Gibbons Law Alert
Employers often use arbitration programs with employees to elect a forum that eliminates jury trials and class actions. A New Jersey District Court recently found that the employer’s handbook containing a provision which, gives the employer the exclusive ability to change the provisions of the handbook without notice to employees, invalidated an employee’s arbitration agreement.
On January 21, 2014, Governor Chris Christie signed into law S2995/A4486, which amends the New Jersey Law Against Discrimination (LAD) to prohibit discrimination based on pregnancy, childbirth or related medical conditions, including recovery from childbirth, in the workplace. This measure is effective immediately. The legislation requires employers to treat women affected by pregnancy in a manner similar to employees who are not affected by pregnancy, but who share in their ability or inability to work.
The District of New Jersey recently held that a binding arbitration procedure contained in an employee handbook and the corresponding waiver in a signed acknowledgement form were enforceable despite a disclaimer in the handbook declaring the document to be unenforceable as a contract. In Brooks v. Brookdale Senior Living Communities, Inc., No. 12-CV-2821 (RBK/AMD) (D.N.J. Dec. 20, 2012), the defendant employer moved to dismiss the employee’s complaint and compel arbitration on the grounds that the employer had a binding arbitration procedure in its handbook and the employee executed a waiver of her right to sue the employer in court under two New Jersey statutes.
In a recent decision, A.D.P. v. ExxonMobil Research and Engineering Company, the New Jersey Appellate Division held that an employer’s drug and alcohol policy requiring recovering alcoholics to submit to periodic testing to determine whether they have used alcohol since returning to work after undergoing rehabilitation constitutes handicap discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 (the “LAD”). The decision presumably applies as well to recovering drug addicts. Employers with alcohol and drug policies should immediately evaluate and, if necessary, modify them in light of the Court’s decision.
Does your company conduct internal investigations? If so, you should be asking yourself these four crucial questions: Is the right person conducting the investigation? Is the investigation thorough? Is it taking too long? Is the company following through? Click here to read more about these important internal investigation concerns in an article recently written by Kelly Ann Bird and published by The Metropolitan Corporate Counsel.
In the latest chapter of the ongoing case of Quinlan v. Curtiss-Wright Corporation, the New Jersey Appellate Division has ruled that while an employer, found to have terminated an employee in violation of the New Jersey Law Against Discrimination (“the LAD”), has the burden of persuasion to establish a plaintiff’s failure to mitigate damages with respect to back pay, the employer does not have the burden of persuasion with respect to a plaintiff’s failure to mitigate future losses, including front pay. In reversing a jury award for front pay in the amount of $3,650,318 because of improper jury instructions on the front pay issue, the Appellate Division suggested a framework for proper jury instructions on front pay damages and referred the issue to the Model Civil Jury Charge Committee. The Court also reversed the jury’s punitive damages award of over $4.5 million, concluding that that award was linked to the front pay award. The Court held that a new trial was required on both the front pay issue and on punitive damages.
The Federal Family and Medical Leave Act (“FMLA”), which, among other things, affords eligible employees up to 12 weeks of unpaid leave for the employee’s own serious medical condition and reinstatement to the employee’s former or equivalent position, includes stringent notice obligations for employers. A New Jersey District Court recently reinforced the importance of complying with the statute’s notice requirements. In Antone v. Nobel Learning Communities, Inc., the court denied the defendant employer’s motion to dismiss, rejecting its argument that the employee was not protected by the FMLA when she was terminated more than 12 weeks after she commenced leave because the employer failed to provide the requisite FMLA information to the employee. The Court similarly denied the employer’s motion to dismiss disability retaliation claims based on improper notification required by the FMLA.
Joining a growing number of jurisdictions, including the Third and Ninth Circuit Courts of Appeal, the Court of Appeals for the Second Circuit, covering the states of New York, Connecticut and Vermont, has held that under certain circumstances, an employer may be required to assist disabled employees with their commute to work as a reasonable accommodation under both the Americans with Disabilities Act(“ADA”) and the Rehabilitation Act. The Court’s decision in Nixon-Tinkelman v. N.Y. Dep’t of Health & Mental Hygiene highlights an employer’s obligation to consider reasonable accommodations requested by employees with disability-related commuting problems.
The New Jersey Appellate Division recently held in Rusak v. Ryan Automotive, LLC that a plaintiff was entitled to further proceedings on her punitive damages claim following a jury verdict in her favor on her hostile work environment and retaliation claims even though the jury did not award her emotional distress damages and rejected her separate intentional infliction of emotional distress claim. Although the case involved unique circumstances that are unlikely to be present in future matters, the decision serves as a reminder that the absence of an emotional distress award does not preclude further proceedings on punitive damages.
An effective anti-harassment policy has long been recognized as a key component to an employer’s avoidance of liability for sexual harassment. As the New Jersey Appellate Division recently made clear, however, the mere existence of such a policy is insufficient to insulate an employer from liability for its employee’s sexually harassing conduct. Though an unpublished decision, Allen v. Adecco, Inc., 2001 N.J. Super. Unpub. LEXIS 197 (App. Div. Jan. 27, 2011), provides a powerful reminder that to protect an employer from liability, an anti-harassment policy must be widely publicized, supported by training, and routinely enforced. Indeed, in Allen, although the employer promptly investigated plaintiff’s harassment claim and took prompt remedial action, the court ruled that the employer might still be held accountable if the harassment could have been prevented in the first place but for the employer’s alleged insufficient publication and training with regard to its anti-harassment policies.