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EEOC Clarifies Allowable COVID 19 Testing For Employees

Over the last several months, the Equal Employment Opportunity Commission (“EEOC”) has continued to refine its past issued Guidances on what employers can do to safeguard employees from COVID-19 workplace exposure. One such measure that employers can utilize is mandating that all employees be tested for COVID-19.  But previously the EEOC never said what type of testing can be done. The EEOC has recently clarified precisely what kind of testing employers can now require of its employees.

As many know, there are now currently two types of available tests that can be utilized to detect COVID-19 exposure. The first is a diagnostic test that determines whether someone has the coronavirus at the time of the testing. The second kind is an antibody test that determines whether the individual from past exposure to coronavirus has developed any protective antibodies to the virus. When the EEOC announced its earlier Guidance that employee COVID-19 testing was permissible, employers thought that they had the option to require either type (or both) kinds of testing. That has changed with the EEOC’s latest Guidance.

Now, the only kind of testing allowable is diagnostic to determine whether the individual at the time of the testing has contracted COVID-19.  Antibody testing is not allowed-why?  The EEOC’s rationale for prohibiting such testing flows from recommendations from the Centers for Disease Control (“CDC”) which now states that antibody testing should not be used to return persons to the workplace. Deferring to the CDC’s conclusion about the use of antibody tests for returning employees, the EEOC Guidance now has determined that it is not an appropriate medical test that meets the job relatedness requirement for allowable examinations under the Americans with Disabilities Act.

As the EEOC’s recent modification to its Guidance shows, we are dealing with an ever evolving situation that could change literally overnight. Thus, employers must continue to stay on top of all developments on what can and cannot be done as many states continue their phased economic re-openings.

 


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.

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Neither County, Nor Board Of Education Held Liable For A Student Injured In Gym Class

Plaintiff Cora Kerton, on behalf of J.R., her minor daughter, filed suit against the County of Hudson and the Board of Education for the Hudson County Schools of Technology, as well as the superintendent and principal of the school, due to an injury that her daughter suffered in gym class.  Her daughter suffered an injury to her foot while participating as a student in her gym class at County Prep, a high school in the school district.  In Kerton v. Hudson County, 2020 N.J. Super. Unpub. LEXIS 962 (App. Div. May 20, 2020), the issue was whether the plaintiff needed an expert to establish the standard of care owed by the defendants in supervising the gym class.

On the day of the accident, the plaintiff was a sophomore at County Prep.  The principal was responsible for creating the school’s master calendar which included the class periods.  The school had one gymnasium.  In 2014, two gym classes and one fitness class typically used the gymnasium during a single class period.  Each gym teacher ordinarily provided instruction to that teacher’s class.  However, at certain times, all three classes were brought together for joint instruction.  Joint instruction occurred at least once per week.

On the day of the accident, the three classes were brought together for other exercises.  One teacher instructed the students to begin interval running, which required transitioning from walking to running and back to walking.  The minor J.R. stated that she had transitioned from walking to running when she approached students who were still walking.  She attempted to go around them when she fell.  She claims certain students were using cell phones at the time.  At the time that she fell, the teacher was in the gym teacher’s office.

Due to the fall, she suffered a displaced fracture of the fifth metatarsal base and avulsion fracture to the tip of the fibular malleolus in her right ankle.  She needed surgery to repair the fracture of her foot and stabilize the ankle.  She underwent a second surgery to have one the screws removed that had been used to repair the fracture.

At the trial court level, the defendants all filed a motion for summary judgment.  They argued that the plaintiff failed to establish that at the time she fell, the County Prep gymnasium constituted a dangerous condition of public property under the Tort Claims Act.  They also argued that she failed to show that the defendants breached any duty of care.  Additionally, the County filed a motion, making among other arguments that the plaintiff’s negligence claim failed because she could not establish a standard of care for the teachers at the County Prep without expert testimony.

The trial judge noted that plaintiff was not asserting a claim that the gymnasium itself constituted a dangerous condition of public property.  Rather, plaintiff’s claim was based on the alleged negligence of defendants.  The judge determined that the negligence claim failed as a matter of law because plaintiff did not establish the standard of care owed by “a teacher who was supervising a large class in the middle of the day.”  The judge found that to prove such a standard would require the expertise of someone who had experience in teaching and education and supervising children in class.  He found that the common knowledge doctrine did not relieve the plaintiff of the obligation to present expert testimony.

The plaintiff appealed the ruling, claiming that the judge erred by finding that she needed expert testimony to establish the standard of care for her negligence claims and by refusing to apply the common knowledge doctrine.

The Appellate Division noted that “it is well established that teachers and school administrators in New Jersey have a duty to supervise children in their facilities.”  The Appellate Division also noted that expert testimony is required “when the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the defendant was reasonable.”  Further, the Court stated that “without expert testimony, the jury would have to speculate as to the applicable standard of care.”

The Appellate Division agreed with the trial court judge that the plaintiff was required to present expert testimony to establish the standard of care.  The Court noted that the motion judge correctly decided that “the average juror does not have the required understanding of the manner in which school administrators schedule classes, whether students in gym class should be permitted to use electronic devices while exercising and the level of student supervision required when three gym classes have class in a gymnasium at the same time.”  The Appellate Division agreed that these subject matters are “so esoteric that jurors of common judgment and experience cannot form a valid judgment.”

The Court also agreed with the trial court judge that the common knowledge doctrine did not apply.  The plaintiff had argued that this doctrine applies “when the common knowledge of jurors is sufficient to enable them, using ordinary understanding and experience, to determine a defendant’s negligence without the benefit of the specialized knowledge of experts.”  The Appellate Division, however, agreed that an expert was needed in this case to establish the standard of care for the specific claims asserted in this case.

Accordingly, the Appellate Division affirmed the trial court’s decision.  Because the plaintiff did not have an expert to establish the standard of care, the defendants were entitled to summary judgment, dismissing the lawsuit.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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County Found Not Liable For Trip Over Pipe Due To Plaintiff’s Failure To Prove Notice

Plaintiff Ellen Cavilla tripped over a partially exposed pipe and broke her wrist while fishing in Gaskill Park in April 2015.  She sued Atlantic County for negligence due to her injuries.  The issue in Cavilla v. County of Atlantic, 2020 N.J. Super. Unpub. LEXIS 877 (App. Div. May 11, 2020), was whether a negligence claim could be maintained against the County under the New Jersey Tort Claims Act due to lack of notice of the pipe.

The defendant County claimed that it had no actual or constructive knowledge of the alleged dangerous condition, as required under the Act.  Hence, it moved for summary judgment on the trial court level, which was granted.

To maintain a claim for personal injury under the Tort Claims Act, a plaintiff must demonstrate five elements.  For a public entity to be liable for an injury caused by a condition of its property, the plaintiff must establish: “1) that the property was in a dangerous condition at the time of the injury; 2) that the injury was proximately caused by the dangerous condition; 3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; 4) that the public entity created the dangerous condition or had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition; and 5) that the public entity’s actions were palpably unreasonable.”

In this case, the issue was whether there was proof that the public entity had actual or constructive notice of the dangerous condition.  To prove actual notice, the public entity must have actual knowledge of the existence of the condition and knew or should have known of its dangerous character.  For a public entity to be deemed to have constructive knowledge of a dangerous condition, that occurs “only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”

Based upon the Appellate Division’s review of the record, the Court found that the plaintiff could not successfully establish a prima facie case of negligence because she had not presented evidence that the County had actual or constructive notice of the location or condition of the pipe.  The plaintiff argued that the photographs of the pipe created a fact question as to the constructive notice issue.  The Appellate Division disagreed with that argument.  The Court noted that these photographs, viewed in the light most favorable to plaintiff, may establish that a dangerous condition existed, but they did not establish that the County had actual or constructive notice of that condition.

The plaintiff argued because the County was “actively” and “regularly” mowing the area, it must have been aware that the pipe was present.  Neither the trial court, nor the Appellate Division found that argument to be persuasive.

The superintendent of Atlantic County Parks provided an Affidavit, indicating that he conducted a diligent search of the Park’s records and found no record of a visitor notifying the Park system of any dangerous condition regarding the pipe.  According to the record, the first time the Park system was notified of this condition was when the County received plaintiff’s present claim.

The Court noted in a footnote that the photographs of the pipe were taken 9-18 months after the accident.  They showed the pipe was at least partially obscured by soil and grass.  While the plaintiff initially maintained that these photographs accurately depicted the condition of the accident scene on the date of her fall, she subsequently provided a second Affidavit in which she claims that the pipe was discernable.  The Court noted that there was an “inherent tension” between her argument that the pipe was sufficiently concealed to constitute a dangerous condition and yet was of such an obvious nature as to put the County on actual or constructive notice of the condition.

The Appellate Division found that plaintiff failed to establish the notice element but also noted that the plaintiff failed to satisfy element number 5, in that she presented no evidence that the County had acted in a palpably unreasonable manner.  There was no proof presented that the County was notified of any condition regarding the pipe until the plaintiff filed the complaint. Hence, the plaintiff had failed to present any evidence from which to conclude that the County acted in a palpably unreasonable manner.

Accordingly, even when viewing the plaintiff’s evidence in the light most favorable to her, the Appellate Division found that she had not established a prima facie case of negligence under the Tort Claims Act.  Thus, the County was entitled to summary judgment.  Accordingly, the Appellate Division affirmed the summary judgment in favor of the County, dismissing the complaint.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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COVID-19 and The High Risk Employee

With businesses reopening thanks to modifications of state stay at home orders, employers are beginning to contemplate what their new work environments will look like when employees return. Over the past several months, the Equal Employment Opportunity Commission (‘EEOC”) has provided guidance to employers regarding the ways that a company can safeguard its workplace in this new era of COVID-19. One hot question is whether employers, out of fear of legal liability from possible COVID-19 workplace exposure, can prevent high risk employees who suffer the greatest possible complications from COVID-19 from returning to work merely because of that possibility of greater harm. The EEOC says no, at least not automatically, just because of that high risk of possible complications.

According to the EEOC, employers cannot bar high risk employees from returning to work merely because of that high risk. Rather, before an employer can take such action, the employer must engage in the traditional interactive process required under the Americans with Disabilities Act (“ADA’) any time an employee with a disability needs a workplace accommodation. Since high risk employees have one or more underlying medical conditions that cause them to be high risk, the EEOC directs that employers engage in the interactive process to determine whether there are ways of minimizing that employee’s exposure to COVID-19 in the workplace. As part of that interactive process, the employer can assess whether the employee would pose a direct risk of harm to either themselves or others, but in making that assessment, there must be actual objective proof of possible harm.

Under this standard, a direct threat assessment cannot be based solely on an underlying condition being on the Center for Disease Control’s list of high risk factors. Rather, the determination must be an individualized assessment based on a reasonable medical judgment about a particular employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulations require an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. According to the EEOC, assessment of these factors should also include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his/her particular job duties. A determination of direct threat also should include an analysis of the likelihood that an individual will be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing or the wearing of face masks and gloves, also would be relevant in determining the possibility of a direct threat of harm. Thus, according to the EEOC, ultimately an employer may only bar an employee from the workplace only if, after going through all the foregoing steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself/herself that cannot be reduced or eliminated by reasonable accommodation.

In light of this EEOC directive, employers should not rush to judgment in deciding to bar a high risk employee from returning to the workplace due to COVID-19. Adherence to the traditional interactive process required by the ADA will enable an employer to navigate through this complicated issue and reduce the chances of significant legal harm arising from the mishandling of such fears during this continuingly evolving pandemic.

 


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.

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Police Officers Found Not to Be Immunized in Alleged Failure to Render Assistance to Injured Plaintiff at Motor Vehicle Accident Scene

Two Jersey City Police Officers were dispatched to a motor vehicle accident in Jersey City at 2:26 am involving the truck of the decedent Hiram Gonzalez (“Gonzalez”), which he advised them had spun out of control. After responding to the accident, Gonzalez was left at the scene of the accident by the officers after he turned down the offer of a ride and, instead, allegedly advised them that he would wait for his brother to give him a ride. The facts were in dispute as to whether they should have known he was intoxicated at the time. At about 3:42 am, he was struck and killed while walking in the middle of the roadway. The issue in Estate of Gonzalez v. City of Jersey City, 2020 N.J. Super. Unpub. LEXIS 689 (App. Div. April 17, 2020), was whether the officers and the City were immune from tort liability for his fatal accident.

Both officers denied noting any signs that Gonzalez was intoxicated. Based upon an autopsy performed, Gonzalez’s blood alcohol level was a .215. Plaintiff’s toxicology expert opined that Gonzalez’s blood alcohol level when he encountered the officers was a .20, which was 2 ½ times higher than the legal limit for driving.

At the trial court level, the defendants filed for a summary judgment based upon various Tort Claims Act immunities, including N.J.S.A. 59:3-(2)(a), absolute immunity for injuries resulting from the exercise of judgment or discretion. The plaintiff argued that the officers’ acts were ministerial and, under N.J.S.A. 59:2-3 and N.J.S.A. 59:3-2, the officers were not immunized for the negligent performance of a ministerial act.

The trial court judge granted the defendants’ summary judgment motion. He found that the officers had conducted their duties in good faith and that they had no duty to remove Gonzalez from the highway. They offered to give him a ride and secured a ride with a family member before leaving him behind the guardrail. The judge found that the defendants’ actions were immunized under N.J.S.A 59:3-3 (good faith enforcement of laws). He also found that there was no statutory duty to take Gonzalez to a treatment facility because he had no outward signs of intoxication.

The plaintiff appealed, arguing that an officer may be liable for the negligent performance of his or her ministerial act and, therefore, the officers were not immune from liability under the Tort Claims Act. Further, plaintiff argued that the court erred in finding the “officers had the discretion to abandon an intoxicated victim of a motor vehicle accident on a dark, rainy highway bridge.”

The Appellate Division disagreed with the trial court’s ruling and reversed. The Court noted that police offers have a duty to respond to accident scenes and render assistance. In responding to this motor vehicle accident, the Court found that the officers were performing a ministerial duty and would be subject to liability for the negligent performance of this duty. The police do not enjoy immunity for negligent performance of ministerial duties.

The Appellate Division found that there were factual issues that must be resolved by a jury as to whether the officers were negligent. There was conflicting factual evidence as to Gonzalez’s behavior, his conversations with the officers, the circumstances of the inoperability of his car, the officers’ version of their exchange with the dispatcher (as to why they left him at the scene),  and the assessment the area where he was left. The Court ruled that these issues could not be made on a summary judgment record. Thus, the Appellate Division reversed and remanded the matter back to the trial court.

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EEOC Updates Guidance on COVID 19 Workplace Prevention

Last month, I wrote an article outlining the steps that employers may take to guard against coronavirus in their workplace. Thanks to a recent Guidance issued by the Equal Employment Opportunity Commission (“EEOC”), employers were able to implement several steps, such as taking employee temperatures and insisting that employees stay home if sick, to prevent COVID 19 spread in the workplace. Recently, the EEOC has expanded on this Guidance, and has added another tool for employers to use in their fight to prevent contagion of their workplace. Now, not only can employers require that previously positive COVID 19 employees provide medical documentation that they are fit to return to work, but employers can now also actually choose to administer COVID-19 testing themselves to all employees before they enter the workplace to determine if they have the virus. The one important question that the Guidance does not answer, however, is where employers will actually get those tests to administer given the well-publicized testing shortages that currently exist in fighting the on-going pandemic.

So, why is such testing permitted? Given the current pandemic, according to the EEOC, such testing is “job related and consistent with business necessity” because any employee who is COVID 19 positive poses a direct threat of harm to the safety of other employees, which is the standard applied for allowing such employee medical testing under the Americans with Disabilities Act. (“ADA”) The EEOC nevertheless cautions that, consistent with this ADA standard, employers should ensure that the tests are accurate and reliable. In this regard, Employers are urged to review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers are also advised to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, the Guidance further warns also that accurate testing only reveals if the virus is then currently present, and that a negative test does not mean the employee will not acquire the virus at some later juncture.

In the end, while allowing testing, the EEOC ultimately urges that employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other similar measures) in the workplace to prevent transmission of COVID-19 as recommended by the CDC and other federal and state health organizations.

So, if you are an employer lucky enough to have access to testing, you now have the green light from the EEOC to administer such testing across your workforce.  If you do decide to implement such testing measures, remember that, it being a medical test, ADA confidentiality and privacy rules apply to both the communication of (and maintenance of) results, and such sensitive private medical information should only be shared with others on a need to know basis.

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Plaintiff’s Failure to Serve Correct Public Entity with Tort Claims Act Notice Barred Personal Injury Claim

Plaintiff Geoffrey Jones was injured on October 13, 2016 when he stepped into hole next to a storm grate on a street in Jersey City. On November 1, 2016, he served a notice of tort claim upon Jersey City, Hudson County, and the State of New Jersey. In Jones v. City of Jersey City and Jersey City Municipal Utilities Authority, 2020 N.J. Super. Unpub. LEXIS 344 (App. Div. Feb. 18, 2020), the issue on appeal was whether the defendant Jersey City Municipal Utilities Authority (“Authority”) should have been granted summary judgment because of the plaintiff’s failure to serve defendant with a notice of tort claim or file a motion to seek leave to file a late notice of tort claim.

After serving the notices of tort claim on the other public entities, both the State and the County responded by advising the plaintiff that they did not own or control the area where the plaintiff fell and, hence, were not liable for his injuries. Jersey City responded that it had no prior notice of any problems or defects at the loss location and denied the claim.

The plaintiff filed a complaint against Jersey City, Hudson County, and the State on May 23, 2018. In its answer, Jersey City certified that an additional party should be joined (the Authority) and that defendant Authority is a separate and autonomous agency. Also, in answers to interrogatories, Jersey City stated that defendant Authority may have made repairs to the hole or broken pavement next to the storm water/grate where plaintiff alleges he fell.

Despite Jersey City’s disclosure of the defendant Authority’s potential liability, plaintiff never sought to serve defendant with a tort claims notice, nor did he file a motion to seek leave to file a late notice of claim. Instead, plaintiff filed an amended complaint on October 4, 2018, adding defendant Authority to the lawsuit.

Defendant Authority filed a motion to dismiss on the basis of plaintiff’s failure to comply with the notice requirements of the Tort Claims Act. Plaintiff opposed the motion, contending that he had “substantially complied” with the notice requirement. He argued that the Authority was “an entity under the Jersey City umbrella” and, therefore, notice to Jersey City satisfied plaintiff’s notice requirement to the defendant Authority.

The trial court judge denied the Authority’s motion to dismiss. The judge found that plaintiff made a “reasonable good faith attempt” to give defendant timely notice and that plaintiff only learned of the Authority’s involvement a year and half after Jersey City was given proper notice.

The Appellate Division disagreed with the trial court’s decision. It found that the plaintiff was not entitled to simply amend his complaint to name defendant without first serving defendant with a notice of tort claim or filing a motion to serve a late notice.

The Court noted that the Tort Claims Act requires that notice of a tort claim be served within 90 days of the claim’s accrual. The discovery rule may apply, tolling the date of the accrual, if the victim is either unaware that he has been injured or does not know the third party is responsible. If the tort claim notice is not served within the 90 day period, permission to file a late notice of tort claim must be sought by motion, regardless of whether the date of accrual is established based upon the date on injury or through the application of the discovery rule.

The Appellate Division noted that the filing of an amended complaint would not be a substitute for the notice required by the statute. Here, the Court found that the plaintiff never complied with any of the Tort Claims Act’s notice requirements as to defendant Authority.

Further, the Appellate Division held that Plaintiff’s reliance on its service of notice to Jersey City was “misplaced.” The Jersey City Municipal Utilities Authority is a separate public entity from Jersey City. Plaintiff’s service of his tort claim notice upon Jersey City, the wrong public entity, does not absolve the plaintiff of his obligation to promptly identify the proper public entity and serve a timely notice of tort claim.

The plaintiff failed to show that he took any action after his fall to establish which public entities were responsible at any time prior to receiving Jersey City’s answers to interrogatories. Because plaintiff failed to file a motion to seek leave to file a late notice of tort claim, the motion judge “could not determine whether plaintiff established extraordinary circumstances warranting the service of a late notice of tort claim.”

Thus, the Appellate Division reversed the trial court’s order and remanded for an order to be entered granting defendant Authority’s motion to dismiss plaintiff’s complaint.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Be Warned About NJ WARN

Employers already know that, anytime a mass layoff or plant closing is contemplated, there are significant federal and New Jersey state law notice requirements. This past January, 2020, Governor Murphy signed into law a radical legislative amendment to the New Jersey WARN Law (known officially as the “Millville Dallas Airmotive Plant Job Loss Notification Act”) that makes it the most costly and burdensome reduction in force law soon to be in force in the United States.

Beginning on July 19, 2020, the following drastic changes will be effective under the newly revised New Jersey WARN Law.

  1. The New Jersey WARN Law will be triggered by a termination of 50 or more employees, regardless of employee tenure or hours worked, and with the aggregation of all terminations across the state, no matter where in the state the termination occurred.  Under this change, no longer will employers be able to ignore part-time employees in calculating the threshold number for coverage, and coverage is no longer limited by looking at only a single site of employment. The amendments also eliminate the previous requirement under the statute that a mass layoff would only occur if at least 33 percent of a workforce was affected.
  2. The required notice period under the NJ WARN Law will be 90, and not the current 60 days.
  3. Severance Pay will be automatic! This is the most radical of the changes made to the New Jersey WARN Law.  Under the current law, severance pay was only required if the employer failed to provide the necessary 60 days’ notice. When the revised New Jersey WARN Law is triggered, employers must pay employees one week of severance for each year of employment!  Where the employer has failed to meet the Law’s notice requirements, the severance obligation requires an additional payment of four more weeks on top of what is already statutorily required.
  4. Under the revised Law, the above required severance payments cannot be waived without state or court approval. So, any settlement of contested New Jersey WARN Law claims will need to receive either Court or state agency approval.
  5. The coverage of the New Jersey WARN Law has been expanded to include all employers with at least 100 employees, regardless of employee tenure or number of hours worked. Previously, employees with either less than six months of service, or who worked less than 20 hours per week, could be excluded from this threshold calculation.  No more. The part of the Law that requires that an employer be in operation for at least three years thankfully remains unchanged.

In light of these sweeping changes to the NJ WARN Law, employers will now need to proceed with even greater caution when contemplating a possible plant closing, mass layoff, or even just a significant layoff. Employers must be aware of and adhere to these new requirements, especially those involving the timing for issuing the required notice and the making of required severance payments. Special precautions must also be followed when seeking a release of claims in connection with any type of covered reduction in force. When the New Jersey WARN Law is applicable, the employer will now have to pay employees more than just the statutorily required amount of severance to obtain an effective release of claim. This is because, to obtain a legally effective release, the employee must be given something by the employer beyond what an employee is already legally entitled to receive.

So, you have now been warned about the amended New Jersey WARN law! Please take these precautionary words to heart!

 


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.

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Plaintiff’s Written Injury Report of Pothole on City’s 311 Online Reporting System Found to be in Substantial Compliance of Tort Claims Act Notice Requirement

Plaintiff Eileen Martinez fell into a pothole on a Hoboken street on March 20, 2018, injuring her foot. On that same date, she messaged the City’s 311 online reporting system, identifying herself by her username and notified the City of the time, location, cause, nature and extent of her injury. Two days after receiving plaintiff’s message, the City sent an acknowledgment email to plaintiff and assigned a tracking number. The issue in Martinez v. City of Hoboken, 2019 N.J. Super. Unpub. LEXIS 2580 (App. Div. December 16, 2019), was whether plaintiff’s 311 online written notice substantially complied with the 90 day notice requirement under the Tort Claims Act.

When plaintiff submitted her 311 online reporting system message, she also attached photographs of her injured foot and the pothole. She did not include her full name and address in the 311 online submission to the City, nor did she sign the message other than to identify her username.

Six months after she fell, plaintiff retained counsel who notified the City of plaintiff’s injury and stated that plaintiff had complied with the Tort Claims Act by submitting the information to the City’s 311 online reporting system on March 20, 2018. Her attorney inquired of the City if it had a specific notice of claim form to proceed with her claim. Counsel specifically asked if the City considered plaintiff’s March 20 notice deficient or noncompliant with the TCA. The City forwarded its official notice of claim form to plaintiff’s counsel for completion but did not advise whether it deemed plaintiff’s March 20 notice deficient or noncompliant with the TCA. Plaintiff’s counsel thereafter submitted the completed official notice of claim form to the City five days after receipt.

Having received no response from the City regarding the acceptance of her notice of claim, in January 2019, plaintiff filed a motion to deem her March 20, 2018 notice sufficient. In the alternative, plaintiff requested permission to file a late notice of tort claim.

The City opposed the motion, contending that it did not receive a tort claim notice from plaintiff until after October 15, 2018, seven months after the accident. Hence, the City argued that it could not have an expert opine about any alleged defect at the time of the accident, as road conditions significantly changed over seven months in the City due to weather, traffic, snow plowing and the passage of time. The City contended it was severely prejudiced by its inability to properly investigate.

The motion judge determined that the plaintiff’s March 20 notice substantially complied with the TCA. The judge found that the text notification on or about the day of the accident contained “sufficient information as to the type of the accident, the location, the alleged cause and the nature of the injuries to substantially comply with the tort claim notice requirements.” On appeal, the defendant City argued that the judge made a mistake in deeming the plaintiff’s March 20, 2018 notice to be in substantial compliance with the requirements of the TCA.

Pursuant to the Tort Claims Act, no person may bring an action against a public entity for a personal injury unless the person presents the public entity with a notice of claim within 90 days after the cause of action accrued. Plaintiff contended that her March 20, 2018 message to the City’s 311 online reporting system filed within 90 days of her injury substantially complied with the TCA.

The Appellate Division stated that the doctrine of substantial compliance is an equitable doctrine intended to “avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute’s underlying purpose.” Further, the Court noted that to warrant application of the doctrine of substantial compliance, the moving party must show: “(1) the lack of prejudice to the defendant party; (2) steps taken to comply with the statute; (3) a general compliance with the purpose of the statute; (4) reasonable notice of the plaintiff’s claim; and (5) a reasonable explanation by the moving party for why there was no strict compliance with the statute.” Here, the Appellate Division found that the City failed to show prejudice and plaintiff provided a reasonable explanation for her lack of strict compliance with the TCA’s notice of claim requirements.

The Court found that the 311 message to the City’s online reporting system included the date and location of the plaintiff’s injury, the injured body part, a photograph of her injury and the pothole, offered to provide additional information and photographs to the city to allow it to investigate her claim and me and her email address. Further, two days later, the City sent a reply to her message and provided tracking numbers under her claim. Thus, during the 90 day time period from the date of her injury, plaintiff believed her 311 message to the City constituted sufficient notice of her claim. The court found that the plaintiff did take steps to comply with the TCA notice of claim and achieve the TCA’s purpose by notifying the City of her injury.

The Appellate Division was satisfied that the plaintiff had provided an acceptable explanation for failure to strictly comply with the notice of claim requirements of the TCA. Further, the Court rejected the City’s argument that it was prejudiced as result of the March 20 notice of claim. While it claimed to have never received this notice, it did respond to plaintiff and assigned a tracking number. Thus, the Court was satisfied that the 311 message was actually received.

Last, although the City claimed prejudice, just a sweeping generalization of prejudice is not enough to satisfy the prejudice requirement. The City was given the exact street location of the pothole that caused the plaintiff’s injury. The Court noted that the City could have inspected the intersection to confirm the condition of the road. There was nothing in the record explaining why under the circumstances, the City was unable to properly investigate any claim of the plaintiff or why it could have not have had an expert opine about any alleged defect at the time of the incident because plaintiff did provide information with the exact location of the pothole on March 20, 2018.

In summary, the Appellate Division found that the motion judge did not abuse her discretion in finding the plaintiff’s 311 message submitted to the City on March 20, 2018 to be in substantial compliance with the TCA’s requirements for notice of claim. Thus, the Appellate Division affirmed the trial court’s decision, finding that this 311 online report sufficient to satisfy the notice requirement of the Tort Claims Act, which will permit the plaintiff’s personal injury claim to proceed.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Pregnancy Discrimination Explained

In a recent New Jersey Appellate Division case, Delanoy v. Township of Ocean, No. A-2899-17T4 (App. Div. January 3, 2020), our state appellate court issued a significant new decision that explains what an employer’s legal obligations are to eliminate discrimination against (and provide reasonable accommodations to) its pregnant employees. This is the first published court opinion addressing these important legal issues for employers.

Back in 2013, the New Jersey Legislature amended the New Jersey Law Against Discrimination (“LAD”) through passage of the New Jersey Pregnant Workers Fairness Act (“PWFA”).  The PWFA revised the LAD to expressly prohibit pregnancy-based discrimination in employment while imposing other legal requirements upon employers regarding how pregnant employees could be treated in the workplace. Among those other important legal requirements, the PWFA obligates employers, subject to an undue hardship exception, to afford reasonable accommodations in the workplace to pregnant women, when requested, and also to not penalize women due to their status of being pregnant.

The Plaintiff in Delanoy was employed as a police officer. When she became pregnant with her second child, she informed her supervisor that at the direction of her doctor she needed to be taken off her patrol duties and receive some sort of light duty position during the period of her pregnancy. As a result of her request, the employee was placed into a light duty non-patrol position pursuant to a “Maternity Assignment Standard Operating Procedure” that was a previously adopted policy by the employer. That policy enabled pregnant workers to work a different maternity job assignment, but in exchange for the modified assignment, the pregnant officer had to use all of her accrued paid leave time off (e.g. vacation, personal and holiday time) before going on that different work assignment. The police department employer also had a separate light duty assignment policy for non-pregnant injured officers who also needed a different temporary job assignment. Unlike the maternity reassignment policy, this light duty policy gave the police chief the authority to waive the condition of utilizing accrued leave time as a prerequisite for receiving the light duty assignment.

Plaintiff filed suit against her employer claiming that the maternity reassignment policy discriminated against pregnant employees since it was less favorable than the separate light duty non-pregnancy policy, which made provision for the waiver of the required exhaustion of paid leave time. Because of this disparity, the Plaintiff argued that the policy on its face discriminated against pregnant employees in violation of the PWFA because such employees were penalized in requesting an accommodation by losing their paid leave time as a condition for receiving the requested accommodation.  Reversing the trial court’s determination of no discrimination, the Appellate Division agreed with the Plaintiff that the maternity assignment policy discriminated against pregnant workers because unlike non-pregnant workers who could seek an exception to the paid leave use requirement under the light duty policy, the maternity reassignment policy allowed for no such exemption. In light of this finding, the court declared the policy to be illegal on its face and enjoined its further enforcement moving forward by the employer.

In light of the court’s ruling in Delanoy, employers need to familiarize themselves with the unique obligations owed to pregnant workers who may need a workplace accommodation under the PWFA.  Not only does that law prohibit discrimination against pregnant workers, but it also affords those employees with the opportunity to receive an accommodation because of their physical condition.

Hence, to assist employers in understanding that accommodation duty, the PWFA cites various examples of possible required accommodations, which could include “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedule, and temporary transfers to less strenuous or hazardous work….”  Of course, this accommodation duty is subject to application of an undue hardship exception, and the law likewise lays out various considerations for making that determination as well (i.e. size of employer, size of work facility, size of company budget, etc.).

In sum, the PWFA significantly changed the legal landscape for employers as it relates to its pregnant workforce, so employers must be ever cognizant of the law’s requirements and ensure that workplace policies do not treat non-pregnant workers better than pregnant workers, or punish such employees due to their condition, especially those policies and practices that impact upon available accommodations that an employer may be willing to make for its general workforce.

 


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.

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