Volume 8, Spring 2011, Issue 4
Richard Barca
The United States Congress has utilized its constitutionally enumerated powers under the Commerce Clause and the Fourteenth Amendment to enact laws with the goal of ending harmful workplace discrimination. The seminal federal employment discrimination laws that were passed to achieve this noble end include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA) of 1967, and the Americans with Disabilities Act (ADA) of 1990. Employment discrimination laws embody the principle that “[d]istinctions must be made on the basis of merit, rather than skin color, age, sex or gender, or any other measure that obscures a person’s individual humanity and worth.” View More
Eric Berg
Mary Motorist is stopped at a red light when she is startled by a loud crash. Her head jerks forward as her car is shaken. She has just been rear-ended by Cathy Careless, a New Jersey Department of Transportation (“DOT”) worker on her way to an appointment in a state vehicle. The two exchanged insurance information, and Mary felt well enough to go home. Later, she found that she was still experiencing pain in her neck. Mary went to the doctor, who in turn sent her to a radiologist and an orthopedist. Mary was diagnosed with whiplash and a sprain of the cervical spine. After consulting with a personal injury attorney, Mary filed suit against Cathy Careless and the New Jersey DOT, seeking damages for pain and suffering. Discovery revealed that in the opinion of Mary’s orthopedist, Mary’s injuries were permanent and that she would suffer chronic pain in her back and neck for the rest of her life. View More
Sanu Dev
The Supreme Court and Congress have recognized the importance of education in American society as early as the 1950s when the Court in Brown v. Board of Education declared education to be “perhaps the most important function of state and local governments.” While education has traditionally been under the control of local governments, the federal government has an invested interest in ensuring that children mature into functioning adults who contribute positively to society at large. In 1975, Congress enacted the Education for All Handicapped Children Act “to ensure that all children with disabilities have available to them a free appropriate public education [(FAPE)] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living” and “to ensure that the rights of children with disabilities and parents of such children are protected.” In 1990, Congress renamed this act as the Individuals with Disabilities Education Act (IDEA), but the substance of the original act remained unchanged. The Office of Special Education and Rehabilitative Services (OSERS), a component of the U.S. Department of Education, administers the IDEA, providing federal funds to school districts in order to provide educational and related services to students with disabilities. View More
Alexander F. Hersonski
The Family and Medical Leave Act of 1993 (FMLA) was intended to provide unpaid family and medical leave to employees suffering from a serious medical condition, or to employees having to take care of an immediate family member– including a foster or adoptive child–for up to twelve weeks. As part of the FMLA, an employee who has worked for an organization employing at least fifty individuals and who has been employed for at least twelve months with a minimum of 1250 work hours, is entitled to twelve weeks of leave in any 12- month period. Under a separate provision of the Act, an employee who enjoys the benefits of FMLA leave is entitled to be restored to her original position, or one equivalent to it, without any loss of accrued benefits. However, in order to prevent potentially retaliatory action by employers under the Act, Congress provided for a cause of action to employees adversely affected by the conduct of their employers. It is “unlawful for any employer to interfere with, restrain, or deny the exercise of” rights under the FMLA. Employees deemed to have been adversely affected by an employer’s retaliatory or discriminatory conduct as regards the FMLA can recover lost wages and employment benefits, plus interest. Remedy under the FMLA may be accomplished in one of two ways. First, an employee may directly seek civil action for damages or equitable relief. Employees may seek injunctive relief in the form of a restoration of one’s previous position prior to termination or a position that the employee would have attained were it not for the unlawful termination. In addition, an FMLA plaintiff may file a complaint with the Secretary of Labor, who then has authority to investigate. However, plaintiffs may not recover punitive damages or damages for emotional distress resulting from a FMLA violation. View More
Allison L. Pavero
Courts of the United States have routinely neglected to hold Internet Service Providers (“ISPs”) liable for contributory copyright and trademark infringement. However, on August 28, 2009, in Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., eight jurors out of the Northern District of California found two ISPs liable for $32.4 million in damages to French luxury retailer Louis Vuitton (“LV”) for neglecting to remove websites that sold LV’s counterfeit products. View More
EFFICIENCY GAINS: AN ARGUMENT FOR A COMPRESSED WORKWEEK FOR NEW JERSEY’S PUBLIC EMPLOYEES
Kyle Vellutato
It is time for New Jersey’s leaders to think outside of the box. Like most every other state in the union, New Jersey is not immune to the harsh effects of the recent economic crisis. For the fiscal year of 2011, New Jersey faces nearly a $10 billion budget deficit and a mid-year budget gap of more than $2 billion, which is among the highest in the United States. According to a December 2009 report by the Economics Group of Wells Fargo Securities, LLC, New Jersey’s unemployment rate has more than doubled since January 2008, currently standing at 9.7%. As a result of continuing high unemployment, economists predict decreased state income tax receipts and increased demand for state services, which will ultimately make it more difficult for the state to close its budget gap. Further, because state fiscal problems have historically lagged national recessions, it is likely that New Jersey’s budget deficit will continue into 2012 or beyond. It logically follows then that eliminating state services entirely, thereby terminating state employees, may reduce budget forecasts in the short run, but will only create greater demand for state aid among New Jersey citizens. If history is an accurate indicator, it is clear that the Garden State is in desperate need of a solution to its budget woes. View More