Gibbons Law Alert

Gibbons Law Alert

Author: Susan L. Nardone

New Jersey Senate Labor Committee Amends Bill Prohibiting Use of Nondisclosure Provisions in Employment and Settlement Agreements

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Posted in Discrimination / Employment Agreements

On April 20, 2018

In response to the recent spotlight on sexual abuse and harassment claims in the workplace and the #MeToo movement, the federal government and numerous states, including New Jersey, have focused attention on the use of nondisclosure provisions in settlement agreements involving claims of sexual harassment and assault. As we previously reported, the Tax Cuts and Job Bills Act was passed in December 2017 and includes a provision that bars any settlement or payment related to claims of sexual harassment or sexual abuse from being deducted as a business expense if the payments are subject to a nondisclosure agreement. While the federal tax bill aims to discourage the use of nondisclosure agreements, the proposed New Jersey legislation initially provided an outright ban on such agreements. At the time of its first introduction during the prior legislative session in December 2017, Senator Loretta Weinberg’s proposed bill prohibited New Jersey employers from including “a provision in any employment contract or agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment.” The bill is unique because it is not limited to sexual harassment or abuse claims, but rather would apply to any type of discrimination, retaliation, or harassment claim under New Jersey’s Law Against Discrimination. Senator Weinberg’s bill was reintroduced...

NJ Legislature Passes Paid Sick Leave Bill

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Posted in Employee Benefits

On April 13, 2018

On the heels of sweeping pay equity legislation, the New Jersey Legislature has passed a comprehensive paid sick leave bill that, if signed, will require employers to provide employees with paid time off for a variety of purposes. For What Purpose Can Leave Be Taken? Employees can use paid sick leave for the following purposes: diagnosis, care, treatment, or recovery related to the employee’s illness; to care for a family member during diagnosis, care, treatment, or recovery related to a family member’s illness; for certain absences resulting from the employee or a family member being a victim of domestic or sexual violence; for time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, in connection with a public health emergency or a determination that the presence of the employee or child in the community would jeopardize the health of others; or to attend school-related conferences, meetings, or events, or to attend other meetings regarding care for the employee’s child. Paid time off used for these purposes must be paid at the same rate of pay with the same benefits as the employee normally earns. How Much Leave Must Be Provided? Employees will be entitled...

Courts Send Signal That Care in Drafting Arbitration Provisions is Key

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Posted in Alternative Dispute Resolution

On September 5, 2017

Two recent decisions, one by the Third Circuit Court of Appeals and the other by the New Jersey Appellate Division, offer some interesting insight into the validity and viability of arbitration clauses that send employment-related disputes and claims out of the court system and into arbitration. In Moon v. Breathless, the Third Circuit Court held that an arbitration provision in an exotic dancer’s independent contractor agreement did not encompass her statutory FLSA and state wage-and-hour claims. Appellant Alissa Moon (“Moon”), a dancer at Breathless Men’s Club (“the Club”), filed a putative collective and class action against the Club in the District of New Jersey alleging violations of the Fair Labor Standards Act, the New Jersey Wage Payment Law and the New Jersey Wage and Hour Law. The Club moved to dismiss based upon an arbitration provision contained in the Independent Dancer Rental Agreement (the “Agreement”) that Moon signed. The Agreement also contained a provision stating Moon was an independent contractor and not an employee. The District Court denied the Club’s motion to dismiss and directed the parties to engage in limited discovery on whether Moon’s claims were subject to a valid arbitration provision. Following discovery, the District Court found that Moon’s claims fell within the scope of the Agreement’s valid arbitration provision and granted the...

Federal DOL Rescinds Joint Employer and Independent Contractor Guidance

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Posted in Wage and Hour

On June 19, 2017

On June 7, 2017, the U.S. Department of Labor (“DOL”), Wage and Hour Division (“WHD”), announced that it was rescinding two significant and heavily-criticized Obama-era Administrator’s Interpretations, the first on joint employer liability under the Fair Labor Standards Act, 29 U.S.C. § 1801 et seq. (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 201 et seq. (“MSPA”) (the “Joint Employer AI”), and the second on independent contractor misclassification under the FLSA (the “Independent Contractor AI”). In its June 7th statement concerning the rescissions, the DOL made its intentions clear: Removal of the two administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act or Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the Department’s long-standing regulations and case law. The Department will continue to fully and fairly enforce all laws within its jurisdiction including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act. Although neither AI constituted a legal precedent, the January 2016 Joint Employer AI presented the DOL’s analysis of the joint employer principles under caselaw interpreting the FLSA and the MSPA. Gibbons issued an alert about the Joint Employer AI when it was first published. The underlying caselaw is not affected by the DOL’s withdrawal...

The Walls Have Ears: NLRB Invalidates Employer’s Prohibition on Recording in the Workplace

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Posted in Policies and Handbooks

On February 10, 2016

Whole Foods Markets received the proverbial ugly holiday sweater in the form of a December 24, 2015, 2-1 decision by the National Labor Relations Board that declared its policy prohibiting recording in the workplace unlawful. The decision in the cases Whole Foods Markets, Inc. and United Food and Commercial Workers Local 919 and Workers Organizing Committee of Chicago, focused on two rules contained in Whole Foods’ General Information Guide. The first prohibited the recording of meetings, with the laudable, express goals of encouraging “open communication, free expression of ideas, spontaneous and honest dialogue and an atmosphere of trust.” The only exceptions were when the recording was approved by management or all parties to the conversation consented. The second rule also prohibited the use of a recording device in order to “eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.” Seems fair, right? Not according to the NLRB.

What to Expect from the EEOC in 2013

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Posted in Discrimination

On April 1, 2013

At the Gibbons Second Annual Employment & Labor Law Conference last month, one panel discussion focused on the Equal Employment Opportunity Commission’s (“EEOC”) recent activity and enforcement priorities. Among the panelists were Corrado Gigante, Director of the Newark Area Office of the EEOC, and Gibbons Directors, Christine Amalfe, Kelly Ann Bird and Susan Nardone.

A Bad “Day” for a Company Whose In-House Attorney Failed to Properly Preserve Relevant Documents

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 28, 2013

An Arizona federal court has determined that default judgment, an adverse instruction and monetary damages are proper remedies for in-house counsel’s failure to take the proper steps to preserve potentially relevant evidence after receiving notice of potential litigation. In Day v. LSI Corporation, Docket No. CIV-11-186-TUC-CKJ, the United States District Court for the District of Arizona granted, in part, the plaintiff-employee’s motion for entry of a default judgment and imposed additional sanctions against the defendant-employer, concluding that the employer’s in-house attorney had a “culpable mind” and acted willfully in failing to carry out the company’s preservation obligations.

The New EEOC Guidance Regarding Criminal Background Checks

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Posted in Discrimination

On April 26, 2012

On Wednesday, April 25, 2012, the Equal Employment Opportunity Community issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act, updating and clarifying its prior guidance on the subject. The good news? Employers may continue to use criminal background checks as a screening tool for applicants and employees. However, employers are specifically discouraged from asking about a criminal record on the application and are encouraged to conduct an individualized assessment of the applicant/employee when job exclusion occurs because of a criminal record. Employers should review their policies to ensure compliance with the EEOC’s latest recommendations.

Third Circuit Finds That Failing to Produce Original Documents May Constitute Sanctionable Spoliation

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Posted in Discrimination / E-Discovery: Legal Decisions and Court Rules

On March 28, 2012

Although in recent years employers have become increasingly focused on the preservation, discovery and production of electronically-stored information, the Third Circuit’s January 4, 2012 decision in Bull v. United Parcel Service serves as a reminder to companies that original documents can and often do play a critical role in employment litigation matters. The preservation and discovery of originals should not be overlooked. Employers should be certain to both request original documents in discovery (and pursue their production through motion practice as necessary) and take necessary steps to preserve originals when litigation is threatened or commenced.

Third Circuit Decides First Cat’s Paw Case Post-Staub

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Posted in Discrimination

On September 13, 2011

On August 17, 2011, the Court of Appeals for the Third Circuit rendered its decision in McKenna v. City of Philadelphia, the first significant cat’s paw theory case out of the Third Circuit since the United States Supreme Court’s March 2011 decision in Staub v. Proctor Hospital, which was the subject of a previous Employment Law Alert post. The Staub decision addressed the circumstances under which an employer can be held liable for the discriminatory or retaliatory animus of a nondecisionmaker – often referred to as the “cat’s paw” theory. The primary issue in McKenna was whether an intervening act between the alleged retaliatory conduct and the employee’s termination – a hearing before a neutral board – was sufficiently independent to break any causal link between the allegedly retaliatory act and the employment action. Based upon the underlying facts of this particular case, the Court determined that it was not.

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