11.15.2023Ending Forced Arbitration of Sexual Harassment, Not DiscriminationArbitration agreements are a powerful tool used by many employers to compel the utilization of arbitration as a means of alternative dispute resolution. Arbitration allows the parties to a claim to resolve the dispute privately, without involvement of a court of law. The Federal Arbitration Act (FAA) strongly favors arbitration and allows courts to stay the proceedings of any claims subject to valid and enforceable arbitration agreement and to compel the parties to binding arbitration.
11.13.2023Genova Burns LLC Named a 2024 "Best Law Firm" by U.S. News & World Report & Best LawyersGenova Burns LLC has been named a 2024 “Best Law Firm” by U.S. News & World Report and Best Lawyers.
The Firm was recognized among 2024 Tier One Metropolitan New Jersey law firms in five Practice Areas: Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law, Commercial Litigation, Employment Law - Management, Labor Law - Management, and Litigation - Labor & Employment. The Firm was also recognized among 2024 Tier Two New Jersey firm Real Estate Law.
08.31.2023Risk of Cemex Bargaining Order Raises Stakes for Employers that Commit Serious Unfair Labor Practices During Union CampaignsExpressing palpable frustration with an employer that committed many unfair labor practice charges after a union filed an election petition, and acknowledging the lack of serious disincentives to engage in unlawful behavior opposing a union campaign, on August 25, 2023, the NLRB issued a new set of rules that will apply immediately to many employers and unions locked in a unionizing campaign. The major change is that the Board has determined that it has the power to impose a bargaining order on an employer that engages in serious unfair labor practice charges during an organizing campaign despite the union’s losing a Board-supervised election and without entertaining the remedy of a re-run election.
08.29.2023The ABC’S Of The EEOC’S Proposed Regulations On Pregnancy: Accommodations In The WorkplaceEffective July 27, 2023, the Pregnant Workers Fairness Act (PWFA) requires employers with 15 or more employees, to accommodate pregnancy and pregnancy-related complications in the workplace. The Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcing the PWFA, recently issued proposed regulations clarifying employer obligations and employee rights under the PWFA. The PWFA requires employers to provide qualified employees and applicants with known limitations relating to pregnancy, childbirth or related mediation conditions with reasonable workplace accommodations, unless the accommodation causes an undue hardship. The key terms, underlined for clarity, are explained herein.
08.15.2023You Can Say What?! New Jersey District Court Rejects Claims of Hostile Work Environment On July 29, 2023, the United States District Court for the District of New Jersey in Tavares v. Builders FirstSource Northeast Group, Inc., granted Defendant’s Motion for Summary Judgment most notably finding that racist and sexual comments that Plaintiff used to support his claim of hostile work environment did not rise to the “severe and pervasive” standard necessary to support a claim. This case harkens back to the notorious case of Heitzman v. Monmouth County, 321 N.J. Super. 133 (App. Div. 1999), where several anti-Semitic comments were found insufficient to meet the “severe and pervasive” standard. Heitzman was of course cited by every defense lawyer for the next decade to try to defeat hostile work environment claims. So, the question becomes does Tavares mean that the New Jersey courts will become more skeptical of plaintiff’s claims and more supportive of employer defenses like in Heitzman, despite the Me Too movement and the seeming reluctance by the New Jersey judiciary to grant summary judgment to employers? The answer is context matters. There are lessons from Tavares to be sure, but it does not yet herald a major shift to employers in the New Jersey courts.
08.14.2023After the Injury: NJ District Court Reiterates Indefinite Light Duty & Unpaid Leave is Not a Reasonable AccommodationOn July 12, 2023, in Wraith v. Wayfair, Inc., the United States District Court for the District of New Jersey granted summary judgment in favor of an employer, dismissing a former employee’s claim of disability discrimination and failure to accommodate in violation of the New Jersey Workers’ Compensation Act (WCA), the New Jersey Law Against Discrimination (NJLAD) and the New Jersey Paid Sick Leave Law (PSLL) following an on-the-job injury. The District Court found that the employer did not have a duty to accommodate an indefinite light duty or indefinite leave under the law where the only information provided was a physician note indicating the employee could not return to work.
08.08.2023NJDOL Issues Proposed Regulations Implementing N.J. Temporary Workers Bill of Rights ActOn July 21, 2023 the N.J. Department of Labor and Workforce Development (Department) issued long-awaited guidance regarding the Temporary Workers Bill of Rights Act. Certain provisions of the Act took effect on August 5, 2023. These regulations address Sections 1 through 7, and Section 10 of the Act only and are not technically binding on employers and temporary help service firms (THSFs) now since they are in their proposed form and the Department is accepting public comments through October 20; however, they provide additional guidance for employers and THSFs who are trying to comply with the provisions of the Act.
08.03.2023Entrepreneurial Opportunity Takes A Back Seat In Revised NLRB Test Of Employee Versus Independent Contractor StatusOn June 13, 2023, in a 3-1 decision, the NLRB overruled its own 2019 decision in SuperShuttle DFW and returned to the test of statutory employee status in its 2014 FedEx II decision which it terms carefully calibrated. In doing so, the Board held that the Atlanta Opera’s makeup artists, wig artists, hairstylists, and others who worked at the Opera only when operatic productions were staged are employees within the meaning of the National Labor Relations Act, and not independent contractors. The Atlanta Opera, Inc. The NLRB refused to apply the U.S. Court of Appeals 2009 ruling in FedEx I which held that entrepreneurial opportunity is an animating principle of the independent contractor test and accused the Court of misperceiving Board law. The Board decision in Atlanta Opera leaves no doubt that entrepreneurial opportunity is not a super-factor in the analysis of employee status, and is only one factor to be considered in analyzing independent contractor versus employee status. The NLRB held that its prior SuperShuttle DFW holding is no longer the law since it conflicts with common law agency principles, and U.S. Supreme Court and NLRB precedent.
08.02.2023Cleaning House: New Jersey Enacts Building Service Worker Retention Law On July 24, 2023, Governor Phil Murphy signed into law Assembly Bill 4682/Senate Bill 2389 protecting non-managerial and non-professional service workers, who work at eligible locations, from sudden and unexpected loss of employment due to changes in ownership. New Jersey’s new law is the second of its kind in the United States.
06.27.2023New York Assembly Passes Bill to Ban Non-Compete AgreementsOn June 20, 2023, the New York State Assembly passed a bill (A1278B) to make non-compete agreements unlawful. The New York State Senate previously passed the bill’s counterpart (S3100A). The bills aim to prohibit non-compete agreements and authorize covered individuals to bring a civil action against employers alleged to have violated the bills’ provisions. The bills make clear that they would ban non-competes entered into or modified after the effective date. If signed by Governor Kathy Hochul, the bills would come into effect 30 days after being signed into law. While the business community reacted with shock and anger at the bills, the proposed bills in New York follow the nationwide trend against non-competes that we have been tracking for the past several years.
06.20.2023Patience is a Virtue: NJ Appellate Division Affirms Settlement of Discipline Bars Recovery Under the NJLAD On May 1, 2023, in Onukogu v. New Jersey State Judiciary, the Superior Court of New Jersey, Appellate Division affirmed the trial court’s grant of summary judgement in favor of the employer, affirming the dismissal of the employee’s allegations of discrimination and retaliation under the New Jersey Law Against Discrimination (NJLAD). The case demonstrates how employers, when faced with employees with long-term disciplinary problems who they wish to retain, can link decisions not to discipline or terminate to a release of potential claims.
05.25.2023A Second Chance: NJ Employer Escapes Liability Where It Rectifies Discriminatory Conduct On May 17, 2023, in Schoenberg v. The Devereux Foundation, the New Jersey Appellate Division affirmed summary judgment for an employer, on a complaint filed by a former employee alleging gender and pregnancy discrimination in violation of the New Jersey Law Against Discrimination (NJLAD). The Court found that even where the employer had discriminated against the employee by revoking a job offer when it learned the employee was pregnant, the employer had rectified the situation and made the employee “whole” by reinstating the offer. The Court concluded that the employee unreasonably rejected the offer.
04.25.2023NJ District Court Awards Rule 11 Sanctions in Favor of Employer for Frivolous SuitOn March 31, 2023, the United States District Court for the District of New Jersey, in the matter of Desire v. Dreamwear Inc., imposed Rule 11 sanctions in favor of an employer based on the filing of a frivolous Second Amended Complaint. This case serves as an important reminder that filing frivolous claims will not be tolerated by the court and when warranted, employers should move for sanctions.
04.13.2023No Signature, No Settlement: NJ Appellate Division Reiterates Settlements Reached at Mediation Absent a Signed Agreement Are Unenforceable On March 28, 2023, in a published decision in Gold Tree Spa, Inc, v. PD Nail Corp., the New Jersey Appellate Division extended the New Jersey Supreme Court’s seminal decision in Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC and confirmed that settlements reached at mediation are unenforceable when the parties do not sign a term sheet before mediation comes to a close, irrespective of whether mediation is voluntary or court-ordered. Although the Gold Tree case involved a commercial dispute, the decision contains important lessons for employers and employment law practitioners.