Considerations Before Terminating An Employee On Medical Leave

Vimal K. Shah

Among the most frequent calls we management-side employment lawyers receive are from clients asking whether they may lawfully terminate an employee who has been on an extended leave for medical reasons. Usually, the call comes just after the client has received a doctor’s note from the employee advising that he is unable to return to work by the previously-planned return-to-work date, and requires several more weeks off. The client’s frustration is palpable; in an exasperated tone, she often notes that the employee is a marginal performer anyway, and clearly implies that she wants to hear only five words from us — “It is okay to terminate.”

Not so fast. Whether an employer can safely terminate an employee on medical leave depends on the answers to several critical questions.

An obvious, but sometimes overlooked, issue is has the employee exhausted his leave allotment under the federal Family and Medical Leave Act (“FMLA”), and any parallel state or local leave law, and under the employer’s policies?  Under the FMLA, an employee is entitled up to twelve weeks of unpaid leave annually for (among other reasons) his own serious health condition. Some states’ laws and some companies’ policies provide for more leave.  If the employee has not exhausted his leave entitlement under each, the employer generally should not terminate.

Another critical question is, has the employer correctly handled the employee’s leave up to now? At the start of the leave, the FMLA requires that the employer expressly tell the employee that it is designating the employee’s absence as FMLA leave and is counting each day or week of absence against the employee’s twelve-week allotment. Further, where the employee has provided at least an estimated length of his leave, the employer must also tell the employee the amount of leave it will designate as FMLA leave, how much of the leave allotment will remain at the leave’s expected conclusion, and the date by which it expects the employee to return. If the employer has not documented its compliance with each of these notice requirements, the employer probably should not terminate.

Assuming the employee has exhausted each of his leave entitlements and the employer has provided all required notices, the next question is, has the employer asked the employee whether he requires a workplace accommodation? Under the federal Americans With Disabilities Act (“ADA”) and its parallel state disability laws, an employer must engage in a dialog (known as the “interactive process”) with any employee it has reason to know may be disabled and who may need a workplace accommodation. Through this process, the employer must determine whether the employee wants an accommodation, and if so, whether there exists some reasonable accommodation that would enable the employee to perform the essential functions of his job. Where, as in the above scenario, an employee has been absent for his own medical condition for a significant period, the employer should initiate this interactive process. If the employer has not done so, it should probably not terminate.

And even if the employer has engaged in the interactive process, it should only terminate if it has concluded, after having consulted with counsel, that no reasonable accommodation is possible. Note that in the scenario presented here, where the employee’s doctor has advised that the employee requires a few more weeks off work, the client may have to grant the extended leave, because a leave extension beyond the FMLA’s twelve-weeks is often considered a reasonable accommodation.

So if the client can’t terminate the employee now, what can it do? First, it should continue to carefully track and document the employee’s absences, and keep the employee apprised of any amount of leave remaining. Second, it should consider asking the employee for a re-certification of his FMLA leave, which it is permitted to do every thirty days. Third, the client should engage in the interactive process to determine possible accommodations which would allow the employee to return to work. Only if the employee is still unable to return to work after having been given or offered a reasonable accommodation should the client consider terminating the employment. Because the reasonableness of a requested accommodation – including a leave extension — depends on the circumstances, the client should consult with counsel before taking this step.

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Connecticut Requires Reasonable Accommodation for Pregnant Employees

Bernard E. Jacques

On October 1, 2017 an “Act Concerning Pregnant Women in the Workplace” went into effect in Connecticut.  It has been illegal to discriminate against employees on the basis of pregnancy under both federal and Connecticut law.  However, generally under federal and to a lesser degree under Connecticut law, an employer was not required to make an accommodation for a pregnant employee.  As one court described the law: “employers can treat pregnant women as badly as they treat similarly affected but non-pregnant employees.”

That is no longer the law in Connecticut.  Now Connecticut employers are obligated “to make a reasonable accommodation for an employee or a person seeking employment due to pregnancy, unless the employer can demonstrate that such accommodation would impose an undue hardship on such employer.”  Pregnancy includes “childbirth or a related condition, including but not limited to lactation.”

A reasonable accommodation includes “being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk.”

A Connecticut employer will be required to make these accommodations unless making them would require “significant difficulty or expense.”

The requirement to provide a reasonable accommodation to pregnant employees extends to employers with three or more employees.

In addition, employers are required to notify employees of the new law (i) at the time of hire; (ii) within ten days of learning that an employee is pregnant; and (iii) for all present employees before December 31. This requirement to notify employees may be met with by displaying a poster “in a conspicuous place, accessible to employees at the employer’s place of business” in English and Spanish.

The Connecticut Department of Labor has prepared a poster and employers can obtain the poster by visiting the Department’s web site.

If you have any questions about this or any other Connecticut employment issue, please contact Bernard E. Jacques (bjacques@mdmc-law.com).

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Connecticut Medical Marijuana Law Protecting Employees is Upheld

Bernard E. Jacques

In enacting its medical marijuana law, Connecticut added a provision barring employers from taking adverse employment actions against a “qualifying patient” because of the patient’s use of medical marijuana.  Questions were raised as to whether the Connecticut statute was preempted by federal law, which still makes it a federal crime to use, possess or distribute marijuana.  In a case of first impression, Noffsinger v. SSC Niantic Operating Company, LLC, U.S. District Court Judge Meyer held that the Connecticut statute was not preempted, and an employee could sue for discrimination based on the employee’s use of medical marijuana.

Katelin Noffsinger was diagnosed with post-traumatic stress disorder (“PTSD”) in 2012, and in 2015 her doctors recommended medical marijuana to treat her condition.  Ms. Noffsinger complied with the statute and registered with the Connecticut Department of Consumer Protection as a “qualifying patient.”  She began taking one capsule of Marinol, a synthetic form of marijuana, on a daily basis. At the time she began taking the medical marijuana, she was working a recreational therapist at a long term care facility.

In July 2016 Ms. Noffsinger was recruited for a recreation therapy director position at a skilled nursing facility.  After an initial phone interview, she had a personal interview with the director of the facility, who offered her the job. Ms. Noffsinger accepted and began filling out the pre-employment paperwork.  At the insistence of her new employer, she gave notice to her then-current employer.

When completing her pre-employment forms, Ms. Noffsinger revealed that she was a “qualifying patient” using medical marijuana in accordance with the Connecticut statute.  She showed her new employer her registration card with the Department of Consumer Protection, and told her that she took Marinol in the evening before going to bed. She offered to provide additional medical documentation. Her new employer did not ask for any additional information.

As part of her pre-employment process, Ms. Noffsinger submitted a urine sample. Before she started working, her new employer contacted her and told her that she had failed the drug test. She had tested positive for cannabis.  Ms. Noffsinger tried to return to her former job, but it already had been filled. She filed an action against her employer for discriminating against her because of her use of medical marijuana.

Her employer moved to dismiss her claim and argued that Connecticut’s medical marijuana statute was preempted by federal law, which makes it a federal crime to use, possess, or distribute marijuana.  Federal law provides no exception for medical use.  But the court noted that Ms. Noffsinger sought to enforce only that part of the Connecticut statute which prohibits employment discrimination against authorized medicinal marijuana users.  The federal law neither makes it illegal to employ marijuana user, nor does it regulate employment practices.  And the Connecticut statute does not protect use of marijuana on the employer’s property or its use during work hours.  Therefore, the court concluded, the Connecticut medical marijuana law is not preempted by federal criminal drug laws.

Nor is the Connecticut medical marijuana law preempted by the Americans With Disabilities Act (“ADA”). The employer argued that ADA explicitly states the current drug users are not protected.  But the court saw no conflict between the ADA, which does not protect current drug users, and the Connecticut statute, which does protect a “qualifying patient.”

Although the court’s decision upholding the Connecticut Medical Marijuana law is not binding on any other court, it is likely to be persuasive and employers ignoring the protections afforded a “qualifying patient” using medical marijuana will assume a significant risk.

However, the Connecticut Medical Marijuana law does not protect employees whose positions are regulated by federal law or regulation.  Employees, whose positions are deemed safety sensitive under the U.S. Department of Transportation regulations are still required to comply with those regulations regarding drug use and drug testing.  For those employees a positive marijuana test can result in loss of a job.

If you have any questions regarding this or any other issue of Connecticut employment law, please contact Bernard E. Jacques (bjacques@mdmc-law.com).

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Overview for Employers: The Philadelphia Fair Practices Act and Issues to Watch

Craig J. Smith

Employers located within the City of Philadelphia and those who do business in the City through employees located there, need to be mindful of the provisions of the Philadelphia Fair Practices Act (“FPO”), Chapter 9-1100 of the Philadelphia Code.  While in some respects the FPO is similar to the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §951, et seq., in many ways the FPO goes well beyond the PHRA in designating protected categories, in identifying prohibited practices, and especially in its potential enforcement mechanisms.

By its provisions, the FPO applies to “employers” defined as “[a]ny person who does business in the City of Philadelphia through employees or who employs one or more employees exclusive of parents, spouse, Life Partner or children, including any public agency or authority; any agency, authority or other instrumentality of the Commonwealth; and the City, its departments, boards and commissions.”  §9-1102(h)

Section 9-1102(e) of the FPO defines “discrimination” as: “Any direct or indirect practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, differentiation or preference in the treatment of a person on the basis of actual or perceived race, ethnicity, color, sex (including pregnancy, childbirth, or a related medical condition), sexual orientation, gender identity, religion, national origin, ancestry, age, disability, marital status, source of income, familial status, genetic information or domestic or sexual violence victim status, or other act or practice made unlawful under this Chapter or under the nondiscrimination laws of the United States or the Commonwealth of Pennsylvania.”

The FPO thus sweeps within its scope all of the prohibited practices of various federal anti-discrimination laws as well as those practices prohibited by the PHRA.

In addition to the protected categories familiar to those who work with the PHRA, Title VII, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”), the FPO lists sexual orientation, gender identity, source of income, and domestic or sexual violence victim status (source of income is a protected category for housing and real property issues, not for employment purposes).

Employers also should take a close look at the FPO’s list of unlawful employment practices, as several of the practices declared unlawful appear nowhere else in federal or Pennsylvania state anti-discrimination law. Section 9-1103 of the FPO makes the following employment practices unlawful:

–           to deny or interfere with the employment opportunities of an individual based on the categories listed above, including,

–           to refuse to hire, discharge, or otherwise discriminate against any individual, with respect to tenure, promotions, terms, conditions or privileges of employment or with respect to any matter directly or indirectly related to employment;

–           for any employment agency to fail or refuse to classify properly or refer for employment or otherwise discriminate against any individual;

–           for any labor organization to discriminate against any individual or to limit, segregate or classify its membership in any way which would deprive such individual of employment opportunities, limit his or her employment opportunities or otherwise adversely affect his or her status as an employee or as an applicant for employment or adversely affect his or her wages, hours or conditions of employment;

–           for any employer, employment agency or labor organization to establish, announce or follow a formal or informal policy of denying or limiting, through a quota system or otherwise, the employment or membership opportunities of any individual or group;

–           for any employer, employment agency or labor organization prior to employment or admission to membership to cause to be printed, published or circulated any notice or advertisement relating to employment or membership indicating any preference, limitation, or specification constituting discrimination under this Chapter;

–           for any employer, employment agency or labor organization to violate any provision of Chapter 9-3200 of this Code, entitled “Entitlement to Leave Due to Domestic Violence, Sexual Assault, or Stalking;”

–           for any person to harass, threaten, harm, damage, or otherwise penalize, retaliate or discriminate in any manner against any person because he, she or it has complied with the provisions of this Chapter, exercised his, her or its rights under this Chapter, enjoyed the benefits of this Chapter, or made a charge, testified or assisted in any manner in any investigation, proceeding or hearing hereunder;

–           for any person to aid, abet, incite, induce, compel or coerce the doing of any unlawful employment practice or to obstruct or prevent any person from complying with the provisions of this Section or any order issued hereunder or to attempt directly or indirectly to commit any act declared by this Section to be an unlawful employment practice;

–           for any person subject to this Section to fail to post and exhibit prominently, in any place of business where employment is carried on, any fair practices notice prepared and made available by the Commission, which the Commission has designated for posting;

–           for any employer to fail to permit employees to dress consistently in accordance with their gender identity;

–           for any employer to fail, upon request of an individual to change that individual’s name or gender on any forms or records under the control of that employer, to make such changes to the extent permitted by law;

–           for any employer to fail to provide reasonable accommodations to the needs of an employee for her pregnancy, childbirth, or a related medical condition, as required by Section 9-1128;

–           for any employer to fail to reasonably accommodate an individual’s need to express breast milk – reasonable accommodations include providing unpaid break time or allowing an employee to use paid break, mealtime, or both, to express milk and providing a private, sanitary space that is not a bathroom where an employee can express breast milk, so long as these requirements do not impose an undue hardship (as defined in §9-1128(2)) on an employer.

Section 9-1128 provides additionally that it is an unlawful discriminatory employment practice for an employer to fail to provide reasonable accommodations to an employee for needs related to pregnancy, childbirth, or a related medical condition, provided (i) the employee requests such accommodations and (ii) such accommodations will not cause an undue hardship to the employer.

Reasonable accommodation under Section 9-1128 means an accommodation that can be made by an employer in the workplace that will allow the employee to perform the essential functions of the job.  Reasonable accommodations include, but are not limited to, restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.

Under Section 9-1128, the employer has the burden of proving undue hardship, considering such factors as nature and cost of accommodations; the overall financial resources of the employer’s facility, the number of persons employed at the facility, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer; the overall financial resources of the employer, including the size of the employer with respect to the number of its employees and the number, type and location of its facilities; and the type of operation or operations of the employer, including the composition, structure and functions of the workforce, the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the employer.

It is an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodations, satisfy the requisites of the job.

Yet another unlawful employment practice is set forth in §9-1130, which states, subject to listed exceptions, it shall be an unlawful discriminatory practice for an employer to procure, to seek a person’s cooperation or consent to procure, or to use credit information regarding an employee or applicant in connection with hiring, discharge, tenure, promotion, discipline or consideration of any other term, condition or privilege of employment with respect to such employee or applicant.

Of note, currently on hold pending resolution of the proceedings in Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, et al., No. 2:17-cv-01548-MSG in the United States District Court for the Eastern District of Pennsylvania, is a new provision of the FPO dealing with “wage equity” which would make it unlawful for an employer to inquire about a prospective employee’s wage history or to rely on the wage history of a prospective employee in determining the wage for such individual unless the applicant knowingly and willingly disclosed that wage history.  The Chamber has challenged this provision as a violation of the First Amendment, as a violation of the Due Process Clause of the Fourteenth Amendment due to the exposure of employers to severe penalties, and the question of whether the FPO is intended to apply to employers outside the City or even State limits provided such employers do “business in the City.”  As of this writing, the parties have submitted briefs on the Chamber’s motion for a preliminary injunction and the City’s request for an evidentiary hearing.

Section 9-1105 provides that the Commission may order remedies including but not limited to cease and desist orders, injunctive or other equitable relief including hiring, reinstating or upgrading, with or without back pay, admitting or restoring membership in a labor organization, admission to a guidance, apprentice-training or retraining program, payment of compensatory damages, payment of punitive damages (not to exceed $2000 per violation), payment of reasonable attorneys’ fees and payment of hearing costs as reimbursement for expenses incurred by the Commission.

While these remedies are consistent with existing state and federal law, the FPO’s additional penalty provisions, some of which are cited in the Chamber’s litigation, go far beyond anything in the arsenal of the EEOC or the Pennsylvania Human Relations Commission.

Section 9-1121(1) provides for fines of up to $2000 for each violation of any order of the Commission, or any provision of the FPO, including any person who shall willfully resist, prevent, impede or interfere with the Commission, its members, agents or agencies in the performance of duties.

“Any person who violates, on more than one occasion, any order of the Commission or any provision of this Chapter, or who, on more than one occasion, willfully resists, prevents, impedes or interferes with the Commission, its members, agents or agencies in the performance of duties pursuant to this Chapter, shall be guilty of a separate offense of repeat violation, and for each such repeat violation shall be subject to a fine of not more than two thousand (2,000) dollars, or imprisonment for not more than ninety (90) days, or both.  A person shall be guilty of a repeat violation regardless of whether the second or subsequent violation occurs before or after a judicial finding of a first or previous violation.  Each violation, after the first, shall constitute a separate repeat violation offense.” §9-1121(2) [Emphasis added]

An amendment to the FPO, signed by the Mayor on May 17, 2017, to be effective immediately, states that in addition to the other remedies provided in the Law, “the Commission may, upon a finding that a respondent has engaged in severe or repeated violations without effective efforts to remediate the violations, order that the respondent cease its business operations in the City for a specified period of time.” §9-1118(3) [Emphasis added]

This article does not discuss other provisions of the Philadelphia Code with which employers need to be familiar such as Chapter 9-4100, Philadelphia’s paid sick leave law, and Chapter 9-3000, Fair Criminal Record Screening Standards (“Ban the Box” ordinance governing criminal record checks in employment hiring decisions).

In sum, several of the prohibited employment activities listed in the FPO have no federal or state corollaries and therefore limited case law exists to guide employers.  This is especially concerning, since employers who violate the FPO potentially face not only administrative action, litigation and fines, but even shuttering of their businesses and  potential jail time for repeat violations.  To date, there are no definitions for what constitutes “severe or repeated violations” or what constitutes an ineffective effort to remediate the violation, nor are there any specified limits on the period of time the Commission might lawfully shut down a business.  Given all of these concerns, litigation under the FPO bears close watching.

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New Jersey’s “Ban the Box” Act Takes Effect March 1, 2015

David J. Reilly

On March 1, 2015, New Jersey’s “Opportunity to Compete Act,” also known as the “Ban the Box” Act, will take effect.  “Ban the Box” prohibits certain employer inquiries regarding a job applicant’s criminal record, including inquiries on most employment applications.  Therefore, employers seeking to fill jobs in New Jersey, either internally or externally, need to ensure that they understand and comply with the requirements of “Ban the Box.”

“Ban the Box” is intended to improve employment opportunities for persons with criminal records.  The Act applies to all employers (except the federal government) which have 15 or more employees over 20 calendar weeks, and which do business, employ persons, or take job applications within New Jersey.  While it is not entirely clear, the phrasing of the Act suggests that even employees outside of New Jersey will be counted toward the 15 employee minimum.

The Act generally prohibits covered employers from making any oral or written inquiries during the “initial employment application process” regarding an applicant’s “criminal record,” including inquiries on a form employment application.  “Criminal record” is broadly defined, and includes information such as arrests, indictments, charges, pleas, convictions, acquittals, sentences, and the like.  The Act also generally prohibits covered employers from running job advertisements stating that applicants who have been arrested or convicted of a crime or offense will not be considered for employment.  These prohibitions apply only where the prospective employment will be physically located, “in whole, or in substantial part,” in New Jersey.  Note, however, that other states and localities have similar laws addressing the consideration of criminal history for employment purposes in those jurisdictions.

The Act does not prohibit all pre-employment inquiries regarding criminal records.  The Act permits covered employers to make inquiries about an applicant’s criminal record, including through an employment application form, after the conclusion of the “initial employment application process” – that is, after the conclusion of a “first interview” of the applicant conducted by the employer either “in person or by any other means . . . .”   The Act also permits employer inquiries regarding an applicant’s criminal record, even during the “initial employment application process,” if the applicant volunteers any information regarding his or her criminal record.

Notably, the Act does not preclude employers from refusing to hire an applicant based upon a criminal record, unless the record has been “expunged or erased through executive pardon . . . .” However, the refusal must be consistent with other laws, rules and regulations, such as the federal Fair Credit Report Act, and federal and state discrimination laws (including the EEOC’s guidelines regarding the consideration of criminal history during the selection process).

The Act broadly defines “applicant” to mean anyone the employer is considering through any means for a position, and includes current employees.

The Act contains some limited exceptions.  The prohibitions relating to advertisements and criminal records inquiries, including inquiries on a form employment application, do not apply where employees are sought for positions:

  • “in law enforcement, corrections, the judiciary, homeland security, or emergency management”;
  • “where a criminal history record background check is required by law, rule or regulation”;
  • where an arrest or conviction would preclude the applicant from holding the position pursuant to law, rule or regulation; or
  • “where any law, rule, or regulation restricts an employer’s ability to engage in specified business activities based on the criminal records of its employees.”

Inquiries also may be made prior to the completion of a first interview (including inquiries on a form employment application) of applicants for positions “designated by the employer to be part of a program or systematic effort designed predominantly or exclusively to encourage the employment of persons who have been arrested or convicted of one or more crimes or offenses.”

Employers who violate the Act may be subject to penalties of up to $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

Employers covered by the Act should review their employment application forms, as well as advertisements and postings for open positions in New Jersey, to ensure that these forms, advertisements and postings comply with the “Ban the Box” requirements.  In addition, covered employers should review their hiring and recruitment policies and practices, and consider training those involving in the hiring process, to avoid any impermissible inquiries regarding criminal records during the initial employment application period.

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Developments In The Evolving Area Of A New Jersey Employer’s Liability For The Harassing Conduct Of Its Supervisors

Thomas C. Bigosinski

New Jersey employers are required to entrust management and supervisory employees with carrying out its policies, and preventing the creation of a hostile work environment. Where there is a breakdown, however, and an employee is able to establish that a supervisor created a hostile work environment – be it on account of the employee’s gender, race, religion, sexual orientation, or other classification protected by the New Jersey Law Against Discrimination (LAD) –  the unlawful conduct of that supervisor can (and often will) expose the employer to liability for the victim’s damages.  This article discusses steps employers should take to serve the dual purpose of (i) improving the collegiality of its workforce while preventing distasteful, unlawful and unprofessional interactions among co-workers; and (ii) avoiding liability for the wayward conduct of its supervisory personnel.

Since 1998, in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the United States Supreme Court has set forth two ways in which an employer will be subject to liability for the torts of its employees acting outside the scope of their employment.  First, if the employer itself is negligent or reckless, i.e., if it knew or should have known about the harassment and failed to stop it. See Restatement (Second) of Agency, §219(2)(b).  Second, the employer will be liable if the supervisory employee purported to act or to speak on behalf of the employer and there was reliance upon apparent authority, or he/she was aided in accomplishing the tort by the existence of the agency relation. Id., §219(2)(d).

The New Jersey Supreme Court has adopted the United State Supreme Court’s approach, concluding that employer liability for compensatory damages in supervisory hostile work environment claims is governed by agency principles. Lehman v. Toys ‘R’ Us, Inc., 132 N.J. 587, 619 (1993).

This is an evolving area of the law.  On September 23, 2014, the New Jersey Supreme Court heard oral argument in its review of the Appellate Division’s affirmance of Summary Judgment dismissing a Corrections Officer’s LAD sexual harassment claim. A-35-13 Aguas v. State of New Jersey (072467). The plaintiff, Ilda Aguas, alleged that her supervisor, an area lieutenant also employed by the Department of Corrections: (1) followed her to the parking lot, got close to her face, and asked “Are we going to a telly [(i.e., a motel)]?”; (2) called plaintiff on her cell phone following the prior incident to demand that she return handcuffs that she had taken with her; (3) sniffed the handcuffs upon plaintiff’s return of such and stated, “Where you been? If you want to borrow them, just let me know”; (4) sat on plaintiff’s lap facing her, blew his whistle, and grinded his pelvis into her; (5) massaged plaintiff’s shoulders; (6) stuck out his buttocks toward plaintiff, flexed his arms, and said, “Do me a favor and take my radio off [my hip]”; (7) grabbed plaintiff from behind, held her hands behind her back, bent her over a table, and placed his pelvis on her buttocks; (8) simulated boxing techniques with plaintiff, causing physical contact; (9) danced around plaintiff while blowing his whistle as if plaintiff was a stripper;  among other allegations.

The Appellate Division in Aguas affirmed dismissal of plaintiff’s harassment claims against her employer, because the employer instituted a proper anti-discrimination policy and engaged in a thorough investigation of the claims, and because there was “no factual showing that the harassment of which plaintiff complains derived from a supervisory relationship.”  The Supreme Court’s questioning of plaintiff’s and defense counsel at oral argument focused on whether the area lieutenant’s status as plaintiff’s supervisor alone – without regard for whether his alleged harassment derived from that supervisory relationship – was sufficient to allow a plaintiff to survive Summary Judgment on a hostile work environment claim under §219(2)(d).

In a recent development favorable to employers which have in place effective anti-discrimination policies and complaint procedures, the New Jersey Appellate Division approved for publication its opinion in Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J.Super. 366 (Sept. 16, 2014). This decision affirmed Summary Judgment in an employer’s favor on plaintiff’s LAD racial harassment claim because the employer could not be held vicariously liable for the conduct of the plaintiff’s supervisor.

Critical to the Dunkley decision is that upon commencement of his employment as an oil delivery driver, plaintiff was provided an employee handbook, which contained policies against discrimination and complaint mechanisms. Plaintiff also underwent two days of in-class training, which discussed the policies among other work items.  Plaintiff alleged that during his on-the-job training, he was subject to racially derogatory comments by his supervisor.  When plaintiff failed to return to work after the training, defendant’s management contacted him to inquire about his absence, met with him, and discussed the incidents plaintiff alleged occurred with the supervisor.

Following the meeting with management, plaintiff was transferred to a new supervisor, did not have to interact with the prior supervisor any more, and did not suffer any additional racially-based treatment. Plaintiff quit his employment and sued, alleging he suffered constructive discharge because his complaint was not kept confidential and he felt ostracized by co-workers, who “would shy away” from him.

The Dunkley court’s conclusion that Summary Judgment was warranted follows a line of cases that “adhere to the principle that if an employer has exercised due care in acting to prevent a [] discriminatory hostile work environment, vicarious liability should not attach. The establishment of an effective anti-[] harassment workplace policy and complaint mechanism evidences an employer’s due care and may provide affirmative protection from vicarious liability.” Gaines v. Bellino, 173 N.J. 301, 303 (N.J.2002);  Barroso v. Lidestri Foods, Inc., 937 F. Supp. 2d 620, 635-36 (D.N.J. 2013) (In LAD action, employee failed to demonstrate genuine issue of material fact existed supporting the imposition of vicarious liability on the employer for the manager’s harassing conduct where employer maintained both a policy expressly prohibiting discrimination and harassment, which was provided to new employees at the time they were hired).

Because the Dunkley employer maintained a handbook with well-defined anti-discrimination policies and complaint mechanisms, provided it to employees upon hire, directed new hires to read the handbook completely and become familiar with all policies and information provided, could demonstrate the effectiveness of the handbook, and took actions to protect the plaintiff from further harassment, the employer was able to avoid vicariously liable for the harassing supervisor’s conduct.

Competent employment counsel can provide invaluable assistance in perfecting policies, administering training and counseling employers when potentially harassing situations develop.  It is imperative that New Jersey employers maintain effective anti-harassment policies and procedures, publish these policies broadly, adequately train their employees at hire and routinely thereafter, take appropriate actions to stop harassment, provide a competent and easily-accessible complaint mechanism that can promptly and effectively investigate concerns about harassment, train supervisors of their responsibilities and impress upon them that they are invested in the maintenance of a harassment-free workplace, etc.  In so doing, New Jersey employers can potentially shield themselves from vicarious liability.  Even more importantly, those employers can provide their valuable employees with a harmonious workplace free from insidious harassment and discrimination.

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National Survey of Paid Sick Leave Laws

Melanie D. Lipomanis

The following is a summary of new paid sick leave laws enacted within the last few years across the United States: 

  • San Francisco: Effective Date Feb. 5, 2007

Under the San Francisco Paid Sick Leave Ordinance employees begin to accrue sick leave ninety calendar days from their date of hire.  All employers are subject to the ordinance for employees who perform work within San Francisco city limits.  All employees accrue paid sick in one hour increments for every thirty hours worked, including temporary and part-time employees and without regard to immigration status.  Accrual of paid sick leave is capped at 40 hours for employees of businesses with fewer than ten employees, and 72 hours for those with ten or more.

  • Washington, D.C.: Effective May 13, 2008

The Accrued Sick and Safe Leave Act of 2008 (“ASSLA”), requires all employers to provide each employee with paid sick and/or safe leave as follows:  employers with 100 or more employees must provide at least 1 hour of paid leave for every 37 hours worked, not to exceed 7 days of leave per year;  employers with 25 to 99 employees must provide at least 1 hour of paid leave for every 43 hours worked, not to exceed 5 days of leave per year; and employers with 24 or less employees must provide each employee at least 1 hour of paid leave for every 87 hours worked, not to exceed 3 days of leave per year.  Paid leave begins to accrue at the start of employment and may be used after 90 days of employment.  Leave may be taken for the following situations: (1) physical or mental illness, injury, or medical condition of the employee; (2) to obtain a medical diagnosis or preventative care for the employee; (3) situations arising under (1) and/or (2) for a child, parent, spouse, domestic partner, or other family member of the employee; or (4) to obtain social or legal services pertaining to stalking, domestic violence, or sexual abuse of the employee or employee’s family member.  The law contains an exception (“safe harbor”) that employers with existing paid leave policies will be deemed to be compliant with the new law if the polices permit employees to accrue and use paid leave that are at least equivalent to the leave prescribed in ASSLA.

  • Connecticut: Effective Jan. 1, 2012

Under the Paid Sick Leave Act Employers with 50 or more employees must pay “service workers” one hour for every 40 hours worked provided the service worker has worked an average of 10 or more hours a week for the employer in the most recent complete calendar quarter.  “Service worker” encompasses numerous occupations within various service industries (see the Act for all occupations and categories at http://www.ctdol.state.ct.us/wgwkstnd/SickLeaveLaw.htm).  The Act does not apply to day or temporary workers, non-hourly employees or salaried employees.  Paid leave hours begin to accrue on the employee’s date of hire and may be taken upon completion of the 680th hour of employment.  Accrual is capped at 40 hours in any given year.  Leave may be taken for the illness, injury or health condition, or the medical diagnosis, care or treatment of mental illness or physical illness, injury or health condition, or preventative medical care for a service worker or the service worker’s child or spouse, or where a service worker is a victim of family violence or sexual assault, for medical care or psychological or other counseling for physical or psychological injury or disability, or  to obtain services from a victim services organization, (C) to relocate due to such family violence or sexual assault, or to participate in any civil or criminal proceedings related to or resulting from such family violence or sexual assault.  The Act contains a safe harbor provision.

  • Seattle:      Effective Sept. 1, 2012 

Under Seattle’s Paid Sick and Safe Time Ordinance (“PSST”), requires private sector employers to provide all employees working within Seattle city limits with paid sick and/or safe leave as follows:  businesses with more than 4-49 employees must provide one hour of paid leave for every 40 hours worked, with a carryover and capped use rate of 40 hours taken per calendar year; employers with 50-249 employees must provide one hour for every 40 hours worked, with a carryover and capped use rate of 56 hours per calendar year; employers with 250 or more employees must provide one hour for every 30 hours worked, with a carryover and capped use rate of 72 hours per calendar year.  The ordinance applies to all full-time, part-time, temporary, and occasional-basis employees, and employees who telecommute in Seattle.  Leave may be taken for illness or preventative care for the employee or the employee’s family member, or for matters involving domestic violence, sexual assault, stalking, or for closure of the employee’s workplace or the school or place of care of the employee’s child by public official to limit exposure to infectious agent, biological toxin or hazardous material. The ordinance contains a safe harbor provision.

  • Portland, Ore.: Effective Jan. 1, 2014 

The Portland Protected Sick Time Ordinance requires employers with 6 or more employees to provide one hour of paid leave for every 30 hours worked, and employers with fewer than 5 employees to provide one hour of unpaid leave for every 30 hours worked.  The ordinance applies to all employees who work within the geographic boundaries of the city of Portland for 240 hours or more in a calendar year.   The sick leave may be used for issues related to the employee’s own health, to care for the health of a family member, or to address issues caused by domestic violence, sexual harassment, assault or stalking.  Sick time may be used in increments of one hour or greater. The ordinance contains a safe harbor provision.

  • Jersey City, N.J.: Effective Jan. 24, 2014 

The ordinance requires employers with more than ten employees that operate within Jersey City to provide paid sick leave to all employees employed in Jersey City, regardless of full-time or part-time status. Employees of businesses with less than ten employees also must be permitted to accrue sick leave, but such leave may be unpaid.  In addition, the ordinance provides that an employer cannot retaliate against an employee for taking sick leave, reporting a violation of the ordinance or engaging in other activities protected under the ordinance. 

  • New York City: Effective April 1, 2014

New York City employers with five or more employees must provide up to 40 hours per year of paid sick time to employees, which may be used for the employee’s own illness or to care for a sick family member.  The law has a broad definition of “family member.”  For employers with fewer than five employees, the sick leave may be unpaid. 

  • Newark, N.J.: Extended effective date June 21, 2014

All employers regardless of size must provide one hour of paid sick leave for every thirty hours worked.  For those businesses that employ nine or fewer employees in Newark may cap accrual of sick leave to 24 hours per year; employers with ten or more employees may cap paid sick leave to 40 hours per year.  The sick leave may be used for issues related to the employee’s own health, to care for the health of a family member.

  • State Paid Sick Leave Preemption Laws

In response to the piecemeal trend in paid sick leave laws, some state legislatures have enacted preemption laws that prohibit local governments from passing paid sick leave legislation, including Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, North Carolina and Tennessee. Wisconsin enacted legislation in 2011 that bars cities, villages and counties from enacting family and medical leave rules that differ from state standards, which effectively eliminated Milwaukee’s paid sick ordinance.

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Is Mandatory Paid Sick Leave Going State-Wide?

Melanie D. Lipomanis

We recently posted concerning new ordinances enacted in two New Jersey cities, Newark and Jersey City, mandating that local employers provide paid sick time to their employees.  Now, the State Legislature is considering whether to extend mandatory paid sick time statewide.   

Senator Loretta Weinberg (D-Teaneck) and Assemblywoman Pamela Lampitt (D-Voorhees) announced their sponsorship of identical bills (S785/A2354) mandating that public and private employers provide employees with a minimum of paid sick leave.  The bills would allow employees to accrue one hour of paid sick leave for every 30 hours worked, irrespective of whether they are employed on a full or part-time basis. 

More generous than Newark’s paid sick leave ordinance, the pending bills would increase the annual accrual cap to forty hours per year for employers with nine or fewer employees, and seventy-two hours per year for employers with ten or more employees (as opposed to twenty-four and forty, respectively).  Although the bills include an annual rollover provision for accrual purposes, they do not require the employer to provide a greater number of paid sick hours than the specified caps in any given year.  Neither bill provides for payout of accrued but unused sick leave upon separation of employment. 

If either bill is enacted, existing employees would accrue paid sick leave retroactively beginning on January 1, 2014, and new employees will begin to accrue paid leave on the 90th day following their date of hire.  

The bills also provide that the paid sick leave may be taken by the employee for the diagnosis, care, treatment, or recovery from the employee’s own physical or mental illness or injury or other adverse health condition, and for preventative care, or to aid or care for a family member during the diagnosis, care, treatment, or recovery from a mental or physical illness of injury or other adverse health condition, and for preventative care. 

Paid sick leave also could be taken for medical attention, counseling, relocation or legal services in connection with domestic violence concerning either the employee or his or her family member.  The bills also would allow employees to use the paid sick leave for hours the employee is not able to work due to closure of his or her workplace or the school or place of care of a child. 

An employer could require up to seven days advance notice of the employee’s intent to use paid sick leave where feasible, as well as reasonable documentation that the leave is being used for a permissible purpose when the leave taken exceeds three or more days. 

The legislation provides a safe haven for employers who offer any other type of paid leave that may be used for the purposes enumerated, and which accrues at the same or greater rate.  Any paid leave meeting these requirements would be deemed compliant with the proposed law. 

Notably, the bills contain a broad anti-retaliation provision that would create a presumption of an unlawful retaliatory personnel action whenever an employee suffers an adverse employment action within 90 days of filing a complaint with the Department of Labor, informs any person of an employer’s violation of this law, or opposes any policy, practice or act of the employer that the employee has a good faith belief is in violation of this law. 

 An employer’s failure to comply with the proposed law would be considered a violation of the New Jersey State Wage and Hour Law and subject to the remedies, penalties, and other measures provided by that law in addition to civil actions. 

Even if these bills are not enacted, the press reports that State union leaders have vowed to continue their efforts in getting paid sick time laws, such as those in Jersey City and Newark, enacted in other New Jersey municipalities. 

[Press report]

“Sandy” Amendments Give Leave and Benefits Entitlement Credit to Workers Impacted by State of Emergency

David M. Alberts

On January 17, 2014, Governor Christie signed into law P.L. 2013, c. 221, which amends the New Jersey Family Leave Act, N.J.S.A. 34:11B-1, et seq. (“FLA”), and Security and Financial Empowerment Act, N.J.S.A. 34:11C-1, et seq. (“SAFE”), to ensure that workers do not lose eligibility for leave under those statutes due to loss of employment during a natural disaster or other emergency.  Under both the FLA and SAFE, employees do not qualify for leave unless they have been “employed for at least 12 months by an employer…for not less than 1,000 base hours during the immediately preceding 12-month period.” N.J.S.A. 34:11B-3; N.J.S.A. 34:11C-2.  The amendments provide that any time during which an employee is laid off or furloughed due to a “state of emergency” – up to a maximum of 90 days – shall count towards the 12-month and 1,000-hour requirements.  “State of emergency” is defined as any “natural or man-made disaster or emergency for which a state of emergency has been declared by the President of the United States or the Governor, or for which a state of emergency has been declared by a municipal emergency management coordinator.”

P.L. 2013, c. 221 similarly amends the eligibility provisions for temporary disability benefits and family leave insurance benefits – both of which require 20 “base weeks” of work during the preceding year – to provide that any time during which an employee is laid off or furloughed due to a “state of emergency” (up to a maximum of 13 weeks) shall count towards the “base week” requirement.

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Newark Adopts Paid Sick Leave Ordinance

Harrison J. McAvoy

Add Newark to the growing ranks of jurisdictions that have adopted laws guaranteeing paid sick leave to employees.  On January 29, 2014, Mayor Luis A. Quintana signed Ordinance 13-2010 into law, making New Jersey’s largest city the second municipality in the state to adopt a paid sick leave ordinance.  We previously reported on Jersey City’s adoption of a paid sick leave law here, as well as New York City’s.  Private employers located in Newark must comply with the paid sick leave ordinance by May 29, 2014.

Newark’s ordinance requires that all businesses that employ workers within city limits provide paid sick leave, regardless of the size of the business.  At a minimum, employers must provide workers (i.e., employees who have worked in Newark at least 80 hours in a year) with one hour of paid sick leave for every thirty hours worked.  For those businesses that employ at least ten employees in the city, paid sick leave can be capped at forty hours per year.  Businesses that employ less than ten employees in Newark need not permit employees to accrue more than twenty-four hours of paid sick leave.  Leave can be taken for the employee’s illness or medical care, as well as the illness or care of the employee’s family.  An employer violates the ordinance by denying paid sick leave or by retaliating against employees who attempt to exercise rights protected by the ordinance.

For unionized employees who are covered by a collective bargaining agreement in effect as of the effective date of the ordinance, the ordinance does not become effective until after the termination of the current collective bargaining agreement.    The ordinance also provides (unlike the Jersey City ordinance) that some or all of the ordinance’s requirements may be expressly waived by a collective bargaining agreement, so long as the waiver is expressed “in clear and unambiguous terms.”

Similar to other leave statutes and regulations, the Newark ordinance requires that employers provide notice to employees.  The required notice includes both (1) the provision of written notice upon commencement of employment and (2) the conspicuous display of a poster within the workplace, both of which must provide notice of the rights available to the employee under the law.

The law empowers both employees and the city’s Department of Child and Family Well-Being with the ability to file suit in municipal court for a violation.  Violators may face both fines and damages in the form of restitution of withheld paid sick time.

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