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An employee who is terminated for alleged sexual harassment based on a consensual out-of-work romantic relationship with a coworker, where no complaint of sexual harassment was ever made and where the employer’s investigation revealed no good-faith basis for concluding sexual harassment had occurred, can serve as the basis for a public-policy wrongful discharge claim pursuant to Pierce v. Ortho Pharmaceutical Corp, 84 NJ. 58 (1980) (holding that it is unlawful to discharge an employee in violation of a clear mandate of public policy) and Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993) (requiring employers to conduct fair and thorough investigations of sexual harassment allegations). Both the New Jersey Supreme Court and the Appellate Division have held that consensual romantic relationships between coworkers do not constitute sexual harassment, even if one of the parties to the relationship is favored by the other to the detriment of third parties in the workplace.

In Erickson v. March & McLennan Co., Inc., 117 N.J. 539 (1990), a unanimous New Jersey Supreme Court held that (1) there was “no reason to extend the protection of the LAD to sex-discrimination claims based on voluntary personal relations in the workplace” and (2) “favoritism in the workplace, based solely on personal romantic preference as opposed to coercion, does not constitute discrimination on the basis of gender.” Id. at 557. Similarly, while addressing the discoverability of consensual sexual relationships between partners and employees at a law firm in a case in which the plaintiff associate alleged that she had been raped by one of the partners, the Appellate Division relied upon the distinction between sex in the workplace and sexual harassment in the workplace to bar discovery of such consensual sexual relationships. K.S. v. ABC Professional Corp., 330 N.J. Super. 288 (App. Div. 2000). The Appellate Division noted that “[s]ex is not congruent with sexual misconduct” in holding that “whether any partner ever had a consensual and welcomed relationship with an employee is irrelevant to plaintiffs’ claim that a hostile work environment was created or tolerated by defendants.”  Id. at 297. Hence, in New Jersey consensual sexual relationships in the workplace, even between superiors and subordinates, do not constitute sexual harassment, and therefore cannot be used as a predicate for firing an employee for sexual harassment. Given this, it may be gainsaid that an employer violates a clear mandate of New Jersey public policy by firing an employee for alleged sexual harassment based on the employee’s consensual romantic relationship with a coworker. Such a discharge violates a clear mandate of public policy and therefore is unlawful Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980).

In Grasser v. United Healthcare Corporation, MID-L-12026-99, the company fired plaintiff Grasser after learning he had been involved in a romantic relationship with a female coworker even though no one (including the female coworker) had complained plaintiff Grasser had done anything inappropriate and despite the female coworker’s clear statement the relationship was entirely consensual. Moreover, the employer’s investigation uncovered absolutely no evidence that either plaintiff or the female coworker had done anything inappropriate in the workplace. Notwithstanding this, defendant-employer fired plaintiff anyway, asserting his relationship with the female coworker violated the company’s sexual harassment policy. In denying the defendant corporation’s motion for summary judgment, New Jersey Superior Court Judge Yolanda Ciccone, J.S.C. stated in part:

Although less frequently invoked than other provisions contained within the New Jersey Law Against Discrimination (LAD), the statute prohibits discriminatory refusal to do business with independent contractors because they or their family members possess one or more protected class characteristics. Specifically, N.J.S.A. § 10:5-12(l) provides:

“It shall be…an unlawful discrimination…For any person to refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person on the basis of the race, creed, color, national origin, ancestry, age, pregnancy or breastfeeding, sex, gender identity or expression, affectional or sexual orientation, marital status, civil union status, domestic partnership status, liability for service in the Armed Forces of the United States, disability, nationality, or source of lawful income used for rental or mortgage payments of such other person or of such other person’s family members, partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers.…”

Similarly, the LAD prohibits discriminatory terminations of contracts. Rubin v. Chilton, 359 N.J. Super. 105 (App. Div. 2003).

Underscoring the paramount need to put in place comprehensive health and safety standards designed to mitigate the spread of the COVID-19 virus in our state, New Jersey Governor Phil Murphy recently issued Executive Order No. 192, requiring employers with employees physically present at worksites to adhere to strict COVID-19 safety requirements. Executive Order No. 192 provides in part:

1. Effective at 6:00 a.m. on Thursday, November 5, 2020, every business, non-profit and governmental or educational entity (hereinafter collectively referred to as “employers” or “employer”) that requires or permits its workforce to be physically present at a worksite to perform work is required to abide by the following requirements to protect employees, customers and all others who come into physical contact with its operations:

a. Require that individuals at the worksite maintain at least 6 feet of distance from one another to the maximum extent possible, including but not limited to during worksite meetings, orientations and similar activities, in common areas such as restrooms and break rooms, and when individuals are entering and exiting the workplace. Where the nature of an employee’s work or the work area does not allow for 6 feet of distance maintained at all times, employers shall ensure that each such employee wears a mask and shall install physical barriers between workstations wherever possible.

November 3, 2020 – General Election

Voter Registration Deadlines & Important Dates

This is a paper ballot election. All active, registered voters will receive a vote-by-mail ballot in the mail.

New Jersey health care facility workers cannot refuse to receive a flu shot.  On January 13, 2020, Governor Phil Murphy enacted N.J.S.A. § 26:2H-18.79, concerning influenza vaccination in New Jersey health care facilities.  The statute first provides that, beginning with the onset of the first flu season next following the effective date of the legislation, each health care facility (i.e., general or special hospital, nursing home or home health care agency) must establish and implement an annual flu vaccine program in accordance with the recommendations of the federal Centers for Disease Control and Prevention (CDC) and any rules and regulations adopted in accordance with the statute.

For the purposes of its annual flu vaccine program, each health care facility must annually provide a flu shot to each of its employees and require that each employee at the facility receive a flu shot annually no later than December 31 of the current flu season, which flu shot must be provided by the facility.

A health care facility employee who does not wish to have a flu shot must prove that he or she has a medical exemption, which must be submitted using a form designated by the Department of Health, stating that the flu shot is “medically contraindicated, as enumerated by the Advisory Committee on Immunization Practices of the federal Centers for Disease Control and Prevention.”  An attestation of a medical exemption is subject to approval by the facility following the facility’s review to confirm that the exemption is consistent with CDC standards.  A health care facility must not discharge or reduce the pay of any employee who receives a medical exemption from the annual flu shot requirement.

Good news for New Jersey workers!  New Jersey Governor Phil Murphy enacted amendments to the New Jersey Wage and Hour Law, effective August 6, 2019, and New Jersey Family Leave Insurance (FLI), effective July 1, 2020, and the New Jersey Department of Labor and Workforce Development recently offered extended benefits to unemployed workers.  Among other changes to the Wage and Hour Law, the recent legislation increases the statute of limitations from two years to six years and provides for liquidated damages up to 200% of the amount of wages lost.  The major amendments to New Jersey FLI are a doubling of the leave period from 6 weeks to 12 weeks and an increase in the benefit rate from 66 2/3% to 85% of a claimant’s average weekly wage.  Unemployment benefits have been extended from 26 to 46 weeks.

New Jersey Wage and Hour Law

• Statute of Limitations: Employees now have six years, instead of two years, to bring a claim for unpaid minimum wages or unpaid overtime compensation. N.J.S.A., 34:11-56a25.1.

One cannot fix what is not recognized to exist, nor fix

which is not understood to be broken.

Assimilation for Black Americans is near impossible. Skin color cannot be escaped and keeping quiet does not hide racial identity. The blackness of an African American’s skin makes their basic human and constitutional right to be treated with equanimity and fairness dependent on how white Americans choose to treat them, consciously or unconsciously.

By passing and signing into law the New Jersey Equal Pay Act (EPA), our state legislature and Governor Murphy made clear that unequal pay practices based on a person’s gender, race, national origin, disability or other protected class characteristic, for employees performing same or similar work, will not be tolerated in New Jersey. A powerful remedy found in the EPA allows an aggrieved employee to seek back pay damages for discriminatory pay practices going back 6-years!

The passage of the EPA meant that the statute of limitations for claims based on discriminatory pay was expanded from 2-years under the existing New Jersey Law Against Discrimination (NJLAD) to a period of 6-years. Specifically, this  look-back provision of the EPA found at  N.J.S.A. 10:5-12A, , states that, “…liability shall accrue and an aggrieved person may obtain relief for back pay for the entire period of time, except not more than six years, in which the violation with regard to discrimination in compensation or in the financial terms or conditions of employment has been continuous, if the violation continues to occur within the statute of limitations…” (emphasis added).

A plain reading of the EPA makes clear that a victimized employee is permitted to recover damages for 6-years of unequal pay so long as it is shown to the satisfaction of a court that the complained of unequal pay practices continued to take place one or more times after the EPA took effect on July 1, 2018. Despite the apparent clarity of the EPA, some employers sought to challenge this 6-year claw back period arguing that by giving effect to the 6-year statute of limitation as of its effective date would mean the law was being given a manifestly unfair retrospective application. Retrospective application of a new law or rule depends on whether there has been a departure from existing law. State v. G.E.P., 458 N.J. Super. 436, 444-445 (App. Div. 2019). If there is a departure from exiting a law, the new law or rule is only given prospective effect. Id.  A new rule or law exists if “‘it breaks new ground or imposes a new obligation ….  [or] if the result was not dictated by precedent existing at the time the defendant’s conviction became final.'” Id. quoting State v. Lark,  117 N.J. 331, 339 (1989) (quoting Teague v. Lane,  489 U.S. 288, 301 (1989)).

Neither the language of an employment agreement, nor the label an employer places on an employee, determines eligibility for unemployment benefits; rather, it is the substance of the business relationship which does. Law Office of Gerard C. Vince v. Bd. of Review, 2019 N.J. Super. Unpub. LEXIS 1846, (decided on September 4, 2019). In Vince, a law firm agreed to hire a “consulting paralegal” on a temporary basis to integrate their files onto a web-based computer software system. Id. at *2. The law firm identified which files it wanted integrated but never instructed the paralegal on how to do so; nor did it precisely determine when or where she would do so. Id. at *2-3. The paralegal was paid according to her chosen hourly rate based on the invoices she presented. To confirm their relationship, the law firm had the paralegal sign a Consulting Paralegal Understanding (CPU), stating that she was hired as “an independent contractor and as such are not an employee…subject to receive unemployment or other employee related benefits.” Id. at *3. However, when those services ended, she decided to file an unemployment benefits claim with the Department of Labor and Workforce Development (“DOL”) and was approved.

Generally, under New Jersey’s Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to 24.30, employers are obligated to provide compensation benefits to eligible employees who have been terminated.  However, if an employer can show the individual was not an employee, but rather a consultant providing specific services, and if the employer can meet the three-part “ABC test” as outlined in N.J.S.A. 43:21-19(i)(6), unemployment benefits may be denied.  The ABC test requires the employer to demonstrate: (A) the individual retained has been and will continue to be free from the employer’s control or direction over the performance of such service; (B) the service performed is outside the usual course of services the business provides, or performed outside of the places where such services are performed; and (C) the individual is customarily engaged in an independently established occupation. See Schomp v. Fuller Brush Co., 124 N.J.L. 487 (Sup. Ct.1940); and Hargrove v. Sleepy’s, LLC, 220 N.J. 289, 305 (2015).

Pointing to the CPU, the law firm in Vince contested the DOL’s determination that the consulting paralegal was eligible for benefits. Both the Appeal Tribunal (“Tribunal”) and the Board of Review (“Board”) upheld the Department’s decision, stating that the CPU’s language was “not determinative,” and the firm did not satisfy each part of the ABC test. Vince at *3. On appeal, however, the Appellate Division (“Division”) reversed the above rulings, not because of CPU’s terms, but because after analyzing the totality of the factual circumstances, it was clear both the Tribunal and Board “made certain findings that are not accurate,” and the law firm satisfied all three elements of the ABC test. Id. at *5.