Side effects of medication may qualify a person for protection from disability discrimination pursuant to the Americans with Disabilities Act (“ADA”). The ADA considers an employee to be disabled if he or she has “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2). A recent case before the Third Circuit, Sulima v. Tobyhanna Army Depot et al., No. 08-4684 (3d Cir. (PA) Apr. 12, 2010), the plaintiff argued that side effects of a medication created a disability. The Third Circuit held that the effects of a treatment for a medical condition could constitute a disability if the employee is able to demonstrate the following elements:

1. The medication or treatment is required “in the prudent judgment of the medical profession,”

2. The medication or treatment is not just an “attractive option,” and

3. The medication or treatment is not required solely in anticipation of an impairment resulting from the plaintiff’s voluntary choices.

Accordingly, if you meet the 3 elements set forth above and have been discriminated against by your employer as a result of any side effects of medication or treatment, you may have an actionable disability discrimination claim pursuant to the ADA.

Dated: April 29, 2010 – Castronovo & McKinney – Tom McKinney

Many employer label employees as exempt from overtime based on a misinterpretation of the Fair Labor Standards Act's exemption for administrative employees.  The definition of an exempt administrative job is (a) office or nonmanual work, which is (b) directly related to management or general business operations of the employer or the employer's customers, and (c) a primary component of which involves the exercise of independent judgment and discretion about (d) matters of significance.

The exemption for administrative employees was designed for high-level employees who "keep the business running." Clerical employees who perform office or nonmanual support work (cashiers, secretaires, etc.) are not administratively exempt. In order for the administrative exemption to apply, the work should involve the exercise of discretion and judgment and the employee must have the authority to make independent decisions on matters which affect the business as a whole or a significant part of the business.

Please contact our Overtime Lawyers for a free calculation of the overtime pay you may be owed or if you have any questions regarding your right to overtime pay.

Dated: April 28, 2010

The Continuing Extension Act of 2010 reinstated the COBRA subsidy, which had expired on March 31. Accordingly, individuals who are involuntarily terminated from employment between Sept. 1, 2008, and May 31, 2010, may be eligible for a 65 percent subsidy of their COBRA premiums for a period of up to 15 months. In some cases, workers who had their hours reduced and later lost their jobs may also be eligible for the subsidy.

Individuals who lose their jobs during the months of April and May may qualify for a 65% subsidy on their COBRA health insurance premiums. The American Recovery and Reinvestment Act, established the subsidy to help individuals maintain their employer sponsored health insurance after they have lost their jobs as a result of the recession and employer reductions.

Dated: April 26, 2010 - Castronovo & McKinney

This article will explain how New Jersey employment law cases proceed and the timing.  An employment law case in New Jersey can take up to 2 to 3 years before the case goes to trial before a jury.  We will explain each of the stages in an employment law case in New Jersey.  Please keep in mind that this is a general overview and you should contact us if you have any specific questions.

Case Intake

Our employment law attorneys will meet with you to discuss your case and your allegations against the company.  We will determine during that meeting whether our firm is interested in taking your case.  We request that you bring all documents that you have relevant to your allegations, including your paystubs and any evidence of the alleged discrimination, harassment, retaliation or violation of New Jersey’s employment laws.

Investigation

During the initial case intake meeting, we will discuss any witnesses that you believe may support your allegations of an employment law violation.  We will attempt to speak with these witnesses to confirm your allegations and request a certification to support your claims against the company/defendant.  Our clients often times believe that they are required to file with the Equal Employment Opportunity Commission (“EEOC”) or Division of Civil Rights (“DCR”) before they can file a lawsuit against the company/defendant.  This is not the case in New Jersey and you can proceed with your employment lawsuit without filing with the EEOC or DCR.

Demand Letter

After completing our investigation and agreeing to accept your case, a typical employment law case starts out with a demand letter sent to the company/defendant explaining your allegations.  This letter is sent to initiate a dialogue with the company/defendant regarding your allegations.  You may not be aware of the company’s stated reasons for your termination and we can learn valuable information from the company regarding its reasons for your termination.  If the company responds to our demand letter, we will discuss with the company the merit of the case and the possibility of settlement before we file a lawsuit.  If we can settle your claim without filing a lawsuit, this saves you time, money, and the effort of being involved in discovery and possibly trial.

Filing a Lawsuit

The next step is to file a complaint with a court of law.  We will discuss with you the various courts that you can file your employment law complaint and the advantages/disadvantages of filing in the specific court.  You can file a claim in either Federal Court or New Jersey Superior Court, depending on the allegations.  You can file in New Jersey Superior Court in the County that you live or the County where the employer is headquartered.   We will then file a Complaint in the selected court/venue.  You have now become a Plaintiff in an employment lawsuit.  Your complaint will set forth your allegations against the company/defendant and the relief that you are seeking.  The Court will randomly assign a judge to your lawsuit and your Complaint will be served on the Defendant.  It typically takes 2 weeks from the date the Complaint is filed until we receive a filed copy with a docket number back from the Court.  We can serve the Complaint on the company/defendant as soon as we receive the filed copy with a docket number back from the Court. 

Answer, Removal or Motion to Dismiss

When the company/defendant is served with the Complaint, they have at least 35 days to Answer the Complaint, remove the matter to Federal Court if there is a federal question or the company is headquartered and incorporated in another state, or it can file a motion to dismiss your case based on the pleadings.  The company/defendant’s Answer will respond to each paragraph of your Complaint either admitting, denying or lacking information regarding the allegations contained in each specific paragraph.  If the company/defendant files a motion to remove the matter, the company/defendant is claiming that the matter belongs in Federal Court instead of New Jersey Superior Court.  If the company/defendant files a motion to dismiss, it is requesting that the Court rule in its favor for that your Complaint does not contain sufficient information or allegations to create a violation of New Jersey’s Employment law. The judge may deny the company/defendant’s motion to dismiss and require that the company/defendant file an Answer to your Complaint.  In the rare event that the judge agrees with the company/defendant, the judge will typically allow you to modify your Complaint in order to correct any deficiencies.

Track Assignment

Employment law cases in New Jersey are assigned to a 450 day discovery track.  That means that discovery (explained in detail below) will last for 450 days from the date that the company/defendant files its Answer.  This time period is typically extended by 60 days as a result of the parties requiring additional time to complete discovery.

Court Ordered Mediation

Approximately 2-3 months after the defendant’s Answer is filed, the court will require that the parties attend a mediation session for one hour.  The first hour of the mediation is free, however the mediator will bill for any time beyond the first hour.  Mediation is a form of dispute resolution where the mediator works with both sides to see if the matter can be resolved.  The court orders this mediation with the hope that the matter can be resolved before both sides spend a considerable amount of time and money on the litigation.  The mediator is not a judge and does not provide any ruling on the merits of the case.  Instead, the mediator is only there to try and find a common ground for settlement.  Typically a mediator is a lawyer.

Discovery

There are three prongs of discovery. The first is interrogatories. Interrogatories are written questions that each party gives to the other to be answered in writing and certified under oath. The second prong is the document requests.  Each party asks the other to provide for inspection or copying (usually copies) of specific categories of documents that the party requests.  For example, the plaintiff might ask for his personnel file or the personnel file of some other person who the plaintiff believes was treated more favorably. Up to this point, most of the work is done by the lawyers.  However, the lawyers will be asking you to help answer written questions and to identify documents. The last piece of discovery is the depositions. A deposition usually takes place in a lawyer’s conference room and the lawyer will ask questions of a witness while a court reporter records all of the questions and answers. It is similar to testifying at trial except that there is no judge or jury present. As the plaintiff, you will probably have to give a deposition, but of course, your lawyer is with you throughout the deposition and will help you prepare for the deposition. (There is one other piece of discovery called a request for admission, but that is not commonly used. A request for admission simply asks the other party to admit or deny certain statements.)

Dispositive Motions

After all discovery has been completed, either party may file a “Motion for Summary Judgment”. This is a motion which says that given all of the documents in the case and all of the testimony in depositions, it appears that the parties do not disagree on the important facts and based on these agreed facts, the judge can rule as a matter of law in favor of the party making the motion. If the judge believes that there is disagreement on an important issue of fact then the case will go to a jury (or if you have not asked for a jury, for the judge) to hear the testimony of witnesses to decide who is telling the truth. This is done at a trial.

Pre-trial Order and Trial

Most cases settle before going to trial. But if the case does not settle, the parties are required to file a large document with the court called a pre-trial order. The pre-trial order sets all of the rules for the trial. It includes a list of witnesses who will testify, documents that will be used, and includes the proposed jury instructions. The judge will review the pre-trial order and will give final approval to the rules for the trial that he believes follow the law.

For jury trials, there are five steps. First, the parties will select a jury. This means that the judge or the lawyers or both (it depends on the judge) will ask questions of the jurors to make sure that they can be fair. The next step is the opening statements where the lawyers will tell the jury what they expect the evidence to be. This gives the jury a preview of the case. Step three is the testimony of all of the witnesses. Step four is the closing arguments where the lawyers tell the jury why they believe the jury should rule in favor of their clients. And step five is the reading of the instructions to the jury. The jury will then go to the jury room to consider its verdict.

After the jury rules, either party can ask the judge to change the ruling if it believes the jury was unreasonable. The judge may reduce the amount of money awarded, may order a new trial, or may change the verdict. Generally, the judge will only do this in exceptional circumstances.

Appeals

At the end of the case, either party can ask that the court of appeals to review any of the judge’s decisions if that party believes that the judge made a mistake. This is done by filing memorandums with the court of appeals and then eventually a 10 to 20 minute argument before a three judge panel. The judges will usually take the case under advisement and prepare a written opinion several months later.

Because a case can settle at any time, and because different judges handle their calls differently, it is difficult to predict how long a case may take. But for those few cases that actually go all the way through a trial, they can take anywhere from two to five years, averaging about two and a half years.