Beware of No-Fault Attendance Policies

There is a practice that some employers utilize that employees need to understand. It is known as a “No-Fault Attendance Policy.”

These policies provide for automatic discipline, up to termination, after a specified number of absences or “occurrences” within a certain period of time, regardless of the reasons for the absences.

No-fault policies are becoming common because they are easy to implement and they assure a uniform application of policies to all employees. However, there are specific issues that arise when implementing such policies that can violate employee rights.

If the employees’ absence qualifies for leave under the Family Medical Leave Act (“FMLA”) or if it is for a disability within the meaning of the Americans with Disabilities Act (“ADA”), then there are special considerations that must be put into place. The EEOC and the courts have determined that an employer may not apply the no-fault policy to an employee who needs leave that is covered under the FMLA or ADA. Thus, those days off may not count as “occurrences.”

Therefore, if you are terminated for violating a No-Fault Attendance Policy based on legally protected absences, you should consider speaking to an employment lawyer.

New Jersey’s Minimum Wage increases to $12 per hour starting January 1, 2021

The 2021 minimum wage for most employees in New Jersey will be $12 per hour — an increase from $11 per hour in 2020.

The minimum wage for tipped employees is increasing to $4.13 per hour, up from $3.13 per hour in 2020.

There are exceptions to the $12 per hour minimum wage requirement such as employees in “training” seasonal employees, “small” employers (fewer than 6 employees), agricultural workers and direct care staff at long-term care facilities.

In training employees are to receive a “training wage” that is equal to at least 90% of the minimum wage for the first 120 hours of work.

Seasonal employees and small employers with fewer than six employees will have a minimum wage of $11.10 per hour in 2021, up from $10.30 in 2020.

Agricultural workers have a minimum wage of $10.30, which is the same as 2020.

As of November 1, 2020, direct care staff members in long-term health care facilities began to receive a minimum wage that is $3.00 higher than New Jersey’s current minimum wage which brings them to a minimum wage of $15.00 in 2021.

By 2024, the minimum wage rate in New Jersey will reach $15 per hour with a one dollar increase each year.

New York City Expands Paid Sick Leave for Employees

Effective January 1, 2021, New York City is expanding its paid sick leave law. The amendments to the NYC Paid Safe and Sick Leave Law (“NYCPSL”) provide the following:

  • Employers with 100 or more employees must provide up to 56 hours of paid sick and safe leave per calendar year,
  • Employers with 5-99 employees must provide up to 40 hours of paid sick and safe leave per calendar year, and
  • Employers with 4 employees or less must provide paid sick and safe leave if the employer’s net income is greater than $1 million or unpaid sick and safe leave if net income is $1 million or less.

Further, NYC employers are required to note the amount of sick and safe time accrued and used during each pay period as well as each employee’s total balance accrued sick and safe time on each employee’s pay statement.

Sick time is defined in § 20-914a as time for absence from work due to an employee’s or a family member’s mental or physical illness, injury or health condition or need for medical diagnoses, care or treatment of a mental or physical illness, injury or health condition or need for preventative medical care or closure of an employee’s place of business by order of a public official due to a public health emergency or such employee’s need to care for a child whose school or childcare provider has been closed by order of a public official due to a public health emergency.

Safe time is defined in § 20-914b as time for absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence.

This expanded sick leave is in effect as the COVID outbreak continues to surge through the winter months. The NYCPSL is broad and includes time off needed to take the COVID vaccine once it becomes available and time off to care for a health condition of the employee’s family member.

Additionally, an anti-retaliation provision was added to the NYCPSL. The anti-retaliation provision is implicated when an employee’s use of NYCPSL is a motivating factor for an adverse employment action. The NYCPSL also permits the NYC Department of Consumer and Worker Protection (“DCWP”) to bring pattern or practice enforcement actions with expanded subpoena and investigative powers, that could incorporate civil penalties for each employee who was not permitted to utilize NYCPSL.

These benefits are on top of the sick leave employers must provide under existing state and federal law.

New Jersey COVID-19 Employment Update: Executive Order 192

The Covid-19 outbreak continues to lead to new laws and regulations in the workplace. The most recent is Executive Order 192, issued by New Jersey Governor Phil Murphy which took effect on November 5, 2020. This Order requires employers with employees who are physically present at a workplace to adhere to strict safety requirements.

The Executive Order provides that every business, non-profit organization and governmental and educational entity must:

  • Require that individuals at the worksite maintain at least 6 feet of distance from one another to the maximum extent possible.
  • If the nature of the work does not allow for 6 feet of distance, employers must ensure that each such employee wears a mask and must install physical barriers between workstations wherever possible.

Two important measures included in the Executive Order are that the employer must:

  • Exclude sick employees from the workplace and follow requirements of applicable leave laws; and
  • Promptly notify employees of any known exposure to COVID-19 at the worksite.

Governor Murphy along with the New Jersey Department of Health and the Department of Labor and Workforce Development put these standards in place and have created a “COVID-19 Worker Protection Complaint Form” available on the New Jersey Department of Labor website, where you can anonymously report unsafe conditions.

Can you be fired for having to quarantine?

An issue facing employees right now is the technicalities related to returning to the workplace. For employees who are back at work, it is unsurprising that situations may arise where the employee is exposed to COVID-19, a family member has COVID-19 or they themselves may catch the virus whether at work or elsewhere. Now the issue becomes, what does the employer do for the 14 days or so that their employee is mandated to stay home? The short answer is that an employer cannot simply fire an employee who has to be out of work due to having to quarantine.

New Jersey Law prohibits COVID-19 related employment discrimination. Under Executive Order 103, Governor Murphy specified that an employer cannot terminate or refuse to reinstate an employee who has or is likely to have an infectious disease that requires the employee to miss work. The employee is also protected from retaliation or penalty for requesting time off for having to quarantine.

In New York, Governor Cuomo enacted the COVID-19 Quarantine Leave Law, the COVID-19 Paid Sick Leave Law and expanded New York’s Paid Family Leave Law (PFL) and Disability Benefit Law. These laws require New York employers to provide job-protected sick leave to employees who are subject to a mandatory or precautionary order of quarantine.

Further, the Families First Coronavirus Response Act (FFCRA) is a federal law that went into effect on April 2, 2020 which provides extended coverage for employees who need to take leave because of COVID-19 by amending the Family and Medical Leave Act of 1993 (FMLA). The Emergency Family and Medical Leave Expansion Act expands coverage to most employees who have to quarantine.

What if my employer violates one of the above provisions?

If your employer fires you for having to quarantine due to COVID-19, there are a few courses of action you can take:

In New Jersey, you have the option to file a claim with the New Jersey Department of Labor and Workforce Development, where they will conduct an investigation and then determine if you should be reinstated to your position and if your employer should be penalized. Alternatively, you could file a lawsuit in the New Jersey Superior Court. Claims filed with the Department of Labor and Workforce Development will be processed in the same manner as claims for wages filed with the Division of Wage and Hour Compliance. There will be a hearing conducted by a Wage Collection Referee and the employer and other witnesses may be required to provide a testimony. The Wage Collection Referee can issue a decision and provide remedies. If the results of the investigation find that the employer acted in violation of any of the COVID-19 laws, the employee may be reinstated, and the employer faces a monetary administrative penalty.

In New York, you may file a claim with the New York State Department of Labor who will conduct an investigation.

Under the FFCRA, Employers in violation of the provisions are subject to the enforcement provisions as well as penalties under the Emergency Family and Medical Leave Act. The employer can be liable for compensatory damages (back pay, lost benefits, front pay, and emotional distress) as well as liquidated damages (double damages), attorneys’ fees and expenses, pre- and post-judgment interest, injunctive relief, and reinstatement.

Lastly, throughout the pandemic, many employers have improved their remote work systems and have allowed their employees to work from home if need be. It is important to familiarize yourself with your employers work from home policy just in case you find yourself in a situation where you must quarantine.

Employment Litigation In The Wake Of The COVID-19 Pandemic

The COVID-19 pandemic has triggered a drastic shift in the employment landscape that may result in a wave of litigation alleging employers violated existing labor laws and the recently enacted coronavirus leave law.

While employees in the greater New York and New Jersey area have legal protections under local, state, and federal law, employment-related disputes are not uncommon. Though the regional economy remains under lockdown more or less, the new normal may see an increase in certain types of employment litigation, such as:

A. Wage And Hour Claims During The COVID-19 Crisis

Regardless of the pandemic, non-salaried workers in New York and New Jersey are entitled to the state’s current minimum wage as well as overtime for all hours worked over 40 per week.

While traditional tracking mechanisms allow employers to determine when workers start, take lunch breaks, leave for the day, etc. are no longer in use, businesses that have not adapted to track clock worker hours offsite could face wage theft claims by workers alleging they worked through breaks. Despite the COVID-19 crisis, employers must be mindful of their obligations under the federal Fair Labor Standards Act (FLSA) and applicable state labor law.

If when businesses begin to re-open, employers may also face potential liability if they require workers to take certain precautionary measures before entering the premises (such as temperature checks) or donning personal protective equipment prior to starting a shift. These activities may be construed as off-the-clock work for which employees must be compensated.

B. Paid Sick Leave Disputes During The Coronavirus Outbreak

The Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide them with a certain amount of paid time off for COVID-19-related reasons, such as falling ill or caring for a child whose school has closed.

Employers in New York and New Jersey have a legal obligation to determine which employees are eligible and then provide them with the proper amount of paid leave time. Businesses can face lawsuits for: a) Unfairly denying paid leave; b) Miscalculating pay; and c) Retaliating against employees who request paid leave.

C. Safety (OSHA) Violations As A Result Of The Pandemic

Workers in hospitals, food processing facilities, grocery stores and others on the front lines who contract COVID-19 due to unsafe working conditions face an uphill battle. While the Occupational Health and Safety Act requires employers to ensure that the work environment is safe, the law does not allow workers to sue their employers over unsafe working conditions. Workers who fall ill due to the pandemic may be entitled to worker’s compensation, albeit that proving they contracted the novel coronavirus at work can be difficult.

If you have any questions regarding your employment or termination, please contact us at or at 732-325-0318.

New York City Takes Stand Against Race and National Origin Discrimination Based on Coronavirus Fears

The novel coronavirus has had a devastating impact on New York City and surrounding areas. While the daily number of new cases in New York is decreasing, the virus shows no sign of slowing down in many other parts of the country, even as most states are in the process of “reopening” their economies.

The disease is bad enough by itself, but its supposed origins in China have also led to an unfortunate backlash against people perceived to be of Chinese heritage. Discrimination, harassment, and worse have occurred in workplaces and in public. The New York City Commission on Human Rights (CHR), which works to prevent discrimination on the basis of race, national origin, and other factors, created a response team to address discrimination and harassment related to the pandemic.

Laws Against Race and National Origin Discrimination in the Workplace

The New York City Human Rights Law (NYCHRL) prohibits workplace discrimination based on a person’s “actual or perceived…race…[or] national origin.” N.Y.C. Admin. Code § 8-107(1)(a). This includes terminating someone’s employment, demoting them, denying them shifts or assignments, and other adverse actions, when the sole or primary purpose is that they are a particular race or have a particular national origin.

The coronavirus pandemic involves multiple forms of employment discrimination. The CHR has adopted guidelines from the Equal Employment Opportunity Commission (EEOC) related to disability discrimination.

If you have any questions regarding your employment or termination, please contact us at or at 732-325-0318.

Third Circuit Revives Americans with Disabilities Act (ADA) Suit Over Faulty Disability Analysis

The federal Americans with Disabilities Act (ADA) provides employees and job applicants protection against employment discrimination who: (1) have a disability; (2) have a record of a disability; or (3) are regarded as having a disability.

The Third Circuit recently revived a truck driver’s ADA suit alleging Patrick Industries fired him for taking medical leave to recover from a lung biopsy procedure, saying a lower court fumbled its analysis of whether he was “regarded as” disabled under anti-discrimination law.

William Eshleman took two months of medical leave for a lung biopsy procedure and, six weeks after his return, took two vacation days for an upper respiratory infection. Following the second return, the employer fired him and offered shifting reasons for his termination.

Eshleman sued, alleging the company regarded him as an individual with a disability and fired him on that basis. A federal district court dismissed his claim, finding that his impairment was not eligible for coverage under the law’s “regarded as” prong because it was “transitory and minor.”

On appeal, a three-member panel said the district court improperly dismissed the suit because it only evaluated the “transitory” nature of his surgery to remove a nodule from his lung, but didn’t separately consider whether it was “minor,” as required. Minor means “objectively non-serious.”

Courts must evaluate whether an impairment is expected to last fewer than six months and analyze if it was minor in order to determine an employee’s ability to meet the “regarded as” element of the definition of disability under the ADA.

“While the statute is silent on the meaning of ‘minor,’ the ADA regulations clearly state that an employer must establish that the perceived impairment is objectively both transitory and minor,” Circuit Judge Theodore McKee wrote for the panel, adding that “‘transitory’ is just one part of the two prong ‘transitory and minor’ exception.”

This new Eshleman decision will pave way for the expansion of ADA suits in the Third Circuit.

If you have any questions regarding your employment or termination, please contact us at or at 732-325-0318.

SCOTUS says LGBT Discrimination in the Workplace Violates Federal Law – What Does That Mean for New Jersey and New York Workers?

In a highly anticipated decision, the U.S. Supreme Court has declared that Title VII of the Civil Rights Act, which is the federal law that bans certain forms of employment discrimination, applies to LGBT workers. In New Jersey and New York, LGBT workers have been protected by state laws against discrimination for many years. This latest development, however, may give certain worker important additional options.

The Supreme Court case was actually a consolidation of three cases from the lower courts. In one, a county government employee in Georgia was fired shortly after he joined a softball league for gay men. In a second, a skydiving instructor in New York was fired shortly after his employer discovered he was gay. In Michigan, a funeral home fired a trans woman who after six years on the job announced her intention to begin, as part of her transition, dressing in accordance with the employer’s rules for female attire.

All of these situations, according to the court, represented impermissible forms of sex discrimination under Title VII. The majority opinion stated that an “employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision exactly what Title VII forbids.”

The U.S. Supreme Court held that the ban on sex discrimination in the federal employment law, Title VII of the Civil Rights Act of 1964, covers employment discrimination based on sexual orientation or transgender identity.

The Court’s decision will have significant consequences in the majority of states, which do not include anti-LGBT discrimination protections as part of their state-level employment discrimination laws.

For employers in New Jersey and New York, the Supreme Court’s decision may not have much practical effect as the New Jersey Law Against Discrimination (NJLAD) and New York State Human Rights Law already prohibit employment discrimination based on sexual orientation and gender identity. The decision may, however, shift some litigation from state to federal courts.

If you have any questions regarding your employment or termination, please contact us at or at 732-325-0318.

U.S. Department of Labor Issues Guidance on Employee Leave Rights When Summer Camps and Programs Close Due to COVID-19

In response to the COVID-19 pandemic, many employees sought time off work under the paid sick leave or paid family and medical leave provisions of the Family First Coronavirus Response Act (FFCRA) to care for children at home because their schools or day care centers closed. As the end of the school year approached, many summer schools or camps cancelled programming. Others remain in limbo, awaiting governmental clearance and guidance to resume operations during the phased “re-opening” of the economy. All of this leaves parents and their employers questioning whether FFCRA provides leave when parents need to care for children at home because of closed summer camps or educational programs.

On June 26, 2020, the U.S. Department of Labor (DOL) issued guidance stating that FFCRA leave is available when a parent is unable to work or telework because a “place of care” is closed due to COVID-19-related reasons. The guidance further notes “place of care” means “a physical location in which care is provided” for a child, and this “includes summer camps and summer enrichment programs.”

Criteria for Coverage

Coverage exists where children were enrolled before a program closed. Recognizing that the uncertainties surrounding the pandemic resulted in camps or programs not taking enrollments, the guidance states coverage exists when a child attended a closed program in prior summers and was eligible to again participate this summer while also noting “there may be other circumstances that show an employee’s child’s enrollment or planned enrollment in a camp or program.”

The guidance provides that a parent’s mere interest in a camp is not enough; it must be “more likely than not” the child would have participated in the underlying program. Evidence of planned participation cited in the guidance includes eligibility for participation, submissions of applications or payments of deposits toward such programs; however, the guidance makes clear there is no “one-size-fits-all” rule.

The guidance also clarifies the type of information parents must provide employers to support such leave requests:

  • “An employee who requests leave to care for his or her child based on the closure of a summer camp, summer enrichment program, or other summer program is subject to the same requirements [as leave due to closures of schools or day cares] and should provide the name of the specific summer camp or program that would have been the place of care for the child had it not closed.”
  • In addition, parents should provide a statement affirming that no other suitable person is available to care for the child.

An employer who improperly denies such leave could be subject to a DOL enforcement action or even a private suit.

If you have any questions regarding your employment or termination, please contact us at or at 732-325-0318.