFCRA). Perhaps the most publicized aspect of the ARPA is the direct $1,400 stimulus checks to individuals. However, other aspects of the ARPA are more directly of interest to employers. Non-Mandated Extension of FFCRA-Related Tax Credits Employers are not required to, but may voluntarily provide to employees Emergency Paid Sick Leave and Emergency Family and Medical Leave that previously had been mandated under the FFCRA. This program will terminate on September 30, 2021. This means employers may grant leave under the FFCRA to employees with eligible leave remaining and continue to receive the corresponding tax credits for those leave payments until that date. Otherwise, this program would have expired on March 31, 2021. While the emergency leave extensions under the ARPA are voluntary, employers should also consider any state or local leave requirements. Under the new legislation: Employers who provide up to...

Third Circuit Clarifies Requirements for “Regarded As” ADA Claims

In Eshleman v. Patrick Industries, the United States Court of Appeals for the Third Circuit issued a significant decision concerning claims brought under the American With Disabilities Act (ADA) by employees alleging their employers perceived them to be disabled. The decision clarifies the pleading requirements in such cases and explains the ADA provision that exempts employers from liability for disabilities that are “transitory and minor.” Notably, the Court did not provide a specific definition of a “minor” disability, leaving that determination for the lower courts on a case-by-case basis. Background William Eshleman took leave from his job as a truck driver for Patrick Industries to have a module removed from his lungs. Six weeks after he returned to work he suffered a severe respiratory infection and was out of work for four days. Patrick Industries terminated his employment after his second shift back to work. At various times, the employer gave Eshleman different reasons for his termination. Eshleman brought suit alleging the shifting reasons for his termination were pretextual and the true reason was that his employer regarded him as disabled in violation of the ADA. The perceived disability was alleged to be that he “suffered from [a] long-term or chronic medical condition which would affect his attendance in the future, like it had in...

Supreme Court Asked to Decide Prior Salary/Equal Pay Act Issue

The Fresno County Office of Education has requested the Supreme Court to hear an appeal from an en banc decision of the Ninth Circuit Court of Appeals holding that the Equal Pay Act (“the EPA”) prohibits an employer when setting the compensation of a female employee from considering her compensation at her prior job. If the Supreme Court agrees to hear the County’s appeal, it will be the second time the case will come before the Supreme Court. Previously, the Supreme Court vacated the Ninth Circuit’s decision because one of the appellate court judges who considered Fresno County’s appeal passed away, and was not replaced before the Ninth Circuit issued its opinion. Given that there is now a properly issued Ninth Circuit opinion, and given a split among the Courts of Appeals over whether and under what circumstances the EPA permits a new employer’s consideration of a woman’s prior salary when setting compensation, it seems likely that the Supreme Court will take up the case. Background After teaching middle school for a number of years, Aileen Rizo was hired by Fresno County as a math consultant. The county employed a twelve-level job classification system and each level was comprised of a ten-step salary schedule. In accordance with its standard operating procedures, the County determined Rizo’s...

The New Jersey WARN Act and the Coronavirus Epidemic—An Update

In response to the COVID-19 crisis, New Jersey Governor Phil Murphy has signed into law new amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act, more commonly referred to as the New Jersey WARN Act. The new amendments apply to the current statute and to prior amendments enacted on January 21 of this year that were to take effect on July 19, 2020. A full discussion of the January 21 amendments can be found here. Once the January 21 amendments go into effect, the Act will require employers with 100 or more employees to give advance notice to the affected employees of any reduction in force involving at least 50 employees. Employees not given the required notice currently may bring a civil action for damages; when the January 21 amendments take effect, even when an employer complies with the Act’s notice requirements, each affected employee will be entitled to severance pay in an amount equal to one week of pay for each year of service. The new amendments to the Act have important implications for the Act’s notice and severance provisions. On March 13, 2020, President Trump utilized the National Emergency Act to declare a national emergency due to the coronavirus outbreak. Under the current WARN Act and the January 21 amendments, an...

The WARN Act and the Coronavirus Epidemic

As the coronavirus epidemic continues to impact the economy, employers are faced with the prospect of shutting down their operations or continuing operations with a significantly reduced workforce for an indeterminate period of time. Employers anticipating the need for significant workforce reductions should be mindful of whether these reductions will implicate the federal WARN Act, and companies with employees in New Jersey and/or New York must also pay attention to the WARN Acts in effect in those states. This article will first briefly outline the requirements of the federal, New Jersey, and New York WARN statutes and will then discuss those requirements in the context of workforce reductions necessitated by the current crisis. The WARN Statutes The WARN statutes are extremely complicated, but, as a rule of thumb, whenever a New Jersey employer is contemplating terminating at least 50 employees, the employer should seek advice from counsel familiar with the federal and New Jersey WARN statutes. Should either of those statutes apply, the affected employees must be given at least 60 days’ notice of their terminations unless a statutory exception permits a lesser period of notice. As a rule of thumb, employers in New York should seek advice from counsel when contemplating terminating at least 25 employees. Should the New York WARN statute apply, the...