McOmber McOmber & Luber

Business & Employment Lawyers Red Bank & Marlton New Jersey

(732) 842-6500

Red Bank Legal

Whistleblowers are employees who report illegal practices witnessed at work. They play a crucial role in ending dangerous or unlawful activities perpetrated by employers and, as such, enjoy a wealth of legal protections against any retaliatory actions employers might take against them. Unfortunately, these protections do not outright prevent retaliation, and whistleblowers may still find themselves on the receiving end of unfair or vindictive disciplinary measures.

Thankfully, the law is on the side of whistleblowers, and there are severe consequences for those who defy it. Proving whether or not any protections were violated, however, is no small task.

If you believe you have experienced retaliation for engaging in protected activity, you’ll need to convince the court to believe it, too. The best way to achieve this is by offering strong evidence to prove your whistleblower retaliation claim, and we will explain how.

What Are New Jersey’s Whistleblower Protections?

The New Jersey Conscientious Employee Protection Act (CEPA) protects employees who report unlawful practices in the workplace. Whistleblowers cannot be fired, demoted, or mistreated if they speak up about illegal activity they witness. This whistleblower statute prohibits employers from retaliating against these concerned employees. Under CEPA, employers cannot terminate or intentionally transfer their employees who report corruption. Also, CEPA protects employees from any form of discrimination, intimidation, abuse, or harassment. These types of activities are unlawful and illegal under New Jersey law.

What is Whistleblower Retaliation?

“Whistleblower retaliation” consists of any adverse action taken against an employee who has engaged in protected activity. (i.e. whistleblowing.)

Whistleblower retaliation, and workplace retaliation, in general, can take many forms, including (but not limited to):

  • Termination
  • Demotion
  • Job transfers
  • Abuse
  • Harassment
  • Exclusion
  • Denied benefits
  • Punitive actions
  • Threats or intimidation
  • Lowered pay
  • Cut hours
  • Blacklisting

If you can demonstrate that your employer took any of these actions as a result of you speaking up or reporting an illegal activity, you may have a retaliation case and should speak to a New Jersey whistleblower attorney as soon as possible to discuss your options.

How To Prove Whistleblower Retaliation

The key to your whistleblower retaliation case is proving that you experienced one or more illegal reprisals for engaging in protected whistleblower activity.
While the precise difficulty of accomplishing this task can fluctuate depending on your situation, it never waivers from being a significant challenge.

You will need to stack the odds in your favor, and taking the following steps will greatly strengthen your case:

Gather Documents

Maintaining a well-organized case file is a crucial part of proving your claim. Start by collecting any documents or media that were associated with the incident, such as:

  • Emails
  • Text
  • Letters
  • Notes
  • Memos
  • Call Logs
  • Voice mails
  • Photos & Videos

Once you’ve gathered as many of these documents as you can, make certain you keep them safe. Damaged or lost evidence can severely weaken a case.

Show Evidence of Initial Complaint

In addition to the other documents, proof of your initial complaint or report (the “protected activity”) can go a long way in substantiating your reliability and sharpening your case. This information may include any written documentation, the name and title of the person you made the initial complaint to, and the names of anyone who witnessed the event.

Provide Witnesses

If there were any witnesses to the unlawful retaliatory actions you experienced, try to obtain their contact information (name, phone number, address, etc.), as they may be able to provide important testimony.

Prove Damages By Showing Losses

Arguably one of the most important steps you can take to prove unlawful whistleblower retaliation is by showing evidence of any losses you have suffered because of it.

Things like W-2 forms and pay stubs will show any financial fallout from the retaliatory action, but you can also include medical bills or other expenses that stemmed from the incident, including those incurred from the loss of any employee benefits (such as healthcare, pensions, etc.), if applicable.

Red Bank Whistleblower Lawyers at McOmber McOmber & Luber, P.C. Represent Victims of Retaliation in Whistleblower Cases

You have the right to report unsafe or illegal practices you witness in the workplace without fear of retaliation. Your employer cannot retaliate against you for reporting unlawful activity, and if they do, you should contact an experienced Red Bank whistleblower attorney at McOmber McOmber & Luber, P.C. immediately. We offer free consultations to clients throughout New Jersey and have convenient offices in Red Bank, Marlton, and Newark.

Under the New Jersey Law Against Discrimination (NJLAD) and other federal statutes, including the US Pregnancy Discrimination Act (PDA), an employer has a responsibility to prevent pregnancy discrimination and provide pregnant employees with reasonable accommodations, but what constitutes a “reasonable accommodation?”

With pregnancy discrimination being an unfortunate reality for countless women in the workplace, it’s important to know what your rights are and what you are entitled to, especially when it comes to reasonable accommodations.

What is a Reasonable Accommodation?

A reasonable accommodation is any adjustment made to a job, hiring process, or work environment that allows a qualified pregnant person (or person with a disability) to fulfill the essential functions of a given position.

Additionally, it is illegal for an employer to penalize an employee for requesting (or using) reasonable accommodations.

What Are Some Examples of Reasonable Accommodations?

As each person’s needs are different, there can be many different types of “reasonable” accommodations for pregnant employees. Some examples include:

  • Improving workplace accessibility
  • Providing additional equipment or products
  • Granting additional privacy when needed
  • Allowing for a flexible work schedule
  • Providing direct help when requested
  • Modifying a job’s tasks
  • Allowing for extra or additional breaks
  • Granting access to preferred parking
  • Providing specialized aid or services
  • Permitting service animals
  • Granting temporary change of position

Remember: individual needs will vary, so do not treat the above as a comprehensive list of reasonable accommodations. You should request whatever accommodations you think you need.

Asking For Reasonable Accommodation During Pregnancy

According to guidance issued by the Equal Employment Opportunity Commission (EEOC) regarding the terms of pregnancy discrimination law under the Americans with Disabilities Act (ADA) and Pregnancy Discrimination Act (PDA), employers are required to provide reasonable accommodations for pregnant employees just as they would with employees who are disabled.

In order for a pregnant individual to receive any accommodations, they must first make their employers (or HR department) aware of their pregnancy. Once your employer is informed of the situation, you may submit your request(s) for reasonable accommodations.

What Counts as a “Reasonable” Accommodation?

“Reasonable” accommodations are requests that do not threaten the safety of other employees, or inflict undue hardships. Requests that do not fulfill these requirements can be denied without legal consequence, as long as the employer can adequately demonstrate why providing such requests would be “unreasonable.”

Because of this, you may want to sit down with your employer and have an open discussion about your needs and requests, with the dialogue hopefully paving the way to an effective, mutual solution that satisfies both parties.

Additionally, be aware that management has the right to request additional documentation or a doctor’s note in regards to any pregnancy-related limitations and requests.

Contact An Experienced Pregnancy Discrimination Lawyer Today

There are laws in place at both a state and federal level to protect the rights of pregnant employees. If you have been denied reasonable accommodations during your pregnancy, or if you have experienced pregnancy discrimination in the workplace, we can help.

Contact McOmber McOmber & Luber to discuss your pregnancy discrimination case today. We offer free consultations to clients throughout New Jersey and have convenient offices in Red Bank, Marlton, and Newark.

When an employer violates the law, skirts the rules or fails to fulfill their legal obligations, employees who witness or experience this kind of conduct are faced with the choice of whether or not to report this type of unlawful behavior by acting as a whistleblower.

It’s natural for employees to feel uncomfortable or ill-at-ease about reporting any unlawful actions they may have witnessed, especially if they are concerned about facing workplace retaliation for doing so, but even for those who decide to press on, the very act of making such a report can feel just as daunting.

What Is A Whistleblower?

A “whistleblower” is someone (typically an employee) who witnesses an illegal action in their workplace (usually committed by an employer), and then reports it to the proper authorities through official channels.

Some of the occurrences that are commonly reported by whistleblowers are:

  • Broken laws
  • Violated regulations or rules
  • Financial lies or abuses
  • Dangers posed to the employees’ or public’s health and safety

These reports are usually considered “protected disclosures,” which means that the whistleblower who provided them is covered by protections offered through various whistleblower protection laws.

However, should an employer ignore these protections and choose to retaliate against a whistleblower, regardless, it is called whistleblower retaliation.

These types of retaliatory acts are called “adverse actions,” and can include:

  • Termination
  • Demotion
  • Denied benefits
  • Threats
  • Harassment
  • Reduced pay
  • Blacklisting
  • Intimidation

If a whistleblower has faced reprisals, such as those listed above, as a direct result of their initial report, they can then file a whistleblower retaliation complaint against the one(s) performing these unlawful actions.

What Is A Whistleblower Complaint?

A “whistleblower complaint” is a formally submitted complaint that either reports the alleged misconduct and/or unlawful actions of an individual, such as an employer, or details and reports retaliation made against the whistleblower via adverse actions.

According to OSHA, complaints, in general, must include at least one of the following four elements in order to proceed to the next step:

  • The employee engaged in activity protected by the whistleblower protection law(s) (such as reporting a violation of law.)
  • The employer knew about, or suspected, that the employee engaged in the protected activity.
  • The employer took an adverse action against the employee.
  • The employee’s protected activity motivated or contributed to the adverse action.

How Do I File A Whistleblower Complaint?

If you believe you may have a whistleblower case, your first priority should be reaching out to an experienced whistleblower attorney at McOmber McOmber & Luber. They will assess the details of the case, discuss the situation with you, and then help you decide what actions should be taken, if any.

Working with lawyers who are familiar with the ins-and-outs of the whistleblower laws in New York and New Jersey is absolutely essential, as they will guide and advise you throughout the entire process.

Will I Be Protected After Making A Whistleblower Complaint?

When a whistleblower makes a report about unlawful actions by their employer, it is considered “protected activity.”

In general, protected activity for whistleblowers typically consists of actions taken in opposition of a practice that is believed to be harmful or unlawful, such as telling an employer that their actions are discriminatory or dangerous. If any “adverse actions” are taken against you by an employer (such as termination or harassment) in response to your protected activities, you may have the right to legal action, and should consider making a retaliation complaint.

What Do I Need For My Whistleblower Complaint?

Like with personal injury cases, it’s important to keep a detailed, easily-accessible case file of any relevant documentation regarding your whistleblower report (and any retaliation faced because of it, if need be.)

Some documents to have when making a complaint include, but are not limited to:

  • Copies of relevant documents (emails, phone records, texts, etc.)
  • Employee Handbook
  • Lists of witnesses
  • List of involved employees/officials
  • Your last five paystubs
  • Documentation of complaints

None of the above items are required when making a whistleblower complaint, but they may be helpful for the investigators who will be working with you on the case.

Note: do not include witness names or their contact information when submitting a complaint, as it may cause them to be targeted by retaliation. This information can and will be provided later on during the investigation.

Where Are Whistleblower Complaints Filed?

There are multiple avenues in which a whistleblower complaint can be filed initially, and your lawyers will help you determine what avenue is best for you and your case, including (but not limited to):

CEPA

The New Jersey Conscientious Employee Protection Act (CEPA) is considered NJ’s “whistleblower act,” and protects employees who report illegal and/or fraudulent actions committed by employers in the state of New Jersey.

Note that for any violation which does not involve a danger to the workforce or public (unpaid wages vs. toxic products, for example), CEPA requires that such concerns are first brought to the attention of a supervisor. If that supervisor fails to take adequate action, the employee may then notify a relevant agency, and proceed from there.

OSHA

The Occupational Safety and Health Administration (OSHA) Whistleblower Protection Program “enforces protections for employees who suffer retaliation for engaging in protected activities under more than 20 federal laws.”

Reports can be made in any language, regardless of whether they are oral or written.

After a complaint is filed, OSHA will contact you to determine whether or not an investigation should be conducted. It is imperative that you respond to OSHA’s follow-up communication after you’ve made your report, as your complaint will be dismissed if you do not.

Additionally, a whistleblower complaint filed with OSHA cannot be filed anonymously. Should an investigation proceed, OSHA will notify the employer of the complaint, and provide the employer with an opportunity to respond.

DASHO or OSC

OSHA does not cover the complaints for federal employees, or any alleged retaliation taken against them.

Instead, federal employees who wish to “blow the whistle” on an issue within their government agency should contact their Designated Agency Safety and Health Officer (DASHO) or, if applicable, the Office of Special Counsel (OSC), which exclusively handles whistleblower complaints from those working specifically within the executive branch of the government.

An NJ Whistleblower Attorney From McOmber McOmber & Luber Can Help You

If you have reason to believe your employer has violated the law, have been the victim of retaliation for speaking up, or simply need help with making a whistleblower claim, McOmber McOmber & Luber can help you understand your rights and options. Our knowledgeable and experienced whistleblower attorneys will ensure that your legal rights are protected. Call or contact us today to schedule a free consultation. We have conveniently located offices in Red Bank, Marlton, and Newark, NJ.

Approximately a decade after its initial debut, the bipartisan Pregnant Workers Fairness Act is on the verge of becoming federal law.

It first made it through the House of Representatives in 2020, where it was passed by an impressive vote of 329-73, but failed to make headway in the Senate. Then, in 2021, a revamped version of the act made its way back to the House of Representatives, where it was successfully passed by yet another landslide vote of 315-101, further exemplifying the bill’s widespread support.

Now, in 2022, the Pregnant Workers Fairness Act faces off with the Senate once again, and lawmakers believe that this may finally be the year it becomes law.

According to Sen. Bob Casey, D-Pa., “this is a bill whose time has come, and we’re ready to get it done.”

What Is The Pregnant Workers Fairness Act?

First introduced in 2012, the “Pregnant Workers Fairness Act” (PWFA) was designed to ensure the proper treatment of pregnant job applicants and workers by prohibiting “employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions” by businesses with 15 or more employees.

As specified by the bill, “unlawful employment practices” are as follows:

  • Failing to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity’s business operation.
  • Requiring a qualified employee affected by such conditions to accept an accommodation other than any reasonable accommodation arrived at through an interactive process.
  • Denying employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee.
  • Requiring such employees to take paid or unpaid leave if another reasonable accommodation can be provided.
  • Taking adverse actions in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

In addition to ensuring reasonable accommodations and enforcing the above protections, the bill also serves another purpose: if passed, it will unify the standard for fighting pregnancy discrimination across the country.

While multiple states have passed versions of this bill or other, similarly focused legislature, these laws are a patchwork of inconsistencies and variations that lack overall cohesion or adherence to a universal standard. If PWFA is passed in the Senate, there will be a single, unifying standard for the protections and support offered to pregnant employees, and prospective pregnant employees, all across the country, regardless of what state they live in.

Find Experienced Pregnancy Discrimination Lawyers at McOmber McOmber & Luber

Pregnancy discrimination remains an ongoing problem, even in 2022.

If you have experienced pregnancy discrimination, or any other kind of employment discrimination, contact McOmber McOmber & Luber today. Our experienced discrimination lawyers will discuss the details of your case with you and fight for your rights.

With offices in Red Bank, Marlton, and Newark, New Jersey, we represent clients across the state. Contact McOmber McOmber & Luber to speak with one of our pregnancy discrimination lawyers today.

Generally, your employer cannot pay you less than minimum wage. However, there are some exceptions that you should be aware of to ensure your employer is paying you properly.

Exceptions

Employees who are exempt from the minimum wage rates include:

  • Full-time students
  • Outside salespersons
  • Motor Vehicle salespersons
  • Part-time child care employees who primarily work in the home of their employers
  • Minors under 18 unless they are working in hotels, restaurants, retail, laundry, cleaning, beauty, light manufacturing, farming, or apparel occupations
  • Individuals who work at summer camps, conferences, or retreats during June, July, August, and September which are organized by non-profit religious organizations or associations
  • Some workers with disabilities because some employers with approved certificates can pay a subminimum wage to those with a disability that diminishes their earning capacity

Additionally, Employers have an additional consideration if there business employs tipped employees. If the total earnings of the employee calculated by adding the hourly wage and tips earned is less than the minimum hourly wage, then the employer has to provide the necessary additional funds to equalize the employee’s pay so he or she makes the minimum wage per hour.

New Jersey Minimum Wage

Governor Phil Murphy established a minimum wage law for the state of New Jersey. The current rate as of January 1, 2022, is $13. The goal of the legislation is to establish a $15 minimum hourly pay by 2024. However, small businesses(those with fewer than six employees), seasonal businesses, and farm labor companies are subject to the increase at a slower rate.

Get Help If Your Employer Is Not Paying You Properly

If your employer is paying you less than minimum wage and is not subject to one of the exceptions above, you should contact an attorney to discuss what actions you can take. Our New Jersey Employment lawyers at McOmber McOmber & Luber, P.C.  can help ensure that you receive your proper payment. Call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 find out more.

It is no secret that the cost of living in New Jersey is among the highest in the nation. This reality is even more difficult for working parents raising young children and paying skyrocketing childcare costs.  

Recognizing this struggle and the ongoing financial challenges brought on by the pandemic, Governor Murphy signed legislation on Friday, December third, to help support working families and women who have been forced to leave the workforce in record numbers.   

How New Jersey’s Expanded Child and Dependent Care Tax Credit works:  

If your family income is less than $150,000/year, you can apply for an expanded tax credit for childcare expenses you incurred in 2021. This is more than double the previous income eligibility level that only applied to those making less than $60,000/year.   

The law also eliminates the $500 cap for employment-related expenses for one child and the $1,000 cap for employment-related expenses for two or more dependents. Since this new law is based off the federal law, the amount of the New Jersey credit is a percentage of your federal child and dependent care credit.  

Lastly, if your childcare expenses exceed your tax liability for fiscal year 2021, you will receive a refund for the remaining funds.   

Childcare and Working During the Pandemic

This new law is among several recent federal and state laws that have attempted to help working families during the pandemic who are struggling to pay for childcare. According to a Care.com national survey of 3,000 parents, 94% of parents said they had to cut back on childcare expenses by reducing their hours at work, changing jobs or leaving the workforce. 85% of the families said they are spending 10% or more of their household income on childcare. This large increase is due to the substantial health and safety measures that childcare centers had to employ as a result of the pandemic. 

We Are Here to Help

The pandemic has been tough on working families and especially women who have been forced to leave the workforce in record numbers. McOmber McOmber & Luber, P.C. supports working families and our experienced employment lawyers are here to make sure you receive the salary and benefits you deserve. To find out more, you can contact us at our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our office in Newark, New Jersey at 973-878-9040. 

It is common knowledge that wearing a mask helps stop the spread of COVID-19. But what if your job requires you to come into close contact with people who cannot wear a mask?  That is the scary reality for many of those working in the dental industry. 

If you are a dental healthcare professional (DHCP) such as a dental assistant or hygienist, you are accustomed to being on the receiving end of a patient’s aerosols. Prior to COVID-19, a simple face shield would have been all the protection you needed. However, in the age of COVID-19, dental offices must adhere to strict safety protocols. McOmber McOmber & Luber, P.C. is following this closely and has the latest information on what steps dental offices should be taking to protect you in the workplace. 

Personal Protective Equipment (PPE) 

The Occupational Safety and Health Administration (OSHA) requires your employer to provide you with appropriate PPE. 29 CFR 1910 Subpart I. Your employer must provide training on when to use PPE, what PPE is necessary, how to properly use PPE, and how to properly dispose, disinfect or maintain PPE. 

Masks, Eye Protection and Gowns 

If you work in a community where there is minimal transmission, the Centers for Disease Control and Prevention ( CDC) recommends a surgical mask, eye protection such as goggles or a face shield, a gown and gloves during procedures where there will be splashes or sprays.  

If you are in in a community with moderate or substantial transmission rates, CDC recommends you wear this PPE at all times. If you are working on someone that will cause splashes and sprays, CDC recommends that you wear a N95 respirator or a respirator with a higher protection level. Respirators should be fit-tested, and staff needs to be trained on proper use. 29 CFR 1910.134.   

Screening Dental Employees for COVID-19 

Your employer should be conducting health screenings and monitoring employees on a daily basis. This includes temperature checks and asking about COVID-19 symptoms. If DHCP are ill, your employer should remind them to stay home and they should not be penalized for doing so. Sick leave policies should be flexible, non-punitive and consistent with public health guidance.   

Return to Work 

If I Was Exposed to COVID-19, What Should I Do? 

Your course of action depends on whether or not you are vaccinated, the level of community transmission at the time of your exposure and if you are immunocompromised. Generally, if you are fully vaccinated and you are not showing any COVID symptoms, you do not need to quarantine or be excluded from work. However, the New Jersey Department of Health (NJDOH) recommends you get tested and continue to monitor for COVID symptoms for 14 days following exposure. 

If you are NOT vaccinated and you have been exposed, the NJDOH recommends that you be excluded from work for 14 days from the date of last contact. If this is the case, you should inquire about earned sick leave, workers’ compensation, and temporary disability insurance. 

If you are a DHCP and have a suspected or confirmed case of COVID-19 with mild to moderate illness, you can return to work when it is within 10 days since your symptoms first appeared, at least 24 hours have passed since your last fever, and your symptoms have improved.  

Protecting Staff by Limiting Procedures and Visitors 

Dental healthcare providers require close physical contact with patients. It is the nature of the job. Nevertheless, your employer can take steps to minimize your exposure. For example, physical distancing is important to minimize risk. This can be achieved by limiting the number of people in the waiting rooms and arranging seating 6 feet apart, reducing the number of dental appointments per day, limiting visitors to the dental facility and implementing telemedicine calls when possible. Your employer should also consider a 15-minute interval between patients so that there is time for aerosols to settle and be cleaned from surfaces. www.cdc.gov. 

Reporting Your Employer and Retaliation  

If you believe your employer is not following proper safety measures, you can file a complaint with the New Jersey Department of Labor and Workforce Development (DOLW) and OSHA. The State has also set up a COVID-19 Information Hub that allows you to file a complaint for COVID-19 violations. You can find that form here. 

Your employer cannot retaliate against you for filing a complaint pursuant to the New Jersey’s Conscientious Employee Protection Act (CEPA) as well as other state and federal laws.  

Dental hygienists and assistants are at great risk for contracting COVID-19 because they are in close contact with many patients every day. That is why it is so important that employers follow state and federal safety requirements meant to protect you in the workplace. If you are concerned that your employer is not doing enough to keep you safe and/or you have expressed your concerns and fear retaliation, McOmber McOmber & Luber P.C. has experienced lawyers to help you. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800 or our Newark, New Jersey office at 973-787-9040 to find out more.  

On October 18, 2021, the Division on Civil Rights in New Jersey adopted amendments to the New Jersey Family Leave Act (NJFLA). These amendments expand protections for family leave related to COVID-19. Acting Attorney General Andrew Bruck emphasizes that this expansion will help families in light of the COVID-19 pandemic. These amendments offer New Jersey workers more qualifying reasons to take leave.

New Family Leave Provisions

The new rules reflect that the NJFLA allows eligible employees of covered employers to take as many as 12 weeks of job-protected leave during a 24-month period in order to care for and/or bond with a new child or to care for a family member or someone who is equivalent to family with a serious health condition. This new rule also expands the definition of “covered employees” to workplaces with 30 employees or more worldwide.

Further, the updated rules state that “parent” and “child” include parent-child relationships within LGBTQ families. Additionally, employees no longer have to give notice 30 days before taking leave in some situations. This new allowance includes employees who need leave to care for a family member during the pandemic.

Finally, furloughed employees are “eligible employees” under paid leave if the employer slowed business operations in response to COVID-19. The new rules also empower employees to take leave by protecting their positions. Generally, employees can return to the same positions they held prior to taking leave.

Get Legal Assistance

If you believe you fall under the expansion of the New Jersey Family Leave Act and need assistance understanding your rights or bringing a claim, we can help. For further assistance, please contact our Red Bank, New Jersey, office at (732) 842-6500, or our Marlton, New Jersey, office at (856) 985-9800, or our Newark, New Jersey office at (973) 787-9040.

With the summer winding down, you may be thinking of taking those last few vacation days before the hustle and bustle of fall. Whether you are entitled to this time or whether your boss can force you to work on your days off, here is what you need to know.  

Employees are not entitled to vacation days 

If you work for a private employer, New Jersey does not require them to provide paid or unpaid vacation days. Most vacation days are provided for in employment agreements, collective bargaining agreements (CBA) or as a policy in employee handbooks. According to the New Jersey Department of Labor (NJDOL), if an employer chooses to offer vacation days, they must be administered “uniformly” in accordance with their established policy or employment agreement.  

What to do if your employer refuses to approve vacation days or has rescinded them 

First, check your employee handbook, employment contract, or CBA to understand your employer’s procedures and policies for receiving vacation time. If your employer offers this time off and is in violation of its policy, you may want to talk to your human relations department or a private attorney because they may be in breach of contract. Likewise, if your employer has rescinded your pre-approved vacation days, and you feel they are discriminating or retaliating against you, they may be in violation of state or federal law.   

Can my employer call me during vacation or ask me to do work on my days off? 

Hopefully, your vacation is free from interruption, and you are able to enjoy your time off. However, this is not always the case. If you are an hourly, non-exempt employee and your employer does contact you during your time off, your employer will likely be required to pay you for the time you spend working. An hourly, non-exempt employee is someone who is paid an hourly wage and is entitled to minimum wage and overtime for working over 40 hours per week.  

Can I be disciplined or terminated if I refuse to be available while on vacation? 

Again, you need to review your company’s policies and procedures. If you believe you are being singled out or treated unfairly compared to other employees who take vacation days, your employer may be in breach of contract or in violation of federal or state law. If you believe this to be the case, McOmber McOmber & Luber, P.C. has experienced wage and hour lawyers here to help you. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 to find out more.

As COVID-19 cases continue to plague the country, businesses, employers, and other institutions are beginning to ask individuals about their vaccination status. In some cases, they are requiring proof of their status. If you are wondering if this is legal, McOmber McOmber & Luber, P.C. has some answers. 

The HIPAA law 

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law. It protects a person’s health information from being shared without their knowledge or consent.   

HIPAA is very limited in scope. It only applies to specific health-related covered agencies, such as health care providers, health care plans, and health care clearing houses. Therefore, employers, restaurants, theaters, airlines, or stores are not part of HIPAA’s covered agencies. Consequently, if one of these groups asks you if you are vaccinated or for proof of vaccination, they are not in violation of HIPAA. You can choose to give them that information or not.   

However, if your doctor gives your vaccination status to another entity without your authorization, they are in violation of HIPAA. Again, HIPAA applies only to health care providers and those involved in maintaining your health records.  

If you believe your health care providers are not protecting your confidential medical information, you can file a complaint with the Office of Civil Rights within the U.S. Department of Health and Human Services. 

Employers 

Employers are not a covered entity under the HIPAA law. Because of this, they can ask about or require proof of your vaccination status. Once an employer receives such information, they are required to keep it confidential. See guidance from the U.S. Equal Employment Opportunity Commission (EEOC). 

If you believe that your employer has failed to keep your vaccine status confidential or to protect your medical information, they may be in violation of federal or state law. McOmber McOmber & Luber, P.C. has experienced lawyers to help you. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800., or our Newark, New Jersey office at 973-878-9040.

After months of a steady decline in COVID-19 cases and deaths throughout the country, we are sadly starting to see numbers rise again. Experts believe this uptick is due to the slowing of vaccination rates and the more contagious Delta variant making its way through the population.    

Many employers want too help reduce this spread and allow employees to return to their offices. As a result, many are considering requiring their employees to be vaccinated as a condition of employment. Employers including Facebook, Google, Netflix and Morgan Stanley, as well as some public institutions, have started to require vaccinations.  

Vaccine Mandates in New Jersey

One of New Jersey’s largest health care employers, The Robert Wood Johnson Barnabas Health system (RWJB), was one of the state’s first employers to require vaccinations.  As of their June 30th deadline, only six employees failed to get vaccinated. Because of this, RWJB terminated them.  

Most recently, Governor Phil Murphy announced he is requiring workers in certain state and private health care facilities and high risk congregate settings to be vaccinated. By September 7, 2021, workers must be vaccinated or be subject to regular COVID-19 testing.   

The main reason for the push toward mandatory vaccinations is that they are so effective at reducing COVID-19 illness and death. New Jersey, which has one of the highest vaccination rates in the country, is a prime example of this success. Since July 19, only .001 % of those who were fully vaccinated have died due to COVID-19.   

Do you work in New Jersey and are wondering what this means for you? If so, McOmber McOmber & Luber, P.C. has answers to some of your common questions. 

Can My Employer Require Me to Get the COVID-19 Vaccine? 

Yes. The U.S. Equal Employment Opportunity Commission (EEOC) recently stated that employers can require vaccinations as long as they comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII)  and other EEOC laws. Likewise, New Jersey’s Department of Law and Public Safety has stated that mandatory vaccines are legal as long as they comply with the New Jersey Law Against Discrimination (LAD). 

However, if an employee falls within the following categories, they may be exempt from an employer’s mandatory vaccination policy:

  1. The employee has a disability precluding them from getting the vaccine;
  2. The employee is pregnant or breastfeeding and their doctor advised them not to get the vaccine; or
  3. The employee has a sincerely held religious belief, practice or observance against vaccination.  

Disability Exception 

Some employees have serious medical conditions which qualify as disabilities and cannot receive the COVID-19 vaccine. In this case, an employer may have to provide a reasonable accommodation. This is to allow the employee to continue to work in the workplace without compromising their health and the safety of others.  

To comply with the ADA and LAD, an employer can ask the employee for medical documentation and make limited inquiries. In turn, they must make sure to keep this information confidential and separate from employment records.   

Pregnancy or Breastfeeding Exception 

According to the U.S. Centers for Disease Control and Prevention (CDC), pregnant and recently pregnant people are more likely to get severely ill with COVID-19 compared with non-pregnant people. The CDC has also concluded that the COVID-19 vaccine does not hurt lactating mothers or their breastfed babies. Therefore, the CDC recommends the COVID-19 vaccine for pregnant and breastfeeding mothers as well as consulting with one’s healthcare provider to discuss any concerns. 

An employee may inform their employer that their doctor has advised them against getting the vaccine while they are pregnant or breastfeeding. Consequently, the parties should begin the interactive process of discussing possible reasonable accommodations. Again, employers are allowed to request medical documentation, but they must keep this information confidential.   

Religious Belief Exception 

An individual’s religious beliefs may also provide an exemption to an employer’s mandatory vaccination policy. Pursuant to Title VII of the Civil Rights Act of 1964 and the LAD, employers cannot discriminate against employees based on their religion and must accommodate religious observances and practices absent undue hardship. N.J.S.A. § 10:15-12(a). When making this determination, a court must distinguish between protected religious observances and mere desires or preferences. Fallon v. Mercy Catholic Med. Ctr., 877 F.3d 487 (3d. Cir. 2017).   

If you have a sincerely held religious belief that prevents you from taking the vaccine, your employer may make a limited inquiry. They may look into the facts and circumstances supporting your request.   

Requesting an Accommodation and the Interactive Process  

If you believe you are unable to take the vaccine due to disability, pregnancy, breastfeeding, or on religious grounds, you need to raise your concerns with your employer. This is an interactive process whereby you and your employer discuss “reasonable accommodations.” Examples include requiring the employee to wear a mask, work a staggered shift, reassigning the employee to a position in a different workspace, or permitting an employee to work from home.  

While the accommodation is meant to keep you and others safe, it cannot impose an “undue burden” on the employer’s operations.   

If a reasonable accommodation is not possible, then the employer can enforce its policy of excluding unvaccinated employees from the workplace. However, this does not mean that an employer can automatically terminate the employee. According to EEOC guidance and the New Jersey LAD, this may violate other laws, regulations, or policies.  

Managers and supervisors are prohibited from retaliating against employees who request an accommodation.   

Can I Be Terminated if I Do Not Comply with My Employer’s Mandatory Vaccination Policy? 

Maybe.  If your employer requires you to get a COVID-19 vaccine as a condition of employment and you do not have a valid exemption, an employer may be able to terminate you. However, an employer cannot terminate an employee in violation of federal or state discrimination laws such as Title VII and the LAD. Likewise, there could be complications if an employee has an employment contract or is working under a collective bargaining agreement. Employers should be careful not to violate the terms of those agreements. 

Get Legal Assistance

COVID-19 cases are once again on the rise, but with more people getting the COVID-19 vaccine, this trend can be reversed. McOmber McOmber & Luber P.C. is following the latest developments and is here to guide you through these uncertain times. If you have questions or concerns about how your employer is keeping you safe in the workplace, we can help. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 to find out more.

National Whistleblower Day occurs on July 30 to commemorate the passing of the first whistleblower law on July 30, 1778. The Continental Congress passed the first law after ten navy members reported their Continental Navy Superior Officer’s wrongdoing. However, this day also recognizes all of the whistleblowers who took action after that day.

Whistleblowing is an important component of employment law because it helps protect employees from discrimination and poor working conditions. Further, a whistleblower receives legal protections for bringing these injustices to light. This holiday aims to commemorate the brave actions of whistleblowers who bring the injustice of employers to light. But also this day offers the opportunity to change the narrative around whistleblowing. This day celebrates the employees who challenged employer wrongdoing and highlights the benefits of whistleblowing for employees. Additionally, by choosing to celebrate this occasion, it sends the message that the culture of retaliation around whistleblowers needs to change.

Join the National Whistleblower Center as they celebrate this event with an all-day virtual event. Further, if you raised awareness of an issue with your employer and faced retaliation in the form of termination, demotion, or harassment you can pursue legal action.

If you are a whistleblower and need assistance after raising awareness about wrongdoing, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 to find out more.

Having a new child through adoption, childbirth, foster care, or surrogacy is an exciting time for a new parent. However, there is a lack of support for parental leave in the United States. The only federal legislation requiring employers to provide leave to care for a newborn or newly adopted child is the Family and Medical Leave Act (FMLA). However, this legislation does not protect all new parents and only entitles those protected to unpaid leave.

The FMLA applies to employees at public agencies, public and private elementary and secondary schools, and companies with 50 or more employees. However, the employee is only eligible for leave if he or she meets certain conditions. The employee must work for their employer for 12 months or 1,250 hours over the last 12 months. Additionally, the employee must work at a location with 50 or more employees within 75 miles. While these restrictions limit who has access to parental leave, it does provide leave for a variety of parents. It protects mothers and fathers of newborn children, mothers and fathers of newly adopted children, and new foster parents. Additionally, surrogates and newly intended parents qualify for FMLA leave as well.

Therefore, the lack of paid parental leave protection makes individuals dependent upon their employer’s parental leave policy. However, there is a cultural shift underway demanding paid parental leave. States, such as New Jersey, California, Rhode Island, New York, and Washington as well as Washington D.C. currently have paid parental leave programs.

New Jersey Paid Family Leave

New Jersey Family Leave Insurance provides New Jersey workers cash benefits for time off to bond with their newborn child. This includes fathers, partners, and mothers of adoptive, foster, and biological children. The State’s family leave program covers most New Jersey workers. But some employers provide Family Leave Insurance through private insurance carriers. To qualify for Family Leave Insurance employees must pay into the program throughout employment and meet minimum gross earnings requirements. However, federal employees, out-of-state employees, and contractors are not covered by the program.

Due to the lack of federal legislation, a parent’s leave can be dependent on the individual employer or state legislation. This can create a confusing and inconsistent system for new parents to navigate while trying to maintain their employment and adjusting to their new family responsibility.

If you feel that you were wrongly denied parental leave or need help understanding your parental leave protections, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 to find out more.

The Equal Employment Opportunity Commission (“EEOC”) does not permit retaliation from employers. Therefore, the EEOC protects employees and applicants from facing negative consequences for reporting harassment or discrimination. This EEOC protection extends to reporting a coworker for harassment or discriminatory behavior.

What is Retaliation?

Retaliation occurs when an employer or manager takes a materially adverse action against an employee after the employee takes a protected action in the face of discrimination or harassment. This discrimination or harassment can be from a coworker, the employer, a manager, or a customer.

What Types of Activities are Retaliation?

Retaliation includes firing, demoting, or harassing an individual who takes a protected action. However, there are other activities that could be considered based on the context of an individual’s case. Therefore, the following situations could also be considered retaliation if taken after an employee takes a protected action:

  • Transferring an employee to a less desirable position
  • Increasing scrutiny of the employee
  • Giving a performance evaluation that is lower than it should be
  • Reprimanding the employee
  • Threatening to make or actually making reports to the police or other authorities
  • Making the person’s work more difficult such as by changing an employee’s work schedule to conflict with known responsibilities.

What Types of Activities are Protected from Retaliation?

Generally, protection extends to participating in an EEOC process or reasonably opposing unlawful conduct. But protected action can take many different forms. Consequently, it is also unlawful for an employer to retaliate against an employee for taking one of the following actions:

  • Filing an EEOC charge, complaint, investigation, or lawsuit
  • Participating as a witness in an EEOC charge, complain, investigation, or lawsuit
  • Communicating with a supervisor or manager about discrimination or harassment
  • Refusing to follow orders that would cause discrimination
  • Requesting accommodations for a disability or religious belief
  • Rebuffing sexual advances or intervening to protect others
  • Asking managers or coworkers about salary information

Therefore, while all of these activities can be considered protected actions the context of a situation may allow for other activities to be included under the protected umbrella as well.

How Can Companies Help Prevent Retaliation After Reporting Coworkers?

The EEOC emphasizes that employers must consider the psychological and organizational characteristics that can contribute to the likelihood of retaliation. Additionally, the EEOC finds that factors such as a manager’s psychological traits, perceptions of the organization’s culture, and organizational opportunities can determine the likelihood of retaliation. Psychological factors that may indicate a likelihood of retaliation include the severity of the accusation, the impact of the accusation on an individual’s other work relationships, and the ability of the accusation to harm employability. However, organizational structures also must be considered. The EEOC indicates structures that lack administrative policies discouraging retaliation, authoritarian management culture, excessively hierarchical organizations, reward systems that promote competition, and the capacity to isolate the accuser are more likely to have retaliation issues.

How Can an Individual Prove a Retaliation Claim?

To prove an employee took a materially adverse action and thus retaliated because of a protected action an employee must show three things. Initially, the employee must show he or she engaged in a prior protected activity. Subsequently, the employee must show that the employer took a materially adverse action. Finally, the employee must show that retaliation caused the employer’s activity.

If you think you faced retaliation after reporting a coworker’s harassing or discriminatory actions, we can help. Further, we have extensive experience handling retaliation and whistleblower claims. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 to find out more.

The Equal Employment Opportunity Commission (“EEOC”) seemingly says no, employers cannot rescind job offers due to sudden disability.

The EEOC filed a suit in New Jersey’s Federal Court in February challenging Saint Clare Hospital’s decision to rescind Taylor McKay’s offer of employment. Saint Clare’s rescinded McKay’s offer after she suffered from a sudden disability. McKay informed Human Resources five days before her start date that she suffered from preeclampsia and her labor was induced. Preeclampsia is a pregnancy condition affecting which causes high blood pressure thus increasing the risk to internal organs. McKay asked for a reasonable accommodation to delay her start date by several weeks. However, Human Resources called to inform McKay that Saint Clare’s revoked her offer of employment.

The EEOC challenges that St. Clare’s violated the Americans with Disabilities Act (“ADA”). This matter is still before the court and not yet resolved. However, the choice of the EEOC to bring the suit forward indicates the Agency’s support for employees.

How did this violate the ADA?

The ADA which protects an employee who has a disability and is qualified to do the job. The decision to rescind McKay’s offer violated the ADA for two reasons. First, Saint Clare’s took action based on McKay’s disability. Second, the employer failed to engage with McKay to provide a reasonable accommodation. Both of these actions violate the ADA because an employer cannot act on basis of a disability and is required to provide a reasonable accommodation unless there is an undue hardship.

What does reasonable accommodation require?

A reasonable accommodation is any adjustment to a work environment or job that allows an individual with a disability to perform the essential functions of the job. This can include modified work schedules, reassignment to vacant positions, or adjustments to training materials. Employers are required to provide reasonable accommodations unless providing the accommodation causes an undue hardship. An undue hardship occurs when providing the accommodation would be significantly difficult or expensive.

Further, the employer is not required to provide the accommodation requested by the employee. However, even if a specific accommodation causes an undue hardship that does not mean the employer is off the hook. The employer is still responsible for providing another reasonable accommodation if possible.

The EEOC argues that Saint Clare’s failed to adequately engage in the reasonable accommodation process. This is because the hospital chose to rescind the offer instead of working with McKay to provide a reasonable accommodation. Even if the delayed start date presented an undue hardship, the failure to discuss other reasonable accommodations presents grounds for an ADA violation.

Does the ADA cover pregnancy as a condition?

No, pregnancy alone does not activate the ADA protections. But when other complications arise such as preeclampsia or gestational diabetes then the pregnant individual falls within the ADA. This entitles the individual to all of the protections including a duty of reasonable accommodation. The EEOC indicates that Human Resource’s failure to consider McKay’s delayed start date and decision to rescind her offer violated the ADA’s process.

If an employer rescinded your job offer when you experienced a disability, we can help. At McOmber McOmber & Luber, we take a proactive approach to each and every legal issue our clients face. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 to find out more.

There is nothing more exciting and hopeful than bringing a new baby into the world. However, sometimes these feelings of unconditional love and joy can be overshadowed by worries over finances and job security. If you just had a baby and are concerned about losing wages while on maternity or paternity leave, here is what you need to know.   

Does New Jersey Have Paid Maternity Leave? 

Yes. New Jersey’s Family Leave Insurance program (NJFLI) provides New Jersey workers 12 weeks of partially paid monetary benefits to bond with your newborn, adopted or foster child. Spouses who work in New Jersey and take paternity leave, can also receive benefits. 

To qualify for family leave, you must have worked 20 weeks earning at least $200 a week or have earned a combined total of $11,000 in four quarters (the base year). The base year is 52 weeks and is determined by the date you apply for NJFLI. To determine if you meet the minimum earnings requirements, go to www.myleavebenefits.nj.gov. 

Under New Jersey law, if your employer offers its own paid leave plan, the benefits must be equal to or better than the state plan. You are not allowed to collect maternity/paternity leave benefits from both your employer and the state. 

Certain classes of employees are ineligible for benefits. This includes federal government employees, out of state employees or workers that are not technically employees, such as contractors.  

How Much Will I Receive on Maternity/Paternity Leave? 

New Jersey’s Department of Labor and Workplace Development is responsible for calculating your payments during your leave. Generally, you are paid 85% of your average weekly wages. For 2021, the maximum weekly benefit rate is $903 per week.   

Can I Receive Benefits If I Took Leave Before I Had My Baby?  

If you had to miss work before you gave birth due to a pregnancy complication, you may be eligible to receive payments through New Jersey’s Temporary Disability Insurance (TDI) program. To receive TDI payments, your healthcare provider must certify you were unable to do your job due to medical complications.   

TDI benefits are usually payable up to four weeks before the expected due date and an additional six weeks afterward (or 8 weeks in the case of a c-section). You can receive TDI over a longer period if you suffer from pregnancy or post-partum complications. Your medical provider must certify that your disabling postpartum complications are keeping you from returning to work. 

Although you might qualify for both NJFLI and TDI, you cannot collect benefits from both programs simultaneously. So, if you suffered pregnancy complications that continued after you gave birth, but you maxed out your TDI payments, you may still be eligible to receive FLI benefits.    

Can My Employer Terminate Me While I am Out on Maternity Leave? 

No. The New Jersey Family Leave Act (NJFLA) requires all large companies (those with 30 or more employees) to provide employees with 12 weeks of job protected leave during any 24-month period. This protected leave is available to employees who were employees for at least a year. The leave can be for bonding with a newborn, adopted or foster care child. It can also be to provide care for a seriously ill or injured loved one. Prior to taking the leave, you need to provide notice to your employer which varies based on the reason. For a newborn, adopted, or foster care child, you need to give your employer at least 30 days’ notice.   

While you are out on leave, you are entitled to receive your employer’s health insurance benefits. You cannot collect unemployment insurance or workers compensations benefits.  

When you return to work, your employer is required to return you to the same position that you had prior to your leave. In addition, your employer is prohibited from retaliating against you for taking the leave. 

Do you believe you have been denied wages while out on maternity leave or you have been retaliated against for taking leave? Your employer may be violating state and/or federal law. McOmber McOmber & Luber, P.C. has experienced lawyers who handle these cases and is happy to help you. Please call our office in Red Bank, New Jersey at 732-842-6500, our Marlton, New Jersey office at 856-985-9800, or our Newark, New Jersey office at 973-787-9040 to find out more.

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