Full Service Law Firm in Mt. Laurel Township, NJ | Capehart Scatchard
hrresource

HR Resource Blog

This blog is published by the attorneys in Capehart Scatchard’s Labor and Employment Group. On this site, employers and human resources professionals will find useful tips as to how to keep the workplace, and workplace policies, in compliance with state and federal employment laws.
View OTHER BLOGS

NJ Appellate Court Weighs in On Medical Marijuana Use and The Workplace

Recently, I have been getting more and more questions in my counseling practice regarding what employers must do when an employee or prospective employee advises that he/she is a medical marijuana user.

Unfortunately, there is a dearth of legal authority that a lawyer can presently consider in providing advice on this topic.  While New Jersey’s Compassionate Use Law decriminalizes marijuana for medicinal purposes, it is silent on the issue of job protection for such users. One thing that the law does say however is that employers need not accommodate worksite use of the drug by an employee.  But what about non-working time (or off site) use of marijuana, and how should that use affect the employee’s ability to continue working for an employer, especially one that bars illegal drug use among its employees under its workplace policies?

In late March, 2019, the New Jersey Appellate Division issued a significant decision that attempted to address what an employer’s legal duties are in the situations I just posed.  The decision analyzed how the Compassionate Use Law and the New Jersey Law Against Discrimination (“LAD”) potentially could interact with one another, and what consequent requirements might exist for employers by virtue of the interplay between these laws.

The Plaintiff in Wild v. Carriage Funeral Holdings filed a lawsuit alleging that his employment had been wrongfully terminated in violation of the LAD because of his then disability. Wild had been hired by Defendant Carriage Funeral Holdings in 2013 to serve as a funeral director. In 2015, Plaintiff was diagnosed with cancer. He was ultimately prescribed marijuana as part of his on-going cancer treatments. While such use is currently lawful under the state’s Compassionate Use Act it continues to be illegal under federal law.

Wild was involved in a work related auto accident in 2016 that was not his fault. Plaintiff was injured and taken by ambulance to the emergency room for treatment of his injuries. After arriving at the hospital, Plaintiff advised the treating physician that he had a license to use medical marijuana. The emergency room physician determined that Wild was not under the influence of marijuana, and concluded that a drug test was not required. After receiving prescribed pain medications, Plaintiff was sent home where he used both the pain medication and authorized medical marijuana.

Upon returning home, Wild’s father, who was caring for him at the time, was advised by the Defendant that Plaintiff was required to submit to a drug test due to his involvement in the auto accident. Wild’s father objected, disputing that the test was necessary given the physician’s determination that Wild was not under the influence at the time of the accident. Wild’s father also mentioned that Plaintiff was sure to test positive given his recent use of medical marijuana. Despite Plaintiff’s father’s protestations, the employer demanded the test be taken.  After Wild submitted to the drug test that evening, it not surprisingly was positive for drug use.

According to Plaintiff, after the test results were received, a work supervisor initially advised him that despite the positive result he would be “fine,” but then that same supervisor subsequently advised Plaintiff that Defendant’s “corporate” objected to Wild’s marijuana use. Plaintiff was thereafter advised by letter that his employment had been terminated, not because of his drug use, but because he purportedly failed to provide proper notification to the company under its workplace policy which required that employees advise their supervisor about the taking of any medication that could adversely affect their ability to perform their assigned job duties safely.

In his lawsuit, Wild claimed, among other allegations, that his termination was in violation of the LAD because he had a disability and was legally treating that disability in accordance with his physician’s instructions and in conformity with the Compassionate Use Law.  The trial judge dismissed the case by way of an early motion to dismiss, finding that the Compassionate Use Law did not provide job protections for medical marijuana users based, in part, on the fact that the law does not compel on site accommodation of medical marijuana use by employees.

On appeal, a three member panel of the New Jersey Appellate Division held that Wild’s complaint was improvidently dismissed under the very liberal legal standard for allowing cases to avoid early court dismissal.  The Court determined that the Plaintiff’s pleading in the case sufficiently alleged the necessary legal elements of a disability claim to allow it to avoid an early case dismissal.  Accordingly, the dismissal of the case was vacated, and the matter remanded to the trial court for further proceedings. 

In the course of ruling that the dismissal of Wild’s case was not appropriate, the Appellate Division also rejected the argument raised by the Defendant that the absence of an affirmative obligation to accommodate off site employee use of medical marijuana under the Compassionate Use Act itself meant that such an accommodation was never required of an employer.  In rejecting this argument, the Court raised the possibility that under other already existing laws, such as the LAD, that accommodation obligation might in fact exist.  The Court noted in this regard that the lack of such an affirmative requirement in the Compassionate Use Law “does not mean that the LAD may not impose such an obligation.” Since Plaintiff never requested an accommodation to use medical marijuana in the workplace or on working time, the Appellate Division found that his claims should not have been dismissed so early in the case by the trial court. However, given the procedural posture of the case, the Court also never had to address specifically whether the LAD in fact legally required employer accommodation of an employee’s off site non-working time use of medical marijuana.

So what does this case mean for employers? On the one hand, the appellate court’s decision could be narrowly construed as merely holding that a case brought by a medical marijuana user who was fired for such drug use was improvidently dismissed too early in the ligation process given New Jersey’s liberal court rules that prevent dismissal in a case’s early stages in all but the most limited of circumstances.  Conversely, on the other hand, the case could also equally be read more broadly to be a declaration that, in some situations, the LAD may in fact require employers to accommodate employee use of medical marijuana outside of the workplace and during non-working hours.        

In light of the fact that the Court in Wild did not hold expressly that offsite use of medical marijuana is a mandated accommodation under the LAD, the issue remains an open one, and the progress of this case will be closely monitored to see how this issue develops at the trial court level. Nonetheless, given the legal uncertainty surrounding this potential accommodation issue, employers should proceed with extreme caution in this perilous area, where the need for competent legal counsel is now even more paramount than ever.

Significant Changes Made to New Jersey’s Leave Laws

Governor Murphy ran on an election platform promising a number of pro employee changes to New Jersey’s employment laws. As employers already know, one such change was the passage of New Jersey’s Paid Sick Time Law that went into effect in late October 2018. Continuing that trend, additional legislation was passed and signed into law in February modifying three of New Jersey’s major employee leave laws. These recently enacted amendments significantly expanded New Jersey’s existing Family Leave Act (NJFLA) and Family Leave Insurance law (NJFLI). The important changes made to each of these laws are summarized below.

NJFLA

            Currently, the NJFLA applies to employers with 50 or more employees. The recent amendment changes that employee threshold and reduces it to just 30 employees. Thus, starting on June 30, 2019, employers with 30 or more employees (in total, anywhere, not just in New Jersey, but combined company wide) are required to provide those employees working in New Jersey with 12 weeks of job-protected family leave during each 24-month period. Moving forward, for employers in New Jersey, 50 employees will no longer be the magic number as it is under the federal Family and Medical Leave Act (FMLA), which means that more New Jersey employers will have to provide family leave beyond those previously covered with the higher employee threshold.

            The amendments also expand the scope of persons for whom family leave may be taken. The revisions modify the NJFLA to provide that family leave may be taken in connection with the placement of a child into foster care with the employee, not just as now upon the birth or adoption of a child. This change makes the NJFLA and the FMLA consistent with one another in allowing for leave for placement of a foster child. These amendments also expressly permit family leave to be be taken in connection with the birth of a child conceived using a gestational carrier agreement/surrogate.

           One of the cornerstone rights bestowed upon employees under the NJFLA is the ability to take NJFLA leave to care for a family member with a serious health condition. The recent legal changes passed expand the definition of “family member” to include “parent-in-law,” “sibling,” “grandparent,” and “any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.” Some of the above relationships were already previously included in the applicable regulations for the NJFLA, but not in the law itself; others are newly recognized relationships.  Nevertheless, employers now need to be cognizant of the added number of family members that could justify NJFLA eligibility.

            The recent amendments also significantly modify the circumstances for which intermittent leave can be utilized. Previously, intermittent leave to care for a child born or adopted was subject to the employer’s approval. The amended law now permits employees to use intermittent leave upon the birth, adoption or foster care placement of a child without the employer’s approval. This means that the old rule that employees had to take such leave on a consecutive basis (unless the employer agreed to allow the use of intermittent leave) is no longer applicable.

            The final significant change made to the NJFLA is that the advance notice requirement for taking a leave has been reduced from 30 to 15 days when an employee requests intermittent leave to care for a family member with a serious health condition. For other leave requests, the 30 days’ advance notice requirement remains the standard.

NJFLI

            The NJFLI provides wage replacement benefits to employees on family leave through the state’s temporary disability leave benefits program. Starting in July 2020, the following significant changes will go into effect:

            Initially, the number of weeks of paid leave benefits will be doubled from 6 to 12 within a 12-month period. The amount of intermittent paid leave benefits is also being increased from 42 to 56 days in a 12-month period, and intermittent leave may similarly now be used in the case of foster care child placement. The law as it currently stands allows intermittent leave only in order to care for a newborn or an adopted child.

            The revisions to the NJFLI also raise the cap on the weekly benefit amount to be received by an eligible employee from two-thirds to 85 percent of an employee’s weekly salary, to a maximum of 70 percent (up from 53 percent) of the statewide weekly remuneration average. That means under current state statistics the weekly maximum benefit will increase from $633 per week to $859 per week in 2020.

            Next, the recent amendments also will prohibit employers from requiring employees to use up to two weeks of paid time off (PTO) in lieu of NJFLI benefits. While employers in the future will no longer be able to force use of existing PTO time, the revised law still allows employees to elect to use PTO in lieu of NJFLI benefits. Furthermore, when an employee elects to use PTO benefits, it will no longer result in a reduction of the amount of NJFLI benefits available to that employee. So, in essence, employees will now be able to “double-dip” into such benefits, which was the primary reason for allowing the set-off in the current form of the law.

            Along with the foregoing changes, the recent amendment to the law likewise modifies the requirements applicable to employers who provide NJFLI (and temporary disability) benefits through a private plan by limiting the requirement that a majority of employees approve the use of a contributory private plan to employees covered by a collective bargaining agreement. The amended law further eliminates the seven-day waiting period for NJFLI benefits. Currently, employees do not receive benefits for the first seven days of family leave, unless benefits continued for more than three weeks, in which case the initial seven days were to be paid retroactively. The present amendment eliminates the seven-day waiting period altogether for NJFLI benefits.

            In addition to the substantive changes made to the benefits related payment provisions of the law, the latest amendments also prohibit an employer’s discharge, harassment, or any other conduct interfering with the terms and conditions of employment because an employee has requested or took family leave. The employer also may not refuse to restore an employee after a period of taken family leave. This is a significant change as before only if the leave itself was covered by another law which protected employment would job restoration be required.  Significantly, the law now also gives a private right of action to the employee with a host of potential remedies, including monetary damages, attorneys’ fees and costs, and injunctive and reinstatement relief to his or her former position. The law likewise outlines a schedule of fines that can be imposed by a court for violation of the anti-retaliation provision.

SAFE Act

            Finally, the recent amendments also similarly made changes to the New Jersey Security and Financial Empowerment (SAFE) Act, a law which provides leave for employees who are victims of domestic violence or sexual assault, or who have a family member who is a victim. Effective July 1, 2020, employees taking leave under the SAFE Act will be eligible for wage replacement benefits from the state, just like employees who take NJFLA leave.

            The amendment also expands the definition of “family member” under the SAFE Act, enlarging those who are covered by that law to now mirror the term’s definition under the NJFLA. This means that like the NJFLA “family member” under the NJ SAFE Act will now include a “parent-in-law,” “sibling,” “grandparent,” and “any other individual related by blood to the employee, and any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.”

Conclusion

In light of the foregoing changes, the time is now for employers to revisit their leave policies, and make all changes needed to bring these policies in line with (1) the amendments themselves, and (2) any new regulatory requirements that these amendments may beget. Moreover, with the addition of the new paid sick time law, coordination of benefits under these respective benefits will be a must for employers, and sound legal advice should be sought to ensure compliance with the complicated web of requirements that these laws will now demand.

“Gag Orders” in Harassment/Discrimination Claims Unenforceable

By:  Carmen Saginario Jr., Esq.
Contribution:  Nicole Crincoli, Law Clerk

Employers are well aware that state and federal laws prohibit discrimination and harassment in the workplace, and that many settlements of these claims provide for a non-disclosure agreement (“NDA”).   As of March 18, 2019, a new “twist” to New Jersey law prohibits employers from requiring employees to remain silent when they enter into an employment agreement or settle a harassment, discrimination, or retaliation claim.

What Does the Law Say?  The new law provides that “non-disclosure agreements” (i.e., prohibiting disclosure by employees of claims of harassment, discrimination, or retaliation) are not enforceable against the employee as “against public policy.” The new law also provides that provisions in an employment contract that waive any substantive or procedural right or remedy relating to any of these claims are also deemed against public policy and unenforceable against the employee.  Note that if the employee publicly reveals sufficient details so that the employer is reasonably identifiable, then the non-disclosure provision will also be unenforceable against the employer.

Who Does the Law Apply to?  The law applies to current or former employees who are parties to an employment contract or settlement.  While the law also applies to claims that have been submitted to arbitration, it does not apply to the terms of any collective bargaining agreement between an employer and the representative(s) of the employees.

Are Employers Prohibited from Entering Into NDAs?  The short answer is “No.”  Employers may still want to enter into non-disclosure agreements with employees.  However, these agreements cannot be created to silence employees who have been the victims of (or claimed) harassment, discrimination, or retaliation.  The new law also does not prohibit an employer from requiring an employee to sign an agreement requiring the employee not to compete with the employer during or after employment and not to  disclose proprietary employer information such as non-public trade secrets, business plans, and customer information.

Can an NDA That Has Already Been Agreed Upon Be Enforced?   Be careful on this one. While the law specifically says that its provisions only apply to “all contracts and agreements entered into, renewed, modified, or amended on or after the effective date” (March 18, 2019),  skillful employee advocates will likely argue that even “pre-existing agreements” are against public policy and should not be enforced. Also note that this law provides that a person who enforces or attempts to enforce a provision “deemed against public policy and unenforceable” under the law may be liable for the employee’s reasonable attorney fees and costs.

What’s the Take-a-Way?  As a threshold matter, employers should have policies and procedures in place aimed at the prevention of harassment and discrimination in the workplace.  As for this law, employers are cautioned to act cautiously and to seek advice from their labor and employment professionals before entering into a non-disclosure agreement with an employee, especially if there have been any claims of harassment, discrimination, or retaliation.

New Jersey Governor Signs New Minimum Wage Law

One of Governor Murphy’s key electoral platforms during his gubernatorial campaign was his goal to increase New Jersey’s minimum wage.  That electoral promise became a reality just a few short weeks ago. On February 4, 2019, Governor Murphy officially signed into law the New Jersey Minimum Wage Bill. The law will ultimately increase the minimum wage rate in New Jersey from $8.85 (currently) to at least $15.00 by 2024. The wage increase progression will be as follows:

  • At least $10/hour by July 1st, 2019
  • At least $11/hour by January 1st, 2020
  • At least $12/hour by January 1st, 2021
  • At least $13/hour by January 1st, 2022
  • At least $14/hour by January 1st, 2023
  • At least $15/hour by January 1st, 2024

Most notably, the above progression and schedule does not apply to very small businesses, defined as employers with five or fewer employees. Such employers will not have to pay $15.00 an hour to their employees until 2026. Further, the law includes a provision allowing employers to take a “tip credit” against their minimum wage obligations up to a certain level but ultimately the hourly rate earned by the employee must still reach whatever the then mandated minimum wage level is at that time. Obviously, the first compliance date of which employers must be immediately aware is July 1. Prior to that time, employers must take the necessary internal steps of ensuring that all employees are receiving this upgraded minimum wage by that required date.  Thereafter, employers will then need to ready themselves for the next increase happening approximately six (6) months later raising the minimum wage again. With all the graduated changes under the law, employers would be wise to calendar these important dates and proactively ensure that your workplace complies with these new evolving minimum wage requirements.

———–

Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

NJ Department of Labor Issues Proposed Regulations on Earned Sick Leave

In advance of the October 29, 2018 effective date for the New Jersey Paid Sick Leave Law (“Law”), which requires every employer to provide earned sick leave to each employee working in New Jersey, the New Jersey Department of Labor and Workforce Development filed proposed rules to implement the Law.

The proposed rules expand upon the manner in which the Department expects employers to implement the new law, particularly providing guidance on how an employer may credit earned sick time either through an accrual method (one hour of sick leave is earned and accrued for every thirty-hours hours worked) or an advancing method (providing an employee with at least 40 hours of earned sick leave at the start of a benefit year).  Interestingly enough according to the proposed rules employers be permitted exceptions from certain record-keeping requirements concerning an employee’s hours worked if the employer chooses to “presume, solely for the purpose of calculating earned sick leave accrual, that the employee works 40 hours per week.” N.J.A.C. 12:69-3.4 (proposed Sep. 13, 2018).  The proposed rules also state that all employees hired on or before October 29, 2018 must begin to accrue earned sick leave no later than October 29, 2018.

Moreover, the proposed rules provide a specific process that employers must follow for establishing and changing their benefit year applicable to all employees.  Notably, the Department’s proposed rules allow for  an employer’s compliance with the Law where “the employer provides each employee with paid time off (PTO), which may include leave types other than sick, such as personal leave and vacation leave, so long as the PTO meets or exceeds the requirements in the Law.”  This would allow employers to contemplate the use of a PTO policy so long as the employee is permitted to use all of the PTO for the any reason enumerated by the law and proposed rule N.J.A.C. 12:69-3.5. This provision appears to allow employers to implement or revise their leave policies to provide employees with a minimum of 40 hours of PTO, inclusive of vacation sick and personnel leave, however, employers would be advised to consult closely with employment counsel to ensure such changes are consistent with the proposed regulations upon their formal adoption by the Department.

Currently, a public hearing is scheduled on November 13, 2018 and the Department of Labor and Workforce Development is accepting comments through by December 14, 2018.  Attorneys from the Labor and Employment practice group of Capehart and Scatchard intend on attending the hearing and monitoring comments or proposed changes submitted to the New Jersey Department of Labor.  Should you have concerns or comments about the proposed rules, questions about the proposed regulations and the comment process, or like to discuss the impact and applicability of the Law and rules to your business, please do not hesitate to contact us.

To Extend (or Not Extend) an ADA Leave of Absence: That is the Question

One of the more difficult questions that perplex employers is:

When can a leave of absence that has been granted as a form of disability accommodation under the Americans with Disabilities Act (“ADA”) be ended when there are no prospects that the employee will be returning to work in the near future? 

I get this question at least once or twice a month in my practice.  As most employers know, sometimes under the ADA, a leave of absence can be considered to be a required form of reasonable accommodation.  That is the easiest part of the analysis.  But what do you do with the employee who lingers on leave without any discernable return to work date, or worse yet, how do you deal with the situation where the employee’s doctor is unwilling to provide that return to work date because the doctor is just not sure when the employee will be able to return?

As existing case law recognizes, the accommodation duty does not require that an employer provide an employee with an indefinite leave of absence.  Thus, if neither the employee, nor the employee’s doctor, can give a firm return date, then the employer is free to end any leave provided, and can also terminate that employee because the law does not require an employer to hold a job position open indefinitely. Right now, existing case law views six (6) months to be the latest point that most courts would deem a leave of absence to be not excessive or too long to grant. But what happens when the employer is provided with a firm date but that date seems to change monthly because the doctor believes that the employee is still not ready to work and the doctor keeps taking the employee out on a monthly basis?

An employer can avoid the ADA’s accommodation duty by establishing that the requested accommodation by the employee is unreasonable, i.e., that it would impose an undue hardship.  Under the ADA, the term “undue hardship” means an accommodation “requiring significant difficulty or expense,” when considered in light of several factors. 42 U.S.C § 12111 (10); 29 C.F.R. § 1630.2 (p).  These factors include: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facility involved in providing a reasonable accommodation; the number of employees at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (3) the overall financial resources of the employer; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facility; and (4) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographical separateness, administrative, or physical relationship of the facility or facilities in question to the covered entity. See, §12111(10)9B)(i)-(iv).

The EEOC on May 9, 2016 issued the following entitled enforcement guidance, “Employer-Provided Leave and the Americans with Disabilities Act” (“Guidance’), to further assist in the assessment of whether an employee requested leave would result in an undue hardship to the employer.  This Guidance states initially that, when assessing whether to grant leave as a reasonable accommodation, an employer may consider whether the leave would cause an undue hardship. The Guidance then goes on to indicate further that, if it would cause an undue hardship, the employer does not have to grant the leave.

Under the Guidance, determination of whether providing leave would result in undue hardship may involve consideration of the following items:

  • the amount and/or length of leave required (for example, four months, three days per week, six days per month, four to six days of intermittent leave for one month, four to six days of intermittent leave each month for six months, leave required indefinitely, or leave without a specified or estimated end date);
  • the frequency of the leave (for example, three days per week, three days per month, every Thursday);
  • whether there is any flexibility with respect to the days on which leave is taken (for example, whether treatment normally provided on a Monday could be provided on some other day during the week);
  • whether the need for intermittent leave on specific dates is predictable or unpredictable (for example, the specific day that an employee needs leave because of a seizure is unpredictable; intermittent leave to obtain chemotherapy is predictable);
  • the impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner (for example, only one coworker has the skills of the employee on leave and the job duties involved must be performed under a contract with a specific completion date, making it impossible for the employer to provide the amount of leave requested without over-burdening the coworker, failing to fulfill the contract, or incurring significant overtime costs); and
  • the impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner, which takes into account, for example, the size of the employer.

Guidance, pg. 5-6.  In addition, the employer may also consider the cumulative impact of the leave sought with leave already taken.  Guidance, Id.

Therefore, whenever presented with an ADA leave request, it is wise for an employer to think about these factors and, where eligibility for the leave is unclear, to consult with an experienced labor and employment lawyer to assist in determining whether to grant, continue or end a previously granted ADA related leave of absence.

Tattoos at Work: What’s an Employer to Do?

For many rock and roll fans, the Rolling Stones are considered the greatest band in music history.  I was recently listening to the Stone’s iconic album, “Tattoo You”, and it made me think about a legal question that I often get from employers.  At this point, you might be wondering how can that be, but along with being a classic album, “Tattoo You” also has one of the best album covers (remember albums covers?) of all time.  It has a face that is covered in tattoos.  So, I started to contemplate a question that I get from many clients: can I not hire persons with tattoos or alternatively can I require that, while on the job, the tattoo be covered so as not to offend any of my customers?

Like many questions in the law, the answer to this issue is: it depends.   On the one hand, employers have every right to create dress codes and grooming policies to set an appearance or brand standard for their employees.  Part of those standards can legally include a requirement that tattoos be covered up during the work day. The employer could also in most cases restrict visibility based upon the kind of messages or images displayed in a tattoo.  However, the key to implementing a legally sustainable policy is it must be applied consistently and even handedly.  By that I mean different standards cannot be applied because of an employee’s race, ethnicity, gender, or other prohibited classification under equal employment opportunity laws.  For example, an employer would no doubt face a potential gender discrimination claim if male employees were allowed to exhibit tattoos but female employees had to cover theirs up while working.  The employer would also face discrimination allegations if it refused to hire older male employees with tattoos but continued to hire younger females with tattoos. Accordingly, so long as such a policy is applied across the board consistently to all employees, legally an employer would be within its right to regulate how tattoos are (or are not) displayed while the employee is at work.

An additional legal caveat to the employer’s right to regulate tattoos in the workplace applies in situations where an employee claims that a tattoo cannot be covered up for religious reasons.  Under the law, sometimes an employer must accommodate an employee’s ability to express his/her religious beliefs at work where doing so would not cause an undue hardship to the employer and its business.  Where the tattoo reflects a sincerely held religious belief, there might be a need to accommodate the allowance of the tattoo’s exhibition, but as is the situation with these kinds of issues, whether an accommodation will need to be made must be based on a fact specific analysis of the presented circumstances.

Dress codes and grooming polices, when done right, are a great way for employers to control the image that a company’s workforce projects to its clients. To ensure that your company’s grooming and appearance polices do not run afoul of legal requirements, it is good to have them reviewed (like all employment policies) periodically by legal counsel to ensure that they meet current legal standards.

One Toke Over the Legal Line Can Result in Employee Firing

Ever since New Jersey’s Compassionate Use Medical Marijuana Act was passed in 2010, one of the issues that employers have wondered about is whether an employee who used medical marijuana could be terminated for violating an employer’s drug and alcohol testing policy.  That question has been the subject of many court decisions throughout the country in other states with similar compassionate use laws with varying results.  On August 10, 2018, we finally received the first decision here in New Jersey addressing this important question.

In Cotto v. Ardagh Glass Packing, Inc., No. 18-1037 (D.N.J. August 10, 2018), a federal judge of the United States District Court for the District of New Jersey held that an employer was not obligated under either the Compassionate Use Act or the New Jersey Law Against Discrimination to carve out an exception to its drug testing policy for the benefit of a medicinal marijuana user so that the employee could remain employed with that company.   Following a minor workplace accident, Plaintiff was required to take both breath and urine tests under the Defendant’s drug testing policy which required testing after every workplace accident.  He refused and the company placed him on a long term indefinite suspension until he compiled with the testing policy requirement.  Plaintiff refused to take the test because he knew he would fail due to his use of both Percocet and medical marijuana for long term pain management.  Prior to the accident, the Plaintiff performed his job without incident.  While the company did not have an issue with the Percocet use, it was unwilling to carve out an exception for medical marijuana use under its drug testing policy.

The district court held that there was no legal obligation on the part of the employer to allow for the marijuana use, in part, because while the Compassionate Use law shields employees from state criminal prosecution, federal law still makes marijuana use illegal, and an employer because of that could ban marijuana use amongst its employees without running afoul of anti-disability discrimination laws since the prohibition is directed not towards any disability but against the use of a federally prohibited drug prescribed for the treatment of the condition.

So, what is the implication of the Cotto decision for employers?  Because no New Jersey state court had ever addressed this issue, as a federal court, the judge in Cotto had to predict how a New Jersey state court would address the presented issue in Cotto.   What does that status mean?  Well, it means that, even with this decision in Cotto, a state court judge in a case presenting the same issue could rule differently than what happened in this case, and there are several such cases now awaiting decision in the New Jersey state court system.  So, while it is always positive to have a court decision that provides some direction on what to do in these kinds of situations, until a state court judicial ruling occurs, employers should still proceed with caution in how it addresses these types of issues, and it is best to seek legal advice before taking any type of adverse action against a medical marijuana user.  Also, if you have not done so yet, employers are wise to review their drug testing policies and decide in advance whether they wish to treat medicinal marijuana use like any other prescribed drug so you the employer are prepared in case the situation ever needs to be addressed in your workplace.

Harassment: To Report or Not to Report? That is the Question!

“The answer is not that simple,” suggested the Third Circuit Court of Appeals in a recent case in which a former employee for the Susquehanna Department of Veterans Affairs who did not follow the employer’s policy sued her employer, claiming her supervisor kissed her and made sexual advances toward her (Minarsky v. Susquehanna County, 895 F.3d 303 (3d Cir. 2018).

Aren’t Employers Shielded from Liability if They Have Policies and Procedures in Place?  The answer is, “Generally, yes.”  Under long-standing U.S. Supreme Court rulings (Faragher and Burlington Industries), employers can avoid liability in sexual harassment and discrimination cases if they had policies and corrective procedures in place when the acts occurred. In fact, this is precisely why your labor and employment advisors most likely counsel you to carefully review and update your harassment, discrimination, reporting, and investigation policies and to fully investigate any alleged acts of harassment or discrimination.

Why Question this Long-Standing Rule Now? Recognizing that the public agency had adopted an adequate policy to address complaints and that Ms. Minarsky failed to report her allegations of harassment (which we would think precludes her claim in the first instance), the Third Circuit held that having a policy in place “may not be enough.”  Rather, said the Court, an analysis must be undertaken to determine if the policy was “effective” and if the employer “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.”

So What Were the Facts?  In this instance, the employer had a “solid” policy outlining harassment prohibitions and reporting mechanisms and the employee failed to report the behavior.  However, concluded the Court, even though the employee did not actually report the abusive behavior at the time, she identified instances “where asserting herself rendered her work conditions even more hostile”.  For example, when she would object to the supervisor’s advances, he would react negatively and become “nasty.”  To make matters worse, the supervisor was warned twice about his inappropriate behavior towards other employees, he “warned Minarsky not to trust” the County Commissioners, and discovery revealed numerous other instances of harassing behavior by the supervisor. Thus, the Court held, “a reasonable jury could find that [her] fear of aggravating her work environment was sufficiently specific, rather than simply a generalized unsubstantiated fear,” creating a question as to whether she was justified in not reporting the unacceptable conduct. In fact, said the Court, “[a] jury could find that Minarsky reasonably believed that availing herself of the anti-harassment policy would be futile, if not detrimental.”

So What’s the Take-a-Way for Employers? In the first instance, even if you have a “solid” and updated harassment/discrimination/reporting policy (which you should revisit ASAP), that may not be enough! Here, said the Court, even though the employer had a policy in place, it may not have been effective since the employer was “faced with indicators that [the supervisor’s] behavior formed a pattern of conduct, as opposed to mere stray incidents, yet they seemingly turned a blind eye toward [his] harassment.”  The bottom line is if your entity is faced with any type of harassment claim, don’t rely solely on your policies and procedures. Each case is different — each employee has a different set of concerns — and each supervisor or co-worker accused of unacceptable conduct has behaved differently. In these instances, which are all fact-specific, consult your labor and employment counsel to ensure that you’re not “turning a blind eye” to a larger and more complicated problem.

Silence is Golden: Someone (Maybe Even Your Own Employees) Might be Taping You

As anyone who has read my blog articles know, I get a lot of questions from clients as part of the counseling work that I do, and frequently, I find that clients have the same sorts of questions on a particular topic.  One such question that I get often is whether an employee can surreptitiously tape record conversations between himself or herself and another employee or even a management representative of the employer.  With I-phones and similar technology, it has obviously gotten even easier for such surreptitious taping to happen in the workplace.  It is especially of concern to employers when employees are being called in to interviews as part of company investigations or meetings where employee performance may be addressed. Such concerns become even more heightened when dealing with an employee who the employer knows is a potential lawsuit waiting to happen.  The answer to this question about the legal allowance of such secret taping by employees might very well surprise you.

Believe it or not, such taping might not be illegal, depending upon the state where the taping is occurring.  The laws implicated in such situations are eavesdropping and state wiretapping laws.  These laws place certain restrictions on when such tapings of conversations can occur.  In a place such as New Jersey, tape recording a conversation is fine so long as one person to the conversation consents to the taping, and that one person can be the actual person doing the taping. Moreover, that individual need not even tell the other person that they are being taped for it to be legal under New Jersey law.  Conversely, in a place like Pennsylvania, each person to the conversation must consent to the taping, and any surreptitious taping could result in possible criminal charges against the wrongful taper.

So what should an employer do in a place like New Jersey to combat secret taping of workplace conversations?  For one thing, the company should have an unequivocal workplace policy prohibiting such taping in any areas of the company’s buildings and workplace.  If your company has very sensitive confidential and proprietary information, you could even go so far as to ban all personal communication devices and electronics from the workplace entirely.  For employers who do not wish to go that far, when involved in sensitive meetings or conversations with an employee, make sure that the employee has not brought any type of taping device with him/her before you start your conversation.  Tell them that if they are hiding such a device, or lie about having one on them at the time of the discussion, that discipline will be imposed which could include immediate termination.  That way, before the conversation happens, you the employer can exercise some control over whether such illicit taping happens. Moreover, remind managers to be careful in what they might tell an employee because you never know how that could be later used by an employee against the employer.  As the title to this article says, silence on sensitive topics being discussed with employees is indeed golden.

Being a proactive employer can go far in avoiding unwanted taping of conversations in your workplace.  They happen, and I have defended many cases where such surreptitious tapings have been produced, and countering what was said became a major part of the case defense.  So, the time is now to start taking preventive steps to ensure that the old proverb “silence is golden” continues to thrive in your workplace.

Capehart Blogs

Insurance
Bicyclists Covered by Auto Insurance with Limited Tort Must Establish a Permanent Injury to Sue for Pain and Suffering
Firm News
Shareholder Claire Ringel Retires
Liability
Municipality Found Immune From Liability for Pedestrian Accident Under Both Tort Claims Act and Landowners’ Liability Act
Subscribe to Blog Updates

Capehart Blogs

Tags
Alternative Energy Alternative Energy - Solar Alternative Energy - Wind Appellate Division automobile accident automobile insurance Burlington County Bar Association Cannabis Law Charity constructive notice coverage discovery dismissal Diversity & Inclusion Diversity & Inclusion Committee duty of care employees employers Employment Law evidence insurance Liability Litigation Litigation Quarterly Lorman Millennium Seminars NBI negligence New Jersey Workers' Compensation Act New York Law NJ Law notice Pennsylvania Law personal injury Public Entity Newsletter Real Estate and Land Use school law slip and fall statute of limitations summary judgment Taxes Tort Claims Act trip and fall Workers' Compensation Workers' Compensation Newsletter

Contact Information

  • Capehart Scatchard P.A.
  • (856)-234-6800
  • 8000 Midlantic Dr., Suite 300S, Mt. Laurel, NJ 08054-5016