New Jersey Unemployment Compensation Law (N.J.S.A. 43:21-4) provides that an unemployed individual who meets an earnings and employment duration threshold is eligible to receive unemployment benefits if he or she “is able to work, and is available for work, and . . . actively seeking work.”  An individual’s eligibility for benefits is subject to disqualification conditions outlined in N.J.S.A. 43:21-5.  One such condition (N.J.S.A. 43:21-5(a)) states that an individual is ineligible for benefits if he or she leaves work “voluntarily without good cause attributable to such work and for each week thereafter until [he or she] becomes reemployed and works eight weeks in employment.”  Accordingly, an individual may voluntarily leave work and remain eligible for benefits so long as the individual can show that he or she left work with “good cause attributable to such work.”  The inquiry does not end there.

What constitutes “good cause attributable to such work” is a fact-specific inquiry.  The New Jersey Department of Labor and Workforce Development has promulgated regulations that seemingly address particular circumstances under which an individual will be found to have left work with “good cause attributable to such work.”  Pursuant to N.J.A.C. 12:17-9.3(b), for example, “[a] n individual who leaves a job due to a physical and/or mental condition or state of health which does not have a work-connected origin but is aggravated by working conditions will not be disqualified for benefits for voluntarily leaving work without good cause ‘attributable to such work,’ provided there was no other suitable work available which the individual could have performed within the limits of the disability.”  Notably, the regulation does not include a requirement that the individual notify his or her employer of the health condition and inquire as to the availability of “other suitable work.”

Another exception to the disqualification rule was added in 2015, when the Legislature amended N.J.S.A. 43:21-5(a) to allow an individual who voluntarily leaves employment to be eligible for unemployment benefits if he or she does so to accept employment elsewhere, begins the other employment within seven days, and his or her “weekly hours or pay [is] not less than the hours or pay of the employment of the first employer.”  The amendment essentially protects an employee who voluntarily leaves employment for another job with at least the same hours or pay, but is terminated prior to working the requisite eight weeks to become eligible for unemployment benefits.

With the backdrop of this legislative and regulatory history, in Margo S. Ardan v. Board of Review, the New Jersey Supreme Court, in a 4-3 majority opinion, recently clarified two issues surrounding the application of the above two exceptions to the disqualification rule for voluntarily leaving employment.  First, the Court explained what a claimant must prove to demonstrate the unavailability of “other suitable work” under N.J.A.C. 12:17-9.3(b).  Second, the Court concluded that the 2015 amendment to N.J.S.A. 43:21-5(a) was not retroactive.  While the Court’s latter holding concerning the retroactivity of the 2015 amendment will likely have little impact on employers, the Court’s decision with regard to a claimant’s required evidentiary showing under N.J.A.C. 12:17-9.3(b) may increase the number of employees who seek accommodations for health problems aggravated by working conditions.  These requests may give rise to an employer’s obligation to engage in the interactive process under the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (LAD) to determine whether the employee can be accommodated.

Plaintiff Ardan, who suffered “chronic neck, lower-back, and left-knee pain,” began working at a medical center as a registered nurse in September 2010.  Her job duties required her to “walk substantial distances,” and to bend and lift, which aggravated her ailments.  Ardan neither requested less arduous work nor informed her employer of her condition while employed.  In 2012, she resigned from her position at the medical center and accepted a desk job as a healthcare communicator to ease the strain on her body without significantly reducing her wages.  After seven weeks at her new job, Ardan was terminated.

Ardan applied for unemployment benefits.  The Deputy Director of the Division of Unemployment and Disability Insurance denied her application, and the Appeal Tribunal, the Board of Review, and the Appellate Division all subsequently upheld the denial.  The appellate panel, in particular, concluded that Ardan did not offer sufficient proof regarding the unavailability of “other suitable work” under N.J.A.C. 12:17-9.3(b), which it interpreted to require notice to the employer and employee inquiry regarding an alternative position to accommodate the condition.  The panel also found that the 2015 amendment to N.J.S.A. 43:21-5(a) was not retroactive.  The Court granted Ardan’s petition for certification.

On appeal, the Court addressed whether Ardan had shown that her situation fell within the scope of N.J.A.C. 12:17-9.3(b).  This required the Court to determine whether she had presented sufficient evidence that there was “no other suitable work available which [she] could perform within the limits of her disability.”  Rejecting an interpretation of the regulation that would always require a claimant to notify her employer and request an accommodation to prove the absence of “other suitable work,” the Court interpreted the regulation as calling for “an individualized determination” – meaning that in some cases, sufficient proof of the unavailability of “other suitable work” would only need to consist of evidence of the claimant’s medical condition, combined with proof of a job’s physical demands, the “small size of the workplace,” or any other “relevant factors,” whereas other circumstances would require a claimant to prove the absence of “other suitable work” by presenting evidence that she both notified her employer and inquired about an accommodation before leaving the job voluntarily.  The Court did not explain when such notice and inquiry would be required.

Applying the above standard, the Court concluded that Ardan failed to proffer sufficient evidence to prove the unavailability of “other suitable work.”  She had not submitted objective evidence that her former employer had no position available to accommodate her to which she could have been assigned.  Nor had she investigated or sought her employer’s assistance in pursuing a less arduous position.  Consequently, the Court characterized Ardan’s belief that there were no suitable positions at the hospital to accommodate her condition as “premised on nothing but speculation.”

Next, the Court addressed whether the 2015 amendment to N.J.S.A. 43:21-5(a) applied retroactively to Ardan’s claim.  An amendment is retroactive if the Legislature expresses its intent that the law apply retroactively; the amendment is curative; or the parties’ expectations warrant it.  After reviewing the amendment’s legislative history, the Court found no evidence that the Legislature intended retroactive application.  The amendment was also not curative because the Legislature did not amend the statute to correct an error or ambiguity.  Retroactive application was similarly not warranted by the parties’ expectations because, when the matter was being decided on appeal, the parties’ expected that the outcome would be determined by the statutory and regulatory scheme then in existence, under which Ardan was disqualified.

The Court’s opinion in Ardan incentivizes an employee to seek an accommodation from his or her employer prior to leaving a job for health reasons.  Because the Court did not adopt a bright-line rule requiring an employee to always request an accommodation from his or her employer to make the evidentiary showing required by N.J.A.C. 12:17-9.3(b), it remains unclear when an employee must apprise her employer of the need for an accommodation to prove the unavailability of “other suitable work.”  Cautious employees who are seeking to preserve their eligibility for unemployment benefits will notify employers of their condition and seek an accommodation.  When these discussions occur, employers should be aware of their obligations under the ADA and LAD to engage in the interactive process to determine whether the employee can be accommodated.  Failure to do so may result in a disability discrimination claim.  Employers are further advised to consult with counsel when faced with these accommodation requests.

Our colleagues , at Epstein Becker Green, have a post on the Health Employment and Labor blog that will be of interest to many of our readers in the hospitality industry: “Sixth Circuit Finds Title VII Covers Discrimination Based on Transgender Status.”

Following is an excerpt:

In a significant decision on Wednesday, March 6, 2018, the U.S. Court of Appeals for the Sixth Circuit held in EEOC v. R.G. &. G.R. Harris Funeral Homes that discrimination against a worker on the basis of gender identity or transitioning status constitutes sex discrimination that violates Title VII.

In R.G. & G.R., the funeral home’s owner fired funeral director Aime Stephens after she informed him she intended to begin a gender transition and present herself as a woman at work. In finding gender identity to be covered by Title VII, the Sixth Circuit also upheld the EEOC’s claim that the funeral home’s dress code, which has different dress and grooming instructions for men and women, discriminates on the basis of sex. …

Read the full post here.

Featured on Employment Law This Week: Second Circuit: Title VII Covers Sexual Orientation Discrimination.

“Legal doctrine evolves.” Those words from the Second Circuit spoke volumes as the court ruled that Title VII of the Civil Rights Act prohibits sexual orientation discrimination, overturning their own long-standing precedent. The court ruled in favor of a skydiving instructor who claimed he was fired for telling a client he was gay.

The majority opinion began by looking at whether sex is a motivating factor in the alleged unlawful practice. And, in this case, looking at sexual orientation discrimination, the court concluded that sex is a factor and inextricably linked to sexual orientation, and therefore sexual orientation acts as a proxy for sex. The Second Circuit now joins the Seventh Circuit in finding that Title VII does protect against sexual orientation discrimination, and deepens a circuit split with the Eleventh Circuit, which went the other way last year.

Watch the segment below and read our recent post.

Our colleague  at Epstein Becker Green has a post on the Technology Employment Law blog that will be of interest to our readers in the hospitality industry: “The GDPR Soon Will Go Into Effect, and U.S. Companies Have to Prepare.”

Following is an excerpt:

The European Union’s (“EU’s”) General Data Protection Regulations (“GDPR”) go into effect on May 25, 2018, and they clearly apply to U.S. companies doing business in Europe or offering goods and services online that EU residents can purchase. Given that many U.S. companies increasingly are establishing operations and commercial relationships outside the United States generally, and in Europe particularly, many may be asking questions akin to the following recent inquiries that I have fielded concerning the reach of the GDPR:

What does the GDPR do? The GDPR unifies European data and privacy protection laws as to companies that collect or process the personally identifiable information (“PII” or, as the GDPR calls it, “personal data”) of European residents (not just citizens). …

Read the full post here.

Featured as our top story on Employment Law This Week: Me too At Work – Sexual misconduct in the C-Suite leads to shareholder lawsuits.

Last month on Employment Law This Week, you heard that sexual misconduct allegations would start impacting shareholder value and reputation. Well, now we’ve got a case study in Wynn Resorts. After the Wall Street Journal uncovered multiple sexual misconduct allegations against Casino mogul Steve Wynn, the company’s stock fell nearly 20%. Wynn resigned a week later, but the company’s troubles were far from over. The company’s  stock has lost $3 billion in value. The first shareholder lawsuit was filed the day Wynn resigned, and to date three suits by shareholders claim that Wynn and the Board breached their fiduciary duties to the company and its shareholders. Bill Milani, from Epstein Becker Green, has more.

Watch the segment below and read our recent post.

Featured on Employment Law This Week:  A California federal judge has ruled that a former GrubHub delivery driver was an independent contractor, not an employee.

The judge found that the company did not have the required control over its drivers for the plaintiff to establish that he is an employee. This decision comes as companies like Uber and Lyft are also facing lawsuits that accuse them of misclassifying employees as independent contractors. Carlos Becerra, from Epstein Becker Green, has more.

Watch the segment below and read our recent post.

Our colleagues , at Epstein Becker Green, have a post on the Wage and Hour Defense Blog that will be of interest to many of our readers in the hospitality industry: “Labor Issues in the Gig Economy: Federal Court Concludes That GrubHub Delivery Drivers are Independent Contractors under California Law.”

Following is an excerpt:

Recently, a number of proposed class and collective action lawsuits have been filed on behalf of so-called “gig economy” workers, alleging that such workers have been misclassified as independent contractors. How these workers are classified is critical not only for workers seeking wage, injury and discrimination protections only available to employees, but also to employers desiring to avoid legal risks and costs conferred by employee status.  While a number of cases have been tried regarding other types of independent contractor arrangements (e.g., taxi drivers, insurance agents, etc.), few, if any, of these types of cases have made it through a trial on the merits – until now.

In Lawson v. GrubHub, Inc., the plaintiff, Raef Lawson, a GrubHub restaurant delivery driver, alleged that GrubHub misclassified him as an independent contractor in violation of California’s minimum wage, overtime, and expense reimbursement laws.  In September and October 2017, Lawson tried his claims before a federal magistrate judge in San Francisco.  After considering the evidence and the relevant law, on February 8, 2018, the magistrate judge found that, while some factors weighed in favor of concluding that Lawson was an employee of GrubHub, the balance of factors weighed against an employment relationship, concluding that he was an independent contractor. …

Read the full post here.

As 2017 comes to a close, recent headlines have underscored the importance of compliance and training. In this Take 5, we review major workforce management issues in 2017, and their impact, and offer critical actions that employers should consider to minimize exposure:

  1. Addressing Workplace Sexual Harassment in the Wake of #MeToo
  2. A Busy 2017 Sets the Stage for Further Wage-Hour Developments
  3. Your “Top Ten” Cybersecurity Vulnerabilities
  4. 2017: The Year of the Comprehensive Paid Leave Laws
  5. Efforts Continue to Strengthen Equal Pay Laws in 2017

Read the full Take 5 online or download the PDF.

Our colleague Steven M. Swirsky at Epstein Becker Green has a post on the Management Memo blog that will be of interest to our readers: “NLRB Reverses Key Rulings: Returns to Pre-Obama Board Test for Deciding Joint-Employer Status and for Determining Whether Handbooks, Rules and Policies Violate the NLRA – Assessment of 2014 Expedited Election Rules and Future Changes Also Announced.”

Following is an excerpt:

It should come as no surprise that recent days have seen a stream of significant decisions and other actions from the National Labor Relations Board as Board Chairman Philip A. Miscimarra’s term moves towards its December 16, 2017 conclusion.  Chairman Miscimarra, while he was in a minority of Republican appointees from his confirmation during July 2013 and as a new majority has taken shape with the confirmation of Members Marvin Kaplan and William Emanuel, has clearly and consistently explained why he disagreed with the actions of the Obama Board in a range of areas, including the 2015 adoption of a much relaxed standard for determining joint-employer status in Browning-Ferris Industries, the standard adopted in Lutheran Heritage Village for determining whether a work rule or policy, whether in a handbook or elsewhere would be found to unlawfully interfere with employees’ rights under Section 7 of the National Labor Relations Act to engage concerted action with respect to their terms and conditions of employment, and his disagreement with the expedited election rules that the Board adopted through amendments to the Board’s election rules. …

In Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co., decided on December 14, 2017, in a 34-2 decision, the Board has discarded the standard adopted in Browning-Ferris, and announced that it was returning to the previous standard and test for determining joint-employer status and returning to its earlier “direct and  immediate control standard.”  …

In The Boeing Company, also decided on December 14, 2017, the Board adopted new standards for determining whether “facially neutral workplace rules, policies and employee handbook standards unlawfully interfere with the exercise” of employees rights protected by the NLRA. …

Noting that the 2014 Election Rules were adopted over the dissent of Chairman Miscimarra and then Member Harry Johnson, and the fact that these rules have now been effect for more than two years, on December 14th, the Board, over the dissents of Members Mark Pearce and Lauren McFerren, both of who were appointed by President Obama, published a Request for Information, seeking comment …

Read the full post here.

Employers in New York City are required to provide their employees with reasonable accommodations related to childbirth and pregnancy. The New York City Commission on Human Rights has published a new factsheet and notice. The notice should be provided to all employees upon hire, and posted in the workplace to provide employees with notice of their rights under the NYC Human Rights Law.

The notice and factsheet outline employers’ responsibilities with respect to pregnant employees, and recommend that employers work with employees to implement accommodations that recognize employee contributions to the workplace and help keep them in the workplace for as long as possible. The notice and factsheet also provide employees with examples of reasonable accommodations, such as breaks to rest or use the bathroom while at work, and time and space to express breast milk at work.