Although New Jersey lawmakers cancelled a vote on an adult-use recreational cannabis bill recently, medical cannabis use gained some support following a ruling from the Appellate Division of the Superior Court of New Jersey that an employer’s failure to accommodate medical marijuana use by an employee constituted a valid basis for an employment discrimination claim.

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A New Jersey state jury hit Novartis Pharmaceuticals Corp with nearly $1.5 million in net damages over a former company executive’s claims that she was fired in retaliation for whistleblowing. The jury in turn rejected the pharma company’s stance that the employee had been properly terminated for violating company policies.

In a 7-1 votes, the jury awarded $1,816,040 to Min Amy Guo in her whistleblower suit, in which she alleged that she was fired from Novartis for raising concerns in 2012 that a potential cancer drug study for Afinitor by the pharmaceutical distribution company McKesson Corp was possibly a kickback to McKesson to help sell the medicine.


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Confidential settlement agreements reached between employers and employees resolving claims of discrimination, retaliation, and harassment may not be so secret anymore.

On March 18, 2019, New Jersey Governor Phil Murphy signed into law Senate Bill 121, which amends the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12 (“NJLAD”), by declaring unlawful and unenforceable any provision in any employment contract or settlement agreement concealing, or attempting to conceal, details relating to a claim of discrimination, retaliation, or harassment. Furthermore, and perhaps even more concerning to employers, the amendment prohibits the contractual waiver of any substantive or procedural rights or remedies relating to a claim of discrimination, retaliation or harassment.


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Without doubt, the clear public policy of the State of New Jersey is – and always has been – to eradicate invidious discrimination from the workplace, and a central purpose of the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-12, is the prohibition of discrimination in all aspects of the employment relationship. Recently, this purpose has been extended by way of a new state mandate to ensure equal pay to all employees for equal, or “substantially similar,” work.

Effective July 1, 2018, the Diane B. Allen Equal Pay Act (the “Act”) became the most sweeping equal pay legislation in the nation. Prior to its enactment, equal pay was governed generally by Title VII and the NJLAD, as well as the federal Equal Pay Act of 1963, which is aimed at abolishing pay disparity only on the basis of gender. The New Jersey Equal Pay Act amended the NJLAD by furthering and broadening the prohibition against pay discrimination because, or on the basis, of an employee’s inclusion in any protected class. That means equal pay for everyone regardless of race, gender, age, ethnicity, religion, etc.


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The proliferation of paid sick leave laws has arrived in New Jersey. On May 2, 2018, New Jersey Governor Phil Murphy signed into law the New Jersey Paid Sick Leave Act, which takes effect October 29, 2018. The Act, which applies to nearly all employers and employees in the Garden State, guarantees that almost every person employed in New Jersey will accrue paid sick leave. Given its breadth of coverage, record keeping and notice requirements, and the potential penalties for breach and noncompliance, Employers must prepare for this new legislation. Here are some of the basics.

Who is Covered?

The Act applies to any person or entity having employees in the State of New Jersey, regardless of the employer’s size. The terms “employer” and “employee” are defined broadly to include all employers and employees, with limited exceptions. This includes temporary help service firms and small businesses.

How is Leave Accrued?


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Last week, the NFL sought to end the political controversy surrounding some players kneeling during the national anthem by enacting a policy fining teams if players kneeled during the Star-Spangled Banner.

Under the new policy, players could stay in the locker room while the national anthem of the United States is played. Shortly, thereafter, players wrongfully asserted that the new policy violates their First Amendment protection of “freedom of speech.”

The problem with the players’ constitutional argument is that the Constitution only applies to “State actors.” The state action requirement stems from the fact that the constitutional amendments protecting individual rights are mostly phrased as prohibitions against government action. The First Amendment to the United States Constitution sets forth, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press, or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.” The Fourteenth Amendment, which was ratified after the Civil War, made most of the liberties set forth in the Bill of Rights applicable to the States.


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Consider a few scenarios:

  • An employee has been injured on the job and unexpectedly fails a post-accident drug test, testing positive for opioids. What do you do?
  • An employee comes into your office, closes the door, and confides in you that she is battling an addiction to opioids and needs help. What policies apply and laws come into play?
  • An employee is increasingly absent from work, appears drowsy and inattentive when he is working, and his performance is slipping. You’ve issued a few verbal disciplinary warnings and have decided it is time for the employee to go, but when you go to put the “pink slip” in the employee’s locker, you find a current prescription for pain killers prescribed to the employee. Do you fire him?
  • A candidate for employment submits an application, has impressive credentials, has relevant job experience and hits a home run at her interview. You make a conditional job offer subject to the candidate passing a comprehensive background check, which turns up a drug possession conviction. You raise the issue with the candidate, who discloses that she had a drug dependency addiction in the past but is clean now and still attending support group meetings to stay clean. Do you hire her?

These are just a few examples of how employers and the workplace can be affected by the opioid crisis. Just about everyone in this day and age has been touched by the opioid epidemic or knows someone who has. Employers similarly are not immune to this sad and sobering reality. The opioid crisis touches many employment law issues, policies and procedures, including background checks, drug testing, medical leave laws, employee benefits and counseling, social media and employee speech, employee privacy and HIPAA, and disability discrimination and accommodation under the Americans with Disabilities Act (ADA).


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What is a “hostile work environment?”

This seemingly straightforward three-word phrase has vexed employers, in-house counsel, and HR professionals alike when dealing with employee internal grievances of discrimination and harassment. It’s easy to discipline employees engaged in repetitive discriminatory or harassing behavior in the workplace.

More troublesome for employers, however, is the single racial slur or isolated incident of harassment, which can leave HR directors in search of legal guidance.


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