Monthly Archives: November 2008

New Jersey extends unemployment benefits a second time since July 2008

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According to a press release dated 11/24/08, the New Jersey Department of Labor and Workforce Development is notifying unemployed workers of an unemployment benefits extension for workers whose benefits run out without having found a job.

The State of New Jersey is mailing letters to about 65,000 people, notifying them of this extension in unemployment benefits. Funding for the extension comes from the federal Unemployment Compensation Extension Act of 2008 enacted on November 21. This is the second federally-funded extension of unemployment benefits since July 2008.

Up to seven additional weeks of benefits are available under the new federal law, beginning 11/23/08. The benefits will not be retroactive.

People who are currently on unemployment should automatically qualify for extended benefits without having to file a separate application. Those whose benefits have already run out and who may be eligible for the extended benefits should receive instructions from the Department of Labor and Workforce Development on how to claim the extended benefits.

The current unemployment rate in New Jersey is 6.0 percent, which is below the national 6.5 percent rate, according to the Department’s press release.

You can find the press release here:  Notice of Additional Extended Unemployment Benefits Announced

Update: For information on your own unemployment claim or for general questions about unemployment, there is a list of phone numbers on the NJ Department of Labor and Workforce Development website. Check it out.

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Recent case illustrates proper analysis under New Jersey Law Against Discrimination

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This week, the Superior Court of New Jersey, Appellate Division, decided a case involving a claim under the New Jersey Law Against Discrimination (NJLAD) and outlined the burdens of proof necessary to make a proper case under the NJLAD.

Factual background

According to the decision, the employee worked for her employer for about 24 years, until her employment was terminated. She had supervisory responsibility over the production of commercial print advertisements.

Her performance was satisfactory until 2003, when she received 2 written warnings for her failure to complete certain printing jobs, for mailing a package to the wrong location, and for working the wrong job for 2 shifts.

In September of 2003, the employee met with her department and human resources managers about her performance problems. A memo from the employee’s file summarizing the discussion reflected several complaints about her job performance. Her department manager told her to improve her performance in the areas they discussed and stated that her failure to improve could result in termination of her employment.

In October 2003, the employee supervised a project that was sent to press without having been completed, costing the employer over $200,000 to re-run the project. The following month, her employer fired her, stating in a written notice that her poor performance was the reason for the termination.

Two years later, the employee sued her former employer under the NJLAD, claiming gender and sexual orientation discrimination and breach of contract. Losing at the lower court level, she filed this appeal.

Framework for analysis

The appellate court determined that the employee’s claims had no merit. The court outlined the proper framework for analyzing NJLAD claims: 1) The plaintiff must present enough evidence to establish a prima facie case of illegal discrimination; 2) The defendant must present evidence to establish a legitimate, non-discriminatory reason for the adverse employment action; 3) If #2 is established, the plaintiff must prove that the defendant’s reasons are a pretext for illegal discrimination.

Assuming that the employee in this case presented a prima facie case under #1, above, the defendant-employer successfully met its burden under #2, above, by establishing that it fired the employee because of her poor performance.

To meet the burden of #3, above, the employee needed to show not only that the employer’s reason for firing her was false, but also that the employer’s motivation in firing her was, more likely than not, discriminatory. Her evidence of discriminatory intent included the assertion that ever since she refused to take a severance package offered to her in 2002, the employer was out to get her. However, the court pointed out that if the employer had wanted to let her go in 2002, they could have done so. And, the company later gave her an opportunity to improve her declining performance.

As further evidence, the employee asserted that another employee who worked on the costly print job error was not disciplined. The court declared that an employer’s decision to discipline only one employee does not create a cause of action for discrimination under the NJLAD. Overall responsibility for the print-job error admittedly rested with the employee, who was unable to present facts to show discriminatory intent based on gender or sexual orientation.

Brunner v. Vertis, Inc., et al., Docket No. A-0036-07T1 (Sup Ct NJ App Div 2008).


This case illustrates the importance for employers of documenting complaints and meetings about employee performance and of placing that documentation in the employee file. In this case, it looks like the employer’s good record-keeping was a saving grace for them in providing evidence countering the employee’s claims.

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Third Circuit Court dismissed False Claims Act action where fraud was against military members, not U.S.

The Third Circuit Court of Appeals recently issued a decision under the False Claims Act, under which an insurance agent sued an insurance company and a bank on behalf of the United States, claiming that these two companies submitted false claims to the U.S. government.  Generally, if the government recovers money under a false claims suit filed by a third party, that third party may also recover money.

According to the lawsuit, the insurance company sold life insurance policies to enlisted personnel, stating that the policies were actually savings accounts to avoid military regulations limiting the use of the military allotment system to pay life insurance premiums.  The insurance company argued that the conduct that the insurance agent complained of did not rise to the level of a false claim against the government – that the insurance company was not actually trying to falsely claim money from the U.S. government.

The Third Circuit agreed with the insurance company.  Payments made via the military allotment system are made from the salaries of military members, not from government funds on behalf of the United States. Since the actions of the insurance company could not cause monetary loss to the United States government, those actions did not involve a claim against the U.S. government. An action under the False Claims Act must involve a claim against the U.S. government where the government might suffer economic loss. Thus, the court ruled that the claim was properly dismissed, even though there might have been fraud against members of the military.

United States of America ex rel Sanders v. American-Amicable Life Ins. Co. of Texas, et al., No. 07-3429 (3d Cir. 2008).

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Employee eligibility: What you need to know about the new FMLA regulations

Yesterday, the Department of Labor released new final FMLA regulations that will take effect on January 16, 2009. The Labor Department developed these regulations because of the National Defense Authorization Act for Fiscal Year 2008 (NDAA), which President Bush signed last January, and because of parts of the current regulations being invalidated by various court decisions. The regulations detail two new military family leave entitlements. Here is a summary of the important changes that you should be aware of:

Employee Eligibility for FMLA – the 12-month rule

One of the requirements for eligibility is that an employee must work for that employer for at least 12 months. The new rule says that those 12 months need not be consecutive, but that employment before a 7-year break in service need not be counted. 29 CFR 825.110(b)(1). The rule provides for two exceptions: 1) Time served fulfilling National Guard or Reserve duty counts toward the 12-month employment requirement; and 2) Where there is a written agreement concerning the employer’s intention to rehire the employee after the break in service. 29 CFR 825.110(b)(2). If an employer chooses to count someone’s employment prior to a 7-year gap, it must do so for all employees with a similar break in service.  29 CFR 825.110(b)(4).

Working 1,250 hours in 12 months

Another eligibility requirement is that an employee must have worked at least 1,250 hours in the 12 months immediately preceding the beginning of the FMLA leave. A new regulation provides that an employee who is re-employed under USERRA after military service must be credited with the hours they would have worked but for the military service. 29 CFR 825.110(c)(2).

The Department of Labor clarified the eligibility rule to reflect that an employee who is out on non-FMLA leave may become eligible for FMLA leave during that time, thus turning the last part of the non-FMLA leave into FMLA leave. 29 CFR 825.110(d).

FMLA leave for members of the military and their relatives

A couple of paragraphs were added regarding required leave for employees or relatives who are members of the military.  Employers must grant FMLA leave to employees where there is a “qualifying exigency” arising from the fact that their child, parent, or spouse is a “covered military member on active duty” or has been notified of an impending call to active duty.  FMLA leave must also be granted to an employee to care for an injured servicememer who is a parent, spouse, child, or next of kin. 29 CFO 825.112(5), (6).

What’s a qualifying exigency?

The “qualifying exigency” referred to in the prior paragraph can be: 1) A short-notice deployment; 2) A military event or related activity; 3) Alternative childcare or school arrangements that need to be made because of military active duty status; 4) Financial or legal arrangements because of military active duty; 5) Counseling for the covered military member; 6) Short-term rest and recuperation of the military member; 7) Attending post-deployment activities sponsored by the military; or 8) Other activities arising out of military duty. 29 CFR 825.126.


These are the main changes to the eligibility regulations of the FMLA.  As you can see, most of the changes have to do with members of the military and their relatives.  Many employers might argue that this puts a lot of the burden of leave time from employment on the employer, and they’d be right.  However, the heaviest burdens of military service are still being carried by individual members of the military who are deployed overseas.  So a spreading of the burdens, in a sense, is not such a bad thing.

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Change in employee’s work hours leads to unemployment benefits

Last Wednesday, the Superior Court of New Jersey, Appellate Division, affirmed an award of unemployment benefits to an employee whose employer had changed her work hours to interfere with her child care arrangements.

The employee worked from 8:30am  to 4:30pm, but had difficulty getting to work on time every day because of the traffic.  Her supervisor asked her to think about changing her hours to 9am to 5pm, but the employee resisted because she would not have enough time to pick up her child by 5:30pm, when the after-school program closed.  As a compromise, the employee suggested she work from 8:45 to 4:45, a notion that the employer rejected out of hand.  The employee left her employment as a result.

In its opinion, the Court provides an interesting discussion of “good cause” under the law’s provision that a person who leaves work without good cause attributable to the work is disqualified from receiving unemployment benefits.  Good cause, the Court says, generally means enough cause to justify the employee’s voluntary departure from employment.  Good cause is directly related to the employment and gives the employee no choice but to leave employment.

The Court examined a prior case involving an employee’s transportation problem.  When a transportation issue arises solely from the employee’s personal circumstances, it is not enough to provide good cause, the Court recalled.  If the transportation issue stems from a change in working conditions unilaterally instituted by the employer, an “evaluation and balancing” of factors must be done to determine eligibility for benefits.

While this case involved a unilateral change in work hours instituted by the employer, it caused a child care problem instead of a transportation problem.  The employee had the same child-care arrangements for a long time and yet the employer had given her no time to find alternate arrangements, rejecting a compromise proposal for the employee.

These circumstances resulted in the Court’s affirming the prior award of unemployment benefits to the employee.


The procedural history of this case is worth noting.  The employer protested the employee’s application for unemployment and the Appeal Tribunal sided with the employer, denying benefits.  But the Board of Review found in favor of the employee, rejecting the Appeal Tribunal’s finding that the unilateral change in working hours was insubstantial.

This procedural history shows that what seems like a fairly simple issue at first blush – the conflict between working hours and child care – is actually fairly complicated and can be difficult to decide, requiring a balancing of several factors.

Silent Type, Inc. v. Board of Review, et al., Docket No. A-0403-07T3 (Superior Ct of NJ, App Div 2008).

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Court qualifies disabled employee for unemployment after her employer offers unsuitable work

The Supreme Court of New Jersey, Appellate Division, yesterday reversed a decision that had denied unemployment benefits to a former employee of a grocery store located in the Princeton area. The employee’s positions with the store were variously located in the sub shop, photo department, personnel department, and on the merchandise floor.

After developing chronic obstructive pulmonary disease (COPD) and osteoporosis, the employee went out on short-term disability for over 5 months. Her doctor released her to work with a 10-pound weight restriction and a restriction on standing for no more than 3 1/2 hours at a time.

Upon her return to work, the store offered the employee a position busing tables at night, which she could not do because her husband didn’t drive at night and her listed work availability had always ended at 6pm, since the beginning of her employment.

Then the store offered her a job cleaning the employee break room. She rejected this job, stating that she could not do cleaning. A month later, she produced a doctor’s note stating that she could not do cleaning or mopping.

In the store’s employee manual was a statement that upon returning from disability leave, an employee would be returned to the same or equivalent position. New Jersey unemployment law states that employees only need to accept suitable work, taking their health into account.

The facts that: 1) The employee had never before been required to do cleaning work; 2) She was almost 64 when she returned from disability, wearing a back brace and suffering from arthritis, COPD and osteoporosis; and 3) Her doctor provided notes showing that the employee was incapable of performing the work offered, persuaded the court that the job offered to the employee was not suitable work.

The court concluded that the Board of Review was wrong in its decision denying benefits based on the employee quitting without good cause, and determined that the employee is eligible for unemployment benefits.


Although it is not clear based on the facts presented, this case seems to raise issues in addition to the employee’s qualification for unemployment benefits. Issues appear to arise under the Family Medical Leave Act (FMLA) and or the Family Leave Act (FLA), as well as the Americans with Disabilities Act (ADA). However, cases under those laws are very fact-specific and cannot be evaluated adequately under the facts recited by the court.

Boccia v. Board of Review, et al., Docket No. A-0399-07T3 (Superior Court of New Jersey, Appellate Division 2008)

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Top 8 things you need to know about NJ’s Family Leave Act

In a previous post, I said that I’d be posting further on the requirements of the New Jersey Family Leave Act.

1) FLA applicability & notice

The NJ Family Leave Act (FLA) applies to employers who employ 50 or more employees for 20 or more weeks in the current or preceding year, including the State of New Jersey. Affected employers must post “conspicuous notice” of employees’ rights and obligations under the FLA.

2) Proper reasons for FLA leave

As noted in a previous post, employees can only take the leave for the birth or adoption of a child or to care for a family member, spouse, or civil union partner with a serious health condition – not for the employee’s own health condition. Leave for an employee’s own serious health condition would be covered under the separate and distinct rules of the Federal Family and Medical Leave Act (FMLA).

3) Duration of leave

Eligible employees may take 12 weeks of paid or unpaid FLA leave within any 24-month period. The employee must provide the employer with reasonable advance notice of intention to take FLA leave. It is up to the employer to choose exactly how to count the 24-month period.

4) Certification

An employer can require “certification” of the health condition or of the birth or adoption of a child. The certification must come from a health care provider.

5) A returning employee’s post-leave rights

Upon their return to work, employees who take FLA leave are entitled to either: 1) Have their old job back upon their return to work; or 2) Have another job that is equivalent to their old job in seniority, benefits, pay, and other terms and conditions of employment. An employee would not be entitled to get their job back if they would’ve been let go anyway during a reduction in force or layoff.

6) Employer-sponsored health insurance

Health insurance that the employee had before the FLA leave is to remain in effect during the leave.

7) Retaliation

There is an anti-retaliation provision in the FLA, meaning that it is illegal for an employer to fire someone or otherwise discriminate against them for opposing a practice that would be illegal under the FLA.

8) Relationship to temporary disability

FLA leave is in addition to, not instead of, temporary disability benefits received under the Temporary Disability Benefits Law.

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Filed under Employee benefits, FMLA, NJ Family Leave Act