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Practice Tips for a Successful Workplace Investigation

Practice Tips for a Successful Workplace Investigation Former Uber engineer Susan Fowler Rigetti’s story of sexual harassment and the company’s inadequate response to her multiple complaints, highlight how important it is for a company to have an effective action plan in dealing with these sensitive issues. The following is some practice pointers on what a company should do (and not do) when it receives an employee complaint of discrimination/harassment or other misconduct by another employee: Understand the complaint Before taking action, it’s important to understand what the employee is complaining about. The company must know who is involved, what is … Continue reading Practice Tips for a Successful Workplace Investigation

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Zoom Employee Firings

Mass Employee Firings via Zoom: I have always advised my business clients who were contemplating terminating an employee (or group of employees via a reduction in force) to treat the employee(s) with dignity and respect.  I explained that this was important, not just because it was the “right thing to do” from a human perspective, but because I have seen that how a company treats a worker who is on the way out the door could determine whether that person will seek a legal challenge to its business decision. Most business decisions to terminate an employee are predicated on multifaceted and … Continue reading Zoom Employee Firings

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New Jersey COVID-19 Resources

There has been a considerable amount of legislative activity in the last few weeks in response to the COVID-19 crisis.  The following is a list of COVID-19 resources, from Federal and New Jersey agencies (and one outside legal publication), that should be helpful in navigating all of this new information.  Please do not hesitate to contact Traub Law if you need help understanding your rights or responsibilities during this time. COVID-19 Resources Federal Agencies Centers for Disease Control and Prevention (CDC) https://www.cdc.gov/coronavirus/2019-ncov/index.html https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html Occupational Safety and Health Administration (OSHA) https://www.osha.gov/Publications/OSHA3990.pdf https://www.osha.gov/SLTC/covid-19/ Equal Employment Opportunity Commission (EEOC) https://www.eeoc.gov/facts/pandemic_flu.html Department of Labor … Continue reading New Jersey COVID-19 Resources

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Differences Between Unfair Treatment and Unlawful Conduct in the Workplace in 2020

Most, if not all, employees experience unfair treatment at work at some time or another. Unfair treatment can include being passed over for a promotion or better opportunity because of nepotism, favoritism, or office politics. It can include a boss who is a bully and yells and screams at you for no reason. It can include being falsely accused of breaking office policy or work rules, or even committing a crime! By this point in my career, I’ve pretty much heard it all. Nothing surprises me when it comes to what goes on in New Jersey workplaces. Unfortunately, as I … Continue reading Differences Between Unfair Treatment and Unlawful Conduct in the Workplace in 2020

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Employers Should Stay Aware of Heat-Related Risks for Employees

New Jersey and New York both experienced dangerous heat waves this summer, and the temperatures seem to keep rising. With hotter temperatures lasting longer into the fall months, a greater focus has been on keeping workers who are exposed to the heat safe at work. Currently, only three states have heat-related labor regulations – California, Washington, and Minnesota. There are no specific heat-related guidelines at the federal level, as there is only general guidance that employers must provide working conditions that are safe. For this reason, many employers across the United States fail to take appropriate measures to keep employees safe … Continue reading Employers Should Stay Aware of Heat-Related Risks for Employees

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Third Circuit Denies Employee Title VII Protections for Sexual Orientation Discrimination

Title VII of the Civil Rights Act of 1964 provides safeguards for employees across the United States from discrimination and harassment based on numerous protected factors. While the law does not specifically state “sexual orientation” as a protected factor, the Equal Employment Opportunity Commission (EEOC), which enforces Title VII, has issued guidance in recent years that the agency interprets the law to prohibit sexual orientation discrimination under the umbrella of unlawful “sex” discrimination. There is, however, no federal law yet that expressly prohibits this type of employment discrimination. In May, a federal judge for the Third Circuit dismissed a sexual orientation discrimination … Continue reading Third Circuit Denies Employee Title VII Protections for Sexual Orientation Discrimination

New Jersey Law Strengthens Protections for Employees

On March 18, 2019, Governor Murphy signed Bill S121into law, immediately strengthening protections for New Jersey employees with regard to workplace harassment, discrimination, or retaliation. The material below provides an overview of the two ways in which the new law amends the New Jersey Law Against Discrimination (NJLAD).  Employers are Prohibited from Requesting that Employees Waive their Rights under the NJLAD Many employers request that employees sign arbitration agreements and other contracts that limit their rights in some manner. Bill S121 invalidates provisions in employment contracts that waive employee rights related to harassment, discrimination, or retaliation claims. Examples of the kinds … Continue reading New Jersey Law Strengthens Protections for Employees

NYC Outlaws “Hair Discrimination”

The New York City Commission on Human Rights (NYCCHR) issued new guidance that aims to further curb race discrimination in the NYC workplaces. Title VII of the Civil Rights Act of 1964 and the New York Human Rights Law both strictly prohibit NY employers from discriminating against employees on the basis of race. However, many people still experience such discrimination through seemingly neutral and innocuous employment policies that apply differently to people of different races. The NYCCHR stated that discrimination against Black individuals continues to occur in many ways, including employers enforcing policies that discriminate against common cultural practices or characteristics of … Continue reading NYC Outlaws “Hair Discrimination”

NJ Appellate Court Rules against Emailed Employee Arbitration Agreement

NJ Appellate Court Rules against Emailed Employee Arbitration Agreement The New Jersey Appellate Division recently upheld limits on an employer’s ability to force employees into arbitration when employees have not expressly agreed to the arbitration process. Recently published in January 2019, the ruling in Skuse v. Pfizer, Inc. addressed the sufficiency of email and online training modules to seek an employee’s agreement to arbitration and waiver of litigation rights. The Court relied on long-standing precedent regarding the valid and enforceable arbitration agreements to find in favor of the employee in this matter. The ruling specifically noted this case “exemplifies an inadequate … Continue reading NJ Appellate Court Rules against Emailed Employee Arbitration Agreement

New Jersey Considering $15.00 Minimum Wage

New Jersey Considering $15.00 Minimum Wage The minimum wage that employers may pay employees varies significantly from state to state. Some states still follow the federal minimum wage of $7.25 per hour, while states like Washington require a higher minimum wage of $12.00 per hour as of 2019. Several states have implemented legislation that gradually increases the minimum wage over several years, and New Jersey legislators are considering a proposed bill that would do the same. NJ A15 was introduced in December 2018 and aims to raise the state minimum wage of $8.85 per hour incrementally until it eventually reaches … Continue reading New Jersey Considering $15.00 Minimum Wage

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NY Rejects Non-compete Agreements for Rank and File

Many states courts and legislatures across the country have recently acted, through rulings, investigations and pending legislation, to limit the application and enforcement of non-compete clauses in an effort to protect workers who are in an unfair bargaining position with their employers.  For example, the New York Attorney General (NYAG) has recently conducted a number of investigations into the “rampant use” of non-competes by companies that seek to restrict the post-employment activities of nearly its entire workforce, and not just those employees who are highly skilled or have specialized knowledge. New York courts generally disfavor restrictive covenants and will only … Continue reading NY Rejects Non-compete Agreements for Rank and File

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Severe Misconduct Disqualification Eliminated from NJ Unemployment

Severe Misconduct Disqualification Eliminated from NJ Unemployment I am pleased to report that the New Jersey legislature has finally repealed the extraordinarily unfair and misapplied severe misconduct disqualification standard in the State’s unemployment statute. Governor Christie and his lieutenants had concocted, in 2008, this additional mode of disqualifying applicants as a revenue raising, budget balancing tactic. Governor Murphy signed this bill on August 24, 2018 and it takes effect immediately.  The new law corrects many unworkable and unfair provisions of the unemployment statute, such as: There are no longer three tiers of misconduct disqualification (“simple”, “severe” and “gross”); There will … Continue reading Severe Misconduct Disqualification Eliminated from NJ Unemployment

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NJ Bill Prohibits Restraints on Litigating Discrimination Claims

NJ Bill Prohibits Restraints on Litigating Discrimination Claims The NJ Senate recently introduced legislation, no doubt intending to improve the rights of employees who have discrimination claims, by requiring more transparency in litigating these claims. This bill, S3581, provides that provisions in an employment contract that waive “any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment” are contrary to public policy and would be unenforceable. Furthermore, this bill would prohibit any “prospective waiver of rights or remedies” such as a jury trial or mandatory arbitration of discrimination claims under the New Jersey Law … Continue reading NJ Bill Prohibits Restraints on Litigating Discrimination Claims

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Executive Pension Plans: Bargaining Power Not Top Hat Plan Element

Executive Pension Plans: Bargaining Power Not Top Hat Plan Element December 2017 The 3rd Circuit in Skiora v. UPMC et al, revisited the substantive requirements of a “top hat” plan in deciding whether Plaintiff, Paul Skiora, was entitled to recover pension benefits from his former employer’s supplemental benefit plan. Skiora, was a Vice President of the University of Pittsburgh Medical Center (“UPMC”) from 2005-2011.  Upon his voluntary termination of employment, Skiora applied for benefits under UPMC’s Non-Qualified Supplemental Benefit Plan (the “Plan”).  UPMC argued that the Plan was a “top-hat” plan exempt from many of the substantive provisions of the … Continue reading Executive Pension Plans: Bargaining Power Not Top Hat Plan Element

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Coming Forward with Sexual Harassment Claims

Weinstein, Ailes, Uber: Coming Forward with Sexual Harassment Claims             Recent headlines are rife with salacious stories of powerful men sexually harassing female subordinates in the workplace.  But what is even more troubling to me than the details of the predatory behavior, is the complicity of co-workers, supervisors, senior executives and even outside Board members in keeping the allegations private so that business can continue as usual.  This culture of sweeping things under the rug and prioritizing the status quo greatly inhibits the ability to make positive, real change in this area. Women will only have the courage to come … Continue reading Coming Forward with Sexual Harassment Claims

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Worker Who Quits for a Better Job May Still Get Unemployment Benefits

Worker Who Quits for a Better Job May Still Get Unemployment Benefits September 2017 I was pleased to read that the NJ Appellate Division gave a fair reading to a recent amendment to the NJ unemployment compensation statute in order to award benefits to a displaced worker. In McClain v. Board of Review, the Appellate Division overturned the New Jersey Board of Review’s denial of unemployment benefits to Patricia McClain who left her job as a teacher at one private school to take a job at another – but then found herself unemployed after the second school rescinded its offer … Continue reading Worker Who Quits for a Better Job May Still Get Unemployment Benefits

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New Jersey Pregnancy Discrimination Case Can Be Heard By Jury

New Jersey Pregnancy Discrimination Case Can Be Heard By Jury, August 2017 The New Jersey Appellate Division has ruled, in Roopchand vs. Complete Care, et al, that a pregnant medical technician presented a prima facie case of pregnancy discrimination in her wrongful termination lawsuit when her former employer fired her for refusing to climb a ladder because her pregnancy was “high-risk.” The Appellate Division reinstated Roopchand’s suit on August 3, 2017, after the Superior Court dismissed the case, holding that the employer articulated a legitimate, nondiscriminatory reason for Roopchand’s firing, her insubordination. Sandra Roopchand worked at the medical office in … Continue reading New Jersey Pregnancy Discrimination Case Can Be Heard By Jury

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Third Circuit Rules Workers Age 50+ Can Be Considered Subgroup in Testing for Discrimination

Third Circuit Rules Workers Age 50+ Can Be Considered Subgroup in Testing for Discrimination New Jersey’s Third Circuit recently held in Karlo v. Pittsburgh Glass Works, LLC, No. 15-3435, 2017 WL 83385 (3d Cir. Jan. 10, 2017), that workers in their 50s may be recognized as a “subgroup” of employees protected by the Age Discrimination in Employment Act (“ADEA”) if an employer’s policies inadvertently disfavor them relative to their co-workers who are over age 40 and, therefore also protected employees under this law. The plaintiffs in Karlo were all over age 50 and had worked in defendant’s Manufacturing Technology division … Continue reading Third Circuit Rules Workers Age 50+ Can Be Considered Subgroup in Testing for Discrimination

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New Jersey Court Enforces Non Compete Clauses Contained in a “Clickwrap” Agreement

New Jersey Court Enforces Non Compete Clauses Contained in a “Clickwrap” Agreement In a recent New Jersey federal case, ADP LLC v. Lynch, 3d Cir. (Ambro, U.S.C.J.), the Third Circuit declined to lift an injunction prohibiting two former employees of ADP from soliciting its clients on behalf of a competitor. The injunction partially enforced non-compete agreements that Jordan Lynch and John Halpin agreed to online in what is commonly referred to as a “clickwrap” agreement. A clickwrap agreement is a type of contract in which a user must agree to terms and conditions prior to using the product or service. … Continue reading New Jersey Court Enforces Non Compete Clauses Contained in a “Clickwrap” Agreement

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Ambiguous Jury Waiver in Employment Agreement Unenforceable in Whistleblower Case

Ambiguous Jury Waiver in Employment Agreement Unenforceable in Whistleblower Case In Noren v. Heartland Payment Systems, Inc., Docket No. A-2651-13T3, __N.J. Super. __ (Feb. 6, 2017), the New Jersey Appellate Division held that a provision in an employment agreement which provided that the employee “irrevocably waive[s] any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement” was unenforceable as to a former employee’s statutory employment claims. Following his termination of employment, Noren sued his former employer alleging a violation of the Conscientious Employee Protection Act (“CEPA”), New Jersey’s employment … Continue reading Ambiguous Jury Waiver in Employment Agreement Unenforceable in Whistleblower Case

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Employer’s Failure to Use Employee’s New Name Does Not Amount to National Origin Discrimination

Judge Kevin McNulty of the U.S. District Court for the District of New Jersey dismissed a pro se action that plaintiff Erwin LeJon-Twin El, who changed his name upon joining the Moorish Science Temple of America, brought against his employer Impax Laboratories alleging several claims of discrimination based on his national origin. In October 2014 Mr. LeJon-Twin El announced his new name to his employer. The employer agreed to use the new name whenever possible but would still use his birth name for federal I-9 and payroll tax purposes. The employer agreed to use the new name whenever it was … Continue reading Employer’s Failure to Use Employee’s New Name Does Not Amount to National Origin Discrimination

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NJ Supreme Court holds State Police Did not Waive Immunity in ADA Case

The NJ Supreme Court recently ruled that the New Jersey State Police’s failure to assert a sovereign immunity defense during its trial on an Americans with Disabilities Act claim does not constitute a waiver of sovereign immunity. This case was brought by Brian Royster, a state trooper who suffered from ulcerative colitis. His condition required that he have immediate access to a bathroom while on the job. After returning from medical leave for treatment of his condition, his department assigned him to conduct surveillance from a car. He repeatedly asked to be moved to an assignment that offered access to … Continue reading NJ Supreme Court holds State Police Did not Waive Immunity in ADA Case

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Court Upholds Firing of Muslim Prison Guard Who Wore Muslim Headscarf

Despite the finding of a prima facie case of race discrimination, a New Jersey appeals court has upheld the firing of a Muslim corrections officer who refused to remove her headscarf on the job. Linda Tisby began working at the Camden County Correctional Facility in 2002 but became a Muslim in 2015 and one day reported to work wearing the khimar, or headscarf. She refused to remove it, was sent home and recommended for disciplinary charges. After continuing to report to work wearing the khimar, the Correctional Facility dismissed Tisby on May 11, 2015. Tisby filed two separate suits against … Continue reading Court Upholds Firing of Muslim Prison Guard Who Wore Muslim Headscarf

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National Retailers Cease Using On-Call Shift Scheduling

In a positive development for workers, the New York Attorney General, Eric Schneiderman, announced that six major retailers have agreed to stop using on-call shift scheduling after an inquiry by a multistate coalition of attorneys general. On-call shifts involve employees required to call their employers a few hours before they are supposed to work, to see if they will be scheduled for work. We have found that this arrangement is designed to provide the employer flexibility in case it’s labor needs increase or decrease. The problem for the worker is that he or she would presumably need to keep the … Continue reading National Retailers Cease Using On-Call Shift Scheduling

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NY Court of Appeals Holds that Yoga Instructors Can Be Independent Contractors

I usually blog about New Jersey unemployment cases and determinations but there is an interesting case that was just decided in New York that is worth noting. Although the legal standard for entitlement to unemployment benefits differs between the states, both New Jersey and New York ultimately look to see how much “control” the business exercises over the worker in making its determination on how the relationship should be classified. The more control a business has over the worker in the nature and manner of the work performed, the more likely it is that he or she will be considered … Continue reading NY Court of Appeals Holds that Yoga Instructors Can Be Independent Contractors

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NJ Supreme Court Case Makes it More Difficult to Reduce Jury Emotional Distress Damage Award

In a recent employment discrimination case, Cuevas v. Wentworth Group, the NJ Supreme Court upheld the jury’s award of emotional distress damages to the Plaintiffs, Ramon and Jeffrey Cuevas, two brothers who suffered derogatory and humiliating racial remarks and discrimination at work. The brothers are Hispanic. Wentworth fired the brothers shortly after Jeffrey complained about the harassment. At the trial court level, the jury awarded over $1 million in lost wages, $800,000 in emotional distress damages and $52,500 in punitive damages to Ramon. It awarded Jeffrey $150,000 in lost wages, $600,000 in emotional distress damages and $32,500 in punitive damages. … Continue reading NJ Supreme Court Case Makes it More Difficult to Reduce Jury Emotional Distress Damage Award

Written Warning Could be an Adverse Employment Action under the NJLAD

The New Jersey Appellate Division recently held that a written warning, if part of a system of progressive discipline, may constitute an adverse employment action under the New Jersey Law Against Discrimination (“NJLAD”), which in turn could mean an employer could be held liable for discriminatory or retaliatory actions. In Prager v. Joyce Honda, Inc., No. A-3691-14T3, ____N.J. Super _____ (App. Div. August 22, 2016), Plaintiff was a former receptionist who was inappropriately touched by a long-standing, valued customer of the Joyce Honda car dealership. Plaintiff filed a municipal court complaint against the customer. Plaintiff claimed that she thereafter became … Continue reading Written Warning Could be an Adverse Employment Action under the NJLAD

Employer May be Held Liable for Retaliatory Intent of Low Level Employee

The Second Circuit in Vasquez v. Empress Ambulance Service, Inc., recently adopted the “cat’s paw” theory of liability under Title VII and found that the retaliatory intent of a low-level, non-supervisory employee may be ascribed to an employer where “the employer’s own negligence gives effect to the employee’s retaliatory animus and causes the victim to suffer an adverse employment decision.” The Plaintiff in this case was an emergency medical technician. She reported to her supervisors that a fellow EMT had sexually harassed her. The harasser suspected that the Plaintiff had complained about his behavior and, in retaliation, manipulated a series … Continue reading Employer May be Held Liable for Retaliatory Intent of Low Level Employee

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NJ Court Refuses to Require Arbitration of Employment Dispute

The NJ Appellate Division has ruled, once again that it will not require enforcement of an arbitration clause absent a showing that the clause constituted a clear waiver by the plaintiff of his or her right to a jury trial. In Anthony v. Eleison Pharmaceuticals LLC, Docket No. A-932-15T4 (App. Div. July 18, 2016), a former executive filed a lawsuit against his former employer under the New Jersey Wage Payment Act, alleging that the company failed to pay him wages that were due to him following the termination of his employment. The lawsuit also included breach of contract claims. The … Continue reading NJ Court Refuses to Require Arbitration of Employment Dispute

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NJ Court Rules Employer Cannot Shorten SOL for Discrimination Claims

We are pleased to write that the New Jersey Supreme Court ruled, last week, that the two-year statute of limitations for filing a discrimination claim under the NJ Law Against Discrimination (“LAD”) couldn’t be shortened by an employer seeking to insert a clause in an employment agreement or contract. The case arose when Raymours Furniture Co., fired an employee, Sergio Rodriguez who had signed a job application which stated, in capital letters, that he agreed “that any claim or lawsuit relating to [his] service with Raymour & Flanigan must be filed no more than six moths after the date of … Continue reading NJ Court Rules Employer Cannot Shorten SOL for Discrimination Claims

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Uber faces another class action suit in New Jersey over failing to pay its drivers overtime

Uber Technologies Inc., no stranger to litigation brought by its drivers across the country, is now facing a possible class action in federal court in New Jersey. The suit accuses Uber of violating New Jersey wage and hour laws by failing to pay its drivers overtime for working more than 40 hours per week and failing to reimburse them for vehicle costs. Jaswinder Singh, the named plaintiff in the complaint, a New Jersey resident, drove for Uber for more than one year and regularly exceeded 60 hours of work per week, yet, the lawsuit claims, was not paid an overtime … Continue reading Uber faces another class action suit in New Jersey over failing to pay its drivers overtime

EEOC Releases New Guidance on What is a Reasonable Accommodation under the ADA

On May 9, 2016, the Equal Employment Opportunity Commission (“EEOC”) released new guidance on what is a reasonable accommodation under the Americans with Disabilities Act (“ADA”). The guidance makes clear that employers must not only provide employees with disabilities access to leave as an accommodation on the same basis as similarly situated employees without disabilities, but may be required to modify its policies to provide leave for a disability even where the employer does not offer leave to other employees. The guidance also addresses common issues for employers including analyzing undue hardship, requests for “indefinite” leave, maximum leave policies, and … Continue reading EEOC Releases New Guidance on What is a Reasonable Accommodation under the ADA

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New Jersey District Court Certifies Class in Gender Discrimination Lawsuit

The U.S. District Court in New Jersey, in Smith et al. v. Merck & Co., Inc., 3:13-cv-02970 (D.N.J.), recently issued a ruling that paves the way for thousands of women across the United States to join a lawsuit alleging gender discrimination against Merck & Co., a large pharmaceutical company. Judge Shipp conditionally certified a class of current and former female sales representatives. He ruled that “[t]he information submitted by Plaintiffs shows that the sales representatives had similar responsibilities; that named plaintiffs were paid less than some allegedly similarly situated males; and that compensation decisions, although based in part on input … Continue reading New Jersey District Court Certifies Class in Gender Discrimination Lawsuit

Gov. Christie Vetoes Equal Pay Bill

As reported by NJ.com, Governor Chris Christie has vetoed SB 992, a bill which sought to bar gender-based pay discrimination.  A full text of the proposed legislation may be read here.  The bill would have amended the New Jersey Law Against Discrimination by adding language prohibiting an employer from paying one gender less than the other for “substantially similar” work.  Employers would be permitted to pay workers of different sexes doing similar jobs in an unequal manner only if they could demonstrate that the unequal treatment was justified based on factors such as training, education, experience, or job performance.  The bill … Continue reading Gov. Christie Vetoes Equal Pay Bill

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NY MAYOR SIGNS LEGISLATION STRENGTHENING EMPLOYEE PROTECTIONS UNDER NYC HUMAN RIGHTS LAW

On Monday, March 28, 2016, Mayor Bill de Blasio signed several bills amending the NYC Human Rights Law (“NYCHRL”). We are pleased because these amendments should ultimately provide employees more protection under the law. The bills incorporate three NYC judicial decisions as appropriate examples of the liberal construction requirement of the NYCHRL. In Albunio v. City of New York, 17 N.Y.3d 472 (N.Y. 2011), the Court of Appeals held that it must construe the anti-retaliation provision of the NYCHRL broadly in favor of discrimination plaintiffs, to the extent that such construction was reasonable under the facts of a case. In … Continue reading NY MAYOR SIGNS LEGISLATION STRENGTHENING EMPLOYEE PROTECTIONS UNDER NYC HUMAN RIGHTS LAW

TREATING PHYSICIAN NEED NOT BE AN EXPERT WITNESS TO TESTIFY ABOUT EMPLOYEE’S DISABILITY

In Delvecchio v. Township of Bridgewater, (A-24-14) (074936), the New Jersey Appellate Division ruled on April 28, 2016, that a Plaintiff may rely on the testimony of a treating physician who has not been designated as an expert witness, to establish the existence of a disability for a claim under the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et. seq.   Ms. Delvecchio worked as a police dispatcher for the Township of Bridgewater (“Township”) for more than 10 years. At that time, the Township maintained three shifts for police dispatchers, including a midnight shift, and required dispatchers to work … Continue reading TREATING PHYSICIAN NEED NOT BE AN EXPERT WITNESS TO TESTIFY ABOUT EMPLOYEE’S DISABILITY

NY Court Rejects FLSA Settlement That Contains a “No Rehire” Provision

We have negotiated many settlement agreements for claims brought under the New Jersey Law Against Discrimination (“LAD”), the Conscientious Employee Protection Act (“CEPA”), and various other New Jersey laws that have included a provision barring the settling employee from seeking future employment with the defendant employer.  Employers argue in favor of including these clauses in order to prevent future claims of retaliation in the event the employer does not agree to re-hire the employee.  Truth be told, most employees have no desire to work again for the offending employer, but these no re-hire provisions can become complicated when companies are … Continue reading NY Court Rejects FLSA Settlement That Contains a “No Rehire” Provision

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Disability Discrimination Study Yields Sad but Unsurprising Results

The New York Times reported today about a study recently undertaken by Rutgers and Syracuse universities.  Researchers sent resumes and cover letters on behalf of fictitious applicants for thousands of accounting jobs.  Disappointingly, they found that employers expressed interest in candidates who disclosed a disability about 26 percent less frequently than in candidates who did not.  This could explain the low national employment rate for persons with disabilities. The researchers created two separate resumes: one for a highly qualified candidate with six years of experience, and one for a novice candidate about one year out of college.  For each resume, … Continue reading Disability Discrimination Study Yields Sad but Unsurprising Results

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Retaliation Claims Top EEOC’s List of Most Frequently Asserted Claims

According to the Insurance Journal, retaliation claims by employees were the most frequently asserted type of employment claim in fiscal year 2014.  The data comes from the Equal Employment Opportunity Commission, the federal agency which investigates claims of employment discrimination.  In fiscal year 2014, the percentage of claims which asserted that an employer retaliated against an employee for participating in a complaint of discrimination reached an all-time high of 42.8%.  Next on the list were, in order, race, sex (including pregnancy and sexual harassment), disability age, national origin, religion, color, equal pay act, and genetic information. The EEOC data shows … Continue reading Retaliation Claims Top EEOC’s List of Most Frequently Asserted Claims

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McDonald’s “Hit List” of Older Employees to be Fired

A McDonald’s employee was told to “take it easy like my grandmother and retire,” according to a case currently pending before a federal district court in Pennsylvania.  She was apparently working more slowly than McDonald’s wanted, so they fired her due to her “poor health and age.”  The employee sued under the ADA, ADEA, and Pennsylvania Human Relations Act (PHRA), alleging age and disability discrimination.  The evidence in the case includes the fact that McDonald’s had a “hit list” of older workers who it was about to terminate.  The employee’s request to include this evidence at the trial was granted … Continue reading McDonald’s “Hit List” of Older Employees to be Fired

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Summary Judgment Dismissal of Retaliation Claim Reversed on Appeal

In a recent decision of the New Jersey Superior Court, Appellate Division, the court reversed a grant of summary judgment in favor of the employer, PSE&G.  The employee, a female manager in her forties, had made numerous complaints of a “glass ceiling” (my words) at PSE&G to her supervisors and Human Resources over a number of years.  According to the decision, the employee alleged that her supervisor finally had enough of her complaints and began “investigating” her for violations of the company’s expense reimbursement policy.  PSE&G then fired the employee based on its finding that she had, it alleged, violated … Continue reading Summary Judgment Dismissal of Retaliation Claim Reversed on Appeal

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Should Poor Credit be a Bar to Employment?

In a recently reported decision, the variety store chain Dollar General agreed to pay a settlement of over $4,000,000 to resolve a class action lawsuit which alleged that it violated the Fair Credit Reporting Act by using credit reports improperly in denying employment to job applicants. Under FCRA, if an employer seeks to use a consumer credit report to evaluate a job candidate for employment, it must 1) get the applicant’s consent before obtaining the report, 2) give the applicant a warning, together with a copy of the report, if the employer plans to reject the applicant because of the … Continue reading Should Poor Credit be a Bar to Employment?

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Kennel Owner Settles Sexual Harassment Case

The New Jersey Division on Civil Rights has announced that it has successfully resolved a sexual harassment case brought by a female employee of a South Jersey kennel facility. The employee complained to the DCR that her boss, the owner of Golden Grange kennel, engaged in inappropriate sexual comments, sexual innuendo and sexual overtures during the course of her employment. For example, he allegedly made comments about a coworker’s breast size and discussed vulgar terms in the workplace. According to the complainant, the conduct escalated when the owner asked her to “sleep over” and told her that he could “make … Continue reading Kennel Owner Settles Sexual Harassment Case

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NJ Legislators Consider “Bridgegate” Addition to Whistleblower Law

nspired by the Bridgegate scandal, New Jersey legislators have introduced an amendment to New Jersey’s whistleblower statute which would extend whistleblower protections to employees who disclose “any waste of public funds or incidents of governmental abuse or mismanagement.” The bill’s sponsor, Sen. Loretta Weinberg, noted that the atmosphere of intimidation at the Port Authority kept many potential whistleblowers from exposing the four day lane tie-up at the George Washington Bridge last year. Said Sen. Weinberg: “We need to encourage public employees who suspect or witness government abuse or waste to come forward. Extending whistleblower protections will provide state and local … Continue reading NJ Legislators Consider “Bridgegate” Addition to Whistleblower Law

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Whistleblowing Nurses Lose Appeal

In a recent unpublished Appellate Division case, Kimera v. Wanaque Convalescent Center, A-5119-T4 (N.J. App. Div. Sep. 19, 2014), the court upheld a grant of summary judgment in favor of the employer in a whistleblower retaliation case. The plaintiffs, who worked as nurses in a health care facility, claimed that they were fired in retaliation for complaining about events which led to the demise of a patient. The facts of the case, as recounted by the court, indicated that the nurses raised some concerns regarding the circumstances surrounding the unfortunate event to their supervisors. They were fired several months later. … Continue reading Whistleblowing Nurses Lose Appeal

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Co-Worker Harassment Case Fails on Appeal

In a decision published today, Dunkley v. S. Coraluzzo Petroleum Transporters, A-3252-12T1 (N.J. App. Div. September 16, 2014), the Appellate Division found that a co-worker’s racial harassment of a fellow employee did not constitute a violation of the Law Against Discrimination. The employee had alleged that his coworker, who had been providing on-the-job training to him, had made several racial remarks to him during his training, including references to the Ku Klux Klan and “black thugs.” The employee reported his concerns to management, who reassigned him to another co-worker for training. The employee alleged that he experienced retaliation after he … Continue reading Co-Worker Harassment Case Fails on Appeal

Criminal Background Checks on Job Applications Banned in NJ

The New Jersey Opportunity to Compete Act implements several new requirements governing criminal background checks by prospective employers for job applicants. The law, which will take effect next March, prohibits employers with 15 or more employees from asking about a job applicant’s criminal record until after initial job interview. Employers will no longer be able to ask job seekers whether they have been convicted of a crime on a job application or at the first interview. They will only be able to do so legally after the initial interview. The law also prohibits employers from refusing to hire applicants based … Continue reading Criminal Background Checks on Job Applications Banned in NJ

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Divorcing Employee Protected by Anti-Discrimination Law

In a recent unpublished Appellate Division decision, Smith v. Millville Rescue Squad, A-1717-12T3 (unpublished) (N.J.App.Div. June 27, 2014), the Court held that an employee who is going through a divorce is protected by anti-discrimination law. Mr. Smith and his wife worked together for the Millville Rescue Squad. The couple separated after the wife learned that Mr. Smith had been having an extra-marital affair. Mr. Smith discussed his marital relationship with his supervisor, who said he “can’t promise this won’t affect [Mr. Smith’s] job. The squad terminated Mr. Smith six weeks later, citing the “ugly divorce.” Mr. Smith then filed his … Continue reading Divorcing Employee Protected by Anti-Discrimination Law

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Bill Prohibiting Discrimination Against the Unemployed Passes NJ Legislature

Both houses of the New Jersey State Legislature have passed a bill making it unlawful for New Jersey employers to discriminate against the unemployed. The bill prohibits employers from making decisions regarding hiring or terms and conditions of employment based on whether an applicant is unemployed. Employers are still permitted to inquire into an applicant’s prior employment, including the reasons for separation from a former employer. However, employers cannot, in a blanket way, decide to hire only candidates who are currently employed. In terms of penalties, the bill provides for fines assessed by the New Jersey Department of Labor and … Continue reading Bill Prohibiting Discrimination Against the Unemployed Passes NJ Legislature

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Top Five States for Employment Law Claims

According to employment practices liability insurer Hiscox, California, Illinois, Alabama, Mississippi, and the District of Columbia are the top five riskiest places in the country for employee lawsuits. Employers in these states face a larger than average chance of being sued for employment law violations. Hiscox states that “[a]ccording to the study, on average, a U.S.-based business with at least 10 employees has a 12.5 percent chance of having an employment liability charge filed against it.” Businesses with over 100 employees can expect to defend an employment related claim at least once every three years. Lower risk states for employment … Continue reading Top Five States for Employment Law Claims

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Court Finds Facebook Post a Breach of Confidentiality Agreement

KEEP IT QUIET MEANS KEEP IT QUIET We frequently advise clients to be mindful of what they post on social media, particularly when they are involved in litigation with a current or former employer. Unfortunately, Mr. Patrick Snay learned this lesson the hard way, when his daughter’s Facebook status update cost him the $80,000 settlement he obtained in an age-discrimination lawsuit. Mr. Snay, 69, a former headmaster at Gulliver Preparatory School in Miami, sued his former employer for age discrimination when the school did not renew his contract. The parties settled the matter and entered into a settlement agreement where … Continue reading Court Finds Facebook Post a Breach of Confidentiality Agreement

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NJ Expands Job Protection For Pregnant Employees

We are pleased to report that, on January 21, 2014, Governor Christie signed into law an amendment to the New Jersey Law Against Discrimination (“NJLAD”) that adds pregnancy as a protected classification. The amendment, which became effective immediately, defines “pregnancy” as childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth. Prior to this amendment, the NJLAD prohibited discrimination based on gender and disability but did not specifically include pregnancy as a protected class or require reasonable accommodation for pregnant employees if the pregnant employee’s condition did not qualify as a disability under federal or state law. … Continue reading NJ Expands Job Protection For Pregnant Employees

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Anti-Bullying Laws May Soon Be the New Frontier in Employment Law by Traub Law

According to management attorney Harold Kurman, anti-bullying legislation will be coming to a workplace near you in the not so distant future. As it stands today, it is perfectly legal for employers, supervisors, and coworkers to engage in bullying, so long as the bullying is not based on a protected category such as age, race, gender, or disability. However, that may change as society collectively decides that bullying in the workplace is no longer acceptable. Mr. Kurman points out several things that employers can do to be proactive about preventing bullying, including 1) developing a comprehensive anti-bullying policy, 2) instituting … Continue reading Anti-Bullying Laws May Soon Be the New Frontier in Employment Law by Traub Law

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NJ Senator Introduces Bill to Protect Interns from Discrimination

On December 5, 2013, New Jersey State Senator Nia H. Gill introduced a bill to extend protection against workplace discrimination and retaliation to unpaid interns. This bill fills a gap in the law which left unpaid interns without any rights if they were discriminated against at work. New York legislators introduced a similar bill there last October, after a case involving an intern was dismissed. In that case, the intern alleged that her boss had groped her. The court had thrown out that case, saying that the intern was not an “employee” and thus could not maintain her lawsuit. We … Continue reading NJ Senator Introduces Bill to Protect Interns from Discrimination

Law Protecting Pregnant Workers Advances in NJ Senate

A New Jersey Senate committee recently endorsed legislation that would give women who are pregnant or who have recently given birth the protection of the state’s Law Against Discrimination. The bill, S-2995, requires employers to make reasonable accommodations, including extended leave, for pregnancy-related conditions and needs when requested by the woman on the advice of her doctor. A business is excused from making accommodations if they can demonstrate that such accommodations would lead to an undue hardship based on their cost or the size of the employer’s work force and its budget. We have personally represented women who, while pregnant … Continue reading Law Protecting Pregnant Workers Advances in NJ Senate

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Interns Beware: Discrimination Laws Do Not Apply to You, Yet

A federal court in New York has ruled that an unpaid TV intern had no legal basis for filing a sexual harassment claim, even though she was allegedly groped by her boss. The court said that because the young woman was an unpaid intern, she did not qualify as an “employee” and therefore did not have the legal protections against sexual harassment that employees have. New York and New Jersey politicians are quickly moving to address this hole in the law. This would be, in my opinion, a very uncontroversial addition to discrimination law. Anyone on the job, whether paid … Continue reading Interns Beware: Discrimination Laws Do Not Apply to You, Yet

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Edison, NJ Business Accused of Racial Discrimination

A former employee of Muscle Maker Grill, a successful NJ restaurant chain, has accused the company of terminating her employment after she blew the whistle on allegedly racially biased hiring practices. Specifically, the lawsuit claims that her direct employer, one of the largest company franchisees, did not want to hire African-Americans. She claims that the franchisee fired her after she reported her concerns to the company’s headquarters. Muscle Maker Grill has denied the allegations. The company has stated, in its defense, that it does not engage in discrimination and that the franchisee in question has an African-American business partner. We … Continue reading Edison, NJ Business Accused of Racial Discrimination

US Supreme Court Narrows Definition of “Supervisor” for Discrimination Claims

In the recent decision Vance v. Ball State, the United States Supreme Court has made it more difficult for workers to sue their employers for workplace discrimination. The Court’s 5-4 decision narrowed the definition of the term “supervisor” for purposes of discrimination law. For the last fifteen years or so, employers have been liable for the conduct of their supervisory employees when the supervisors engage in specific, tangible acts of discrimination. During this time, there has been a lot of litigation over the proper definition of the term “supervisor.” Some courts have employed a broader definition, some a narrower one. … Continue reading US Supreme Court Narrows Definition of “Supervisor” for Discrimination Claims

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Credit History Discrimination

There is a bill before the New York City Council that, if passed into law, would prohibit employers from using credit histories in hiring except in the very few cases where credit checks are required by law. This bill would be the strongest such law in the country. Many employers used credit checks to screen job applicants, even though research has shown that people with damaged credit are not automatically poor job risks. Moreover, the credit agencies that compile and sell records on about 200 million American make mistakes and these erroneous reports could shut people out of the job … Continue reading Credit History Discrimination

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Bill Introduced to Address Workplace Discrimination Against LGBT Employee

Sen. Jeff Merkley (D) of Oregon has introduced legislation to prohibit discrimination in the workplace against LGBT Americans. The “Employment Non- Discrimination Act” would prohibit intentional employment discrimination against LGBT workers by employers, employment agencies and labor unions. Similar legislation is being introduced in the House. Here in NJ, and in many other states as well, state law already prohibits discrimination on the basis of sexual orientation. However, these protections have never been implemented at a federal level for the LGBT community. According to Bloomberg, “[i]n the last Congress, 43 senators co-sponsored legislation to end LGBT employment discrimination. The law … Continue reading Bill Introduced to Address Workplace Discrimination Against LGBT Employee

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State Theatre Sued for Sexual Harassment

A former employee of the State Theatre has filed a discrimination and sexual harassment lawsuit, according to the Home News Tribune. News reports state that Tracy Bell of South Brunswick is claiming she was fired earlier this year after she complained about theatre President and CEO Mark W. Jones and the theatre’s policies about medical appointments. Bell, who was employed as an executive assistant to Jones, is accusing the State Theatre of sexual harassment, gender discrimination, breach of contract, invasion of privacy and retaliation, according to the report. Jones and the theatre deny all of the allegations.

Ashley Furniture Sued for Anti-Lesbian Bias

A former salesperson for Ashley Furniture is claiming that her employer fired her after discovering she is a lesbian. The plaintiff, Isabel Perez, claims that her employer fired her last year after a Human Resources director found a decal from the Human Rights Campaign on her car. The HRC is an organization which promotes equal rights for the lesbian, gay, bisexual and transgender community. According to Ms. Perez’s complaint, the HR director questioned her about the bumper sticker and then made a comment that she may not fit in with the culture of the company. The HR director then said, … Continue reading Ashley Furniture Sued for Anti-Lesbian Bias

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Law Professor Sued for Defamation over Law Review Article

New Jersey banker and local politician Robert Catalanello recently filed a lawsuit against Zachary Kramer, an associate dean at Arizona State University Sandra Day O’Connor School of Law. Mr. Kramer wrote a law review article which discussed an earlier lawsuit brought by a fired employee who alleged that Catalanello committed acts of discrimination on the basis of vegetarianism and perceived homosexuality. Catalanello claims that the Kramer article, which analyzes the lawsuit brought against him by the former employee, contains false and defamatory statements which have exposed him to “contempt, hatred and ridicule” and have injured his reputation. Catalanello also claims … Continue reading Law Professor Sued for Defamation over Law Review Article

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Federal Judge Requires Plaintiffs to Turn Over Facebook Passwords

In a recent case from the U.S. District Court for the District of Colorado, a judge has taken the unusual step of requiring the plaintiffs in an employment discrimination case to provide their passwords to Facebook and other social media accounts to their former employer. The employer argued that the information posted on these Facebook accounts was relevant to the plaintiffs’ claims of emotional distress. One of the plaintiffs had posted on Facebook information about her emotional state after losing a pet and ending a relationship. In granting the employer’s motion to compel the production of this information, the court … Continue reading Federal Judge Requires Plaintiffs to Turn Over Facebook Passwords

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The Price is Wrong for Pregnant Model

The venerable TV show “The Price is Right” was whacked with a $777,000 jury verdict recently for discriminating against one of its models, Brandi Cochran. The show’s producers refused to allow Ms. Cochran to return to work after her maternity leave. She alleged pregnancy discrimination in a lawsuit in California. The producers denied liability and promised a swift appeal.

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Senate Fails to Pass Paycheck Fairness Act

The Equal Pay Act (EPA) of 1963 prohibits an employer from discriminating on the basis of sex by paying employees of one sex less than it pays to employees of the another sex for equal work on jobs which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. Signed almost 50 years ago, the EPA has enabled women to take steps forward in the job market. However, there still exists a noticeable gender gap between men and women with respect to pay. For example, women earn only 77 cents for every dollar earned by men. … Continue reading Senate Fails to Pass Paycheck Fairness Act

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Whistleblower Rights Trump Discretion of the Court

The Appellate Division of the New Jersey Superior Court, in Zehl v. Elizabeth Board of Education, et al., recently overturned a lower court’s appointment of a discovery master in a case involving whistleblower rights, on the principle that requiring the plaintiff to pay for an expensive litigation process would undermine equal access to the courts and deter litigants from pursuing these types of claims. This case involved Catherine Zehl, who worked as a cook for the Elizabeth School District. While on the job, she reported a teacher’s misconduct to the school. Ms. Zehl claimed her employer retaliated against her for … Continue reading Whistleblower Rights Trump Discretion of the Court

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Former Police Detective Receives Nearly 1 Million in Settlement

Former Jackson Police Officer, Detective Howard Bogan, recently received a settlement of nearly 1 million dollars from Jackson Township. Bogan’s complaint in the Superior Court of New Jersey alleged that after he was called to testify against two officers charged with perjury in connection to a narcotics case, other officers in the police department began to harass him. Bogan states that the other officers repeatedly called him a “rat,” “snitch,” and “untrustworthy.” One instance of harassment referenced in the complaint included Bogan coming into work one day and finding a toy mouse which represented a “rat.” Bogan claimed that due … Continue reading Former Police Detective Receives Nearly 1 Million in Settlement

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Choose Your Forum Wisely

The Appellate Division of the New Jersey Supreme Court recently affirmed a dismissal of a plaintiff’s complaint based on the Conscientious Employment Protection Act (CEPA). The plaintiff, David Schmidt, alleged retaliation after he blew the whistle against his employer, Celgene Corporation, and CVS/Caremark Corporation, one of Celgene’s distributors. The primary reason why the Appellate Division affirmed the dismissal of the complaint was based on the fact that Mr. Schmidt first filed his lawsuit in Texas, and when he received an unfavorable ruling on the choice of law, he then filed in New Jersey. Mr. Schmidt’s actions appeared to look like … Continue reading Choose Your Forum Wisely

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Do I Really Need an Employment Lawyer?

Some employees do a little Googling and think they are qualified to extract big settlements or severance packages from their employers without hiring an employment lawyer. Can it be done? Honestly, no, not really. Should it be attempted? Absolutely not. An employment lawyer is a specialist in handling employment law matters, just as a cardiac surgeon is a specialist in performing heart surgery. You wouldn’t perform heart surgery on yourself, would you? This point is driven home by a recent decision of the Appellate Division of the New Jersey Superior Court. On May 1, 2012, the Appellate Division affirmed a … Continue reading Do I Really Need an Employment Lawyer?

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EEOC Issues Guidance on Age Discrimination Defense

The Age Discrimination in Employment Act (ADEA) prohibits discrimination based on age and applies to employees and job applicants who are 40 years of age and older. One of the grounds for liability under the ADEA is called a “disparate impact” claim. This is where an employee demonstrates that a seemingly neutral decision by an employer has a disparate impact on older employees. As a defense to this type of claim, employers are permitted to argue that the differential treatment was due to reasonable factors other than age. The Equal Employment Opportunity Commission (EEOC) recently issued new regulations which clarify … Continue reading EEOC Issues Guidance on Age Discrimination Defense

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NJ Court Expands Definition of Discrimination

The Appellate Division of the New Jersey Superior Court recently expanded the scope of employees protected from employment discrimination. The Court ruled that anti-discrimination protection extends to employees who are perceived to be, but aren’t, members of a protected class. For example, if your employer thinks you are Jewish, but you aren’t, you are still protected from anti-Semitism at work. The case was brought by Myron Cowher, a truck driver for Carson & Roberts Site Construction & Engineering. Mr. Cowher claims that his supervisors subjected him to anti-Semitic remarks on a daily basis. While Mr. Cowher is not Jewish, either … Continue reading NJ Court Expands Definition of Discrimination

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Supervisors May Be Sued Under The FMLA

On January 31, 2012, the U.S. Court of Appeals for the Third Circuit outlined factors to be used when determining whether a supervisor at a public agency can be subject to individual liability under the Family Medical Leave Act (FMLA). The Family Medical Leave Act allows employees to take unpaid and job protected leave for up to 12 weeks per year. This Act allows employees to balance work and family responsibilities by entitling them to take leave for certain medical or family reasons. FMLA applies to all public agencies and companies with 50 or more employees. To be eligible under … Continue reading Supervisors May Be Sued Under The FMLA

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Good News for Employment Lawyers and Their Clients

The New Jersey Supreme Court recently issued a unanimous decision confirming that a court’s application of contingency enhancements in awarding attorney fees is not only appropriate, but essential in cases where the relief sought is equitable in nature. The Court’s decision, which combined two different appeals, comes as a victory to many lawyers who take cases on a contingency basis, including employment lawyers. Traditionally, each party in a suit is responsible for their own fees, unless there is an applicable statute that warrants “fee-shifting.” A contingency enhancement is a mechanism which allows the Court to increase the fee to take … Continue reading Good News for Employment Lawyers and Their Clients

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