New Jersey Prohibits Sex Offenders from Working for Youth Organizations; Proposed Amendment Redefines “Misconduct” for Unemployment Benefit Disqualification Purposes; NYS DOL Issues Required Notice and Acknowledgement Form that New York Employers Must Use When Hiring New Employees; “Nurse Coverage Plans” Mandatory for Involuntary Overtime in New York; Release Valid Under OWBPA Where Plaintiff Was Given Appropriate Time to Consider It, Notwithstanding He Signed It Immediately Due to His Own Poor Financial Condition; New Jersey Supreme Court Holds Defendants Cannot Recover Fees in CEPA and LAD Cases under Offer of Judgment Rule; ADEA Claim Fails Where Employer Had Numerous Reasons to Fire Employee; Age Clearly Not the “But For” Factor in Termination.

New Jersey Announces Nation’s First RETURN-to-Work Program; 5,000+ NJ Residents Have Received Family Leave Insurance Benefits; Legislation Proposed to Provide Paid Sick Time in New York City; Appellate Division Adopts Broad Definition of “Opposition” Under the NJLAD; Employee May Bring FMLA Retaliation Claim Although Leave Had Not Commenced When Allegedly Unlawful Action Occurred; Plaintiff’s Failure to Follow Employer’s Version of the Interactive Process Does Not Justify Employer Abandoning the Process.

New York “Mini-COBRA” Law; Extended Health Insurance Coverage for Dependent Children Through Age 29; “Litigation Hold” Letters May Be Discoverable Where Company’s Efforts to Preserve Evidence Are Questionable; Plaintiff’s Use in Litigation of Confidential Documents Taken from Employer Does Not Constitute Protected Activity; Release Signed by Plaintiff Post-Termination Upheld as Voluntary; Under Title VII, Employer’s Remedial Action Is Adequate If It Is Reasonably Calculated to End the Harassment, Even If the Harassment Continues; No CEPA Claim Where Employee’s Interest Was Financial Gain; FMLA and NJFLA “Same or Equivalent Position” Requirement Analyzed; Third Circuit Addresses Standard for Evaluating Misappropriation of Confidential Information Claims.

New Jersey - Governor Corzine Signs “Egan & Quijano” Bill Imposing Harsher Penalties on Employers Found to Have Knowingly Violated Workers’ Compensation Requirements; New Jersey Minimum Wage Increase Affects New Wage Execution/Garnishment Orders; New York State Human Rights Law Amended to Allow Imposition of Civil Penalties and Fines Against Employers Found to Have Committed Discriminatory Employment Practices; New York Department of Labor Further Revises Its NY WARN Act Emergency Regulations; New Jersey - Overseas Employees May Be Eligible for New Jersey Workers’ Compensation Benefits;Third Circuit Refuses to Certify Class Challenging UPS’ No Light Duty Policy Under ADA; New Jersey - Supreme Court Holds Arbitration Agreements in Electronic Form Are Valid.

Reminder: Employees Now Eligible for New Jersey Family Leave Insurance Benefits; New Jersey Minimum Wage Increases on July 24; Employment Protection for Volunteer Emergency Responders Bill Proposed; Trade Secrets Legislation Introduced; Bill Prohibiting Sex Offenders from Working in Youth Serving Organizations Near Passage; Bill to Establish Penalties for Employers that Permit Unauthorized Aliens to Operate Motor Vehicles; New Jersey Fair Debt Collection Practices Act Would Limit Debt Collectors’ Ability to Contact Debtors at Work; Bill to Allow Corporate Officers to Make Equity Grants to Employees Reaches Governor; Lilly Ledbetter Fair Pay Act Extends Right to Sue Only for Discriminatory Compensation Claims; Mere Supervisory Authority Does Not Make Employee “Management Level” for Purposes of Title VII Liability; Attorney-Client Privilege Protects Plaintiff’s E-Mails to Attorney from Her Personal E-Mail Account, Using Employer’s Computer; Accessing Employees’ Private Internet Chatroom Violates Stored Communication & Wiretap Laws; “Psycho Bitch” Comment Sufficient to Preclude Summary Judgment on Hostile Work Environment Claim; Accepting Voluntary Separation Plan Not “Good Cause Attributable to the Work”; Termination for Cause Insufficient to Deny Employee Compensation Already Earned; Employer Not Entitled to Jury Charge on Ellerth-Faragher Affirmative Defense Where Evidence Was Insufficient to Establish That Policy Existed and Plaintiffs Knew About It; Release in Severance Agreement Invalidated Under OWBPA.

Family Leave Insurance Forms Now Available from NJDOL; Bill Would Create Civil “Rape Shield” Law in Sexual Harassment Cases; Maximum Weeks Payable for Extended Unemployment Benefits Raised from 13 to 20 Weeks; Bill Provides Enhanced Penalties for Repeat Violators of Wage and Hour Laws; Bill Seeks to Prevent Striking Workers from Receiving Unemployment Benefits; Senate Resolution Urges Governor to Suspend Prevailing Wage Requirement During Current Economic Crisis; Bill Bars Certain Sex Offenders from Positions in Youth Serving Organizations; Supervisors May Be Individually Liable Under NJLAD for Failing to Respond to Harassment Complaints; CEPA Claim Allowed Where Employee Objected to Use of Company’s Web Portals Due to Lack of Privacy Protection; FLSA Verdict Upheld Against Staples; Liquidated Damages Awarded; Ambiguity in Commission Plan Results in Additional Commissions to Former Employee; ADA Claim Dismissed Where Plaintiff Failed to Present Evidence That His Employer Perceived Him As Substantially Limited in a Major Life Activity; Court Rejects Employer’s Defamation Claim Based on Statements Posted on Message Board; Appellate Division Limits Immigration-Related Discovery.

Reminder Regarding New Jersey Paid Family Leave; New York WARN Act Emergency Regulations Are Extended; Employer Not Liable Where Assault by Employee Not Foreseeable; Third Circuit Rejects Religious Discrimination Claim Where No Accommodation Could Be Made Without Undue Burden; “Over 70 Exception” to the NJLAD Does Not Extend to Renewal of Existing Employees’ Employment Contracts; Demographic Evidence Admissible to Defeat Age Claim; No Breach of Settlement Agreement by Employer Where Employee Agreed to Resign But Was Disciplined Pending Approval of Settlement Agreement; Plaintiff Required to Prove Existence of Reasonable Accommodation to Establish Prima Facie Case of Disability Discrimination.

Bill Seeks to Prohibit Credit History Discrimination; Paid Family Leave Regulations Are Adopted; Bill Would Require IT Professionals to Report Discovery of Child Porn; New Law Limits Police Officers’ and Firefighters’ Unpaid Suspensions Pending Discipline; Bill Seeks to Prevent Striking Workers from Receiving Unemployment Benefits; Bill Would Impose Criminal Penalties for Workers’ Compensation Infractions; Employee Waived Attorney-Client Privilege by Sending E-Mails on Company Computer; District Court Questions “Aiding and Abetting” Liability for Non-Supervisory Employees Under NJLAD; Sanctions Imposed on Employee Who Destroyed Evidence; No Violation by Prospective Employer Who Withdrew Employment Offer; Failure to Accommodate Claim Permitted Where Employer Did Not Consider Reassignment to Vacant Position; Retail Establishment Not Entitled to Trucking Industry Exemption Under New Jersey Wage and Hour Law for Employees Operating From Service and Distribution Centers.

Bill to Prohibit Credit History Discrimination Introduced; Bill to Create a “New Jersey Senior Labor Task Force” to Address the Needs of Older Workers Passed by the Senate Labor Committee; Family Leave Tax Does Not Apply to Pension Payments; New Emergency NY WARN Act Regulations Published; Southern District Rules Faragher-Ellerth Defense Not Available in Harassment Case Brought under New York City Human Rights Law, but Certifies Issue to Second Circuit; Sales Managers Win $2.5 Million Jury Verdict Against Staples, Inc. in FLSA Lawsuit; New Jersey Supreme Court Overturns Criminal Conviction Based Upon Display of Union Rat, Ruling Ordinance Violated Free Speech. Employee’s Discrimination Claims Barred Where Employee Makes Contrary Statements to Social Security Administration Absences Do Not Amount to “Misconduct” Within Meaning of Unemployment Compensation Statute Where Conduct Not Willful, Deliberate or Intentional Federal Court Certifies Class in Race Bias Suit Based Upon Residence Requirement

On January 26, 2009, the “New Jersey Jobs Protection Act” (A3675) was introduced and referred to the Assembly Labor Committee. The proposed legislation seeks to punish any New Jersey employer that intentionally or knowingly employs an unauthorized alien. This bill is similar in several regards to a bill (A3289) introduced last October, and discussed in the November 2008 issue of the New Jersey eAuthority.

On January 13, 2009, the “Security Officer Registration Act” (SORA) (S2477) was introduced, which would require any person who is employed as an in-house security officer to register with the Superintendant of State Police and to complete an education and training program.

On January 9, 2009, the “Healthy Workplace Act” (A1551), which would make unlawful workplace bullying, abuse and harassment unrelated to any category that is protected by existing law, was reintroduced and referred to the Assembly Labor Committee for review.

On December 8, 2008, a bill (A3516) was introduced that provides that any business entity that eliminates jobs performed by its employees in the United States and causes the functions performed by those employees to be “outsourced” to workers in any foreign nation will be ineligible to perform any state contract or receive any state grant.

On December 9, 2008, Governor Jon Corzine signed into law bill S6, the “InvestNJ Business Grant Program Act.” This law provides for both capital investment grants, and grants for certain new hires.

After the Borough of Glassboro promoted officer William Highley over officer Peter Amico, the union filed a grievance on behalf of Amico on the basis that the borough’s decision violated the promotional procedure set forth in the collective bargaining agreement, and that the decision violated state law by making residency in the borough a factor.

By a vote of 47-31, the Assembly passed a bill (A2243) designed to facilitate the timely resolution of contract disputes between public employers and their police and fire unions by establishing statutory timeframes for certain phases of the interest arbitration process. Presently, no time restrictions exists for mediation and fact-finding stages of police and fire interest arbitration. If signed into law, A2243 would establish a 60-day limit for each stage. In addition, under the new bill, if the parties proceed to interest arbitration the arbitrator must render a decision within 120 days, unless the parties mutually request an extension of up to 90 days.

A bill (A3429) to establish a training wage was introduced on November 13, 2008. If signed into law, this bill would permit employers to pay a training wage of not less than 85% (of the state minimum wage) to individuals above the age of 15 and below the age of 21 years of age, provided they are enrolled in an established on-the-job or other training program. The training wage cannot last for more than 90 days, and no employee can earn the training wage for more than two employers during any one-year period. Also, employers cannot utilize an employee paid the training wage to replace a current or laid off employee.

On November 13, the Assembly Labor Committee met on a proposed bill (A1551), the “Healthy Workplace Act,” that would aim to combat workplace bullying, abuse and harassment unrelated to any category protected by law. If passed, this bill could open the floodgates to claims by employees who feel they were picked on, harassed, or otherwise undermined by co-workers, without regard to the reason.

Landmark Amendments to the Americans with Disabilities Act Enacted; Returning the Disabled Employee to Work: The Interactive Dialogue; New Jersey Paid Family Leave Law on the Books; Third Circuit Eases Requirement for Proper Employee Notification of Need of FMLA Leave;

This month, several key bills concerning criminal background checks for employees and applicants were introduced or modified. One bill (A3227) introduced on October 6, 2008 would require criminal background checks for owners and employees of businesses providing services that require entry into a person’s home (e.g., maids, electricians, furniture delivery persons, etc.). The criminal background check, which would be conducted by the Director of Consumer Affairs in the Department of Law and Public Safety, would certify that owners and employees of such home service enterprises have not been convicted of certain types of dangerous crimes. The Director also would be required to consider whether any disqualified individual has been successfully rehabilitated such that the prohibition on home-service employment would be waived. Home-service businesses would be responsible for an annual registration fee to defray the cost of the background checks.

The Third Circuit Court of Appeals affirmed summary judgment for the employer on a gender discrimination claim, despite evidence that the alleged poor performance for which Plaintiff (a Senior VP) was terminated, was never mentioned in her termination letter.

In a non-employment case that may have implications for employers, the Supreme Court declined for now to recognize the cause of action known as "prima facie tort".

On May 20, 2008, the Supreme Court Ad Hoc Committee released its draft report and recommendations regarding the implementation of mandatory continuing legal education (CLE) in the state of New Jersey. Key recommendations include: 24 CLE credits to be required every two years, including 4 in ethics/professionalism; 6 non-ethics credit hours may be carried over to the next cycle; and up to 12 credits per cycle may be earned through alternative formats (internet, audiotape).

A bill (A2243) recently was introduced to accelerate the process for resolving contract negotiations between public employers and police and fire unions.

An Assembly bill (A2885) introduced on June 5 would give greater flexibility to corporations in granting equity awards to employees.

On June 5, a bill (A2893) was introduced which would bar public entities and employees from entering into confidential settlements, including settlements of employment disputes.

Three bills were introduced in the Senate and the Assembly that would provide additional protections for workers affected by plant closings, transfers and mass layoffs.

On June 19, Governor Jon Corzine signed S1698 into law authorizing a supplemental appropriation of $260 million from the State’s 2008 budget surplus to prevent a scheduled July tax increase on employers due to the depletion of State unemployment compensation funds.

On May 22, the Assembly Labor Committee released the “Jobs, Trade and Democracy Act,” which is new legislation (A2754) that would provide for greater State oversight of international trade policy affecting New Jersey, to a potential floor vote.

On May 22, a bill (A2791) was introduced that would create a “New Jersey Senior Labor Task Force,” appointed by the Governor, to study and evaluate issues concerning employment of senior citizens in the State’s (private and public sector) labor force, including age discrimination, eliminating barriers preventing senior citizens from the labor force, and finding ways to encourage employers to employ senior citizens.

Senate bill S1262, which would prohibit public entities and public employees from entering into confidential court settlements of claims.

On May 22, a bill (A2866) was introduced in the Assembly to amend the New Jersey Law Against Discrimination (NJLAD) to expressly provide that it shall not be an unlawful employment practice for an employer to require an employee to speak, or an applicant for employment to speak, English while engaged in work.

On December 20, 2007, Governor Corzine signed into law the Millville Dallas Airmotive Plant Job Loss Notifi cation Act (“Millville Dallas Act”) (named after a large facility that closed in 2004 leaving hundreds without jobs). This is New Jersey’s version of the federal WARN Act, and resembles federal law in many respects.

The Appellate Division affirmed a lower court decision which held the employer properly refused to pay sales commissions to a former employee where the customer paid for the product only after the employee had left the company.

Plaintiff alleged that he was unlawfully terminated after complaining that his employer had been making improper payments to foreign officials.

On January 3, 2008, the New Jersey Military Leave law concerning reemployment of military service personnel (N.J.S.A. 38:23C-20) was amended.

Recently, New Jersey Governor Jon Corzine signed into law the Millville Dallas Airmotive Plant Job Loss Notification Act, otherwise informally known as "NJ Warn." NJ Warn tracks and supplements the federal Work Adjustment and Retraining Notification (WARN) Act, which requires employers to give notice to employees who will be terminated in mass layoffs.

New Jersey employers with 100 or more employees contemplating a transfer or closure of operations that impacts 50 or more employees at a New Jersey facility must comply with the recently enacted Millvale Dallas Airmotive Plant Job Loss Notification Act (NJ Warn Act).

New Jersey employers are now subject to a plant closing notification law that is significantly more punitive than the existing federal WARN Act under a bill signed into law by Governor Corzine, which became effective on December 20, 2007.

On December 20, 2007, New Jersey became the 16th state to enact a plant closing law modeled after the federal Worker Adjustment and Retraining Notification Act (29 U.S.C. section 2100 et seq.) ("Fed WARN"), when Governor Jon Corzine signed into law the oddly named "Millville Dallas Airmotive Plant Job Loss Notification Act'" ("NJ WARN"). Employers planning layoffs in New Jersey must know they can no longer comply only with the notice requirements set out in Fed WARN.

A new law, purportedly designed to combat "take-the-money-and-run" plant closings and mass layoffs and effective immediately, may give New Jersey employers another reason to call their lawyers. The Millville Davis Airmotive Plant Job Loss Notification Act ("NJ Warn") was signed by Governor Corzine on December 20, 2007. While the new state law (which takes its name from the closing of a large facility in 2004 leaving hundreds of employees without jobs) tracks the existing federal plant closing law in a number of respects, it goes well beyond its federal counterpart in others.

New Jersey employers in the construction industry who improperly classify construction workers as independent contractors may face criminal as well as civil penalties. Signed into law on July 13, 2007, the Construction Industry Independent Contractor Act (the "CIICA") raises the stakes when employers gamble on whether individuals hired to perform construction work can be treated as independent contractors.

The New Jersey Supreme Court recently issued two long-anticipated rulings regarding who may sue under the Conscientious Employee Protection Act ("CEPA"), New Jersey's whistleblower statute. The two decisions are D'Annunzio v. Prudential Ins. Co., No. A-119-2005, slip op. (N.J. July 25, 2007), and Stomel v. City of Camden, No. A-45-2006, slip. op. (N.J. July 25, 2007). In these companion cases, the Court has made clear that, under CEPA, an independent contractor, under certain circumstances, can be an "employee" and, therefore, have standing to sue. Employers should be aware that in determining whether a person is an "employee" who may sue under CEPA, courts will now focus on the degree of control and direction exercised by the employer over the professional worker and the integration of the individual's services with the employer, as opposed to the label the parties attach to the relationship, or the manner of compensation.

The bill would require WARN-type notice to New Jersey closings.

New Jersey Alert - New Jersey Supreme Court Rules On Rights Of Members Of Same-Sex Couples.

On January 12, 2004, New Jersey Governor James E. McGreevey signed the Domestic Partnership Act granting legal status to same-sex couples and unmarried, opposite-sex couples age 62 or over under certain New Jersey laws.

A pair of recent decisions from the New Jersey Supreme Court has sent a strong warning to employers in violation of federal Occupational Safety and Health Act standards and related employee protection regulations.