Shortening the Statute of Limitations in Employment Cases: It Can Be Done

July 11, 2014  |  No Comments  |  by admin  |  Company News

In an article published in the January 30, 2012 edition of The New Jersey Law Journal, Bertone Piccini employment attorney David H. Ganz wrote about whether employers could shorten the statute of limitations in employment cases, and if so, how they could that.  On June 19, 2014, New Jersey’s Appellate Division weighed in on that very subject.  In Rodriguez v. Raymours Furniture Company, a for-publication decision, the appellate court held that a provision in an employment application, in which the employee waived the two-year statute of limitations applicable to claims against the employer and shortened the period for such claims to six months, was enforceable.

In Rodriguez, the plaintiff (Rodriguez) was presented with an employment application.  Before the signature line was a statement, in bold-faced large print, advising the applicant to read carefully before signing, as what followed became part of the official employment record and personnel file.  The final two paragraphs after that statement were completely capitalized.  The first contained an agreement that (i) any claim relating to the applicant’s service with the company must be filed no more than six months after the date of the challenged action and (ii) the applicant waives any statute of limitations to the contrary.  The second contained the applicant’s agreement to waive a jury trial.

Approximately nine months after Rodriguez’s employment was terminated during a reduction-in-force, he filed a lawsuit, claiming he was discharged in retaliation for having filed a workers’ compensation claim and was discriminated against based in disability, in violation of the New Jersey Law Against Discrimination (NJLAD).  The trial court granted the company’s motion for summary judgment, finding that Rodriguez’s complaint was time-barred.  He appealed, arguing that the shortened limitation period was unconscionable.

In its analysis, the Appellate Division considered principles of procedural and substantive unconscionability.  Regarding the former, the court found that while the employment application was non-negotiable and therefore, a contract of adhesion, that did not make it per se unenforceable.  In fact, the Appellate Division held for a number of reasons that the level of procedural unconscionability was “by no means overwhelming” and was “minimal.”  First, was the provision’s placement:  it was not buried in a large volume of documents but was conspicuously placed in a two-page application, set apart by bold, oversized print and capital lettering above the signature line.  Second, the terminology was “clear and uncomplicated.”  Third, Rodriguez was not pressured to complete and sign the application quickly; instead he was allowed to take the application home and complete it as his leisure.

Turning to its substantive unconscionability analysis, the Appellate Division considered four factors:  the subject matter of the contract; the parties’ relative bargaining positions; the degree of economic compulsion motivating the adhering party; and the public interests affected by the contract.  None, according to the court, weighed in favor of Rodriguez.  The Appellate Division held that a shortened limitations period was a valid and legitimate subject to be included in an employment contract and refused to find that a six month period was unreasonable, especially in light of the six-month statutory time frame to file an administration claim for a NJLAD violation. The appellate court also found that although the company was in a superior bargaining position, it did not hold a monopoly on the type of jobs for which Rodriguez applied.  It further found that Rodriguez was under no compulsion to proceed with the application if he was dissatisfied with any of the employment terms.

As to the third factor, the court remarked that while anyone in search of a job was under some level of economic compulsion, Rodriguez had presented no evidence that his circumstances were more egregious than any other applicant.  Finally, the Appellate Division determined that there was no adverse effect on public policy or public interests.  While New Jersey has a strong public policy reflected in various laws protecting workers’ rights, the court held that public policy was not harmed by a contractually agreed-upon, shortened limitations period, where that period was reasonable.  In the circumstances presented, the Appellate Division ruled that six months was reasonable.

This issue may not be over just yet.  The New Jersey Law Journal is reporting that Rodriguez’s attorney is preparing a petition for the case to be heard by the New Jersey Supreme Court.

The Appellate Division’s decision in Rodriguez may be found by clicking here.

“Marital Status” Discrimination under the NJLAD Includes Divorced Persons

July 11, 2014  |  No Comments  |  by admin  |  Company News

On June 27, 2014, New Jersey’s Appellate Division decided Smith v. Millville Rescue Squad, wherein the court examined the scope of the “marital status” protection under the NJLAD and in particular, whether it protects persons from discrimination because they are in the process of being divorced.  The court answered that question in the affirmative.

The Appellate Division observed that the New Jersey Legislature, unlike some other states, did not restrictively define “marital status” to include only married and unmarried persons.  In the absence of such a narrow definition, the appellate court rejected a lower court’s interpretation that “marital status” included only those who were married and unmarried.  Rather, the court liberally read the NJLAD in light of its remedial purpose, and interpreted the phrase to encompass the state of being divorced. Given “modern trends” involving divorce, the Appellate Division held that “it would significantly undermine the marital status protection, if an employer could freely discriminate against persons who choose to divorce.”  The appellate court further found that “[m]arital status necessarily embraces stages preliminary to marriage – one’s engagement to be married,” as well as “stages preliminary to marital dissolution – separation and involvement in divorce proceedings.”

The Appellate Division’s decision in Smith may be found by clicking here.

Legislative Update I: Opportunity to Compete Act Approved by New Jersey Legislature

July 11, 2014  |  No Comments  |  by admin  |  Company News

The Opportunity to Compete Act (Act), on which we reported in the March and December 2013 Client Alerts, is one step away from becoming law.  On June 26, 2014, both houses of the New Jersey Legislature passed the measure, which generally prohibits an employer from asking about a job applicant’s criminal record until after the first interview. The bill applies to companies with 15 or more employees, though there are some exceptions, including where the position sought is in law enforcement or where a criminal history record background check is required by law, rule, or regulation.

If the Act becomes law, employers who violate it shall be liable for a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.  The Act specifically provides that nothing therein shall be construed as creating, establishing, or authorizing a private cause of action by an aggrieved individual against an employer who has violated, or is alleged to have violated, the Act.

Legislative Update II: Bill to Protect Interns Advances in New Jersey Senate

July 11, 2014  |  No Comments  |  by admin  |  Company News

On June 23, 2014, the New Jersey Senate passed S-539, known as the New Jersey Intern Protection Act.  The bill would amend the NJLAD, the New Jersey Conscientious Employee Protection Act, and the New Jersey Freedom from Employer Intimidation Act to afford interns, whether paid or unpaid, the same protections from unlawful conduct as those given to employees.  S-539 has been referred to the New Jersey Assembly Labor Committee.

Legislative Update I: Gender Equity Notice To Be Posted by January 6, 2014

December 19, 2013  |  No Comments  |  by admin  |  Company News

As we reported in the September 2012 issue of the Bertone Piccini LLP Client Alert, New Jersey passed a law, effective November 19, 2012, requiring many employers in the State to post and distribute a notice of their employees’ right to be free from gender-based pay discrimination in the workplace.  This month, the New Jersey Department of Labor and Workforce Development finally released the Notice.  The posting and distribution requirements of the law are triggered by publication in the New Jersey Register which, according to the DOL’s website, will occur on January 6, 2014.

Beginning January 6, 2014, employers in New Jersey which have a total of 50 or more employees (regardless of whether those employees work inside or outside of New Jersey) must conspicuously post the gender equity notice in a place or places accessible to all employees in each of the employer’s workplaces.  If the employer has an internet site or intranet site for exclusive use by its employees and to which all employees have access, posting of the gender equity notice on the internet site or intranet site will satisfy the posting requirement.

For each employee of a covered employer hired on or before January 6, 2014, the employer must provide that employee with a written copy of the gender equity notice no later than February 5, 2014. For those employees hired after January 6, 2014, the covered employer must provide that employee with a written copy of the gender equity notice at the time of the employee’s hiring.

Beginning January 6, 2014, covered employers must annually, on or before December 31 of each year, provide each employee a written copy of the gender equity notice.  Employers must also provide each employee a written copy of the notice upon first request by the employee.

The distribution requirement may be satisfied by any of the following methods:  email; printed material; or through an internet or intranet website, if the site is for the exclusive use of all employees, can be assessed by all employees, and the employer provides notice to the employees of its posting.  The written notice must be accompanied by an acknowledgement that the employee has received the gender equity notice and has read and understands its terms.  The employee must sign the acknowledgement in writing or by means of electronic verification, and the acknowledgement must be returned to the employer within 30 days of its receipt.

The notice must be in English and Spanish and in any other language in which the Department of Labor has made the notice available and which the employer reasonably believes is the first language of a significant number of its workforce.  Presently, the form of notice is only available in English.

The form of notice may be accessed by clicking here.  The DOL’s December 2013 bulletin regarding the new gender equity notice may be accessed by clicking here.