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Benjamin E. Widener

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Benjamin E. Widener is a Shareholder in the Employment and Litigation practice groups at Stark & Stark, and Chairman of the firm’s Employment Law Group, responsible for managing labor and employment work handled by the firm. Ben represents his clients in all aspects of labor and employment law, concentrating his practice in employment litigation and employment counseling. Ben’s practice also includes litigating contract, securities, and business disputes.

The federal government has provided new hope for employees affected by the novel coronavirus pandemic by way of an economic stimulus package that includes, among other things, enhanced unemployment benefits.

On Friday, March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“CARES” Act), which expands the situations in which an employee is eligible to receive unemployment compensation. In addition, the CARES Act provides an enhanced unemployment benefit to employees impacted by COVID-19, enabling employees to receive up to an additional $600.00 per week in unemployment insurance benefits through Federal Pandemic Unemployment Compensation.

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How things have changed since I published my Employer’s Guide to COVID-19 less than a week ago. While the guidance, recommendations, and issue-spotting set forth in that article have not changed, the legal landscape concerning the novel coronavirus has. State governors have issued emergency orders. New laws have taken, or will take, effect. Non-essential business have been instructed to close their doors and convert to remote work arrangements, if possible. People have been advised to stay home. Here’s an update on what’s changed and how it impacts you, your business, and your employees.
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The coronavirus pandemic has arrived in the United States, and it undoubtedly has impacted your business or workforce in some way. On Friday, March 13th, President Donald Trump declared a national emergency to free up $50 billion in federal resources to combat COVID-19 and has since issued coronavirus guidelines for America.

At the local level, some states, counties, and municipalities have gone into lockdown by requiring all non-essential public places to close indefinitely until this crisis has passed. On Sunday, March 15th, Pennsylvania Governor Tom Wolf mandated the closing of all non-essential businesses in five eastern counties (Bucks, Chester, Delaware, Montgomery and Allegheny). On Monday, March 16th, New Jersey Governor Phil Murphy ordered the closing of all schools and non-essential retail, recreational, and entertainment businesses effective at 8:00 p.m., and instituted a curfew for non-essential and non-emergency travel between the hours of 8:00 p.m. and 5:00 a.m. These mandates will remain in effect for the foreseeable future.

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Companies are finding themselves in an unprecedented situation, needing to make determinations that keep their employees safe while complying with state and federal laws during the current global health challenge.

Navigating responsibilities, employee rights, and requirements for compliance require complex calculations for employers with the recent spread of COVID-19 (coronavirus). While the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and other federal and state guidelines can provide instructions for those that have contracted the illness, measures dictated by social distancing are less clear cut.

So what are the factors that should be taken into consideration? Travel restrictions, implementation of remote work policies, and limiting exposure in offices that are open are all part of the current decisions facing businesses.

What are the most important points to consider at this time?

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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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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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