Many employees who are let go or terminated from employment don’t know what happens at work once they’re gone. Sometimes employees know or subsequently learn, whether through word of mouth, social media platforms such as LinkedIn, or the employer’s website, that they have been replaced. Sometimes their replacement is someone significantly younger, yet it is unclear exactly how old the replacement is. In a recent ruling, the Third Circuit has held the lack of knowledge doesn’t matter, at least not at the pleading stage of the litigation.

Continue Reading A “Significant Age Difference” Will Suffice to Advance an Age Discrimination Claim

Once again, but not surprisingly, an arbitration agreement conveyed by an employer and confirmed by an employee via email has been upheld by the New Jersey courts.

In a recent decision, Jasicki v. Morgan Stanley Smith Barney LLC, the New Jersey Appellate Division affirmed the motion court’s dismissal of an employee’s claims of sexual harassment, compelling arbitration.  Holding the employee agreed to the company’s mandatory arbitration program communicated via a company-wide email by (1) opening the email, (2) failing to opt-out of the arbitration program, and (3) continuing her employment, the Appellate Division validated email arbitration agreements in the employment context under these circumstances, despite the employee’s assertion she never actually read the email.  In doing so, the Appellate Division reinforced our courts’ approval of these less traditional and more controversial vehicles for securing employee assent to arbitration agreements.  In short, quoting its decision in Jaworski v. Ernst & Young, the Appellate Division wrote: “An email, properly couched, can be an appropriate medium for forming an arbitration agreement.”


Continue Reading Appellate Division Decision Confirms Continued Employment May Constitute Assent to an Employer’s Emailed Arbitration Agreement

For many employees, bonuses and commissions represent a significant portion of the compensation they expect to receive in exchange for their hard work and efforts in growing and cultivating their employers’ businesses and, in many instances, generating revenue. Typically, incentive pay is tied to performance—whether individual or company-wide—and is earned as of a certain date (which may be at the end of each year, each quarter, each month, or any other regular, set intervals), upon successful completion of certain tasks (such as the closing of a sale), or upon achieving certain measurable performance metrics or benchmarks. Often times commissions are paid on a monthly basis and bonuses are paid annually, either at the end of the year or beginning of the following year. But it does not have to be that way, and employers generally enjoy broad discretion in how they wish to construct and implement their incentive compensation plans and policies—and whether to even have one at all.

Continue Reading Employees’ Entitlement to Bonuses and Commissions Following Termination of Employment

The federal Equal Pay Act, 29 U.S.C. § 206, was enacted in 1963 to protect against wage discrimination based on a person’s sex. The purpose of the Act is simple: men and women in the same workplace should be given equal pay for equal work. All forms of employment compensation are covered by the Act, including salary, overtime pay, bonuses, incentive compensation, vacation, etc. Under the Act, if there is any inequality in wages between men and women who perform substantially equal jobs, the employer must make it right by raising wages to equalize and normalize pay. In addition, an employer who violates the Act is liable to its aggrieved employee in the amount of her (or his) unpaid compensation and an additional, equal amount as a liquidated damage, plus reasonable attorneys’ fees and court costs.

Continue Reading Landmark Pinterest Settlement Reflects Continued Gender Gap in the Workplace

As COVID-19 cases continue to mount and the virus continues to push public health systems to their breaking points, perhaps no community has been hit harder than our elders residing in long-term care facilities. As of January 13, 2021, Neshaminy Manor—the largest nursing home in Bucks County, Pennsylvania—has seen 218 residents test positive, 85 of whom have died from the virus. Through contact tracing, administrators believe the virus was brought into the home by infected employees despite the nursing home’s best efforts to minimize risk.

Continue Reading Nursing Home to Employees: COVID-19 Vaccination or Job Termination

On November 25, 2020, I asked the ominous question: “Can I require my employees to get vaccinated against COVID-19?” In that article, I first addressed the pivotal, threshold issue of whether a vaccination constituted a “medical examination” or health screening under the Americans with Disabilities Act (ADA), as whether a private employer can implement a mandatory vaccination policy turns largely on this issue. However, I also expressed “it is difficult to predict precisely how current jurisprudence on mandatory vaccine rules and policies will translate to the COVID-19 workplace” given the scale and impact of the COVID-19 pandemic.

Continue Reading EEOC Guidance on COVID-19 Vaccinations: What Now for Employers?

As the COVID-19 pandemic rages and excitement grows from promising vaccine announcements, employers are asking a critical question: Can I require my employees to get vaccinated against COVID-19?

Although each employer’s circumstances are unique, the short answer is the classic law school answer: “It depends.” The longer answer is “perhaps, but with exceptions, and even then you may want to reconsider.”


Continue Reading Can Employers Require Employees to Be Vaccinated Against COVID-19?

Effective November 5, 2020, New Jersey public and private sector employers will have a new set of health and safety mandates to follow if they plan to allow or require employees to perform services at a New Jersey worksite. Although many of the requirements have most likely already been adopted as best practices, failure to adhere to the requirements will now carry fines and penalties for non-compliance including, but not limited to, business closure. An employee complaint system will be implemented for violation reporting. Accordingly, all employers should be mindful of the requirements and ensure immediate implementation.

Continue Reading New Requirements for New Jersey Employers as COVID-19 Numbers Continue to Rise

“An employer who fires an individual merely for being gay or transgender violates Title VII.” There it is. Simple. Direct. Clear. Groundbreaking.

In its landmark decision issued June 15, 2020, the Supreme Court of the United States ruled in Bostock v. Clayton County, Georgia that Title VII of the Civil Rights Act of 1964 protects, gay, lesbian, and transgender employees from discrimination in employment.


Continue Reading A “Simple, But Momentous” Decision: LGBTQIA Rights Are Protected By Title VII

Terminating an employee who is subject to a restrictive covenant may void that agreement in states that permit and enforce them. For example, New York law provides that an employer cannot enforce a restrictive covenant if it terminated the employee. See, Buchanan Capital Markets, LLC v. DeLucca, 144 A.D. 3d 508 (N.Y. App. Div. 2016).

The law in New Jersey is unsettled at this time, but if the employer terminates an employee because of the coronavirus, I believe it is likely that New Jersey courts will not enforce the agreement at this time. An employee’s covenant not to compete is enforceable only if it is reasonable under all the circumstances in a particular case. Maw v. Advanced Clinical Commc’ns, Inc. 179 N.J. 439, 447 (2004).


Continue Reading Termination of Employees with Restrictive Covenants Could Negatively Affect Enforcement