Leaving work for medical reasons? Document, document, document…

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Can you qualify for unemployment benefits if you leave work for health or medical reasons?  Yes, under certain circumstances.

In a recent case, a 37-year Verizon employee tried to do just that, but the Superior Court of New Jersey, Appellate Division, ruled against her claim.  A few years ago, the employee was diagnosed with cancer.  After treatment and surgery, she was unable to lift as much weight as before.  Lifting was one of her job duties.  She was assigned to special projects that did not involve lifting.  She applied for, but did not receive, a sedentary job with Verizon.  Then she resigned.

At the unemployment hearing, she stated that she did not provide any documentation of her medical limitations regarding the type of job she could perform.  She also did not provide medical documentation of an inability to work, which would have supported a medical need to resign.

While the employee’s initial application for unemployment was granted, Verizon appealed the decision and won because of the employee’s lack of medical documentation, which meant that the employee had left her employment voluntarily.  The employee appealed to the Appellate Division.

On appeal, the employee argued that she was medically unable to work at her last position and that she was medically qualified for a more sedentary position.  But according to the Appellate Division, New Jersey law states that medical certification supporting a finding of good cause attributable to work is required where an employee leaves work for health or medical reasons.  The medical condition must not be work related and there must be no other suitable work for which the employee is qualified.

Given that the employee did not provide proof of her medical limitations or the need to be assigned to a more sedentary position, the Appellate Division confirmed the denial of benefits and ordered that she repay any unemployment benefits that she already received.

Brown v. Board of Review, Docket No. A-5250-07T3, (NJ App Div 2009).

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Immigrant without valid work permit cannot collect unemployment

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This case from March 30, 2009 illustrates New Jersey’s rule that an immigrant who does not have a valid green card or work permit while employed is ineligible for unemployment benefits.

The Superior Court of New Jersey, Appellate Division denied unemployment benefits to a Polish immigrant, despite the fact that he had worked in New Jersey.  The claimant entered the U.S. in 1995 on a tourist visa and had a work permit from 2002 to 2003.  He said that he had already bee working for a few years by the time he got his work permit in 2002.

Then in 2006, after his work permit had expired, the claimant got another job, from which he was laid off in February 2007.  This was the employment from which he tried to claim unemployment benefits.  He did not get another work permit until May 2007.

Unfortunately, the claimant could not be eleigible for unemployment benefits since he did not hold a valid work permit while he was employed.  His pleas of ignorance of the English language as a reason for failing to renew the work permit fell on deaf ears.

The lesson in this decision is simple:  Immigrants must have a valid green card or work permit in place while they are working in New Jersey if they want to be able to claim unemployment benefits when needed.

The decision is here:  Cieslewicz v. Board of Review, et al. Docket No. A-2120-07T1 (March 30, 2009).

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Furniture retailer not truckers exempt from overtime law, NJ court says

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New Jersey’s overtime law says that employers must pay employees 1 1/2 times their regular hourly rate for every hour worked that is more than 40 hours in a week.  But there is a law that exempts trucking industry employers from the requirement to pay that overtime rate.  Furniture retailer Raymour & Flanigan said that it was eligible for the trucking exemption after an employee complained that Raymour was not paying overtime.  In court, the employer has the burden of proving that it is entitled to claim an exemption to New Jersey’s overtime law.

Raymour & Flanigan argued to the Appellate Division that it should not have to pay the employees in its customer service and distribution centers the statutory overtime rate because each of those centers received furniture for the purpose of delivery to customers, making each of the centers a trucking “establishment” under the law exempting trucking businesses from overtime requirements.

The Appellate Division court disagreed with Raymour, stating that because its primary business is furniture retail and not trucking, the exemption for trucking establishments does not apply.  As a result, Raymour is required to pay all of its employees, including those in its customer service and distribution centers, the statutory overtime rate.

In the Matter of Raymour and Flanigan Furniture, et al., Docket No. A-4622-07T1, (Sup Ct NJ, App Div 2009).

What’s up with the Lily Ledbetter Fair Pay Act?

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Yesterday, the Senate passed a version of the Lily Ledbetter Fair Pay Act (61 Yeas to 36 Nays), which would change employment discrimination law to state that it is unlawful to adopt a discriminatory compensation decision or practice; to subject an employee to a discriminatory compensation practice or decision; or to pay an employee under a discriminatory compensation decision or practice.

A key provision of the Act is that each discriminatory payment would be unlawful.  That provision is key because it is meant to remedy the U.S. Supreme Court‘s decision that each discriminatory payment is not unlawful – instead, an employee would have to file a claim against his or her employer within 180 days after the very first discriminatory payment or else that claim would be barred.  With that decision, the U.S. Supreme Court made fair pay claims extremely difficult to file on time.

How did your Senator vote?

On January 9, the House had passed a slightly different version of the Lily Ledbetter Fair Pay Act (those vote results are here).  Since the House and Senate versions are different, the House will have to re-visit the issue. President Obama has said that he supports the legislation.

Some of the earlier House debate helps to explain the issues raised by the U.S. Supreme Court decision.  Here’s what Rep. Rush D. Holt of New Jersey, a supporter and co-sponsor of the bill, had to say about it:

According to Justice Samuel Alito, who wrote the flawed decision, when Ms. Ledbetter failed to file a discrimination case within the statutorily provided 180 days from the initial decision to pay her less than her male colleagues, she was barred from filing a complaint and no relief was available.  Despite documenting the sex based evaluation system Goodyear managers used, Lilly Ledbetter was denied justice and the rights afforded to her under the Civil Rights Act.

Justice Alito’s opinion runs contrary to decades of civil rights law, and the Lilly Ledbetter Fair Act would restore the law as it was prior to the Court’s ill considered decision.  This bill would make it clear that when it comes to discriminatory pay, the protections of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Rehabilitation Act extend not only to these discriminatory pay decisions and practices but to every paycheck that results from those pay decisions and practices.

The nut of the opposition appears to be, hey, we don’t like discrimination either and it’s too bad the statute of limitations ran out, but we don’t want you to help people sue employers.  Here’s Rep. Todd Tiahrt of Kansas opposing the bill:

Pay discrimination is not a partisan issue. Pay discrimination strikes at the heart of the American Dream. For more than 40 years, the 1963 Equal Pay Act and Title VII of the 1964 Civil Rights Act has made it illegal for employers to determine an employee’s pay scale based on his or her gender. I wholeheartedly agree and support these laws. Every American should be able to work hard, and make a living for his or her family. We can not tolerate gender discrimination in the workplace.

This legislation, however, is about bad politics rather than good policy. H.R. 11 was supposedly written to remedy a sad situation for one person–Lilly Ledbetter. She was apparently paid significantly less than her counterparts at Goodyear Tire Company during her tenure there. Decades later Ms. Ledbetter filed a claim of discrimination. Taking her claim through the courts, the U.S. Supreme Court ruled on May 29, 2007 that the statute of limitations had unfortunately run out.

Fact is, pay discrimination is not just a “sad situation for one person”.  The gender wage gap is a pervasive problem requiring an effective remedy. And wage gaps based on discriminatory factors other than gender must also be addressed. To pretend that employers don’t ever try to pay someone less just because of their gender, race, national origin, etc., or that it’s a rare occurrence, is to deny reality.

Despite the fact that those who oppose the Lily Ledbetter Fair Pay Act want everyone to believe that the Act would open the floodgates of litigation against poor, defenseless employers, this is just not the case – wage claims are still difficult to identify and to prove.  And if an employer wants to avoid being on the wrong side of litigation, it should adopt sensible, fair policies that largely involve treating employees with basic respect. Prematurely killing off a potentially effective remedy to unlawful discrimination is not the answer.

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Workplace perfume injury leads to workers comp award

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In an opinion that reminds me of my law-school torts class with its discussion of cringeworthy accidental injuries, the Superior Court of New Jersey, Appellate Division, decided the workers compensation appeal of a woman whose COPD was exacerbated by a fellow employee’s sprayed perfume.

The issue was whether the aggravation of the employee’s chronic obstructive pulmonary disease (COPD) arose out of her employment. The workers compensation judge thought not, so the employee appealed.

Work

Five years ago, the employee was working as a nurse in a nursing home when she was exposed to three separate sprays of a perfume in one day. She experienced difficulty breathing after the second and third sprays.

Hospital

Her breathing difficulties continued the next day, when her daughter took her to the hospital, where she was admitted to stay for 12 days. She was transferred to a rehabilitation center where she stayed for seven days and then to another hospital, where she was admitted and stayed for another seven days.

Ever since her hospital stays, the employee was dependent on oxygen. She was unable to return to work.

“Hair on fire” case comparison

In re-considering the workers compensation judge’s denial of benefits, the Appellate Division compared this case to that of Coleman v. Cycle Transformer Corp., 105 N. J. 285 (1986), in which an employee accidentally set her hair on fire while trying to light a cigarette during her lunch break. The New Jersey Supreme Court found that her injuries did not arise out of the course of her employment.

The Coleman court reasoned that the the nature of the risk to the employee of setting her hair on fire in that manner was personal to the employee and that the employment connection with the injury was minimal. There was no condition of her work or workplace that was a contributing cause of her injury.

Idiopathic (spontaneous) fall cases

As though the discussion of an employee’s setting her own hair on fire were not enough, the court moved on to a discussion of workplace injuries caused by spontaneous falls. An employee who burned his face when he fell into a pot stove during a seizure was awarded workers comp in 1944 because the stove was a condition of the workplace that contributed to his injury.

Likewise, an employee who fell because of a heart attack and hit his head on the floor, as a result of which he later died, was entitled to workers comp in 1965 because the injury he suffered was a risk of his employment – i.e., the impact with the floor, which was a condition of the workplace.

The smoking cases

Unable to leave well enough alone, the court reviewed the smoking cases, in which employees suffered smoking related injuries on the job. In a case from 1955, when an employee was injured after spilling gasoline on his clothing and then trying to light a cigarette, the injuries were compensable because they arose out of the course of his employment.

But in a 1952 case, an employee was denied workers comp when he suffered injuries from a match head that flew into his eye when he tried to light a cigarette while driving a truck during work. This particular risk of using matches or smoking was somehow unconnected to the employment. The different outcomes in these two smoking cases perplexes me.

The workers comp judge in the recent perfume case apparently thought it was more like the match-head cigarette case than the gasoline-spill cigarette case, due to the employee’s personal sensitivity to perfume. While I don’t like that outcome, I can’t blame the judge for being a bit confused about how these cases should be decided, considering the state of the past case law reviewed in this opinion (the match-head case in particular).

Perfume case, Appellate Division analysis

The Appellate Division reversed the workers comp judge, reasoning as follows: But for being at work that day, the employee would not have been injured by her co-worker’s perfume. The air she had to breathe, which was contaminated by the perfume, was a condition of (and a risk of) her employment. Since breathing the contaminated workplace air injured her, the injury arose out of her employment.

The court also pointed out that just because the employee had COPD did not mean that the subsequent aggravation of that COPD was not compensable. Employees may be entitled to compensation where the injury causing their total and permanent disability amounted to the aggravation of a pre-existing condition. In fact, the Second Injury Fund allows employers a credit under these circumstances.

Sexton v. County of Cumberland/Cumberland Manor, Docket No. A-6414-06T1 (Sup Ct NJ, App Div 2009).

Dividing future workers comp medical expenses between different insurers OK, Court says

On December 19, the Superior Court of New Jersey, Appellate Division, decided a workers’ compensation case involving different insurance companies that were appealing a decision from the Division of Workers’ Compensation apportioning responsibility for future medical expenses between them.

The facts, which were not disputed, show that the employee worked for AGFA, becoming totally and permanently disabled as a result of physical activities performed at work over a 23-year period. During that time, AGFA had workers’ compensation insurance with three different companies.

Initially, the employee’s osteoarthritis symptoms arose in 1994 while the employer carried insurance with Reliance.

Then in 2000, the employee had more symptoms while her employer carried insurance with ACE. Finally, in 2001, the employee’s condition arose again while AGFA had workers’ compensation insurance with Travelers.

A physician testified at trial that it would be impossible to determine exactly when the employee’s condition became permanent.

The Division of Workers’ Compensation judge apportioned responsibility between the three insurers upon determining that the employee’s work during the three different periods of coverage contributed equally to her disability.

Two of the three insurance companies argued that the workers’ compensation judge was wrong in apportioning responsibility for future medical expenses among all three insurers, because the judge could not have determined whether the employee needed future medical treatment during each of the three periods of insurance. Both Reliance and ACE thought that only Travelers, the last insurer, should pay for the employee’s future medical treatment, under the “last injurious exposure” rule. The Appellate Division disagreed.

The Appellate Division pointed out that when the onset date of the injury or disease cannot be determined, and the employment contributed to the injury or disease during each of the insurers’ coverage periods, apportionment among the different insurers may be appropriate.

Additionally, the insurers argued that the apportionment of responsibility for future medical expenses among three different insurers creates logistical problems.  These problems include the difficulty in having three different insurers choose a medical provider and pay for that provider’s services.

Dismissing the insurers’ argument about logistics as “meritless,” the Appellate Division said there is no rule stating that only the last insurer should pay future medical expenses whenever there is a logistical problem with payment and with choosing a physician. The Court added that the insurers could always apply to the Division of Workers’ Compensation for orders designating a treating physician and addressing payment terms for future medical expenses.

Natale v. Celanese, Inc., et al., Docket No. A-0840-07T1, Sup. Ct. NJ, App. Div. (2008).

Update on Employment Law now on Alltop

Good news: This little blog made it onto Alltop law. I added a new badge to the right-hand column.

Guess this means I’ll have to be sure and post regularly, huh?

Welcome, any and all new readers visiting via Alltop!

Happy Holidays

Update on Employment Law is taking a little holiday break and will be posting more regularly after the holiday season.  May you and your family have a happy holiday season.

Act in favor of fair pay

Interested in the issue of fair pay for women but don’t know what to do?  Sign the petition over at the “Out of the Way of Fair Pay” campaign, the result of a collaboration between I Am Progress (part of the Center for American Progress Action Fund) and MomsRising.org.

The petition, which will be sent to the U.S. Chamber of Commerce, is in support of the Lily Ledbetter Fair Pay Act and the Paycheck Fairness Act, both of which the Chamber opposes.

Here’s the link to the petition: Out of the Way of Fair Pay

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Vera Glaser, a journalist who wrote about employment discrimination

From The Washington Post last Sunday, an article about the reporter Vera Glaser, who wrote a five-part series on employment and policy discrimination against women after a press conference with President Nixon.

In 1969, she asked the new president, Richard Nixon, why only 3 of his approximately 200 presidential appointments had been women. Here is an audio link to an interview with Glaser wherein she discusses that Nixon press conference.

Vera Glaser recently died at the age of 92.