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:

  1. 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 alleged to have happened, as well as when, where and, if possible, why it occurred. The company should try to understand what the complainant is seeking without making any promises or assurances regarding how it will resolve the complaint.

  1. Should the company investigate?

Investigations can involve a significant allocation of time and financial resources. Before a company conducts an internal or private outside investigation into a complaint, it should consider whether it is appropriate for an investigation to be undertaken or whether there is a better option for resolving the complaint.  Another option would be mediation of an interpersonal disagreement between colleagues.

  1. Review policies and procedures

Many employers have policies and procedures enacted that provide guidance or structure about how a workplace complaint should be handled or an investigation conducted. Therefore, once a complaint is received, the company should review its policies and procedures to ensure it is in compliance.

  1. Appointing an investigator

The decision of whether to appoint an investigator or not should be made on a case-by-case basis. Although, it is less expensive to designate an internal investigator, there are times when a company should hire an outside investigator. The outside investigator is perceived as more neutral and may have greater expertise in conducting investigations and drafting investigation reports. Many companies hire an experienced attorney to serve as an outside investigator.  They do this because the attorney is skilled at interviewing witnesses, making credibility assessments and writing effective reports.

  1. Keep the lines of communication open

If the employer undertakes an investigation into the complaint, it should take care to keep the lines of communication open with all of the involved parties. By actively managing expectations, the company can minimize some of the stress that is often associated with an investigation.

  1. Weighing and Assessing the Evidence

Assessing conflicting evidence provided by investigation participants is a daunting task for many investigators. In addition to interviewing witnesses, the interviewer should review emails, file notes and other relevant documents or recordings. To the extent there is conflicting testimony given by witnesses, the investigator should make a credibility assessment in weighing the evidence. Sometimes a finding cannot be made and the investigation should properly be labeled as “inconclusive.”

  1. Take action

Once an investigation is concluded, a company should ensure that it promptly communicates the finding of the investigation to the parties involved. Where the investigation findings are likely to result in disciplinary action for an employee, the company will need to ensure that the employee is afforded procedural fairness throughout the disciplinary process. Even when an investigation has been inconclusive, there are still steps that could be taken.  An example of this would be trainings on appropriate workplace behavior.

  1. Reassess

After the investigation is concluded, the company should review its policies, procedures, practices and on-going employee trainings.  This is to see whether its overall process in handling these sensitive employee complaints can be improved upon.  Alternately this can help decide whether an outside professional can assist with this process.

Rina Traub, of Traub Law in Princeton & East Brunswick, NJ,  is an experienced counselor and advocate.  She works with New Jersey’s executives, professionals and business owners.
Ms. Traub also counsels businesses on employment matters, including legal compliance, handbooks, and employer/employee relations.  For Workplace Investigations, Contact her at (609) 951-2204 for more discussion about 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 nuanced factors that are not transparent to the employee.  It should be emphasized that I am not referring to those decisions that are based on clearly illegal reasons (i.e., discrimination or retaliation).

When a company terminates an employee without a clear explanation (i.e, justifiable business contraction or reorganization; failure to meet the objective performance benchmarks of the position), many employees will see this as unfair and legally actionable.  In a world where most employment is “at will” a company may not believe that there is a need to provide explanation or justification.

But I continue to advise that the one on one exit interview is key to making the employee understand that their service was valued and/or there might be a way for that employee to improve their performance or skills for their next position.  I believe this softer landing will diffuse much of the anger and resentment that could propel the employee to pursue litigation.

As the below Forbes article notes,  WW’s (formerly known as Weight Watchers) group Zoom firings were the perfect example of how to disrespect loyal employees.  Undoubtedly, this could prove bad for brand image, employee morale and could inspire some employees to seek legal recourse, even if ultimately unsuccessful.

This bad decision could be quite costly.

https://www.forbes.com/sites/bruceweinstein/2020/05/23/why-wws-group-firings-on-zoom-were-unethical-terrible-pr-and-bad-for-business/#6a49f5d55c0b

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)

Occupational Safety and Health Administration (OSHA)

Equal Employment Opportunity Commission (EEOC)

Department of Labor (DOL)

Following the recent passage of the Families First Coronavirus Response Act (FFCRA), the U.S. Department of Labor (USDOL) issued a Notice to be posted in a conspicuous place and made accessible to employees regarding emergency paid sick leave and expanded family and medical leave for childcare. The USDOL also released a Fact Sheet and answers to Frequently Asked Questions. These documents should assist employers with compliance requirements and employees with understanding their benefits and protections.

Employer Fact Sheet: https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

Employee Fact Sheet: https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave

FFCRA: Q and A: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

FFCRA: Notice of Employee Rights for Non-Federal Workers:  https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

FFCRA Questions & Answers Regarding Notice: https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions

Enforcement of FFCRA Violations: DOL has stated that it will not bring enforcement actions against non-complying employers for violations occurring within 30 days of the enactment of the FFCRA (March 18 through April 17, 2020) provided that the employer has made reasonable, good faith efforts to comply with the FFCRA. https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1

Coronavirus Aid, Relief and Economic Security Act (the “CARES” Act)

New Jersey

NJ Department of Labor (NJDOL)

NJ Governor Executive Order 107

Disclaimer Policy:

The above information, as well as the Traub Law website is for informational purposes only, and the information contained on these pages is not offered as legal advice.  The material contained on these pages should not be considered a recommendation or an offer to perform services.  You should not act upon the basis of any information contained on these pages without obtaining appropriate legal advice from an attorney.

Traub Law is not your attorney without a written agreement properly signed on behalf of Traub Law and all parties.  The content of any email sent to Traub Law does not create or constitute an attorney-client relationship between Traub Law and the sender.

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 or allow employees the necessary rest from the heat to prevent injuries. 

Proposed Federal Legislation

According to the U.S. Bureau of Labor Statistics, between 1992 and 2016, 783 people died on the job due to heat-related illnesses, and more than 69,000 suffered serious heat-related injuries. Last year, 90 individuals and 130 advocacy organizations sent a petition to the Occupational Safety and Health Administration (OSHA) seeking regulations to minimize heat stress and ensure safety for workers in hot conditions. As of yet, OSHA has not made any moves to enact such regulations.

On July 10, 2019, U.S. Representative Judy Chu (D-Calif.) and Representative Raul Grijalva (D-Ariz.) proposed H.R. 3668, also called the “Asuncion Valdivia Heat Illness and Fatality Prevention Act of 2019.” The legislation is named after a 53-year-old man who passed away in California after working in 105-degree temperatures for ten straight hours. After his death and the death of other farmworkers that same year, Rep. Chu – then a member of the California State Assembly – helped pass the heat-related labor protections that are on the books in California. 

Still, progress on the matter did not continue nationwide – or even in the large majority of states. For this reason, Rep. Chu is co-sponsoring the federal legislative proposal in hopes that California’s “gold standard” of heat protections will expand nationwide. 

The proposed legislation seeks OSHA to enforce regulations regarding the following:

  • Worker hydration
  • Scheduled and paid rest breaks from the heat 
  • Providing shaded or other climate-controlled places for the rest breaks
  • Plans for new workers to acclimatize to hot conditions
  • Monitoring a worker’s exposure to heat 
  • Preventing exposure beyond safe limits
  • Training for employees and supervisors regarding heat risks
  • Notification of heat-related hazards to workers
  • An emergency medical response plan for heat-related illnesses
  • Heat-related surveillance
  • Compensation for workers for heat-related rest breaks
  • Prohibited discrimination or retaliation against workers for heat-related requests

Advocates for the legislation state it is necessary to continue outside work during the warmer months, especially with constantly rising temperatures from climate change. The problem will only get worse unless it is addressed properly by the federal and state governments.

Industries with Risks of Heat Exposure

Many workers are at the regular risk of excessive heat exposure. A few years ago, researchers from Emory University conducted a study regarding how the heat affected farmworkers in Florida. They had the workers ingest tiny devices that measured and reported their core body temperature throughout the workday. The study concluded that four out of five workers had body temperatures higher than the healthy limit of 100.4 degrees at least once during the three-day monitoring period. Additionally, about 85 percent of workers claimed to experience heat-related symptoms, such as dizziness, nausea, headaches, confusion, or fainting. 

Farmworkers are far from the only employees who are at risk of heat stroke or similar illnesses. Some other high-risk industries include the following:

  • Farm and agricultural work
  • Landscaping and groundskeeping
  • Construction work
  • Oil and gas extraction
  • Protective services
  • Installation, repairs, and maintenance
  • Lumber and tree removal
  • Production
  • Postal delivery
  • Airline support workers
  • Material moving
  • Transportation

This is far from an exhaustive list, and people working in many other types of jobs are at risk of heat-related illness on a daily basis. 

OSHA Tips for Employers

Despite the lack of formal regulations, OSHA started the Heat Illness Prevention campaign in 2011, which aims to educate employers about the dangers of working in high temperatures. Specifically, OSHA reminds employers that taking precautions in hot conditions is part of their responsibility to provide a work environment free from known safety hazards. Some recommendations for employers include:

  • Always ensuring that workers have enough provided water, rest, and shade
  • Monitoring workers for any signs of heat-related illness
  • Allowing workers time to acclimatize to working in the heat, including taking more frequent breaks at first or increasing their outdoor workload gradually
  • Training workers on illness prevention
  • Having a plan for heat-related emergencies

As of this time, these are only recommendations, and none of the above requirements are specifically required by federal law. 

Signs of Heat-Related Illness

All employees should understand the symptoms of heat-related illnesses, and they should not hesitate to ask for a break if they experience any of these symptoms. Moreover, supervisors should also be able to recognize these signs and take action if an employee seems to be struggling.

According to the Centers for Disease Control and Prevention (CDC), some symptoms of heat exhaustion are as follows:

  • Sweating heavily
  • Skin that gets clammy or pale
  • Weak and fast pulse
  • Muscle cramping
  • Headaches
  • Dizziness
  • Weakness and fatigue
  • Nausea and vomiting
  • Fainting

If someone exhibits the above symptoms, they should sip water, move to a cool, shaded place, loosen tight clothing, and rest.

In some situations, heat exhaustion can escalate to heat stroke, which can be life-threatening. Some signs of heat stroke include:

  • Dizziness and confusion
  • Faster yet strong pulse
  • Skin that gets red and hot
  • Severe headache
  • Vomiting
  • Losing consciousness
  • Body temperature over 103 degrees

If any of these symptoms are present, someone should call 911 and the worker should immediately be helped to a cool place. Cool water, ice, or cool cloths can be used to try to lower their body temperature, though the person should not drink anything until they are examined by medical professionals.

Even though the risks of heat-related illnesses persist for many workers in New Jersey and across the United States, prompt action on the part of an employer can help prevent death and serious injuries. Employers should always listen to a worker’s concerns about possible heat exhaustion or heat stroke and should never require someone to keep working despite showing symptoms.

While we wait to see whether Congress will pass the new heat-related OSHA regulations, it is up to employers to ensure that workplaces are safe and free from heat-related hazards. Employees should never be afraid to speak up if they are worried about illness on the job.

Contact a New Jersey Employment Attorney for Assistance Today

Traub Law, Employment Attorneys, help both employees and employers to ensure that everyone stays safe and healthy at work. As new laws come into play, we can advise employers of safety requirements and how to adapt policies to ensure they are in full compliance to avoid penalties or liability. We also represent employees who had their rights violated under labor and employment laws and suffered harm as a result. 

Employers Should Stay Aware of Heat-Related Risks for EmployeesIf you have any questions or concerns regarding workplace safety requirements or whether your rights have been violated at work, please contact us online or call (609) 951-2204 to reach our offices in Princeton or East Brunswick. 

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 claim by an employee on the grounds that it had no cause of action for federal jurisdiction. The judge stated he was following Third Circuit precedent from 2001 in his ruling. This precedent was set long before the EEOC guidance, which the court declined to take into account. 

The Court’s Reasoning

Instead of considering the guidance from the EEOC that there are, in fact, federal protections against sexual orientation discrimination under Title VII, the court followed the decision in the 2001 case, Bibby v. Phila. Coca Cola Bottling Co. This case held that because Congress failed to pass a law expressly making sexual orientation a protected factor, it should not be considered to be one. 

Several of the 13 federal circuits have heard cases on this issue, and the Second and Seventh Circuits both ruled that Title VII does prohibit sexual orientation discrimination. However, the Third Circuit judge in this case stated, “We find that although plaintiff’s position may be correct in certain jurisdictions, the precedent in the Third Circuit favors the defendant’s position.” 

The employee also brought a claim for discrimination based on gender stereotyping, which is a federal issue. In 1989, the Supreme Court of the United States (SCOTUS) ruled in Price Waterhouse v. Hopkinsthat sex discrimination protections under Title VII include gender stereotyping. However, the judge in the recent case also dismissed this claim. The court held that the plaintiff “is not alleging that he was discriminated against because he acted stereotypically gay; he claims that he experienced discrimination because he was actually gay. As a result, we construe the pleadings to allege sexual orientation discrimination as opposed to gender stereotype discrimination.” For this reason, the entire case was thrown out by the court.

The Future of Sexual Orientation Protections in the United States

Congress has tried to pass laws expanding protections to LGBT employees across the country for years without success. A bill proposed in 2015 to enact the federal Equality Act recently passed in the House of Representatives. This law would protect LGBT people in the U.S. from discrimination and harassment in employment, housing, and public accommodations, including retail stores and financial institutions. However, despite passing in the Democrat-controlled House, the bill has a slim chance of even getting a vote in the Republican-controlled Senate. 

Because a federal law likely will not go into effect anytime soon, we can look at state laws that protect employees within an individual state. Just like laws regarding marijuana and minimum wage, the states vary widely on their enactment and enforcement of sexual orientation discrimination laws. The following states prohibit discrimination in both the private and public sector based on either sexual orientation or gender identity:

  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Illinois
  • Iowa
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Utah
  • Vermont
  • Washington

Other states have partial protections, while some states still have no protections for LGBT employees. 

If an employee works in a state with protections, they can bring a claim against their employer in state court, though they might not be able to prevail in federal court. This is the case for employees in the Third Circuit, which covers New Jersey, Pennsylvania, and Delaware, all of which have state-level protections. 

With both the federal circuits and the states divided on the issue, the attention now turns to the national stage and SCOTUS, which is expected to make its own ruling on the matter this year.

Upcoming Supreme Court Cases

In April 2019, SCOTUS agreed to hear two different cases involving sexual orientation discrimination out of two different circuits with opposite rulings. With its decision in the consolidated matter, SCOTUS will set the precedent that all federal circuits will have to follow, so this will truly be a landmark decision that affects millions of employees across the U.S.

Bostock v. Clayton County

In this case out of the Eleventh Circuit, a man was terminated from his position as a child welfare services coordinator in Clayton County, Georgia. Bostock received praise for his work for years until he joined a gay recreational softball team. Shortly after, he experienced harassment at work, was subject to an internal audit, and ultimately fired.

The United States Court of Appeals for the Eleventh Circuit followed that circuit’s precedent and upheld the lower court’s ruling that Title VII did not include sexual orientation protections and, therefore, Bostock failed to state a valid claim under federal law. He appealed the case to the Supreme Court. 

Zarda v. Altitude Express, Inc.

Donald Zarda was fired from his job in New York as a skydiving instructor when a customer complained after Zarda told her he was gay. Zarda brought a claim for sexual orientation discrimination to federal court, and both the United States District Court for the Eastern District of New York and the United States Court of Appeals for the Second Circuit ruled against him. However, the Second Circuit appellate court agreed to hear the case en bancwith all judges present to rule on the matter.

In February 2018, the full panel of the Second Circuit ruled that sex discrimination under Title VII includes sexual orientation discrimination. Zarda’s former employer, Altitude Express, appealed the case to the Supreme Court.

With cases from two split circuits, SCOTUS is looking to settle whether Title VII – as it is currently written- includes protections from LGBT employees. The Court is also hearing a separate case, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, in which it will decide whether Title VII also protects transgender employees from discrimination and harassment. 

If SCOTUS finds in favor of employees and applies protections, courts will not be able to pick and choose whether they want to abide by the EEOC’s guidance or not. Instead, they will be bound to the SCOTUS precedent. In addition, LGBT employees living in states with no protections in the law will have federal protection, so all employers will be prohibited from discrimination, harassment, and retaliation based on sexual orientation. Along with most of the country, we will certainly be watching closely for the outcome of this matter.

Consult with a New Jersey Employment Attorney about Your Rights

At Traub Law, we know that employment discrimination and harassment cases are often anything but clear-cut. Employment lawyer Rina Traub fights for the rights of employees in New Jersey in many different circumstances, and if your employer acts unlawfully, you should not hesitate to seek legal assistance. Call 609-951-2204 or contact us online for a case evaluation today.

New Jersey Law Strengthens Protections for Employees

New Jersey employee rights

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 of rights these provisions often request that an employee waive include:

  • The right to file a lawsuit
  • The right to a jury trial
  • The right to seek certain legal remedies

Many employment contracts state that an employee will agree to arbitrate an issue instead of filing a lawsuit, will have a shortened statute of limitations to raise a legal issue, or will even have reduced rights to discovery in a legal case. 

Now, such provisions limiting an employee’s rights are considered to be against public policy when the legal matter arises from unlawful harassment, discrimination, or retaliation. If an employer bases an adverse employment action on an employee’s refusal to sign such an agreement, it will now be considered to be unlawful retaliation. Adverse employment actions that are retaliatory actions may include:

  • Refusal to hire
  • Suspension
  • Demotion
  • Discharge
  • Any other form of discrimination in the terms, conditions, or privileges of employment

Practically speaking, your employer cannot threaten your job if you object to a clause or agreement that requires you to relinquish rights regarding discrimination-related claims.

Many observers expect to see many opponents of this new law provision raise legal challenges to the restrictions on employers. Specifically, many companies or advocacy groups will likely claim the law violates the Federal Arbitration Act (FAA).However, the FAA gives each state the right to determine when contracts may or may not enforceable, and the New Jersey legislature has determined that the above-mentioned clauses are against public policy and unenforceable.

An important argument in favor of upholding the law is that each contract requires a meeting of the minds, and when a contract requires a party to waive certain rights, they must do so knowingly and voluntarily. When someone feels like their only choices are to waive their rights or lose their job, the waiver will not be considered to be knowing and voluntary. Importantly, New Jersey employers are prohibited from taking retaliatory action against employees for refusing to enter into a contract prohibited by the law, so if you’ve been fired or denied employment because you refused to sign such a contract, you should speak to a lawyer immediately.

Employers May No Longer Prohibit Employees from Disclosing Details of Details of Discrimination, Harassment, or Retaliation in Contracts or Settlement Agreements

The other part of the new employment law involves employment contracts or settlement agreements arising from discrimination, harassment, or retaliation issues. Employers often want to include provisions in these agreements that require the employee to keep all information relating to the claim or dispute confidential. News of discriminatory actions can harm an employer’s reputation significantly, so these non-disclosure clauses have been very common. This is especially the case when it comes to pre-suit settlements, as these agreements often occur, in part, to avoid a public lawsuit. 

Under the new law, provisions requiring an employee to keep details of discrimination, harassment, or retaliation secret as part of a settlement agreement are unenforceable and against public policy. Provisions of an employment contract that require confidentiality in the event of a discrimination settlement are also unenforceable.

From now on, an employer cannot require an employee to remain silent about the unlawful behavior that occurred at their workplace. If an employee speaks out, the employer will also not be bound by a non-disclosure provision. If an employer tries to take legal action against an employee for revealing details of a harassment or discrimination case, the law now holds the employer liable for the attorney’s fees of the employee. 

Many employers may not want to sign settlement agreements if it does not include a confidentiality clause. However, it is important to note that these NDA restrictions do not apply to all aspects of a settlement agreement. For instance, the value of the settlement offer may still be confidential, though there is no longer a guarantee that an employee will keep the events that led to the complaint confidential. 

Furthermore, if the parties cannot reach a resolution on their own and the employee files a lawsuit, all of the details will become public knowledge. Therefore, employers are still incentivized to settle meritorious claims out of court. After all, from the employer’s perspective, there is always a chance that an employee will not share information about the case. Once an employee must file a claim in civil court, the employer has no hope for confidentiality, as all court filings are typically part of the public record.

Understanding Your Rights as a New Jersey Employee

When a new or current employer presents you with an arbitration agreement or employment contract including certain rights waivers, they may indicate that signing the agreement and relinquishing your rights is a condition of employment. It is important to understand that this is now an unlawful requirement and you cannot legally lose your job for refusing to sign such an agreement. In addition, an employer may no longer contractually require that you remain silent about discrimination, harassment, or retaliation that you experience at work. 

Experiencing harassment, discrimination, or retaliation at work can be difficult enough on its own. New Jersey law has provided increased protections for employees, though this does not necessarily mean that all employers will readily comply and change their practices.  The best way to ensure that you properly uphold your rights as an employee is to speak with a skilled New Jersey employment lawyer as soon as you believe you were the victim of discrimination, harassment, or retaliation. 

The right lawyer can begin representing your rights from the very start to ensure your employer is held fully accountable and in compliance with all employment laws – including the most recently passed laws. We can identify whether your employer is placing unenforceable restrictions on you or whether you were fired in retaliation for refusing to sign an unenforceable waiver of your rights. 

Because employment laws are always changing, it is all too common for employers to continue old practices that now violate the law. It is also easy for an employee to be unaware of their rights and that their employer is violating the law. As an employment law firm, it is our job to stay apprised of all new developments in state and federal law and apply them to each case we handle, so if you have any questions about something that happened to you at work or compliance with the new law, you should contact us immediately.

Contact a New Jersey Employment Attorney Today

At Traub Law, we help New Jersey employees with a wide range of labor and employment law matters. If you would like to learn about your legal rights and options in your specific situation, do not hesitate to call 609-951-2204 or contact us onlineto discuss your concerns today.

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 Black people. The new guidance aims to reduce anti-Black racism rooted in grooming policies, specifically relating to an employee’s hairstyle. All employers and employees in New York City should be aware of the new guidelines and understand their responsibilities and rights under the law.

Discrimination on the Basis of Hair

An individual’s hairstyle or the state of their natural hair is often closely connected to racial, cultural, or ethnic identities. When an employer bans certain hairstyles, they are often engaging in racial or ethnic discrimination. 

Employers often enact grooming policies including hairstyle bans claiming that specific styles are not “professional.” However, these policies often reflect the Caucasian standard of what is professional or not, and perpetuate anti-Black racism by deeming traditionally Black hairstyles as unprofessional. To try to eliminate this form of racism, the new NYCCHR guidance protects an employee’s right to “maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.”

For many Black employees, such hairstyles include:

  • Natural hair
  • Cornrows
  • Locs
  • Braids
  • Twists
  • Afros
  • Bantu knots
  • Fades
  • Extensions or weaves

It also includes a Black employee’s right to keep their hair in an untrimmed or uncut state. 

Important New Hair-Based Protections

Based on the guidelines, policies that ban the above hairstyles will be considered to be unlawful discrimination against Black people on the basis of their race, under the New York City Human Rights Law. This is critical, since many Black individuals choose to adopt one of the above hairstyles to protect their hair, to avoid treatment of their hair, or based on financial, personal, traditional, religious, or spiritual reasons. 

There has long been a fundamentally racist opinion among many people and employers that traditionally Black hairstyles are unhygienic, too informal, unkempt, “matted,” or messy. For this reason, many grooming policies banned a wide variety of natural Black hairstyles or employers acted with bias against Black applicants or employees with certain hairstyles.  

The socioeconomic pressure to conform to traditional standards of professional appearances has long led many Black people to use chemical straighteners or relaxers and heat styling to change the texture and appearance of their hair. Such long-term styling can lead to many issues, including:

  • Hair breakage
  • Hair loss
  • Traction alopecia
  • Trichorrhexis nodosa
  • Scalp and skin damage
  • Increased risk for uterine fibroids

In addition to the potential physical problems, such unnecessary hair restrictions have additional adverse effects, such as:

  • Emotional distress from having to choose between your natural hair or culture and your livelihood and opportunities
  • Having to spend more time and money on hair styling products and appointments
  • Anxiety regarding the possible stigma of not conforming to such standards

People should be allowed to choose a natural or cultural hairstyle and have educational and career opportunities in line with their qualifications at the same time. The NYCCHR acknowledges the importance of this by including hair discrimination under the umbrella of racial discrimination. 

An individual’s hairstyle generally has no impact on their ability to succeed at their job. Companies may not make hair-related grooming policies that target Black employees under the guise of health and safety, customer preference, or corporate image. They also cannot refuse to allow Black employees with certain hairstyles to interact with customers based on their hair. 

Other Hair-Related Discrimination

While the NYCCHR focuses on Black hairstyles in its guidance, it is important to realize that grooming policies relating to hair or facial hair can discriminate against others in the workplace, including:

  • Not allowing men to wear their hair long while women can
  • Discriminating against an employee who cannot cut their hair or beard due to religious reasons
  • Disallowing ethnic or religion-based head coverings, including turbans or hijabs

The NYCCHR makes it clear that it is disallowing any hair-related actions or policies that target employees of religious minorities, color, or other protected communities. 

Some employers may claim there is a legitimate health or safety reason for having certain grooming policies in place. However, the law requires employers to examine alternatives to banning hairstyles that would satisfy the safety and health concerns. Such measures may include using different safety equipment or requiring the use of hair nets or ties instead of requiring a change in hairstyle. 

Harassment and Retaliation

In addition to discrimination, the law in NYC now also prohibits harassment based on an employee’s hairstyle. Employers cannot allow any offensive comments, gestures, or other behaviors in the workplace based on someone’s natural hair or cultural or ethnic hairstyle. If behaviors create a hostile work environment for the targeted employee, this constitutes unlawful harassment based on the employee’s hair. 

Furthermore, the law protects employees who complain of possible harassment or discrimination in the workplace. If an employee states she believes that a coworker is harassing her or that a company grooming policy is discriminatory, the employer is prohibited from retaliating against the employee or anyone else involved in the complaint. Retaliation can include any adverse employment action, including:

  • Changing job assignments or shifts
  • Reducing hours or pay
  • Refusal of deserved promotions or pay increases
  • Harassment or mistreatment
  • Disciplinary action
  • Termination

Employees have the right to report unlawful discrimination or harassment without the fear of retaliation by their employers. 

What Should You Do If You Believe You Were the Victim of Hair Discrimination?

All NYC employers should change their policies regarding hairstyles to comply with the law. Unfortunately, we all know that some companies will continue to engage in or allow discrimination, harassment, and/or retaliation. As an employee, you have rights if you suffer unlawful employment discrimination. 

First, always make notes of all interactions with coworkers, supervisors, or others at your workplace that may be harassing or discriminatory. Then, contact an experienced employment attorney to discuss your rights and options. In many situations, employees may be entitled to compensation and other legal remedies.

Discuss any Concerns with an Experienced New Jersey Employment Attorney 

The NYCCHR is one of the most progressive local or state civil rights commissions in the United States. The new guidance only applies to New York City, and not to the rest of New York State or the other states. However, this is hopefully the start to many states changing their policies to help eliminate race discrimination rooted in grooming policies and bias regarding hairstyles. 

At Traub Law Employment Attorneys, we stay apprised of all changes in employment laws and work to ensure companies change their policies and actions in line with new guidelines. If you have any questions or concerns about employment discrimination, please call us at 609-951-2204 or contact us through our online forms to schedule your consultation today.

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, Incaddressed 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 way for an employer to go about extracting its employees’ agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial.” The following is an overview of the Court’s decision and its potential effects on employee-employer arbitration agreements.

The Facts Reviewed

The plaintiff was an employee of Pfizer, and the company required her to get a yellow fever vaccine for her job as a flight attendant. However, as a Buddhist, the plaintiff’s beliefs went against any injections that contained animal proteins, which the vaccine did. Pfizer gave her ultimatums, ignored letters from her physician and vaccination waiver cards, and denied her request for a religion-based accommodation. After medical leave due to an employment-related “breakdown,” another paid leave, and a denial of her internal HR appeal, Pfizer terminated the plaintiff. She then filed a lawsuit in New Jersey court alleging violations of New Jersey’s anti-discrimination laws.

Pfizer sought to have the lawsuit dismissed based on a so-called binding arbitration agreement it had with its employees. The previous year, Pfizer sent out a training module via email to its employees. The module had slides that described the arbitration agreement and the waiver of the employee’s statutory rights to litigation. At the end, the employees could click an “acknowledgement” box. If they did not click the box, the module stated that continued employment for 60 days would constitute an agreement to the policy. Because the plaintiff was employed for 13 months following the training module, Pfizer contended she agreed to arbitration.

Lower Court’s Decision

The trial court initially granted Pfizer’s motion to dismiss, claiming the emailed slides and acknowledgement request were sufficient to constitute a binding arbitration agreement. That court relied on a recent New Jersey case that also involved email communications, Jaworski v. Ernst & Young. In that case, an employee previously signed an arbitration agreement that stated he could be notified via email of amendments to or termination of the agreement in the future. He received an email notifying him of amendments to the agreement and continued working for the company for five years. He later argued in court that those amendments did not apply to him. The court disagreed and ruled that since he had signed the initial agreement, he was aware that notification of amendments could be sent by email and, by continuing his employment, he agreed to the amendments.

The trial court in Skuse relied on Jaworski in deciding that the email notification of the arbitration policy was sufficient and granted the motion to dismiss. The Appellate Court respectfully disagreed with the trial court’s assessment and reliance on Jaworski. Instead, the Court largely relied on a different case, Leodori v. Cigna, to identify the requirements for a binding arbitration agreement with employees.

Requirements for a Valid Arbitration Agreement

The court closely reviewed whether the email training module and acknowledgement box were enough to establish a binding arbitration agreement with its employees. First, the court acknowledges that state policy generally favors arbitration as an alternative dispute resolution process – only as long as both parties mutually choose to participate. As with any contract under New Jersey law, arbitration agreements require a “meeting of the minds,” and employers cannot force employees to arbitrate if the employee has not agreed to do so. This is particularly important because arbitration agreements require an employee to give up their statutory right to have their case heard in court.

When it comes to arbitration agreements specifically in employment relationships, the Appellate Court looked to the New Jersey Supreme Court’s decision in Leodori. In that case, the employer gave employees a handbook regarding company policies and an acknowledgement form, which did not specifically mention arbitration. There was another “agreement” form that did mention arbitration as a requirement for employment. The plaintiff signed the acknowledgement form but not the agreement form.

The Supreme Court found the plaintiff in Leodori did not enter into a binding arbitration agreement for the following reasons:

  • He did not convey “knowing and voluntary agreement”
  • He did not “sign or otherwise explicitly indicate his [] agreement”
  • He did not agree to “clearly and unambiguously” waive his rights to litigation and arbitrate disputes

The Court held that such a waiver of rights requires “an explicit affirmative agreement that unmistakably reflects the employee’s assent.” An acknowledgement did not constitute such an affirmative agreement to the policy.

Similarly, Pfizer only requested employees to check an “acknowledgement” box, not an agreement box. Moreover, unlike in Leodori, Pfizer did not even request a signature from its employees, but merely a click of a mouse. The Court also noted that many people in corporate settings receive many emails per day and tend to skim material instead of carefully reading and understanding the content.

The Court also stated that calling the email a “training module” was another sign that Pfizer was seeking its employees’ knowing and voluntary agreement. Seeking a waiver of rights is not a training exercise, and companies must do more than merely educate employees regarding arbitration policies, but must clearly seek to obtain their explicit agreement to the policies. Ultimately, Pfizer’s methods of seeking agreement were found to be insufficient to constitute a binding agreement to arbitration and voluntary waiver of rights.

Employers in the Technological Era

The Court in Skusedid note that in today’s day and age, companies often use email and other electronic transmissions to give large numbers of employees information about company policies. It would not be realistic to expect employers to sit down with thousands of employees individually to negotiate arbitration agreements. Therefore, the Court is not suggesting that electronic means are always insufficient for obtaining an employee’s assent.

However, companies may not mask the agreement as “training” and mere “acknowledgement.” Instead, they must use unmistakeable language and terminology when seeking such an agreement. They may also want to require an employee to electronically sign their name instead of simply checking a box, as that makes it clearer that the employee is agreeing to an important contract.

This case should remind employers that they may not enforce arbitration agreements without clear and unmistakable assent from employees. If an employer files a motion to dismiss based on an arbitration agreement, plaintiffs should always discuss the enforceability of the agreement with an experienced attorney.

Contact Our New Jersey Employment Law Firm for More Information

Employment lawsuits can have numerous complex issues arise, and plaintiffs should always have a highly experienced employment lawyer representing them throughout their case to ensure their rights are fully protected. If you have any questions or concerns regarding your employment relationship, please call Traub Law Employment Attorneys at 609-951-2204 or contact us online today.

 

 

 

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 $15.00 per hour. On January 24th, the Assembly Labor Committee approved a revised version of the bill, and other legislative committees must also vote to approve the bill. The full Assembly and Senate must both pass the bill and Governor Phil Murphy would have to sign it before the increases are formally implemented.

Details of the Bill

The bill sets out a specific schedule for minimum wage increases, as follows:

  • Increase to $10.00 per hour on July 1, 2019
  • Increase to $11.00 per hour on January 1, 2020
  • An additional increase of $1.00 per hour each January 1 until it reaches $15.00 in 2024

If the bill passes, employers should all be ready to start paying the new $10.00 minimum wage as of July. Employees should pay close attention to their wages to ensure their employers are not violating their rights under the new law.

There are some exceptions to the law, such as the fact that tipped employees will have a lower hourly wage and will need to reach $15.00 per hour based on a combination of wages and tips. The scheduled increases will be different for agricultural workers, seasonal workers, and for companies with five or fewer employees. Agricultural workers will receive a $12.50 minimum wage by 2024 when the legislature will examine whether a further increase is warranted. Employers utilizing seasonal workers and small companies will have until 2026 to reach $15.00.

If an employee is in training and not performing job duties at full capacity, employers will be allowed to pay a training wage starting in 2020. This training wage must be at least 90 percent of the applicable minimum wage for up to 120 hours of training. This is intended to ease the burden of regular increases on employers, though, after 120 hours, employers will need to ensure they are providing the right compensation under wage and hour laws. If you have reason to believe that your employer is not paying you the required hourly wage or overtime, never hesitate to discuss the matter with a knowledgeable employment lawyer.

Contact an Experienced New Jersey Wage and Hour Lawyer to Protect Your Rights

At Traub Law Employment Attorneys, we will be closely watching all new developments regarding the minimum wage bill. When significant changes to wage and hour laws occur, there is always a chance that certain employers may fail to comply, denying you of your rightful compensation. If you believe your rights have been violated by your employer, (609) 951-2204 or contact us online today to speak with a New Jersey employment lawyer.

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 enforce non-competes that are necessary to protect an employer’s legitimate interests, do not impose an undue hardship on the employee, do not harm the public, and are reasonable in duration and geographic scope.  New York generally recognizes that employers have a legitimate interest in protecting their businesses from the disclosure of trade secrets, client lists and confidential information as well as the potential loss of its highly skilled workforce. But many companies have been overreaching with their use of non-compete agreements.  That is, they are mandating that even low-level employees, those without specialized skills or access to proprietary confidential information sign non-compete agreements that restrict their ability to accept another job even when they were terminated from their current job through no fault of their own (not for “cause”).  Many states, such as New York, are acting to prevent the negative economic impact of non-compete agreements and their restraint of trade and job mobility.  The NYAG’s office announced in September 2018 that it reached a settlement with WeWork, a co-working and office space company, in which WeWork agreed to completely eliminate or curtail overly broad non-compete agreements for nearly all of its 3,300 employees. WeWork required all employees, even cleaning staff and receptionists to sign non-competes as a condition of employment.  As part of the settlement, the company is now dropping the non-compete agreement requirement except for a few high-level executives.  Moreover, the NYAG has reached similar settlements with other large companies in an effort to eliminate the broad use of post-employment non-compete agreements for their low-level employees.

In response to growing misuse of non-compete agreements, the NYAG also released “Non-Compete Agreements In New York State – Frequently Asked Questions.” This guidance provides easy-to-understand answers to common questions workers have regarding the law on non-competes.

The overly broad application of non-competes to low-wage employees prompted the NYAG to propose legislation which would ban non-competes for employees earning below $75,000 per year. Assemb.B.A7864A, 2017-2018 Legislative Session (N.Y. May 17, 2017).  There are currently no New York statutes governing the general enforceability of non-competes but industry specific proscriptions do exist (i.e., for broadcasting, attorneys and within the financial services industry).

New York and New Jersey Employers should review their current non-compete agreements with employment counsel, in light of the above, to ensure that they have not reached too far in trying to protect valuable trade secrets, proprietary and confidential information.