Employment Law Alert

Employment Law Alert

News and Updates on Employment Law

EEOC Issues Enforcement Guidance on Pregnancy Discrimination

Posted in Discrimination

On July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) — the agency responsible for the enforcement of federal anti-discrimination laws — issued Enforcement Guidance on Pregnancy Discrimination and Related Issues (“the Guidance”). The Guidance primarily discusses the requirements of the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), but also addresses additional federal laws that touch upon pregnancy and related conditions, including the Family and Medical Leave Act (FMLA), the Genetic Information Nondiscrimination Act (GINA) and the Patient Protection and Affordable Care Act (ACA).

Though the basic rule of the PDA — covered employers must treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other employees who are similar in their ability or inability to work — has not changed, the Guidance asserts a number of new and somewhat controversial positions. For example:

  • Lactation is a pregnancy-related medical condition under the PDA, and therefore, employers may not discriminate against a lactating employee for breastfeeding or expressing breast milk. “[I]f an employer allows employees to change their schedules or use sick leave for routine doctor’s appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.”
  • Employers must provide light duty to pregnant employees if they do so for other employees. Employers may not limit light duty to employees with on-the-job injuries. In other words, employees who have lifting restrictions must be treated the same regardless of the source of their restriction — whether it be pregnancy or a fall down the office stairs.
  • Employers cannot force a pregnant employee to take leave if she is able to do her job — even if the employer is motivated by concern for the employee’s safety. However, employers “must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work.” A pregnant employee cannot be fired for taking leave in accordance with her employer’s sick leave policy.
  • Though pregnancy itself is not a disability under the ADA, pregnancy-related impairments may be considered disabilities. Employers may not discriminate against a worker whose pregnancy-related impairment qualifies as a disability under the ADA and must provide her reasonable accommodation if needed, unless the accommodation would constitute an undue hardship. However, under the Guidance, “[a]n impairment’s cause is not relevant in determining whether the impairment is a disability.” Therefore, routine conditions associated with most pregnancies (i.e., morning sickness and back pain) may qualify for accommodation under the ADA.
  • Leave related to the “physical limitations imposed by pregnancy or childbirth,” (pregnancy-related medical leave) can be limited to women affected by those conditions, but parental leave must be extended to “similarly situated men and women on the same terms”. “If . . . an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.”

Employer Takeaway

The Guidance is the latest example of the growing trend toward expanding protections for pregnant workers. In fact, numerous jurisdictions, including New Jersey, New York City, Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Texas, Minnesota and West Virginia have already enacted pregnancy accommodation laws, and similar legislation is on the horizon for a number of other jurisdictions. Notably, the U.S. Supreme Court is set to hear arguments in Young v. United Parcel Service (concerning alleged “preferential treatment” for pregnant employess), and the Supreme Court’s opinion may address the Guidance. In any event, in light of the Guidance, employers should review their policies and practices related to pregnancy discrimination and accommodation. If you have questions regarding employer obligations following the EEOC’s release of the Guidance, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department

Lindsay J. Jarusiewicz is an Associate in the Gibbons Employment & Labor Law Department.

New Jersey Supreme Court Clarifies Whistleblower Law

Posted in Whistleblower

In June 2014, the New Jersey Supreme Court, in Hitesman v. Bridgeway, Inc., affirmed the decision of a lower appellate court dismissing a claim brought by a healthcare worker under the New Jersey whistleblower law, the Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq. (CEPA). The decision is significant because the Supreme Court clarified the role of a trial court on the issue of whether a plaintiff has sufficiently identified a rule of law or a public policy that provides the necessary foundation for a CEPA claim.


Bridgeway, which operated a nursing home, employed plaintiff as a staff nurse and later promoted him to a supervisory position. Plaintiff became concerned about what he perceived as an outbreak of infectious diseases at the nursing home and expressed his concerns to his superiors and to various government agencies. Dissatisfied with the actions taken in response to his concerns, plaintiff contacted a local television station and provided the station with a copy of his “logs” on which he had recorded information about patients at the nursing home. Bridgeway then terminated plaintiff, advising him that by providing his logs to the television station he had violated Bridgeway’s confidentiality policy and the Health Insurance Portability and Accountability Act (HIPAA).

Plaintiff sued Bridgeway in New Jersey Superior Court, alleging that he was terminated in violation of CEPA. Specifically, plaintiff relied on N.J.S.A. 34:19-3a(1) and c(1), which prohibit retaliation against a licensed healthcare professional who either discloses to a public body or objects to a policy or practice of an employer that constitutes improper quality of patient care. He also relied on N.J.S.A. 34:19-3c(3), which prohibits retaliation against any employee who objects to a policy or practice of an employer that is incompatible with a clear mandate of public policy concerning the public health, safety or welfare. During the jury trial that followed, the trial court denied Bridgeway’s motion for involuntary dismissal at the close of plaintiff’s case. The jury concluded that Bridgeway had violated CEPA when it terminated plaintiff. In response to special interrogatories, the jury found that plaintiff had an objective, reasonable belief that Bridgeway had provided improper quality of healthcare or had violated the law or public policy and that plaintiff’s reporting of his concerns about patient care to government agencies was a determinative factor in his termination.

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Gibbons Director John Romeo Named a Top Employment Attorney by Human Resource Executive Magazine

Posted in Labor

Human Resource Executive® magazine has featured John C. Romeo, a Director in the Employment & Labor Law Department at Gibbons P.C., on its list of the “Nation’s Most Powerful Employment Attorneys,” in the “Up-and-Comers” category.

This is the seventh edition of the “Nation’s Most Powerful Employment Attorneys,” a collaboration between Human Resource Executive® and Lawdragon, a media company that has issued “best of” lawyer lists since 1989. This guide is intended to offer corporate counsel and human resource professionals a guide to finding lawyers who can help resolve difficult employment situations and comply with workplace-related laws and regulations. This year’s list of 210 employment lawyers featured 40 up-and-comers (who have been in practice for less than 20 years) recommended by corporate counsel.

At Gibbons, Mr. Romeo represents both private and public employers in all aspects of federal and state labor and employment laws. He routinely provides practical strategic advice to clients dealing with difficult employee issues involving all aspects of the employment relationship. Mr. Romeo has extensive experience defending single plaintiff, multi-plaintiff and class claims under state and federal employment laws, including claims for discrimination, retaliation, and harassment, as well as wage and hour claims. Mr. Romeo also serves as legal counsel and lead negotiator during labor negotiations, and has extensive experience handling labor arbitrations and defending unfair labor practice charges before the NLRB. In addition, he has assisted employers in developing, drafting, and implementing employment policies, compliance and ethics programs, drug-free workplace programs, and executive employment agreements. He is a former member of the Association of Corporate Counsel’s Labor and Employment Committee and was active with the organization’s Delaware Valley Chapter (DELVACCA).

About Human Resource Executive®
Human Resource Executive® was established in 1987 and continues today as the premier publication focused on strategic issues in HR. Written primarily for vice presidents and directors of human resources, the magazine provides these key decision-makers with news, profiles of HR visionaries and success stories of human resource innovators. Stories cover all areas of human resource management, including talent management, benefits, healthcare training and development, HR information systems, relocation, retirement planning, and employment law.

Supreme Court Finds President’s NLRB “Recess” Appointments Unconstitutional

Posted in Labor

On June 26, 2014, in NLRB v. Noel Canning, the Supreme Court of the United States unanimously decided that President Obama’s purported “recess” appointments of National Labor Relations Board members on January 4, 2012 violated the Constitution because the Senate was not on a break of “sufficient length” when the President appointed them, and thus the President could not dispense with Senate consent of the appointments. The decision calls into question hundreds of NLRB rulings between January 4, 2012 and August 7, 2013, when a new Board was finally sworn in with Senate approval of the President’s appointments. Those rulings include numerous pro-union decisions dealing with dues checkoff clauses, confidentiality policies and practices, employee social media activities, conduct during bargaining unit elections and workplace investigations. More globally, the decision ends an arduous debate as to the meaning of the words “[v]acancies that may happen during the Recess” in the Constitution’s Recess Appointments Clause.

By way of brief background, the Constitution generally requires the Senate to approve the President’s appointments of United States officers, including members of the NLRB. At issue in Noel Canning was the President’s appointments of three NLRB Members on January 4, 2012 during a three-day break when the Senate was not conducting any business. Noel Canning, a Pepsi-Cola distributor, maintained that an NLRB order requiring it to execute a collective bargaining agreement was invalid because the appointments of three members of the five-member Board had not been approved by the Senate, and thus the Board lacked a quorum. The President relied on the so-called Recess Appointments Clause, which carves out a limited exception that allows the President to fill vacancies without the Senate’s approval that “happen” during “the Recess” of the Senate.

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EEOC Issues Guidance Regarding Religious Dress and Grooming Practices

Posted in Discrimination

The Equal Employment Opportunity Commission (“EEOC”) — the federal agency responsible for the enforcement of federal anti-discrimination laws — recently issued guidance on religious accommodation under Title VII of the Civil Rights Act of 1964 (“Title VII”), specifically focusing on religious dress and grooming practices. The publication, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” along with its accompanying Fact Sheet, are designed to assist employers to comply with their legal responsibilities under Title VII.

Expansive Interpretation of “Religious Practice or Belief”

The EEOC takes a broad view on “religious practice or belief” protected by Title VII, including those practices or beliefs that are “new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others,” as well as practices based on “theistic beliefs or non-theistic moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views.”

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New Jersey Appellate Court Upholds Agreements Shortening the Statute of Limitations for Employment-Related Claims

Posted in Employment Agreements

On June 19, 2014, in Rodriguez v. Raymours Furniture Company, Inc., the New Jersey Appellate Division upheld the validity of a provision in an employment application form by which the job applicant agreed that, if hired, he or she would bring any employment-related claim within 6 months after the claim arose. Plaintiff alleged he was terminated because of a disability in violation of the New Jersey Law Against Discrimination (“LAD”) and in retaliation for having filed a workers compensation claim. The Appellate Division held that because the plaintiff brought these claims 9 months after his termination they were barred by the 6-month limitations period in the application form even though they were brought well within the 2-year statute of limitations period otherwise applicable to these types of claims.


When plaintiff applied for a job with defendant in 2007 he was required to complete an application form which included the following language:


* * * * *


In 2010, plaintiff completed another application form in connection with his promotion to a new position. This form did not contain a provision shortening the period in which to bring an action against the company.

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NY Court of Appeals Gives Guidance on What Whistleblowers Need to Allege Under New York’s Whistleblower Law to Maintain Claim

Posted in Whistleblower

On May 13, 2014, in Webb-Weber v. Community Action for Human Services, Inc., the New York Court of Appeals unanimously held that an employee need not identify the specific “law, rule or regulation” allegedly violated by his or her employer in a complaint for whistleblower retaliation under New York Labor Law Section 740 (2) in order to maintain a viable cause of action.

Plaintiff Webb-Weber was the chief operating officer of defendant Community Action for Human Services, Inc. (“Community Action”), a non-profit corporation that provides social services to the mentally and physically disabled. Plaintiff’s amended complaint alleged that she was terminated in 2009 after making complaints to various public agencies about certain policies and practices of her employer. Specifically, plaintiff alleged that she complained to her supervisor and other Community Action representatives regarding issues threatening the health and safety of Community Action patients, including the falsification of patient medication and treatment records, inadequate fire safety, mistreatment of Community Action residents, and deficiencies in care and operations. Plaintiff ultimately alerted various state and city agencies, which resulted in sanctions and violations against Community Action.

New York Labor Law Section 740 (2) provides “An employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation” that either “creates and presents a substantial and specific danger to the public health or safety, or . . . constitutes health care fraud.” Because plaintiff did not specify which “law, rule or regulation” Community Action allegedly violated in her complaint, Community Action moved to dismiss plaintiff’s complaint for failure to state a claim. After motion practice at the trial and appellate court level, plaintiff’s Section 740 claim was dismissed for failure to identify a specific law, rule or regulation that defendant allegedly violated. Webb-Weber appealed to the Court of Appeals.

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Is This Thing On? NJ Appellate Division Bars Employees’ Attempt to Use Secret Audio Recording In Support of CEPA and LAD Claims

Posted in Whistleblower

Employees sometimes engage in questionable conduct to gather evidence to strengthen their claims of employment discrimination and retaliation. In Quinlan v. Curtiss-Wright Corporation and State of New Jersey v. Saavedra, employees misappropriated confidential employer documents to support their claims. More recently, in Stark v. South Jersey Transportation Authority, two employees surreptitiously voice-recorded a workplace conversation to support their claims under the New Jersey Law Against Discrimination (“LAD”). The Appellate Division, however, pressed the “STOP” button on the Stark plaintiffs’ efforts to utilize that recording as evidence, noting that recording violated the New Jersey Wiretap Act and failed to satisfy the seven-part balancing test established by the New Jersey Supreme Court in Quinlan for determining whether that violation nevertheless constituted “protected activity” under the New Jersey Law Against Discrimination (“LAD”).


Plaintiffs Stark and Ballistreri worked for South Jersey Transportation Authority (“SJTA”) in its toll audit division. Both plaintiffs had a history of abusing sick time, family leave, and vacation time and routinely failed to complete their monthly audit reports  on time. In early 2006, Defendant Charles Giampaolo became plaintiffs’ manager. On two occasions, plaintiffs complained to SJTA’s Affirmative Action Officer about Giampaolo’s allegedly harsh manner of dealing with them. Notably, however, plaintiffs did not accuse Giampaolo of gender discrimination or sexual harassment. SJTA retained a private attorney to investigate plaintiffs’ complaints about Giampaolo. At the same time, SJTA requested its independent auditing firm, SMART Consulting, to complete plaintiffs’ delinquent audits. SMART concluded that plaintiffs were “seriously behind” in their work, and recommended that the toll revenue audit function be performed by non-union members in SJTA’s finance department because of the conflict of interest in having plaintiffs audit toll collectors who were fellow union members. SMART also recommended that SJTA eliminate plaintiffs’ job positions.

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EEOC Focusing on Telecommuting as a Reasonable Accommodation

Posted in Disability

The EEOC is heralding a recent decision from the United States Court of Appeals for the Sixth Circuit, Equal Opportunity Employment Commission v. Ford Motor Co., a case in which the agency brought suit on behalf of a Ford employee who alleged she was terminated in retaliation for filing a charge of discrimination with the EEOC. In her charge, the employee alleged Ford violated the Americans with Disabilities Act (“ADA”) by not allowing her to telecommute to work. The district court granted Ford’s motion for summary judgment, but, in a 2-to-1 decision, the Sixth Circuit reversed, finding that the EEOC had presented evidence sufficient to survive summary judgment that (a) by requesting to telecommute the employee had sought a reasonable accommodation for her disability and (b) the alternative accommodations offered by the company were insufficient. Of concern to employers is the little weight given by the majority opinion to the employer’s business judgment that the employee’s presence in the workplace was an essential function of her job.


Jane Harris was employed by Ford as a resale steel buyer. She suffered from irritable bowel syndrome (“IBS”) the symptoms of which included fecal incontinence. In response to attendance problems caused by the IBS, her supervisor allowed her to work on a flex-time telecommuting schedule on a trial basis. The supervisor considered the trial unsuccessful because Harris was unable to establish regular and consistent work hours. Although Harris worked from home after “core business hours” to make up for her absences, she made mistakes and missed deadlines because she could not immediately access suppliers. Harris made a formal request to telecommute four days per week on an as needed basis. Ford permitted other resale buyers to telecommute one or two days per week on a predictable schedule. But the company determined that the position was not suitable to telecommuting up to four days per week on an unpredictable schedule because, although the position involved “some individual tasks . . . ‘the essence of the job was group problem-solving, which required that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.’ Ford managers made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving.” Harris rejected alternative accommodations offered by the company, such as moving her cubicle closer to the restrooms or seeking another job within the company more suitable to telecommuting. Thereafter, Harris filed a charge with the EEOC based on the company’s failure to agree to her requested accommodation. The company continued to be dissatisfied with her performance and placed her on a performance enhancement plan. After the company determined that Harris had failed to meet any objectives of the plan, it terminated her employment.

The EEOC brought suit on behalf of Harris, alleging that Ford failed to accommodate her disability by not permitting her to telecommute and terminated her in retaliation for filing a charge of discrimination with the agency. Relying on precedent, the district court granted Ford’s motion for summary judgment, declining to second-guess Ford’s business judgment that permitting Harris to telecommute was not a reasonable accommodation for her position.

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“School’s Out For Summer”: Legal Issues Impacting Employers Who Engage Summer Interns

Posted in Wage & Hour

With summer fast-approaching, employers who plan on utilizing summer interns should be aware of two issues that can have serious legal implications. The first applies to employers who engage, or are considering engaging, unpaid interns ─ when is an unpaid intern in fact an “employee” legally entitled to wages? The second issue applies to both paid and unpaid interns ─ do the discrimination laws protect interns from adverse employment actions based on their protected class status? Consideration of the these questions before “intern season” begins can avoid problems down the road and prevent expensive and time-consuming litigation.

When is an unpaid intern actually an employee who is entitled to wages under federal and state wage and hours laws? Last summer, in Glatt v. Fox Searchlight Pictures, Inc., the Southern District of New York tackled this issue with regards to the Fair Labor Standards Act (“FLSA”). A past blog post discussing this case can be found here. In Glatt, the court relied on the six factors identified by the United States Department of Labor in Fact Sheet #71 to determine if an intern has been properly classified as such:

  1. The internship must be similar to training provided in an educational environment;
  2. The internship must be for the intern’s benefit;
  3. The intern must work under close direction of existing employees and can’t displace a regular employee;
  4. The employer does not derive immediate advantage from the intern’s work, and may actually have its operations impeded;
  5. Completion of the internship does not guarantee a job offer from the employer; and
  6. The parties understand that the position is unpaid.

If the above criteria are satisfied, the intern is not in an employment relationship with the employer, and therefore, need not be paid.

Employers should also be aware that some states, such as New Jersey and New York, have more stringent regulations in place that require employers to compensate interns in most situations. The New Jersey Wage and Hour Regulations, N.J.A.C. 12:56-18.2, provide an eight-part test to determine if an intern ─ in New Jersey called a “student learner” ─ who participates in a school-to-work program at either a For-Profit or Not-For-Profit Business is entitled to wages. If the following eight criteria are met, an intern may be unpaid:

  1. The student shall be at least 16 years of age; 
  2. The activity must be related to a formal school-to-work transition plan for a student learner; 
  3. There is collaboration and planning between worksite staff and school staff resulting in clearly identified learning objectives related to the non-paid activities; 
  4. Any productive work is incidental to achieving learning objectives; 
  5. The student learner receives credit for time spent at the worksite and the student is expected to achieve the learning objectives; 
  6. The student learner is supervised by a school official and a workplace mentor; 
  7. The non-paid activity is of a limited duration, related to an educational purpose and there is no guarantee or expectation that the activity will result in employment; and 
  8. The student learner does not replace an employee.

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