Newsletter March 2018

Newsletter March 2018



Hyderally & Associates, P.C. March 2018 Newsletter

LAD PROTECTIONS EXTENDED TO BREASTFEEDING WOMEN

On January 8, 2018, then-Governor Chris Christie signed into law an amendment to the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. (the “LAD”), adding “breastfeeding” as a protected category. Employers, as well as those engaged in real estate sales and leasing, lending, and various places of public accommodation, are now expressly prohibited from discriminating based upon breastfeeding.

This amendment follows the amendment to the LAD passed in 2014 which added pregnancy as a protected category and provided express protections for pregnant employees.  That amendment provided as examples of accommodations for pregnant employees: “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work, for needs related to the pregnancy when the employee, based on the advice of her physician, requests the accommodation.” The new amendment adding breastfeeding as a protected category under the LAD includes additional specific examples which employers should provide to breastfeeding employees, such as: “reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk for the child.” The employer cannot refuse to provide such accommodations unless the employer can show that doing so would be an undue hardship on the employer’s business operations.

The new law also expands protections by broadly defining “pregnancy or breastfeeding” to include “pregnancy, childbirth, and breast feeding or expressing milk for breastfeeding, or medical conditions related to pregnancy, or childbirth, or breastfeeding, including recovery from childbirth.”

Although the new law expressly states that it does not increase or decrease an employee’s rights to paid or unpaid leave in connection with pregnancy or breastfeeding, the impact of the law may effectively increase a breastfeeding employee’s rights to leave under existing law in some situations, since reasonable accommodations under the LAD for protected classes may include a leave of absence.  See Santiago v. County of Passaic, 2009 N.J. Super. Unpub. LEXIS 441, *13 (App. Div.) (observing that New Jersey courts have indicated that leave of absence may constitute reasonable accommodation under LAD).  Prior to the passage of this amendment, breastfeeding itself was not a protected category for which an employee could claim the employer had any duty to reasonably accommodate the employee by way of leave time. However, now that breastfeeding has been defined as a protected category, a leave of absence for a breastfeeding employee may in some circumstances constitute a reasonable accommodation under the LAD.  In addition, although the law presumably applies to breastfeeding mothers, as stated in the synopsis of the Act, there is no express language in the Act itself limiting the definition of breastfeeding women to mothers. Thus, arguments may be made that in addition to mothers, the law also covers women breastfeeding children other than their own, or expressing breast milk for others.

 

Francine Foner, Esq., Ty Hyderally, Esq.


Hyderally & Associates, P.C.

THE ADA EDUCATION AND REFORM ACT

For almost thirty years the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., has helped remove barriers for people with disabilities. On February 15, 2018, the House voted 225-192 to pass H.R. 620, “The ADA Education and Reform Act” (the “Act”).  The Act is aimed at curbing lawsuits under the ADA that supporters claim are intended solely to extort settlements from businesses by threatening litigation, without actually seeking to improve access for people with disabilities.

Under the ADA, every business that serves the public must ensure that customers with disabilities have equal access.  If businesses do not comply, they can be sued without warning.  If the bill is enacted, the law would require that prior to filing a lawsuit, 60 days’ written notice be given to business owners detailing the alleged illegal barrier to access, along with 60 additional days to come up with a plan to address the complaints, and an additional 60 days to take action; only if the business does not comply within the respective time periods may the lawsuit then be filed.

Supporters of the bill believe that a goal of the ADA is to put businesses on notice, not to sue companies for violations they may not be aware of.  Those favoring the bill’s passage assert that the policies underlying the Act are aimed at providing greater access to public places for people with disabilities, and to allow business owners to focus on making their properties handicap accessible, not defending themselves against unfounded claims.  Many businesses currently deal with “drive-by” lawsuits, which involve allegedly injured plaintiffs who never actually intend on being a customer to the business, but merely drive from business to business collecting addresses and notating insignificant and technical ADA violations. This bill was passed to prevent such lawsuits.

The bill has encountered opposition from those who counter that, if enacted, it would undermine the goals of the ADA by eliminating any incentive for businesses to comply with the law, resulting in fewer accommodations for people with disabilities.  Critics argue that the House is moving backwards in improving the lives of people with disabilities by making it more difficult, rather than easier, for people with disabilities to live independent lives. As of this writing, the future of the bill has yet to be determined in the Senate.

 

Francine Foner, Esq., Ty Hyderally, Esq., and Shamola Bonner


Hyderally & Associates, P.C.

PROPOSED PAID FAMILY LEAVE LAWS

The only federal protection families currently  have for family and medical leave is through the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq.  The FMLA allows eligible employees to take up to 12 weeks of unpaid, job-protected leave per year following the birth of a child, a personal or family illness, or to take care of a sick family member.  The current law only applies to companies with 50 or more employees. However, there is currently no federal law providing for paid family leave. Various bills have been introduced in the House and Senate to provide for compensation to employees taking family leave who work in states that do not have any laws providing for paid family leave, or state insurance coverage during periods of unpaid family leave.  However, to date, such bills have yet to become law.

On February 7, 2017, democratic lawmakers introduced the Family and Medical Insurance Leave Act or “the Family Act,” in the House (H.R. 947) and Senate (S. 227).  The bill would establish the Office of Paid Family and Medical Leave within the Social Security Administration. Under the Family Act, a family and medical leave insurance benefit payment would be available to individuals meeting specified criteria for up to 60 qualified caregiving days in a one-year period.  However, since being introduced and referred to committee, no further action has been taken on this bill. (Congress.gov).

On July 28, 2017 and August 2, 2017, Republican lawmakers introduced the Strong Families Act in the House (H.R. 3595) and Senate (S. 1716), respectively. The Strong Families Act would: (1) allow certain employers a business-related tax credit for a specified percentage (not to exceed 25%) of the amount of wages paid to their employees during any period (not exceeding 12 weeks) in which such employees are on family and medical leave, (2) limit the allowable amount of such credit based upon actual services performed for the employer and the number of hours (or fraction thereof) for which family and medical leave is taken, and (3) terminate such credit five years after the enactment of the bill. The bill also proposes that the Government Accountability Office complete a study on the effectiveness of the tax credit for paid family and medical leave. Thus, this bill does not appear to compel an employer to provide any paid leave.  Rather, it provides tax incentives to employers who voluntarily decide to provide paid leave to their employees. Nonetheless, since its introduction, nothing further has happened toward this bill’s enactment.( Congress.Gov).

More recently, the Trump Administration included one paragraph in its 160-page budget proposal for 2019 devoted to its plan for paid family leave for new parents. The proposal states only that it would provide six weeks of paid family leave to new mothers and fathers, including adoptive parents, to take time to recover from childbirth and bond with a new child, and that it would use the unemployment insurance system as a base to allow states to establish paid parental leave programs. The reference to family leave in the proposed 2019 budget of the U.S. Government neither provides any details nor explains how the benefit would work. Further, it is important to note that this purported program is for only six weeks, not the 12 weeks of leave provided under the FMLA, and only applies to new parents attending to children as a result of childbirth or adoption. Thus, those taking FMLA leave related to a family member’s or their own illness would not be covered under this plan.

Thus, it remains to be seen whether a federal paid family and medical leave law, which would provide universal access to paid family and medical leave, will come to pass any time in the near future. However, some states currently have laws which assist with compensating employees during unpaid family leave periods. For example, California, which was the first state to offer compensation for employees taking family leave through the creation of a temporary disability insurance program, provides up to six weeks of insurance coverage to new parents for a portion of their salary during the leave.  As of January 1, 2018, New York’s Paid Family Leave law provides New Yorkers with job-protected, paid leave to care for a new child, a loved one with a serious health condition, or to help adjust to having a family member called to active duty abroad. New Jersey offers New Jersey Family Leave Insurance, which provides up to six weeks of coverage of two-thirds of an employee’s salary, up to a set amount, during a family leave under the FMLA or New Jersey Family Leave Act (“NJFLA”).  However, job security for employees on family leave in New Jersey, whether under the FMLA or the NJFLA, continues to be limited to employees working for companies who employ 50 or more employees.

 

Francine Foner, Esq., Ty Hyderally, Esq., and Shamola Bonner



These articles are for informational purposes only. They do not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This newsletter may constitute attorney advertising. This newsletter is not intended to communicate with anyone in a state or other jurisdiction where such a newsletter may fail to comply with all laws and ethical rules of that state of jurisdiction.

  • “I want to sincerely thank you and your staff for your resolve and professional zeal in resolving my issues with [company name removed for privacy reasons]. I especially want to thank Rob Szyba who handled these proceedings with dignity and a great deal of knowledge and professionalism. He knows what buttons to push and when to push them. He is an asset to your organization. I will gladly recommend your services to anyone in need. It was a privilege to deal with you and your team.”
    J.B.
  • “It has been my pleasure to work with Ty through the ABA's Employment Rights and Responsibilities Committee. His contributions to the Committee have been significant due to his knowledge of employment law and his tireless devotion to teaching trial skills. His service to the profession and his clients is commendable.”
    Paula Ardelean
  • “Ty is dedicated to his work and his clients. He knows his stuff, and he goes the extra mile to do the best job possible. Ty is a pleasure to work with!”
    Piper Hoffman
  • “It is with pleasure that I recommend Ty. He is a tireless advocate on behalf of employees and their concerns. His efforts are demonstrated not only in his practice, but also in his exceptional additional efforts to represent this community in professional associations, such as the ABA. He has the knowledge base and the tireless effort that makes working with him productive, but always enjoyable too.”
    Darlene Vorachek
  • “I have worked with Ty on several legal presentations. I represent employers, and Ty has invited me to participate as a panelist representing employers' perspectives on labor and employment matters. Ty is always well-prepared and very knowledgeable about developments in employment law, and is always a pleasure to work with.”
    Chris Dalton
  • “Ty is an excellent lawyer who completely understands the legal process and does everything in his power to help his clients. He was a pleasure to work with and would recommend him to anyone seeking his expertise.”
    Joseph Alvaro
  • “Ty is a widely recognized expert in the area of employment law. His aggressive representation of clients is backed up by an extraordinary breadth of knowledge and attention to detail.”
    Edward Kopelson
  • “I have known Ty professionally for more than two years. He is nationally recognized as one of the best employment attorney's in the country and I know his practice will continue to grow!”
    Betsy Zaplin
  • “Ty was a great help for my associate and I during litigation. He showed the highest degree of professionalism and did in fact help us to achieve the best end result possible. Mr. Hyderally comes highly recommended.”
    Christopher Power
  • “Ty is an exceptional attorney. Ty strives for and attains great results, in a fair and ethical manner. I value his professionalism, integrity and creativity. His ability to relate to the client and colleagues on various levels makes him very personable and a real asset.”
    Betty MacKnight
  • “Ty Hyderally is a light of hope at times when all seems grim and hopeless. A brilliant lawyer focused on labor and business law. Mr. Hyderally has the ability to combine his knowledge of the law with economic sense, strategic thinking and level headed decision making that more often than not results in a sensible conclusion that ultimately equates to a positive result for his client. Mr Hyderally is a pleasure to work with and a person you would want to have on your side of the table.”
    Richard Sapienza
  • “I have known Ty Hyderally and his firm for a number of years through our shared affiliation with the National Employment Lawyers Association. Ty has consistently impressed me both with his leadership qualities as well as the quality of workmanship that he and his firm generate. I have reviewed some of his firm's work product, including a sample initial client letter, which not only contained excellent advice to new clients but also included cutting edge information as to how to properly address social networking issues. Without hesitation, I would highly recommend Ty Hyderally.”
    Fred Shahrooz Scampato
  • “I would highly recommend the Law Office of Ty Hyderally to anyone who is in need of representation in a legal matter. Ty is one of the most knowledgeable and professional individuals that I have ever met. He not only protected my rights, but also added a personal touch in his approach which helped in relieving some of the stress of my situation. He is a hard working, kind hearted individual who goes out of his way to make your problem his and provides great results in the end.”
    Mike Fischer
  • “What impressed me most about Ty was that he delivered exactly what he promised! Very well versed in his area of practice, and extremely respected by his peers and colleagues, which put me at ease knowing he was representing me! Thank you Ty!”
    Dan Verdun
  • “I have been involved with Ty Hyderally both as an adversary in employment litigation, and when I have acted as a Court appointed Mediator in employment litigation matters in which Ty represented plaintiffs. In both types of situations, he has represented his clients very well, with an excellent command of the issues, and he has shown himself to be well-prepared, reliable, and sensitive to the concerns of his clients. He has conducted himself in a highly professional manner at all times. I have referred potential plaintiffs in employment matters to him (I represent management/defendants in such matters), since I believe he is highly qualified to consider their circumstances.”
    Wayne Positan
  • “Ty helped us in my small business with a very delicate matter involving what was once a very cherished employee who had made some bad choices. Because it was also emotional for me and my management team, we valued the professionalism and expertise that Ty offered. It was comforting to know we could rely on his service through that very challenging time and handle it with compassion and in compliance with the law. I would use him again and recommend him wholeheartedly!”
    Sherry Blair
  • “Ty is detail oriented yet moves quickly to get results. He contemplates each step and what action should be taken. Ty looks out for his client's best interest and is available to talk during evening hours when it is more appropriate to discuss options to take from home. Also, Ty is expedient in getting information needed in order to be cognizant of finances. I highly recommend Ty for legal services, especially with employment law.”
    Jeff Martens
  • “If the opportunity arises where a "name brand" attorney is needed, then Ty Hyderally is the only choice. Those in the know are aware that his record of success for his clients is outstanding and that his knowledge of his field is way above the rest”
    Jeff Baron
  • “Ty Hyderally is a lawyer's lawyer. I, also, used to handle plaintiffs' employment cases, but over time, those cases became more and more complicated and costly to pursue. They began to require the attention of a legal specialist. I decided against handling them personally. I was delighted when I met Ty. Now, I refer people to him all the time. I know that he will give the best advice and get the best results possible. I hope my employees don't have his card.”
  • “Many of my executive clients need to negotiate employment contracts or employment confilcts with their employer. As an executive coach, I support their efforts in all domains of their lives including recommending a lawyer when they have these employment contractual needs, I recommend Ty. Not once have I had any negative feedback from any client and all of my dealings with him have been very satisfying.”
    Dan McNeill
  • “Ty is a very knowledgeable Attorney, who has demonstrated a very proven track record in handling Employment cases. His knowledge and assertive approach have made him a very successful Attorney.”
    John Mcnamara
  • “I actually first worked with Ty at McKenna McIlwain LLP in 2008. Already I was impressed by his professionalism, client list and reputation. In 2011 I moved back to Montclair after a few years back home in Oregon. Ty was in need of a temporary administrative assistant and invited me to join his team at their new, independent location. I learned a great deal working with Hyderally & Associates, P.C. They have earned their reputation as the hardest hitting, best representation available for employment matters in New Jersey and New York alike. They are attentive, fair, and go every extra mile to ensure due diligence. I am proud to have them on my resume and am happy for the experience of being part of such a busy, professional and fast paced team.”
    Mary Otte
  • “Ty secured settlements that were nothing less than outstanding for my clients/contacts that I have referred to him. The quick speed with which he achieved his results was a huge bonus to those clients.”
    Robert Kornitzer
  • “I have worked with Ty for years through the ABA Labor & Employment Law Section Employment Rights and Responsibilities Committee. Ty is a go-to source for exemplary presentations on trial practice. A tireless advocate for employee rights, Ty is an accomplished trial attorney and someone we can rely on and have repeatedly relied upon in mock trial presentations at our yearly conferences.”
    John Beasley
  • “Ty is a regular lecturer at continuing education programs for lawyers. This means that because of his abilities he is called upon to enhance the skills of lawyers who are already experienced. He is well regarded as a trial lawyer and as a provider of legal advice to clients. I find that his companionable persona makes it easier to accept and understand his thoughts and advice.”
    Arnie Pedowitz
  • “I have known Ty Hyderally for several years and can only describe him as an expert in all areas of Employment law. I have referred several people to him in connection with their legal concerns and on each occasion I have been met with very positive feedback from these individuals and businesses. I have personally sought his counsel relating to a variety of business strategy issues within my own Insurance practice. With his substantial experience and proven track record, I wholeheartedly recommend his services.”
    Matthew McGovern, Esq.
  • “Ty has represented me numerous times and I have always come out with positive results. He keeps you well informed at each step of the process and always makes you feel confident and secure. I highly recommend his services.”
    John Scardino Jr
  • “Ty and I worked at the same law firm Friedman Siegelbaum. I found him a pleasure to work with and an able and diligent attorney.”
    Joel Glucksman
  • “If ever someone needs an exceptional employment litigator, Ty is the first person that I think of. Not only is he incredibly intelligent, but he is able to craft litigation strategies to maximize his client's outcome. He is a relentless litigator, with great passion for his work. If you hire Ty, you will not be disappointed.”
    Noah B. Rosenfarb, CPA, ABV, PFS, CDFA
  • “Ty has been invaluable to me as a business owner with employee issues. His advice has been on point and redirected me in the midst of employee concerns. I would highly recommend him and his firm whenever you have employment concerns.”
    Philip Seaver
  • “If you are looking for one of the best attorney's in an employment related issue, look no further. Ty is national recognized as one of the best employment attorney in the country and I am thrilled to see his practice continue to grow!”
    Jon Lamkin
  • “Ty, has been a great help to me in times of need when I needed his advice on some business matters. He is always available 24-7 to help out whether it is a small/large task. I would highly recommend him and his firm in any legal matter that he specializes in.”
    Eric Reinstein
  • “I have been working with Ty for over 4 years. Ty is one person I would say pays attention to detail, works hard for his clients and gets the job done on time and with amazing results. I have referred clients to him and he has always given them star treatment was always up front and honest with them and they are so pleased with their outcomes and glad I made the introduction.”
    Carmen Bucco
  • “Ty was an adversary and never lost sight of his client's needs in seeking a resolution. I would not hesitate to recommend for plaintiffs in employment work. He is methodical and tenacious but fair and amenable to a just resolution.”
    Roger Jacobs
  • “My Husband and I hired Ty at a time when we thought all was lost. We had a different attorney on our case that just gave up on us. My husband contacted Ty and once he heard our case he immediately took action. Our case was settled within 3 months of Ty taking over. His experience and knowledge of employment laws are not only impressive but it is why he is very successful. Ty is also very compassionate about his clients and communicated with us every step of the way. I would recommend Ty Hyderally to anyone and everyone who is need of a great attorney. You too!! Will be satisfied.”
    Cynthia Ortiz
  • “I have referred clients to Ty for employment issues. They told me that Ty was knowledgeable, courteous and promptly handled their matters. I can easily recommend Ty for people with difficult employment cases.”
    Eileen Kohutis
  • “Working with Ty on various projects has been fantastic. He and his team are thorough and they understand how to get the job done correctly. When you have the chance to work with Ty you understand the meaning of not taking no for an answer. They work to understand clients needs and the resolve the issues at hand. I have seen firsthand what Ty and his associates bring to the table and I would recommend them to anyone needing assistance with employment law.”
    Darren Magarro
  • “I have worked with Ty Hyderally on the executive board of the New Jersey chapter of the National Employment Lawyers Association, and have discussed various employment matters with him. He is an excellent leader, always coming up with new ideas. Ty is truly an expert in employment law and I have found his analysis of both complex and simple matters to be dead on.”
    Leslie A. Farber
  • "Ty and I have worked together on a case getting ready for trial. We have also worked on trial advocacy presentations for the ABA. Ty is a very experienced litigator. He has great trial skills and connects well with his clients, the court and jury. He blends a sense of humor with knowledge of the law and facts. He is a very effective advocate.”
    Vanessa Kelly