Category Archives: Employment Law

New Jersey Creates “Preference” For Rehiring Permanently Disabled Employees

New Statute Creating “Hiring Preference”

On September 30, 2021, Governor Phil Murphy signed into law Assembly Bill A2617, which provides as follows:

Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement (MMI) and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential functions of the position.

Who The New Law Applies to

The law creating preference only applies to employers with more than 50 (fifty) employees.

Read on for all the exemptions (below). 

Who Is Exempted From the New Law

1) The Preference Does Not Apply to Employers with Less Than Fifty (50) Employees.

Employers with less than 50 employees are exempted b the clear terms of the new law.

2) The Preference Does Not Apply to Contractors Subject to Prevailing Wage Law

The law states that it “shall not include a contractor as defined in section 3 of P.L.1999, c.238 (C.34:11-56.50).” The referenced law,  N.J.S.A. 34:11-56.50, defines “contractor” as

a person, partnership, association, joint stock company, trust, corporation, or other legal business entity or successor thereof who enters into a contract which is subject to the provisions of the “New Jersey Prevailing Wage Act,” P.L.1963, c.150 (C.34:11-56.25 et seq.), and includes any subcontractor or lower tier subcontractor of a contractor as defined herein.

The New Jersey Prevailing Wage Act (N.J.S.A. 34:11-56.25 et seq.) establishes a prevailing wage level for workers engaged in public works. It applies to public projects which are defined as follows: 

3) The Preference Does Not apply to Athletes Employed by Professional Sports Teams.

The law states that employers of athletes of professional sports teams are exempted from the preference. 

Continue reading New Jersey Creates “Preference” For Rehiring Permanently Disabled Employees

Workers’ Compensation Exclusivity & Employer Coverage Issues: Civil Litigation Webinar

Join Us for This Live Webinar on Monday, June 14, 2021 at 3:00 PM EST

In this live webinar, “Workers’ Compensation Exclusivity and Employer Coverage Issues,” Christopher Major, Civil Practice Team Leader at Lois Law Firm, provides an overview of employment civil litigation focusing on exclusivity and coverage issues. Join us for this live discussion and Q & A.

Major will discuss the following:

  • What is exclusivity and how does it impact civil actions?
  • The “who, what, where, and when” of how lawsuits are filed.
  • What risk professionals need to know about employer coverage issues.
  • How recent case decisions will impact the practice in 2021.

To register for our Civil Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling civil claims and reimbursement actions, click the button below (or register here).

Continue reading Workers’ Compensation Exclusivity & Employer Coverage Issues: Civil Litigation Webinar

Defending New York Workers’ Compensation Discrimination Cases

Under New Yorker’s Workers’ Compensation Law § 120, an employer may not fire or otherwise discriminate against an employee who has claimed or attempted to claim workers’ compensation benefits.  If there is an allegation that an employer discriminated against an employee because he/she has attempted to claim compensation benefits, they must file two copies of a Discharge or Discrimination Complaint (Form DC-120 ) with the Workers’ Compensation Discrimination Unit. Any complaint alleging an unlawful discriminatory practice must be filed within two years of the commission of such practice.

The Discrimination Unit will notify the employer of the Complaint by issuing a “Notice to Employer and Request for Information Regarding Discharge or Discrimination Complaint” (Form DC-130). The DC-130 Form must be completed by the employer and returned to the Discrimination Unity within 30 days of receipt.  A trial will ultimately be scheduled by the Board to address the Discrimination action. Continue reading Defending New York Workers’ Compensation Discrimination Cases

Seasonal Hires down in NJ

New Jersey workers’ compensation law makes no distinction between seasonal employees and 50-year veterans in regards to entitlement to compensation for work-related injuries. Seasonal employee have the same rights and protections under our laws as do ‘permanent’ employees.

Seasonal workers hired by nation’s retailers in November 2006: 427,000

Seasonal workers hired by nation’s retailers in November 2007: 458,000

Seasonal workers hired by nation’s retailers in November 2008: 217,200

Source: ‘The Record,’ B-1, December 9, 2008.

FAQ: Is there a minimum number of weeks worked to receive WC benefits pay or is a seasonal employee entitled to compensation if he gets hurt on day one?

Answer: If an employee is hurt in the first minute he “punches in” he is entitled to exactly the same medical, wage replacement, and permanent disability benefits as if he had worked for the employer for 50 years.

'Personal errands' and employment

One of the most basic questions we always ask when looking at a new claim is: Did the injuries arise out of the employment? There are probably more reported decisions on disputes about this question than any other issue in New Jersey Workers’ Compensation. I dedicate an entire chapter of my book to this subject and blogged extensively on this subject.

In an interesting new decision, an Appellate Panel found that that an employee’s injuries did not arise out of the course of employment while he was on a personal errand.

The claimant, William Garcia, was riding in his employer’s vehicle which was being driven by his foreman. The claimant was on his way to a bank to cash his paycheck. The claimant also alleged that he was riding between job sites or was going to return to the original job site at the time of the accident.

The claimant relied on the following facts to establish that he was actually working at the time of his accident:
• He was actually being driven in an employer-owned vehicle at the time of the accident;
•He was driven by his foreman; and
•He was on his way to or from a job site.

The workers’ compensation judge found that the claimant was not engaged in or assigned to work directed by the employer at the time of the accident. The Appellate Division agreed with this reasoning, and affirmed the denial of workers’ compensation benefits.

The Appellate Panel explored the possible legal arguments that would support the petitioner’s claims for benefits. First, they determined that the claimant failed to show “that the employee was performing his or her prescribed duties at the time of the injury.” (Quoting Jumpp v. City of Ventnor, 177 N.J. 470 (2003).

Next, the Appellate Panel discussed the Supreme Court’s decision in Sager v. O.A. Peterson Construction Company, 182 N.J. 156 (2004) and compared the facts in Sager to the facts of the Garcia case. In Sager, the claimant was “directed” by his site supervisor to extend his workday and have dinner with his co-employees and was injured while returning to the worksite after dinner. The Panel found that unlike the facts in Sager, no one ‘directed’ the claimant to go to the bank and cash his check (they found it to be a personal errand).

Finally, the Panel considered whether it was possible the claimant had a “reasonable belief” that his employer wanted him to go to the bank and cash his paycheck. This consideration was necessary in light of the Supreme Court’s decision in Lozano v. Frank DeLuca Construction, 178 N.J. 513 (2004), which held that even if an employee is not directly told to do something, the act may be found to be “in the course of employment” if the employee had a reasonable belief that his employer wanted the act done.

After considering every possible way that the accident could be considered “arising out of the employment” the Appellate Panel concluded that it did not. The decision of the workers’ compensation Judge dismissing this case was rightly affirmed.

Case: William Garcia v. Wagner Land Expansion, App. Div. A-3595-07T1, decided November 6, 2008 by Judges Stern, Waugh, and Newman. (Note: this blog entry discusses an ‘unpublished’ decision).

Statute discussed: N.J.S.A. 34:15-36

Contributed by: Greg Lois

How long we work

According to the U.S. Bureau of Labor Statistics, the average man working full-time logs 8.2 hours per day.

According to the same study, the average woman works 7.8 hours.

The average American spends 2.6 hours a day watching TV.