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Employment Litigation in New Jersey

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Employment Litigation in New Jersey takes a balanced approach to this vast area of practice, providing information useful to counsel for both employers and employees. Written by over 20 employment lawyers and professionals, this practice-oriented treatise guides counsel through the litigation of major employment-related causes of action in New Jersey. It starts with issues to consider at the outset of client representation and the pleading, pre-trial motion and discovery stages, and continues through mediation and arbitration, settlement, and the recovery of damages and attorney’s fees.

This publication provides in-depth analysis of all the components of successful employment litigation, including administrative practice and procedure, class actions and insurance coverage issues.

Also included are:
- Practice tips
- Strategic points
- Practical checklists
- Forms

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Table of Contents

VOLUME 1
Chapter 1 Retention of Counsel, Client Counseling and Pre-Claim Fact Investigation
A. STRATEGY FOR PLAINTIFFS
1.01 Scope
1.02 Objective and Strategy
B. INITIAL CONSIDERATIONS AND GENERAL ADVICE BEFORE DECIDING TO REPRESENT THE INDIVIDUAL EMPLOYEE
1.03 Overview
1.04 Evaluating the Case
1.05 Fee Retainer Agreement
C. REPRESENTING MULTIPLE PLAINTIFFS
1.06 Overview
1.07 Conflict of Interest Between Plaintiffs
1.08 Fee Agreements
1.09 Ethical Considerations
D. STATUTES OF LIMITATIONS
1.10 Analyzing Statute of Limitations Under Federal and New Jersey Law
1.11 Informing Departing Client of Appropriate Statute of Limitations
1.12 To File or Not to File Administrative Charges of Discrimination
E. STRATEGY FOR DEFENDANTS
1.13 Scope
1.14 Objective and Strategy
F. INITIAL CONSIDERATIONS
1.15 General Advice
1.16 CHECKLIST: Additional Considerations
G. THE INDIVIDUAL CLIENT
1.17 Assessing the Individual’s Role in Any Wrongdoing
1.18 Confronting the Issue of Indemnification Early
1.19 Individuals With Whom Counsel has Previously Dealt
1.20 Former Employees
H. THE EMPLOYER AS THE CLIENT
1.21 The Investigation
1.22 Establishment of Control Group
I. REPRESENTATION OF MULTIPLE DEFENDANTS
1.23 Cautionary Advice
1.24 Harassment/Hostile Environment Situation
1.25 Situations Not Involving Harassment or Hostile Environment
1.26 Former Employees
J. THE DECISION TO REPRESENT
1.27 Representation of One Party
1.28 Representation of Multiple Parties
1.29 The Joint Defense Agreement and Attendant Privilege
K. FORMS
1.30 FORM: Sample Plaintiff’s Intake Questionnaire
1.31 FORM: Sample Retainer Agreement: Plaintiff
1.32 FORM: Sample Comprehensive Multiple Representation with Disclosures
1.33 FORM: Sample Language for Subsequently Arising Conflicts from [Zador Corp. v. Kwan, 31 Cal. App. 4th 1285, 37 Cal. Rptr. 2d 754 (1995)]

Chapter 2 Pleadings and Responses, Including Common Defenses
A. STRATEGY
2.01 Scope
2.02 Objective and Strategy
B. THE PLAINTIFF
2.03 Initiation of Proceeding by Plaintiff
C. THE DEFENDANT
2.04 Defendant’s Response to Plaintiff’s Claim
2.05 Responsive Pleading
2.06 Early Discovery Considerations
2.07 Special Considerations for Dealing With Pro Se Plaintiffs

Chapter 3 Pre-Trial Motions
A. STRATEGY
3.01 Scope
3.02 Objective and Strategy
B. NON-DISPOSITIVE MOTIONS
3.03 Change of Venue Motion
3.04 Choice of Law Motion
3.05 Motion to Compel Arbitration
3.06 Discovery Motions
3.07 Motion for Remand
C. DISPOSITIVE MOTIONS
3.08 NJLAD Disparate Treatment Claims
3.09 NJLAD Hostile Work Environment Claims
3.10 NJLAD Retaliation
3.11 CEPA Claims
3.12 Common-Law Wrongful Termination Claims
3.13 Breach of Contract—Employee Handbook Claims
3.14 Breach of Implied Covenant of Good Faith and Fair Dealing
3.15 Intentional Infliction of Emotional Distress
3.16 Negligent Infliction of Emotional Distress
3.17 Tortious Interference With Prospective Economic Advantage

Chapter 4 Discovery in Employment Litigation
A. STRATEGY
4.01 Scope
4.02 Objective and Strategy
B. FEES, COSTS AND DISCOVERY PLANNING
4.03 Initial Considerations
4.04 Agreement with Client
4.05 Time: Discovery Deadlines
4.06 Discovery Planning
C. DISCOVERY DEVICES
4.07 Five Effective Discovery Devices
D. LIMITS ON DISCOVERY
4.08 Balancing Broadness of Discovery Rules
4.09 Protective Orders
4.10 Privileges
E. FORMS
4.11 FORM: Sample Freedom of Information Request Letter

Chapter 5 Insurance Coverage Issues
A. STRATEGY
5.01 Scope
5.02 Objective and Strategy
B. CLIENT COUNSELING
5.03 CHECKLIST: Ascertain and Document Insurance Coverage
5.04 Client Interview
C. TYPES OF INSURANCE
I. EMPLOYMENT PRACTICES LIABILITY INSURANCE
5.05 Origins and Evolution
5.06 Fundamentals
5.07 Defense Issues
5.08 What Constitutes a Claim
5.09 What Constitutes Covered Loss
5.10 Covered Perils
5.11 Key Policy Exclusions
5.12 “Other Insurance” Clause
5.13 Application Issues
5.14 Future of EPL Insurance
II. COMMERCIAL GENERAL LIABILITY INSURANCE
5.15 Overview
5.16 Coverage A: Bodily Injury and Property Damage Liability
5.17 Coverage B: Personal Advertising Injury Liability
5.18 Co-Employee Exclusion to Coverage A and Coverage B
5.19 Employment-Related Practices Exclusion
5.20 Duty to Defend
5.21 Public Policy Considerations
III. HOMEOWNERS’ LIABILITY INSURANCE
5.22 Overview
5.23 Common Exclusions
IV. DIRECTORS’ AND OFFICERS’ LIABILITY INSURANCE
5.24 Overview
5.25 Insured’s Capacity
5.26 Individual Liability
5.27 Notice
5.28 Coverage for Employment Practices
V. WORKERS’ COMPENSATION INSURANCE
5.29 Overview
5.30 Workers’ Compensation Coverage
5.31 Employers’ Liability Coverage: The Schmidt Case
VI. UMBRELLA AND EXCESS LIABILITY
5.32 Overview
D. FORMS
5.33 FORM: Sample Application for Employment Practices Liability Insurance
5.34 FORM: Sample Declarations Page
5.35 FORM: Sample Employment Practices Liability Policy
5.36 FORM: Sample Litigation Management Guidelines

Chapter 6 Damages
A. STRATEGY
6.01 Scope
6.02 Objective and Strategy
6.03 Damages and Deciding What Statutory Claim to Assert
B. ECONOMIC DAMAGES
6.04 Back Pay
6.05 Front Pay
6.06 Damages to Offset Negative Tax Consequences
C. EQUITABLE REMEDIES
6.07 Reinstatement
6.08 Other Equitable Relief D. PAIN AND SUFFERING AWARDS
6.09 Damages That Are Recoverable
6.10 Deciding Whether to Seek Pain and Suffering Damages
6.11 Damages That Are Not Recoverable
6.12 Showing Required, Experts and Expert Examinations
6.13 Who Calculates and How
6.14 Relationship to Other Claims (Intentional Infliction of Emotional Distress)
6.15 How High Is Too High?
6.16 CHECKLIST: Facts to Learn About Plaintiff
E. REDUCING/ELIMINATING ECONOMIC DAMAGES
6.17 The Ford Offer
6.18 After-Acquired Evidence
6.19 CHECKLIST: After-Acquired Evidence—Defendant
6.20 CHECKLIST: After-Acquired Evidence—Plaintiff
6.21 Mitigation and Other Potential Means to Reduce Economic Damages
F. PUNITIVE DAMAGES
6.22 Purpose of Punitive Damages
6.23 Standard for Imposing Punitive Damages
6.24 Timing for Imposing Punitive Damages
6.25 How to Calculate Punitive Damages
6.26 Constitutional Challenges to Punitive Damage Awards
6.27 CHECKLIST: Questions to Consider Regarding Reprehensibility
6.28 Ratio
6.29 Comparison to Civil or Criminal Penalties
6.30 Standard of Review

Chapter 7 Arbitration and Mediation of Employment Disputes
A. STRATEGY
7.01 Scope
7.02 Objective and Strategy
B. PRELIMINARY CONSIDERATIONS
7.03 Selecting the Most Appropriate ADR Method
7.04 Enforceability of Pre-Dispute ADR Agreements
C. PRACTICE AND PROCEDURE
7.05 Private Arbitration Procedures
7.06 Procedure and Practice in Court-Sponsored Arbitration Programs
7.07 Private Mediation Proceedings
7.08 Court-Sponsored Mediation Programs
7.09 CHECKLIST: Requirements for Enforceable Arbitration Agreement
7.10 CHECKLIST: Requirements for Agreement to Mediate
7.11 CHECKLIST: Requirements for Parties’ Agreement with Mediator
D. FORMS
7.12 FORM: Sample Arbitration Agreement
7.13 FORM: Sample Mediation Clause in Employment Contract
7.14 FORM: Sample Parties’ Agreement with Mediator
7.15 FORM: Sample Mediation Confidentiality Agreement

Chapter 8 Settlement of Employment Cases
A. STRATEGY
8.01 Scope
8.02 Objectives and Strategy
B. LAW AND PROCEDURE
8.03 Negotiating Settlement Agreements: Authority to Enter into Settlement Agreement on Behalf of Client
8.04 Contract Principles — Offer and Counteroffer
8.05 Negotiating Settlement Agreements When Representing Multiple Parties
C. TAX ISSUES RELATED TO SETTLEMENT OF EMPLOYMENT CASES
8.06 Introduction
D. RELEASES
8.07 Introduction
E. EXCLUSIONS FROM RELEASES
8.08 Workers’ Compensation
8.09 ERISA Vested Benefits
8.10 Invalidity of Provisions Precluding Employee from Filing Charges with EEOC or Cooperating in EEOC Investigations
8.11 Family and Medical Leave Act
F. OTHER PROVISIONS WHICH MAY BE INCLUDED IN SETTLEMENT AGREEMENTS
8.12 Prohibiting Re-Employment
8.13 Precluding Right to Recover In Subsequent Lawsuit or Other Proceeding
8.14 Confidentiality Provisions
8.15 Provisions Regarding Providing Information to Prospective Employers
8.16 Maintain Confidentiality of Trade Secrets and Other Confidential Information
8.17 Non-Solicitation Provisions
8.18 No Further Payments or Benefits Provision
8.19 Non-Admission/No Prevailing Party Clause
8.20 Other Provisions Which May Be Included
G. MULTIPLE LAY OFFS (EXIT INCENTIVES)
8.21 Introduction
H. TENDER-BACK PROVISIONS
8.22 Introduction
I. PROSPECTIVE WAIVERS
8.23 Title VII Rights
8.24 Other Rights
J. ISSUES RELATED TO SETTLEMENTS WITH PUBLIC ENTITIES
8.25 Settlement With a Public Entity
8.26 Settlement Agreement Filed With a Court
8.27 Settlement With the EEOC
K. ISSUES RELATED TO CONSIDERATION FOR SEPARATION AGREEMENTS
8.28 Form of Severance Pay
8.29 Amount of Severance
8.30 Continuation of Health Benefits During Severance Period/Offset Against COBRA
8.31 Vacation Pay
L. ATTORNEY’S FEES
8.32 Introduction.
8.33 CHECKLIST: Attorney Practice Pointers
M. DISTRIBUTION OF SETTLEMENT PROCEEDS
8.34 Requirement That Attorneys Search for Child Support Judgments Before Distributing Settlement Proceeds (N.J. Stat. Ann. § 2A:17-56.23b)
8.35 Responsibilities of Attorneys and Employers
8.36 Procedure
8.37 Enforcement
8.38 CHECKLIST: Attorney Practice Pointers
N. ENFORCEMENT OF SETTLEMENT AGREEMENTS
8.39 Enforcement of Settlement Agreements Generally
8.40 Enforceability of Oral Settlement Agreements
8.41 Authority of Attorney to Agree to Settlement on Behalf of Client
8.42 Procedural Issues Related to Enforcement of Settlement Agreements
8.43 CHECKLIST: Attorney Practice Pointers
8.44 Evidentiary Hearing May Be Necessary
8.45 Remedies for Breach of Settlement Agreements

Chapter 9 Administrative Practice and Procedures
A. STRATEGY
9.01 Scope
9.02 Objective and Strategy
B. OVERVIEW OF NEW JERSEY DIVISION ON CIVIL RIGHTS
9.03 Creation of Division on Civil Rights by New Jersey Law Against Discrimination
9.04 Overview of LAD
9.05 Procedures Before DCR
9.06 Final Orders by Director of Division on Civil Rights
9.07 Relationship of DCR to Alternative Forums for Employment Discrimination Claims

Chapter 10 At-Will Employment
A. STRATEGY
10.01 Scope
10.02 Objective and Strategy
B. GENERAL PRINCIPLES
10.03 Introduction
10.04 Definition of At-Will Employment
C. HISTORY OF AT-WILL EMPLOYMENT
10.05 The English Rule
10.06 The American Rule
10.07 New Jersey’s Treatment of At-Will Employment
D. IMPLIED EMPLOYMENT CONTRACTS
10.08 Introduction
10.09 Employee Handbooks
10.10 Oral Promises
10.11 Remedies for Breach of an Implied Employment Contract
10.12 Statute of Limitations
E. PUBLIC POLICY EXCEPTION TO THE DOCTRINE OF AT-WILL EMPLOYMENT
10.13 Introduction
10.14 Pierce v. Ortho Pharmaceutical Corp.
10.15 Defining the Reach of Pierce
10.16 Instances in Which a Pierce Cause of Action Has Been Recognized
10.17 Instances in Which a Pierce Cause of Action Has Not Been Recognized
10.18 Remedies for a Pierce Claim
10.19 Statute of Limitations on a Pierce Claim
10.20 Future of Pierce Claims
F. DISCHARGES IN VIOLATION OF THE CONSCIENTIOUS EMPLOYEE PROTECTION ACT
10.21 Introduction
10.22 Coverage of CEPA
10.23 The Mechanics of a CEPA Claim
10.24 Instances in Which a CEPA Cause of Action Was Recognized
10.25 Instances in Which a CEPA Cause of Action Was Not Recognized
10.26 Statute of Limitations
G. FORMS
10.27 FORM: Effective Woolley Disclaimer
10.28 FORM: Sample Jury Instructions

Chapter 11 Age Discrimination
A. STRATEGY
11.01 Scope
11.02 Objective and Strategy
B. THEORIES OF LIABILITY AND DEFENSES IN AGE CASES
11.03 Governing Law
11.04 Theories of Recovery
11.05 Statutory and Other Defenses Available to Employers
C. CLIENT COUNSELING
11.06 Strategies
D. CONSIDERATIONS FOR MOTIONS, TRIALS OR SETTLEMENT
11.07 Bringing Claims
11.08 Settlements and Release of Age Claims
11.09 Special Issues in Age Class Actions Under the ADEA
E. FORMS
11.10 Checklist for Plaintiff
11.11 Checklist for Defendant
11.12 Sample Voir Dire Questions for Age Cases
11.13 Sample Release Language for Compliance with OWBPA
11.14 Jury Charges

Chapter 12 Discrimination on the Basis of Race, Religion, Color, National Origin, Ancestry, Marital Status, Domestic Partnership Status, Sexual Orientation, Genetic Information, Sex, Liability for Service in the Armed Forces, and Nationality
A. STRATEGY
12.01 Scope
12.02 Objective and Strategy in Litigating LAD Claims
B. CLIENT COUNSELING
12.03 CHECKLIST: Evaluate the Strength of the Potential Case
12.04 Protected Characteristics
12.05 Determine Whether the Potential Plaintiff is Protected Under the LAD
12.06 Determine Whether the Potential Defendant is Subject to the LAD
12.07 Determine Whether the Potential Defendant’s Actions Are Prohibited Conduct Under the LAD
12.08 Evaluate All Available Facts to Assess the Potential Plaintiff’s Ability to Satisfy the Requisite Standard of Proof
12.09 Affirmative Defenses
12.10 Remedies
12.11 Venue.
C. FORMS
12.12 FORM: Sample Intake Questionnaire
12.13 FORM: Sample Complaint
12.14 FORM: Sample Answer
12.15 FORM: Sample Jury Voir Dire Questions
12.16 FORM: Sample Jury Charge— Disparate Treatment—Pretext

VOLUME 2
Chapter 13 Harassment
A. STRATEGY
13.01 Scope
13.02 Objective and Strategy in Litigated Harassment Claims
13.03 CHECKLIST: Issues to Consider When Representing Plaintiff in a Harassment Case
13.04 CHECKLIST: Issues to Consider When Representing Defendant in a Harassment Case
13.05 Union Employees
13.06 Investigation and Privilege
13.07 Confidentiality
B. HARASSMENT LAW
13.08 Basis of Liability
13.09 Harassment Defined
13.10 Defenses
C. DISCOVERY
13.11 Harassment Policy
13.12 Other Harassment Complaints
13.13 Harassment Investigations
13.14 Welcomeness
D. EXPERTS
13.15 Sexual Stereotyping Experts
13.16 Mental Health Experts
13.17 Medical Experts
13.18 Sociological Experts
13.19 Employment Practices Experts
13.20 Forensic Psychologists/Clinicians
E. EVIDENTIARY ISSUES
13.21 Plaintiff’s Conduct
13.22 Other Allegations of Harassment Against Defendants
13.23 General Perceptions of Harassment in the Workplace
13.24 Time-Barred Events
13.25 Administrative Agency Findings
F. DAMAGES
13.26 Equitable Damages
13.27 Compensatory Damages
13.28 Punitive Damages
G. FORMS
13.29 FORM: Sample Equal Opportunity and Anti-Harassment Policy

Chapter 14 Discrimination Based on Disability, Pregnancy, and AIDS/HIV
A. STRATEGY
14.01 Scope
14.02 Objective and Strategy
B. NEW JERSEY LAW AGAINST DISCRIMINATION
14.03 CHECKLIST: Points to Stress in Client Counseling
14.04 Legislative History
14.05 Applicability Issues and Related Laws
14.06 Election of Forum
14.07 Definition of Handicap
14.08 Establishing and Bringing a Prima Facie Case of Handicap Discrimination Under the LAD
14.09 Statute of Limitations and Available Damages
14.10 Individual Liability Under the LAD
14.11 Defenses Available to Employers Litigating LAD Disability Discrimination Claims
C. AMERICANS WITH DISABILITIES ACT
14.12 CHECKLIST: Points to Stress in Client Counseling
14.13 Legislative History
14.14 Applicability Issues
14.15 Definition of Disability
14.16 Individual Can Perform the Essential Functions of the Job With or Without a Reasonable Accommodation
14.17 Exhaustion of Administrative Remedies
14.18 Establishing and Bringing a Prima Facie Case of Disability Discrimination Under the ADA
14.19 Statute of Limitations and Available Damages
14.20 Individual Liability Under the ADA
14.21 Defenses Available to Employers Litigating ADA Disability Discrimination
D. THE REHABILITATION ACT OF 1973
14.22 CHECKLIST: Points to Stress in Client Counseling
14.23 Scope and Applicability
14.24 Statute of Limitations and Available Damages
E. OTHER DISABILITY DISCRIMINATION CLAIMS UNDER THE LAD AND ADA
14.25 Establishing and Bringing a Disparate Impact Claim Under the LAD and ADA. 14.26 Establishing and Bringing a Hostile Work Environment Claim Under the LAD and ADA
14.27 Retaliation Claims Under the LAD and ADA
F. REASONABLE ACCOMMODATION CLAIMS UNDER THE LAD AND ADA
14.28 Checklist: Points to Stress in Client Counseling
14.29 Definition of Reasonable Accommodations Under the LAD
14.30 Definition of Reasonable Accommodations Under the ADA
14.31 The Interactive Process Under the LAD and ADA
14.32 Establishing a Prima Facie Case Under the LAD
14.33 Establishing a Prima Facie Case Under the ADA
14.34 Defenses Available to Employers Litigating Reasonable Accommodation Claims Under the LAD and ADA
G. THE DISCOVERY PROCESS
14.35 Document Requests Made by Defendants
14.36 Document Requests Made by Plaintiffs
14.37 Interrogatories
14.38 Requests for Admissions
14.39 Independent Medical Exams
14.40 Depositions
14.41 Dispositive Motions
H. MEDICAL EXAMINATIONS AND DISABILITY-RELATED INQUIRIES
14.42 Pre-Employment Inquiries Under the LAD
14.43 Pre-Employment Inquiries Under ADA
14.44 Examinations of Current Employees Under ADA
14.45 Drug Testing Under ADA
14.46 AIDS Testing Under the ADA
I. PREGNANCY
14.47 Pregnancy is Not a Disability or Handicap
14.48 Certain Conditions Related to Pregnancy May be Disabilities
14.49 Pregnancy Discrimination Under the LAD
14.50 Pregnancy Discrimination Under Title VII of the Civil Rights Act
14.51 Treatment of Infertility Under the LAD and ADA

Chapter 15 Workplace Torts
A. STRATEGY
15.01 Scope
15.02 Objective and Strategy
B. CLIENT COUNSELING
15.03 How Tort Claims Arise
15.04 Employer Liability for Torts of Employees
C. TYPES OF TORTS
15.05 Negligence
15.06 Intentional Infliction of Emotional Distress
15.07 Negligent Infliction of Emotional Distress
15.08 Interference with Contractual Relations
15.09 Defamation
15.10 Fraud
15.11 Privacy

Chapter 16 Wage and Hour Claims
A. STRATEGY
16.01 Scope
16.02 Objectives and Strategy
16.03 Fair Labor Standards Act and the New Jersey Wage and Hour Law
16.04 Laws Governing the Employment of Minors
16.05 Equal Pay Acts
16.06 Prevailing Wage Act
16.07 New Jersey Wage Payment Law
16.08 Wage Collection Act
B. FAIR LABOR STANDARDS ACT AND THE NEW JERSEY WAGE AND HOUR LAW
16.09 Introduction
C. FEDERAL AND STATE LAWS REGULATING THE EMPLOYMENT OF MINORS
16.10 Introduction
D. FEDERAL AND STATE EQUAL PAY ACTS
16.11 Introduction
E. PREVAILING WAGE ACT
16.12 Introduction
F. NEW JERSEY WAGE PAYMENT LAW
16.13 Introduction
G. WAGE COLLECTION ACT
16.14 Introduction
H. CHECKLISTS OF ESSENTIAL ALLEGATIONS AND DEFENSES
16.15 Evaluate the Strength of the Potential Case
16.16 CHECKLIST: New Jersey Wage and Hour Law and the Fair Labor Standards Act
16.17 CHECKLIST: Laws Regulating the Employment of Minors
16.18 CHECKLIST: Equal Pay Acts
16.19 CHECKLIST: Prevailing Wage Act
16.20 CHECKLIST: New Jersey Wage Payment Law
16.21 Essential Allegations
16.22 CHECKLIST: New Jersey Wage and Hour Law and Fair Labor Standards Act—Essential Allegations
16.23 CHECKLIST: Federal and State Laws Regulating the Employment of Minors—Essential Allegations
16.24 CHECKLIST: Equal Pay Acts—Essential Allegations
16.25 CHECKLIST: Prevailing Wage Act—Essential Allegations
16.26 CHECKLIST: New Jersey Wage Payment Law—Essential Allegations
16.27 Affermative Defenses
16.28 CHECKLIST: New Jersey Wage and Hour Law and the Fair Labor Standards Act—Affirmative Defenses
16.29 CHECKLIST: Federal and State Laws Regulating the Employment of Minors—Affirmative Defenses
16.30 CHECKLIST: Equal Pay Acts—Affirmative Defenses
16.31 CHECKLIST: Prevailing Wage Act—Affirmative Defenses
16.32 CHECKLIST: New Jersey Wage Payment Law—Affirmative Defenses
16.33 CHECKLIST: Checklist of Sources of Proof of Essential Allegations and Affirmative Defenses
I. SAMPLE FORMS AND CLAUSESM
16.34 FORM: New Jersey Wage and Hour Law Complaint
16.35 FORM: Sample Jury Charges: Wage Disparity Under the State Equal Pay Act – Instruction No. 1 (General)
16.36 FORM: Sample Jury Charges: Wage Disparity Under the State Equal Pay Act – Instruction No. 2 (Similar Jobs)

Chapter 17 Class Actions
A. STRATEGY
17.01 Scope
17.02 Objective and Strategy
B. ASCERTAIN THE FEASIBILITY OF PROCEEDING ON A CLASS-WIDE BASIS
17.03 Prerequisites: New Jersey Court Rule 4:32-1
17.04 New Jersey Court Rule 4:32-2
17.05 Differences between New Jersey and Federal Class Actions
17.06 Class Actions in the Third Circuit
17.07 Different Types of Class Action
C. EVALUATION OF THE PROS & CONS OF PROCEEDING ON A CLASSWIDE BASIS
17.08 Factors to Analyze When Deciding Whether to Proceed on a Class-Wide Basis
D. ETHICAL CONSIDERATIONS
17.09 CHECKLIST: Points to Stress in Client Counseling and Retainer Agreement
17.10 Obligations of Class Counsel
17.11 Obligations of the Representative Plaintiffs
17.12 Attorney’s Fees
E. CONCLUSION
17.13 Basic Purposes Served By Class Actions
F. FORMS
17.14 FORM: Sample Retainer Agreement for Class Representation
17.15 FORM: Sample Class Action Complaint
17.16 FORM: Sample Script to be Utilized by Defense Counsel When Questioning Employees who may be Potential Class Members
17.17 FORM: Sample Pre-Certification Document Demands
17.18 FORMS: Sample Deposition Notices
17.19 FORM: Sample Notice of Class Action Settlement (For Publication)
17.20 FORM: Sample Individual Notice of Class Action Settlement
17.21 FORM: Sample Proof of Claim and Release

Chapter 18 ERISA Litigation
A. STRATEGY
18.01 Scope
18.02 Objective and Strategy
B. CIVIL ACTIONS INITIATED BY PARTICIPANTS AND BENEFICIARIES AGAINST WELFARE PLAN OR PENSION PLAN FOR DENIAL OF BENEFITS, TO CLARIFY FUTURE BENEFITS, OR FOR ENFORCEMENT OF TERMS OF PLAN
18.03 Statutory Provision
18.04 What the Plaintiff’s Attorney Needs to Know and Have Before Filing a Denial of Benefits Action
18.05 Requirement That a Participant or Beneficiary Must Exhaust Plan’s Administrative Remedies Before Bringing Suit to Recovery Benefits
18.06 Jury Trial
18.07 Venue
18.08 Nationwide Service of Process
18.09 Concurrent Jurisdiction
18.10 Preemption of State Law Claims Against the Fund
18.11 Statute of Limitations
18.12 Claim by a Participant or Beneficiary Where the Claim Is Denied Based Upon an Interpretation or Application of the Provisions of the Plan
18.13 Claim by a Participant or Beneficiary Where Claim Is Denied on Factual Grounds
18.14 Remedies Available in Denial of Benefit Claims Cases
18.15 A Court Will Order the Fund to Pay or Provide the Benefit
18.16 Injunctive Relief.
C. PARTICIPANT AND BENEFICIARY CLAIMS AGAINST FIDUCIARY FOR FAILURE TO PROVIDE FUND DOCUMENTATION
18.17 Statutory Provisions
18.18 Documents That May Be Requested from a Pension or Welfare Plan
18.19 Liability for Failing to Provide the Participant or Beneficiary with the Documents Requested
D. BREACH OF FIDUCIARY DUTY
18.20 Statutory Provision
18.21 Fiduciary Obligations
18.22 Remedies for Breach of Fiduciary Duty
18.23 Jury Trial
18.24 Exhaustion of Administrative Remedies Is Not Required
E. RIGHT OF A SELF-INSURED ERISA PLAN TO SEEK SUBROGATION OR REIMBURSEMENT FROM A PARTICIPANT OR BENEFICIARY
18.25 Overview
18.26 New Jersey State Court Decisions Regarding Insured Plans
18.27 ERISA Preemption of State Law with Regard to Subrogation and Reimbursement Agreements
18.28 An ERISA Welfare Fund’s Right to Seek Equitable Remedies, Including Enforcement of Subrogation/Reimbursement Provisions and Constructive Trusts, Against Participants and Beneficiaries
F. WELFARE AND PENSION FUNDS’ RIGHT TO AUDIT AN EMPLOYER’S PAYROLL AND FINANCIAL RECORDS AND TO COLLECT DELINQUENT FRINGE BENEFIT CONTRIBUTIONS DUE BY THE EMPLOYER
18.29 Fund’s Right to Audit
18.30 Collection Provisions
G. WITHDRAWAL LIABILITY
18.31 Background
18.32 Requirement to Make Interim Payments
18.33 Requirement to Initiate Arbitration to Challenge the Withdrawal Liability Assessment
H. FORMS
18.34 FORM: Sample Complaint for Denial of Benefits From a Welfare Fund

Chapter 19 Federal Family Medical Leave Act and New Jersey Family Leave Act
A. STATUTORY ELEMENTS, LITIGATION, AND OTHER CONSIDERATIONS
19.01 Scope
19.02 FMLA/NJFLA — Legal Summary
19.03 Interplay Between the FMLA and the NJFLA
19.04 Special Issues in the Collective Bargaining Setting
19.05 FMLA and NJFLA Interplay with Other Statutes
19.06 Litigation Avoidance
19.07 Trial and Litigation Techniques
B. FORMS
19.08 Sample FMLA Complaint
19.09 FORM: Certification of Health Care Provider
19.10 FORM: Employer Response to Employee Request for Family or Medical Leave
19.11 FORM: U.S. Department of Labor Fact Sheet #28: The Family and Medical Leave Act of 1993
19.12 FORM: FMLA Poster “Your Rights Under the Family & Medical Leave Act of 1993”
19.13 Notice of Intention to Return From Leave
19.14 FORM: Request to Return from FMLA Leave of Absence
19.15 FORM: Approval of Request for Intermittent Leave
19.16 FORM: Eighth Circuit Jury Instructions For FMLA Cases

Chapter 20 Covenants Not To Compete
A. STRATEGY
20.01 Scope
20.02 Objective and Strategy
B. LEGAL BACKGROUND
20.03 Judicial Ambivalence Towards Covenants Not to Compete Results in Heightened Level of Judicial Scrutiny
20.04 Enforceability of Restrictive Covenants Is Determined by Three- Pronged Test
20.05 Temporal and Geographic Scope
20.06 Inevitable Disclosure Doctrine
C. LITIGATION AVOIDANCE
20.07 Employer’s Litigation Avoidance Tactics
20.08 Employee’s Litigation Avoidance Tactics
D. CLIENT INTAKE, FACT INVESTIGATION, COUNSELING THE CLIENT
I. On Behalf of the Employer
20.09 CHECKLIST: Conducting Exit Interviews
20.10 Employer’s Counsel’s Factual Investigation on Discovering Breach of Restrictive Covenant
II. On Behalf of the Employee
20.12 CHECKLIST: Questions to Ask Employee
20.13 Documents to be Collected from Employee
20.14 Investigate Old Employer and New Employer
E. COMMON PROBLEMS IN RESTRICTIVE COVENANT LITIGATION
20.15 Unavoidable Disclosure of Confidential Information and Trade Secrets to Court and Competitor’s Counsel.
20.16 Choice of Law Problems
20.17 Involvement of Unwilling Customers and Clients in Litigation as Witnesses
F. LITIGATION STRATEGY
I. Strategic Considerations for Employer
20.18 To Sue or Not to Sue
20.19 Whether to Seek Interim Injunctive Relief
20.20 Choice of Forum: Federal Court, State Court or Arbitration
20.21 Causes of Action to Allege Against Employee
20.22 Suing New Employer: Advantages and Disadvantages
II. Strategic Considerations for Employee
20.23 Preemptive Filing of Declaratory Judgment Complaint
20.24 Employee Should Try to Demonstrate Conflict of Affidavits
20.25 Removal to Federal Court
20.26 Employee Should Try to Use Agreement to Arbitrate to Greatest Advantage
20.27 Employee Should Demand All Legitimate Discovery
III. Liability and Defenses
20.28 Establishing Liability
20.29 Employee Defenses
IV. Settlement
20.30 Restrictive Covenant Settlements May Take Many Forms
G. TRIAL STRATEGIES, THEMES AND EXPERT WITNESSES
20.31 Employer’s Strategies and Themes
20.32 Employee’s Strategies and Themes
20.33 Expert Witnesses
H. DAMAGES
20.34 Lost Profits
20.35 Other Measures of Damages
I. FORMS
20.36 FORM: Sample Verified Complaint for Support of Application
for Order to Show Cause With Temporary Restraints
20.37 FORM: Sample Order to Show Cause With Temporary Restraints
20.38 FORM: Sample Certification in Support of Issuance of Stipulated Protective Order
20.39 FORM: Sample Stipulated Protective Order

Chapter 21 Attorney’s Fees in Discrimination Cases
A. STRATEGY
21.01 Scope
21.02 Objective and Strategy
B. GENERAL PRINCIPLES
21.03 The American Rule
21.04 Statutory Exceptions to the American Rule
C. WHO MAY BE AWARDED ATTORNEY’S FEES?
21.05 Prevailing Party
21.06 Identifying the Prevailing Party in Cases Resulting in Consent Decrees and Settlement Agreements
D. WHAT MAY BE AWARDED?
21.07 Specific Fees and Costs
E. CALCULATING ATTORNEY’S FEES
21.08 The Lodestar Rule
21.09 Proportionality
21.10 Hensley Reduction
21.11 Contingency Enhancement under the LAD and the FLA
F. OVERVIEW OF THE APPLICATION PROCESS
21.12 Applying for Attorney’s Fees
21.13 Defending Against an Application for Attorney’s Fees
21.14 Court’s Discretion
G. DO COURT RULES LIMIT THE AWARD OF ATTORNEY’S FEES?
21.15 An Open Issue
H. EXAMPLES OF CASES IN WHICH ATTORNEY’S FEES WERE AT ISSUE
21.16 Cases Brought Pursuant to the NJLAD
21.17 Cases Brought Pursuant to the NJFLA
21.18 Cases Brought Pursuant to CEPA
I. FORMS
21.19 FORM: Model Language for Settlement Agreements Waiving Plaintiff’s Right to Attorney’s Fees

Table of Cases
Table of Statutes [Reserved]
Index