According to Reuters, the NJ Supreme Court voted 6-0 that the state’s Law Against Discrimination’s provision that prohibits discrimination based upon marital status also includes divorce, separation, and even being single. If the employee’s or prospective employee’s marital status has no bearing on job performance or on the environment of the workplace, then it should not be a factor in being hired nor in advancing to a higher position. The employer’s approval, disapproval, or concern regarding the worker’s marital status should not be a factor.

Smith v. Millville Rescue Squad et al

The case on which this decision was based was Smith v. Millville Rescue Squad et al. Robert Smith, a certified emergency medical technician (EMT), was employed by the Millville Rescue Squad, which is a private provider of medical transportation services in South Jersey. Smith’s wife was also an employee of the squad.

In 2006 after having an affair with a volunteer worker, Smith told his supervisor, John Redden, that his marriage was falling apart. Redden thought that an “ugly divorce” was sure to occur.

After 17 years of employment with the Millville Rescue Squad, the board fired him. They gave “poor performance” and restructuring as the as the reason for his dismissal.

Robert Smith filed a lawsuit against the Millville Rescue Squad, but the trial judge dismissed the case. Smith took the case to the New Jersey Supreme Court.

On June 21, 2016, the Supreme Court ruled that it was reasonable to assume that “discriminatory animus” was a factor in the decision to fire Smith. Judge Mary Catherine Cuff wrote the following for the Court: “An employer may not assume based on invidious stereotypes, that an employee will be disruptive or ineffective because of life decisions such as marriage or divorce.”

The Supreme Court sent Smith’s case back to the trial court.

This ruling reinforces the concept that an employer’s personal feelings about marriage, divorce, and separation should have no bearing on decisions to hire, promote, or fire and individual when that marital status does not affect performance.

The federal Family and Medical Leave Act (FMLA) grants eligible employees of covered employers the right to take up to 12 weeks of job-protected, unpaid leave in a year to care for a newborn and up to 26 weeks to care for a seriously ill family member; however, there are two problems in that statement: “eligible” and “unpaid.” Many employers are not covered by the act, and less than half of the nation’s workers are eligible. What’s more, many employees who do qualify for the unpaid leave cannot afford to take off from work without getting paid.

In April 2016 New York State made the news by becoming the fourth state to offer paid family leave. The other three, in chronological order, are California, New Jersey, and Rhode Island. All four states built their programs on Temporary Disability Insurance (TDI) programs already in place.

The New Jersey Family Leave Act

Did you know that New Jersey has a law that offers paid family leave? If you said, “No,” you are not alone. The New Jersey Family Leave Act, which passed in 2008 and went into effect in 2009, provides paid benefits when it becomes necessary to take leave; however, many workers do not even know that the law exists.

Conditions That Must Be Met

Certain criteria must be met in order for an employee to be eligible for paid family leave under this law:

1. The employer must have 50 or more employees, including those in other states. 2. The 50 employees must have worked 20 or more weeks during the current or previous year. 3. Specific wage requirements must also be met for the year preceding the family leave.

Exceptions

The employer has the right to deny family leave if that leave would have an adverse effect on the business provided one of the following conditions applies: • The employee’s salary ranks in the top 5% among the company’s employees. • The employee is among the 7 highest paid in the company.

Circumstances That Entitle an Employee to Benefits

Under the New Jersey Family Leave Act an employee is eligible for 6 weeks of paid family leave for the following reasons: • to care for a newborn baby or newly adopted child within 1 year of the baby’s birth or placement; or • to care for a family member with a serious health condition.

Eligible family members include a parent, a child under 18, a spouse, and a civil-union partner. Anyone with whom the employee has a parent-child relationship is considered by the state to be a parent; this includes adoptive parents, step-parents, in-laws, and foster parents as well as birth parents. Although not covered under this act, the care for the employee’s own disability is covered under the state’s Temporary Disability Insurance program; this includes pregnancy.

The employee is expected to give the employer reasonable advance notice, usually 30 days to care for a newborn and 15 days to care for a family member. Verification of the family member’s serious illness must be provided if requested. Also, employers may require the employee to use sick pay or vacation pay before collecting these benefits.

When returning to work, it is expected that the employee will be given the same job if it is available or an equal job if it is not. If layoffs occur, then the employee would be in the same position as if he or she had not taken leave.

Who Pays for the Benefits?

Employees pay for these benefits through a small added payroll tax; the money goes into an insurance pool.

Disputes If an employee believes that he or she is entitled to family leave but the employer disagrees, the employee can file a complaint with the NJ Division of Civil Rights. If that is done, the director of that office would decide the case. The employee may choose instead to have the case tried in the New Jersey Superior Court. Either way, it is important to obtain the advice of an experienced attorney who knows the law and can advise you of your rights.

A Recent New Jersey Case

Acting Attorney General John J. Hoffman and Craig T. Sashihara, Director of the Division on Civil Rights, announced on March 1, 2016, that a pediatric medical group had agreed to pay a former employee $45,000 to resolve allegations that it wrongly fired her for taking time off to be with her terminally ill father—time she took under the New Jersey Family Leave Act.

In March 2014 Allison Blair was fired from her job at a pediatric medical group for taking family leave in order to care for her dying father. Her employer claimed that she did not follow the appropriate protocol and did not fill out the required paperwork in time. The employer cited the fact that she had used up her normal paid leave time and that she had been warned about several infractions before taking leave.

Blair took the case to the NJ Division of Civil Rights, and on March 1, 2016, Acting Attorney General Hoffman and Director Sashihara announced that Tenafly Pediatrics, although admitting no wrongdoing, had agreed to pay Blair $45,000.

The director was pleased with the settlement, finding that Blair was eligible according to the criteria and that the infractions and previous absences had no bearing on the case. In addition to the payment, one of the conditions that the director imposed was that the employer must post the law so that employees would be aware of their rights and obligations under the law.

Division Director Sashihara had this to say: “An employee should not have to be forced to choose between keeping his or her job and tending to the serious health condition of a family member. New Jersey’s family-leave laws were created to maintain the integrity of the family unit, and our commitment is to ensure that employers respect and adhere to those laws.”