Many state legislatures spent 2017 tinkering with post-employment covenants. Given the growing trend to legislate locally and the employee mobility issues that seem to nag every employer, we thought the New Year would be a perfect time to review and revisit your post-employment covenants. So for our multi-jurisdictional employers (which seems to be everyone these days), how do your post-employment covenants legally measure up?
Trick or Treat! This month’s Bubbler is a cauldron full of hot new developments in employment law … the NYC Salary History law is now in effect … California followed suit and its salary history law will take effect on January 1, 2018, just after Delaware and just before Massachusetts … Employers in New York are preparing to implement the new Paid Family Leave law, joining California, New Jersey and Rhode Island as the fourth state to provide this paid leave through employee-paid payroll taxes … The Supreme Court heard oral arguments in the class action waiver case … the NYC Council passed a bill to expand the Earned Sick Time Act … and the Third Circuit cited to a Harry Potter novel in an FLSA decision.
“They’re beautiful. They’re charming. And they’re bringing drinks. She moves toward you like a movie star, her smile melting the ice in your bourbon and water. His ice blue eyes set the olive in your friend’s martini spinning. You forget your own name. She kindly remembers it for you. You become the most important person in the room. And relax in the knowledge that there are no calories in eye candy. Part fashion model, part beverage server, part charming host and hostess. All impossibly lovely…On a scale of 1 to 10, elevens all…The memory of their warm, inviting, upbeat personalities will remain with you long after the vision has faded from your dreams.”
Do we have your attention yet?
Continue Reading NJ High Court Declines to Review “Borgata Babes” Case, Effectively Doubling Down on Appellate Court’s Acceptance of Atlantic City Casino’s Stringent Rules on Grooming, Dress and Weight Gain
In a case reminiscent of the Curb Your Enthusiasm episode where Cheryl leaves Larry, forcing their friends to choose post-split allegiances (to Larry’s dismay, Ted Danson, the Funkhousers (Super Dave Osborne and Blossom) and even restauranteur Primo, all chose Cheryl), an employer, upon hearing of co-worker spouses’ impending divorce, felt compelled to choose sides and terminated the husband’s employment while retaining the wife.
That case, Smith v. Millville Rescue Squad, in which the plaintiff husband alleges that he was a victim of unlawful marital status-based discrimination under New Jersey’s Law Against Discrimination (LAD), is currently before the New Jersey Supreme Court, which heard oral argument last week. The facts of the case are fascinating and worth a read, but let’s focus on the salient legal issue: how to define “marital status” under the LAD.
Earlier this month, the New Jersey Appellate Division ruled that employee arbitration agreements, to be enforceable, must contain a “clear and unmistakable” waiver of an employee’s right to a trial in court. In Milloul v. Knight Capital Group, the court, finding no distinction between an employee arbitration agreement and a consumer arbitration agreement, extended an earlier 2014 New Jersey Supreme Court decision requiring express right-to-sue waivers in consumer arbitration agreements.
In Aguas v. State of New Jersey, the New Jersey Supreme Court recently adopted an affirmative defense—available under federal law since 1998—allowing employers to use their anti-harassment policies to limit vicarious liability under the New Jersey’s Law Against Discrimination (LAD) to the employer for a supervisor’s harassment. At the same time, however, the Court adopted the more expansive definition of “supervisor” used by the EEOC as opposed to the narrower definition adopted by the U.S. Supreme Court in 2013.
Recently, in Hargrove v. Sleepy’s, LLC, the New Jersey Court issued a unanimous decision raising the bar for New Jersey employers seeking to classify individuals as independent contractors under New Jersey’s Wage Payment Law (governing time and mode of wage payments) and New Jersey’s Wage and Hour Law (governing minimum wage and overtime). The court adopted the so-called “ABC” test; a test derived from New Jersey’s Unemployment Compensation Act and arguably the most stringent test for employers to uphold independent contractor classifications.
Written by David Katz
Over the summer, we posted about an interesting New Jersey appellate court decision (Rodriquez v. Raymours Furniture) enforcing a provision in a job application that reduced the period in which an employee could sue an employer to six months from the date of the adverse employment action. We also noted a 2013 New York appellate decision involving the same employer, the same policy and the same result. Well, not so fast on revising those job applications to abridge limitations periods (at least in New Jersey). We learned that just last week New Jersey’s highest court granted the plaintiff’s petition for certification, agreeing to review the June 2014 appellate court decision. We will of course follow the New Jersey Supreme Court proceedings so stay tuned.
Written by Michael Arnold
“I told my wife I wouldn’t drink tonight. Besides, I got a big day tomorrow. . . . Well, um, actually a pretty nice little Saturday, we’re going to go to Home Depot. Yeah, buy some wallpaper; maybe get some flooring, stuff like that. Maybe Bed, Bath & Beyond, I don’t know, I don’t know if we’ll have enough time.” Frank Ricard, Old School (2003)
“As we have pointed out, in the absence of a statute to the contrary, parties are free to contractually limit the time within which an action may be brought, as long as the contractual time is reasonable and does not violate public policy. . . . Plaintiff was under no compulsion to pursue the application if he was dissatisfied with any of the terms of employment, including the shortened limitation period.” Judge Joseph F. Lisa, Rodriguez v. Raymours Furniture Co., Inc. (N.J. App. Div. June 19, 2014)
One of these quotes has been repeated about 50 million times by engaged and married men. The other one was a famously funny line delivered by Will Ferrell in the movie Old School. Both of these quotes address time limitations related an individual’s ability to perform an activity and we discuss them below.
Written by David Katz
Earlier this summer, a New Jersey appellate court, in Rodriquez v. Raymours Furniture enforced a provision in an employment application that reduced the period in which an employee could sue an employer to six months from the date of the adverse employment action. This ruling – the first of its kind in the employment context by a New Jersey appellate court – is consistent with a New York appellate court ruling just last year involving the same employer and the same employment application (Hunt v. Raymour & Flanigan). These rulings are significant to employers because they provide a concrete yet seldom-used tool to limit exposure to employment lawsuits.