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Matthew M. Collins, Esq.
mcollins@bracheichler.com
973.403.3151
Anthony M. Rainone, Esq.
arainone@bracheichler.com
973.364.8372
 
Associates
Eric Magnelli, Esq.
Danielle Alvarez, Esq.
July 2014
The Brach Eichler LLC Employment Services Group is pleased to provide our clients and contacts with this month's Employment Law Update.

HR TIP OF THE MONTH
Married, Single, Divorced, About-to-be Divorced, Pregnancy, Perceived Pregnancy: What Do These Terms Have To Do With The Workplace?
Employers are under constant pressure under existing laws, amendments to those laws, regulatory enforcement agencies, and private civil lawsuits.  That pressure requires employers to ensure that the persons tasked with receiving leave and accommodation requests, making personnel decisions, or even having input in the personnel decision making process, are up-to-date and educated on what the laws allow and, more importantly, what the laws prohibit.  You will see below that a combination of private civil lawsuits, courts interpreting the laws, and government agencies enforcing the laws, can make the task of managing your workforce seem impossible at times.  The headline of this tip lists a fraction of the terms that employers need to be aware of in making any hiring, discipline, promotion, and termination decisions. 
Employers must “get it right” the first time through a combination of up-to-date compliant policies (i.e., an employee handbook) and management personnel who understand the importance of dealing with personnel issues when they arise and then following the company's policies.  Operating your company without up-to-date policies on issues like family leave (paid and unpaid), accommodations based upon disability, pregnancy, or religious beliefs, or any of the dozens of other policies necessary for the workforce, is the equivalent of giving someone the keys to a car without a driver’s education course and a road test.  The person may figure out how to drive the car – but how much damage will the driver cause to those around him, and how much of it could have been avoided with a little training? 
   
REGULATORY UPDATE
 EEOC Issues New Pregnancy Discrimination Guidance
The U.S. Equal Employment Opportunity Commission (EEOC) issued a comprehensive update on pregnancy discrimination and related issues in the workplace – the first since 1983.  The “Enforcement Guidance: Pregnancy Discrimination and Related Issues,” available here, addresses requirements of the Pregnancy Discrimination Act and the Americans with Disabilities Act as amended in 2008, reviews developments in the law over the past 30 years, and provides several real-world examples.  It also reviews statutory protections under the Family and Medical Leave Act and the Patient Protection and Affordable Care Act, among others.  Employers should become familiar with the guidance, especially the section outlining best practices for employers to avoid unlawful discrimination, which recommends employers adopt a “strong policy” providing multiple avenues for employee complaints. 
   
Going Through a Divorce is Protected Under the Law Against Discrimination     
The New Jersey Appellate Division recently held for the first time in Smith v. Millville Rescue Squad, --- A.3d --- (2014), that the “marital status” protection under the New Jersey Law Against Discrimination (LAD) extends to persons who are in the process of getting divorced.  In Smith, a married couple worked for the same employer for several years.  They began the divorce process after the husband was discovered having an extramarital affair with another employee.  The employer’s executive director told the husband that he did not want an “ugly divorce” in the workplace and subsequently terminated the husband (but not the wife), purportedly for performance-related issues.  The Court ruled that the employer improperly relied upon stereotypes of divorcing persons, namely that they cannot be civil and cooperative in the workplace.  The takeaway from Smith is that the broad interpretation of the scope of “marital status,” which is not a defined term in the LAD, now covers discrimination against about to be divorced persons.   
 
Court Enforces A Shortened Statute of Limitations Period Against Employee Claims
In Rodriguez v. Raymours Furniture Co., Inc., --- A.3d --- (App. Div. 2014), the New Jersey Appellate Division affirmed dismissal of an employment lawsuit as time-barred pursuant to the 6-month limitations period set forth in the former employee’s job application.  The plaintiff, a former furniture store employee, returned from an injury-related leave of absence and was laid off three days later as part of a reduction in force.  He sued the employer alleging disability discrimination and retaliatory discharge for having filed a workers’ compensation claim.  The lawsuit was filed well within the 2-year limitations period prescribed by applicable statute, but outside of the 6-month limitations period written into the job application the employee had completed.  The plaintiff was an Argentinean native with an eighth-grade education and whose friend had to translate the job application for him.  The Court, however, enforced the shortened limitations period because 6 months is not an unconscionable period of time in which to bring an employment lawsuit and it is not contrary to any public policy.  Moreover, the contract provision was conspicuously written in the job application in capital letters and large print and the language of the contract provision was clear and easily understood.  The Court’s holding could be limited to the facts in Rodriguez, but it should nevertheless inform employers’ drafting of employment applications, contracts and handbooks. 
       
Brach Eichler Employment Services Group attorneys represent employers of all sizes in New Jersey and New York in connection with their labor and employment needs.  Our services range from compliance and counseling advice to defending employers in court against claims of wage and hour violations, unlawful employment practices, discrimination and retaliation. We encourage you to contact Brach Eichler Employment Services Group for all of your labor and employment law issues.
Matthew M. Collins, Esq.
Chair of the Employment Group
mcollins@bracheichler.com
973.403.3151

Anthony M. Rainone, Esq.
Member of the Employment Group
arainone@bracheichler.com
973.364.8372
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