Issue 45

Zatuchni & Associates Newsletter

RECENT CASES

Under Certain Circumstances,
Employer Not Required to Maintain Disabled Employee's Compensation or Job Status at Pre-Disability Level

So ruled the court in Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 2001 WL 406175 (App. Div. 2001). This decision clarifies the "reasonable accommodation" requirement of the New Jersey Law Against Discrimination ("NJLAD") and the Americans With Disabilities Act ("ADA").

Background Facts: The plaintiff in the case, James Jones, was a long-standing union member and employed by Aluminum Shapes as a crane operator for over twenty-five years. In 1990, Jones suffered a work-related injury that almost completely removed his right eye. When he returned to work after recovering from eye surgery, he could no longer work as a crane operator due to diminished eyesight. The company accommodated Jones by creating a special job for him in the quality control department. Although the position was not part of the union bargaining unit, the company allowed Jones to maintain his higher crane operator's salary and to retain his union membership and benefits while he held this job.

Years later, the company downsized and transferred Jones out of quality control, back to a regular union position on the plant floor. After Jones objected, the company agreed to compromise by leaving Jones in quality control. Since the position was non-union, however, Jones would have to continue in the job without his union status and benefits. Jones resigned and brought a claim for discrimination on the basis of his disability.

Jones's Arguments: Under the NJLAD, an employer must make a "reasonable accommodation" to a disabled employee unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. Jones argued that this meant the company had to provide him with a position that maintained his union status and benefits. Jones argued the company (1) failed to provide a reasonable accommodation by requiring him to leave the union in order to keep his non-union quality control position, and (2) did not show that it would have suffered an undue hardship in allowing Jones to continue union membership.

What The Court Said: The court flatly rejected Jones' position that the NJLAD required his employer to maintain him in a union job. The court held the phrase "reasonable accommodation" refers to the duty of an employer to attempt to accommodate the physical disabilities of the employee. There is no duty "on the part of the employer to acquiesce to the disabled employee's requests for certain benefits or remuneration." Whether Jones' position was union or non-union was immaterial to the central issue of whether it accommodated his physical impairments.

Most significantly, the court further held that, where no lateral transfers are available, an employer is not obligated to provide a job of exactly the same status and compensation as that previously held by the employee. The court found that that an employee may in fact be demoted to a lesser paying and lower status position if such demotion is necessary to accommodate the employee's disability.

What It Means For You: The court's decision in Aluminum Shapes clarifies that, as interpreted by New Jersey courts, the NJLAD and the ADA do not impose an absolute requirement on an employer to maintain a disabled employee with the same level of compensation, benefits, and status. If the company can show that the only available position that reasonably accommodates an employee's disability is one with lower pay or status, the company can lawfully place the employee in that lower job. Under such circumstances, the employer is not obligated to change the new position's compensation, benefits, or status in the corporate hierarchy to match that of the employee's previous position.

Different Accrual Dates Apply to Constructive Discharge Cases
in Comparison to Regular Discriminatory Termination Cases

This is the rule enunciated recently in Daniels v. Mutual Life Insurance Company, 340 N.J. Super. 11, 2001 WL 418972 (App. Div. 2001), which concerned a constructive discharge claim under the Conscientious Employee Protection Act ("CEPA").

All civil claims must be filed within a certain time period after the unlawful conduct occurred. This period of time is known as the "statute of limitations." For example, all claims under the NJLAD must be brought within two years of the alleged discriminatory conduct. The statute of limitations for CEPA claims is only one year.

A previously murky issue has been how to determine precisely when the statute of limitations begins to run in unlawful discharge cases. The court in Daniels has provided some bright line rules.

Regular Discharge Claims: In cases where the employer terminates the employee, the court held that the statute of limitations begins to run on the day that the employee actually leaves his job. The date that the employee is merely given notice of his termination is immaterial.

For example, if employee John Doe is told that he is being fired on January 1 and that his last day of work will be February 1, the claim accrues and the statute of limitations begins to run only on February 1. The court reasoned that an employee is damaged only once he or she is actually terminated from employment, and not before.

Constructive Discharge Claims: In a constructive discharge, the employee is not fired by the company. Rather the employee resigns and claims that he or she has been forced to quit as a result of intolerable working conditions. In this type of situation, the statute of limitation begins to run on the date the employee informs the company of his or her resignation, even if the employee continues to work for some time thereafter.

Under this scenario, assume that John Doe resigns on January 1, but gives the company one month's notice and continues to work until February 1. The statute of limitations begins to run on January 1, and not the later date.

The court reasoned that in constructive discharge cases, unlike regular termination cases, the unlawful conduct which starts the running of the limitations period are the intolerable working conditions that the employee cannot accept. The conditions become intolerable, and a legal claim accrues, when the employee tenders his or her resignation.

Can Loss of Employment By Itself Be the Basis of an
Intentional Infliction of Emotional Distress Claim in New Jersey?

The answer is "no" according to the recent decision in Griffin v. Tops Appliances, Inc., 337 N.J. Super. 15 (App. Div. 2001).

New Jersey recognizes the tort of intentional infliction of emotional distress. In order to prevail on this claim, the plaintiff must establish intentional and outrageous conduct by the defendant which causes severe distress in the plaintiff.

The defendant's conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."

The court in Griffin concluded that mere termination of employment does not meet the "elevated threshold" in intentional infliction claims, which are only satisfied in "extreme cases." The court found that "while loss of employment is unfortunate and unquestionably causes hardship, often severe, it is a common event and cannot provide a basis for recovery for infliction of emotional distress."

ON THE REGULATORY FRONT

Occupational Safety and Health Administration (OSHA) Revises Recordkeeping Regulations

OSHA has promulgated new rules this year regarding how employers record and keep track of workplace injuries. The new rules go into effect on January 1, 2002. OSHA estimates that the revised regulations will affect 1.3 million workplace establishments.

The purpose of the new regulations is ostensibly to simplify and streamline employers' recordkeeping obligations. According to OSHA, "the revision improves employee involvement, creates simpler forms, provides clearer regulatory requirements, and allows employers more flexibility for using computers to meet OSHA regulatory requirements."

Although the revisions are fairly extensive, the following are some highlights:

• Three recordkeeping forms are updated and simplified. These are OSHA Forms 300, 301, and 300A
• Different criteria for recording "work-related injuries" and "work-related illnesses" are eliminated
• Requires a significant degree of aggravation before a preexisting injury or illness becomes recordable
• Employers must record all needlestick and sharps injuries involving contamination by another person's blood or other bodily fluids
• The same recording standard applies to musculoskeletal disorders as to all other injuries or illnesses
• Creates provisions for employee privacy, and prohibits discrimination against employees who report workplace injuries

Disclaimer

The information contained in this Newsletter does not constitute legal advice. Zatuchni & Associates, LLC tries to provide quality information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein. As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent counsel.