LABOR & EMPLOYMENT LAW SUMMER INSTITUTE

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1 c LABOR & EMPLOYMENT LAW SUMMER INSTITUTE Moderators Arnold Shep Cohen, Esq. Oxfeld Cohen, P.C. (Newark) Gail Oxfeld Kanef, Esq. Oxfeld Cohen, P.C. (Newark) Speakers Robert E. Andrews, Esq. Dilworth Paxson, LLP (Philadelphia, PA; Washington, D.C.) Michael O B. Boldt, Esq. McElroy Deutsch Mulvaney & Carpenter, LLP (Morristown) Christopher J. Capone, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Morristown) Domenick Carmagnola, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Carmagnola & Ritardi, LLC (Morristown) Brian E. Curtis, Esq. Becker Meisel LLC (Livingston, Shrewsbury, Cherry Hill) Joseph Fine, Esq. Livingston, DiMarzio & Baptista (Nutley) Jon W. Green, Esq. Certified by the Supreme Court of New Jersey as a Civil Trial Attorney Green, Savits & Lenzo, LLC (Morristown) Melissa Anne Herbert, Esq. Nukk-Freeman & Cerra, P.C. (Chatham) Kathleen L. Kirvan, Esq. Selikoff & Cohen, P.A. (Mt. Laurel) John L. Shahdanian, II, Esq. Chasan, Leyner & Lamparello, P.C. (Secaucus) Stephen E. Trimboli, Esq. Trimboli & Prusinowski, L.L.C. (Morristown; New York City) Keith Waldman, Esq. Selikoff & Cohen, P.A. (Mt. Laurel) Leonard J. Witman, Esq. Witman Stadtmauer, P.A. (Florham Park) Arsen S. Zartarian, Esq. Newark Public Schools (Newark) In cooperation with the New Jersey State Bar Association Labor & Employment Law Section S

2 2015 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to NJICLE, a Division of the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey

3 Table of Contents Page Employment at Will Domenick Carmagnola, Esq. 1 Employment-at-Will 1 At-Will Employment Defined 1 Historical Development of the At-Will Doctrine 1 Exceptions to the Employment at Will Doctrine 2 Contracts 2 Collective Bargaining Agreements 2 Implied Contracts / Handbooks 2 Public Policy Exceptions Pierce v. Ortho Pharmaceutical 4 Common Law Causes of Action 6 Negligent Hiring / Retention 6 Misrepresentation / Fraud 6 Breach of Contract 6 Breach of the Implied Covenant of Good Faith and Fair Dealing 6 Sexual Harassment 7 Failure to Have Proper Policies 7 Interference With Contract 7 Interference With Prospective Economic Advantage 7 Infliction of Emotional Distress 7 Invasion of Privacy 7 Defamation 7 Retaliation 7 Affordable Care Act Frequently Asked Questions Actions and Answers Congressman Robert E. Andrews (Ret.) 9 Section 1 For Business Owners 9 Section 2 For Individuals Regarding Purchase of Insurance and the Individual Mandate 15 Private Resolution of Labor and Employment Disputes, Negotiation and Arbitration Arnold Shep Cohen, Esq. 23 National Labor Relations Act Rights of Employees 23 The Legal Status of Negotiations: Private Sector 26 The Legal Status of Negotiations; Public Sector 34 Duty of Fair Representation 37 The Legal Status of Arbitration; Private Sector 37 Progressive Discipline 39 The Legal Status of Arbitration; Public Sector 41 Public Policy 41 Statutory Claims 42 Arbitration for Non-Union Employees and Employment Agreements 43

4 Employment Discrimination PowerPoint Presentation Jon W. Green 53 Protected Characteristics Hostile Work Environment Claims Under the NJLAD and Title VII PowerPoint Presentation Christopher J. Capone 83 Practice Before the Public Employment Relations Commission PowerPoint Presentation Stephen E. Trimboli, Esq. 105 N.J.A.C. 1:1-8.1 et seq. 129 Sample Prehearing Order 153 Federal Regulation of Employee Benefits Leonard J. Witman, Esq. 157 Detailed Table of Contents [page numbers at bottom] 158 Statutory Entitlements (FMLA, NJFLA, TDI, NJFLIA, UI and WC) Keith Waldman Kathleen L. Kirvan 189 Statutory Family and Medical Leaves: The FMLA and the NJFLA 189 Introduction 189 Coverage 190 General Leave Requirements 191 Forms of Leave 193 Compensation During Leave 196 Employment and Benefits Protection 197 Medical Certifications 200 Notice Requirements of Employees 203 Notice Requirements of Employer 204 Recordkeeping Requirements 205 Coordination of FMLA and NJFLA Leave 206 Stacking of FMLA and NJFLA Leaves and Other Types of Leave 206 FMLA Military Family Leave Entitlements 207 Department of Labor Generated Forms for FMLA 209 TDI (Temporary Disability Insurance) 210 Coverage 210 Private Plans 210 Employee and Employer Costs State Plan 211 Eligibility for Benefits 211 Disqualification from Benefits 212 Benefits 212 New Jersey Family Leave Insurance Act 213 Who is Covered by the NJFLIA? 213

5 Funding 213 Benefits 214 Definitions 215 Documentation Requirement 215 Employer Obligations 215 Employee Obligations 216 Return to Work Rights 216 Denial of Benefits 217 Interaction With FMLA and NJFLA 217 Interaction With Other Types of Employee Leave 217 Limitation on Benefits 218 Unemployment Compensation 219 Employers Covered 219 Individuals Covered 219 Eligibility for Benefits 220 Disqualification from Benefits 220 Benefits 222 Multiple Employer Claims 223 Employer Pre-Claim Reporting Obligations 223 Workers Compensation 225 Employers Covered 225 Employment Covered 225 Individuals Covered 225 Injuries and Illnesses Covered 225 Benefits 227 Procedures Covering Job-Related Injuries 228 Lawsuits Resulting from Injuries to Employees 229 Confidentiality and Non-Competition Agreements Melissa Anne Herbert, Esq. 231 Introduction 233 General Rules Relating to Restrictive Covenants 233 The Reasonableness Test 233 Is the Restrictive Covenant Necessary to Protect the Employer s Legitimate Interests? 234 Does the Restrictive Covenant Unreasonably Burden the Employee? 237 Is the Restrictive Covenant Harmful to the Public? 237 Is the Covenant Reasonable in Duration and/or Geographic Scope? 238 Is There Adequate Consideration? 239 Enforcement Strategies 240 Actions for Injunctive Relief 240 Partial Enforcement a/k/a Blue Pencil Doctrine 242 Potential Economic Damages 242 Equitable Defenses 244 Criminal Prosecution 244 Common Law Protections of Confidential Information in the Absence of a Restrictive Covenant 245 Drafting Considerations for Restrictive Covenants 245

6 Do Your Homework 245 Items to Consider Including in the Restrictive Covenant 246 About the Panelists 249

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