New Jersey Employment Attorneys Blog

WORKERS MAY SUE AS WHISTLEBLOWERS IF THEY ARE FIRED FOR COMPLAINING TO THEIR EMPLOYER ABOUT ITS WAGE LAW VIOLATIONS

Published on: June 14, 2019 | by Mashel Law, L.L.C.

A worker in New Jersey who is fired for complaining to their employer about its New Jersey’s wage law violations may be able to sue to recover damages under our state’s whistleblowing laws. Recently, the New Jersey Appellate Division clarified that a plaintiff does not need to allege both a violation of a statute and a matter of public policy to state a cause of action under New Jersey’s Conscientious Employee Protection Act (CEPA). Costa v. Total Rehab & Fitness, 2019 N.J. Super. Unpub. LEXIS 1286 (App. Div., June 5, 2019). CEPA defines protected “whistle-blowing activity” to occur when an employee “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes is… in violation of a law, or rule or regulation promulgated pursuant to law.” N.J.S.A. 34:19-3.

In reversing in part the Camden County Superior Court’s earlier decision dismissing allegations of CEPA violations in plaintiff’s complaint for failure to state a claim, the Appellate Division reasoned that the complaint should have been dismissed without prejudice to give the plaintiff an opportunity to amend her complaint as the circumstances of her termination may have amounted to a violation of CEPA.

Catherine Costa worked as an occupational therapist for Total Rehab & Fitness between April and September 2013. During her employment, she agreed to be paid in accordance with a scaled compensation system based on the number of patients that visited her during the week. Despite the agreed upon compensation system in place, Costa’s employer frequently paid her less than required by her contractual rate which is a violation of the New Jersey Wage Payment Law (NJWPL). After a series of email exchanges in which Costa informed her employer about the discrepancies in her paycheck only to be met with frustration toward her demands, Costa was terminated. Id. at 4-6. The Superior Court dismissed Costa’s complaint because of her failure to specify that her employer violated the NJWPL. However, it also went one step further and concluded that Costa’s complaints about shortages in her paycheck involve “a purely personal and private dispute, insufficient to meet the elements of a CEPA claim.” Id.

A STATE APPELLATE COURT CONCLUDES THAT EMPLOYEES ARE NOT PERMITTED TO BRING THEIR CLAIMS AS A CLASS IN COURT BUT RATHER MUST PURSUE THEIR CLAIMS INDIVIDUALLY THROUGH FORCED PRIVATE ARBITRATION

Published on: June 7, 2019 | by Mashel Law, L.L.C.

Plaintiffs attempting to sue Strategic Delivery Solutions LLC (SDS) in a class action suit over a myriad of violations of the New Jersey Wage Payment Law (WPL) and New Jersey Wage and Hour Law (WHL) must bring their claims individually through opaque private arbitration rather than as a class in open court before a jury of their peers according to an Appellate Division opinion published on June 4, 2019. Colon et. al. v. Strategic Delivery Solutions, LLC., 2019 N.J. Super. LEXIS 78. This is an unfortunate outcome for plaintiffs, who otherwise had strong claims for New Jersey wage law violations. When hired by SDS, plaintiffs entered into independent vendor agreements, which contained clear and unambiguous arbitration provisions. According to this appellate court, by signing these agreements plaintiffs gave up their rights to bring class actions claims, waived a jury trial, and agreed to binding arbitration. Colon at 4. Moreover, the appellate court concluded that even if the Federal Arbitration Act (FAA) does not apply, the New Jersey Arbitration Act (NJAA) does, and arbitration is required to settle these wage disputes.

In their initial suit filed in December 2016, plaintiffs alleged that from February 2015 to March 2016, they were working out of an SDS facility in Elizabeth performing truck driving and delivery functions for the company. They claim that SDS made unlawful deductions from their compensation in violation of the New Jersey Wage Payment Law during this time. N.J.S.A., 34:11-4.1 to 4.14. Additionally, plaintiffs allege that SDS misclassified them as independent contractors rather than employees and in doing so failed to pay them one-and-a-half hourly rate for any time they worked over forty hours per week in violation of the overtime provisions contained within the WHL. N.J.S.A., 34:11-56a to 56a38. Withholding wages and failing to pay employees the required one-and-a-half-hour overtime rate for excess hours worked are both serious abuses against New Jersey wage laws. Id. However, the Appellate Division agreed that plaintiffs must arbitrate their claims based on this arbitration provision, so sadly plaintiffs will not have their day in court.

Had the plaintiffs not entered into such agreements with the company, they would have had strong claims for a class action lawsuit against SDS for violating the New Jersey employment law statutes. The WHL was enacted to protect employees from unfair wage practices, such as giving employees excessive hours of work. N.J.S.A. 34:11-56a. Therefore, the distinction between independent contractor and employee, which is what plaintiffs are disputing in this case, is not a minor one in terms of application of the wage laws applicable to the employee-employer relationship. The WPL, which governs the time and mode of payment of wages due to employees, excludes independent contractors from its definition of “employee.” Hargrove’s v. Sleepy’s, LLC, 220 N.J. 289 (2015). Similarly, the WHL, which establishes a minimum wage or overtime rate payable to employees, does not do so for independent contractors. Neither the WPL nor its regulations differentiate between an employee and an independent contractor, however the New Jersey Supreme Court held that in distinguishing the two, courts may apply the ABC Test, which is taken from the New Jersey Unemployment Compensation Act. Id.

SEXUAL HARASSMENT AGAINST WOMEN WORKERS IN THE FOOD SERVICES INDUSTRY IS A SERIOUS AND PERVASIVE PROBLEM

Published on: May 31, 2019 | by Mashel Law, L.L.C.

A survey conducted this past January by the nonprofit Stop Street Harassment found that 81% of women had experienced some form of sexual harassment during their lifetime. Given this troubling statistic, it is not surprising that a recent series of twenty-five sexual harassment complaints have been filed with the U.S. Equal Employment Opportunity Commission (EEOC) against McDonald’s Corporation. These complaints allege the sexual harassment of female employees by male coworkers and managers. In response to these filings McDonald’s CEO released a statement on May 19, 2019, committing the company to “ensuring a harassment and bias-free workplace” for its employees. Although these words may read well on paper, it does little to explain why most of the claims of sexual harassment filed against the corporation also allege retaliation after the victims reported the sexual harassment to their supervisors.

By far claims of sexual harassment in the food service industry are not limited to McDonald’s. According to a report released by the National Women’s Law Center, the accommodations and food services industries are among the highest-ranking industries for total number of sexual harassment charges filed. The report also indicates that more than one in three women who filed such charges against their employers also alleged retaliation by their employers for doing so; a circumstance well familiar to a McDonald’s employee named Jamelia Fairley.

In September 2016, Jamelia Fairley began working for a McDonald’s store in Florida as a crew member. In her EEOC complaint filed against McDonald’s Corporation, Fairley alleges that she endured constant sexual jokes and remarks directed at her as well as at her young daughter who worked there as well. She also endured unwanted touching, groping, and physical contact at the workplace. Her complaint alleges that when she reported this harassment to her store manager, her work hours were reduced from about 25 hours per week to about 7-8 hours per week.

NJ APPELLATE COURT HOLDS PATTERN OF DISCRIMINATORY APPEARANCE-BASED PRACTICES MAY BE SUFFICIENT FOR SEXUAL HARASSMENT HOSTILE WORK ENVIRONMENT CLAIM IN ONGOING “BORGATA BABES” LAWSUIT

Published on: May 24, 2019 | by Mashel Law, L.L.C.

The Appellate Division of the Superior Court of New Jersey published an opinion on May 20, 2019, in which it reversed an Atlantic County decision dismissing a Law Against Discrimination (LAD) claim brought by a group of employees against the Borgata Casino, Hotel, and Spa in Atlantic City.

The employees, who were all hired to work as servers for the “Borgata Babes” program, allege that Borgata engaged in disparate treatment and sexual harassment, among other LAD violations, through its implementation of personal appearance standards which focus primarily on employees’ weights. Enforcement of these personal appearance standards was done through occasional weigh-ins, which ensured employees did not go above a set weight range during their employment. The standards were imposed on women who were pregnant as well as on women who were undergoing medical treatments that caused weight gain.

This week’s decision comes after a decade of litigation in which the claims were initially dismissed by the trial court. Schiavo v. Marina Dist. Dev. Co., LLC, 2013 N.J. Super. Unpub. LEXIS 2093. That initial dismissal was reversed in 2015 when the Appellate Division held that the trial judge erred in finding the record insufficient for a showing of a prima facie claim of sexual harassment hostile work environment discrimination. Schiavo v. Marina Dist. Dev. Co., LLC, 442 N.J. Super. 346 (App. Div. 2015).

GROWING MOVEMENT AGAINST DISCRIMINATORY HAIR-GROOMING POLICIES AND PRACTICES IN THE WORKPLACE

Published on: May 17, 2019 | by Mashel Law, L.L.C.

Employer dress codes aimed toward the legitimate business interests of professionalism, safety, hygiene and neatness are legal. However, recent attention has been given toward the issue of whether it is illegal discrimination for employers to ban certain hairstyles traditionally held by and associated with African-Americans. In New Jersey, a particularly brutal story surfaced in the news in December 2018 about a 16-year old African-American wrestler named Andrew Johnson who was forced to unnecessarily cut off his dreadlocked hair just minutes before his wrestling match by a Caucasian referee and in front of a gymnasium full of spectators. This story prompted outrage and stirred controversy over discriminatory hair-grooming policies and practices in schools and in the workplace.

There is a growing movement toward protection against discrimination based on hairstyle and texture in recognition of the importance of hair to cultural identity and the historically discriminatory treatment people of color have received because of their natural hair. In February 2019, the New York City Commission on Human Rights instituted a law that bans workplace discrimination based upon hairstyle. Just this week, the California Senate passed the “CROWN” Act (Create a Respectful and Open Workplace for Natural Hair), which seeks to add hairstyle and texture associated to race with California’s anti-discrimination laws. The bill, which was introduced by Senator Holly J. Mitchell, will now move on to the California State Assembly.

Speaking before the Senate’s vote, Mitchell noted that African-American men and women have had to go through expensive and dangerous chemical treatments to alter their hair to conform with Euro-centric norms in the workplace.

EMPLOYMENT LAWS EXIST WHICH PROTECT ALL EMPLOYEES REGARDLESS OF THEIR IMMIGRATION OR RESIDENCY STATUS

Published on: April 19, 2019 | by Mashel Law, L.L.C.

Sometime in the 1750s Benjamin Franklin wrote lamenting the influx of non-Wasp immigrant settlers into colonial America, “Those who come hither are generally the most ignorant Stupid Sort of their own Nation.” Mr. Franklin’s caustic commentary shows how the topic of immigration has always been a heated one in this country. Hence, it is not surprising how immigrants often work in fear of being harassed and disparately treated because of their residency or immigration status. Fortunately, there is protection here in New Jersey for immigrant workers under New Jersey’s Law Against Discrimination (“LAD”). LAD states that an employer cannot discriminate based on race, national origin, religion, gender, age, disability, marital status, etc. Under the LAD, discrimination based on immigration or citizenship status is treated differently than national origin discrimination because the discrimination is typically based on the employee’s immigration status rather than the country where they originated from.

Although the LAD does not specifically protect employees from discrimination based on immigration and/or residency status, the Immigration Reform and Control Act (“IRCA”) does. 8 U.S.C.A. § 1324. ICRA protects workers from discrimination based on their immigration and/or citizenship status. IRCA makes it unlawful for an employer to discriminate against its employees because of their citizenship, immigration or residency status in hiring, firing, and/or recruitment. Id. IRCA also makes it unlawful for an employer to demand more or different documents that are legally acceptable for employment verification purposes. Similarly, an employer cannot refuse to accept documents that appear to be acceptable and are legally acceptable. Id. The IRCA further prohibits intimidation, threats, retaliation, or coercion against any employee who files charges. It also prohibits retaliation of those individuals who cooperate with an investigation, proceeding, or IRCA hearing. Id.

Individuals protected under the IRCA include citizens of the United States, permanent residents, lawful temporary residents, refugees, and asylees. However, the IRCA does not protect workers from discrimination and harassment who have unlawfully entered our country and/or are illegally employed in this country. In fact, the IRCA was the first federal law to deem it unlawful for employers to knowingly hire persons who are not authorized to work in the United States. It is also illegal under the IRCA to continue to employ an undocumented worker or one who has lost their authorization to work in this country. Consequently, the IRCA requires employers to verify each employee’s work eligibility and identity.

DISCRIMINATION AGAINST AMERICAN WORKERS IS A GROWING PROBLEM

Published on: April 12, 2019 | by Mashel Law, L.L.C.

It’s a sad fact that many companies in our country discriminate against American workers in favor of cheaper foreign temporary labor. In fact, the U.S. Department of Labor released a 2018 job report showing that while employment for foreign workers in the U.S. increased by 3%, employment for American workers increased a little less than 1.5%. To combat this disturbing trend, on August 1, 2018, the United States Department of Justice joined forces with the Unites States’ Departments of Civil Rights Division and Labor to announce the agencies’ joint effort to target companies that exhibit “unlawful discrimination” against American workers by hiring foreign labor. These employers often hire cheap foreign labor through the H-1B, H-2B and L-1 visa programs. These visa programs are briefly described as follows:

H-1B visas are issued to foreign workers who can fill positions so “specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.” Foreign computer programmers serve as a common example of those who have been issued a H-1B visa.
H-2B visas allow U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs where there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work. Examples of these may be persons filling housekeeping positions for companies operating in the travel and leisure industry.

RECENT EXPANSION OF NEW JERSEY FAMILY LEAVE ACT WILL HELP WORKERS TAKE LEAVE TO CARE FOR BABIES AND SICK RELATIVES

Published on: April 5, 2019 | by Mashel Law, L.L.C.

New Jersey is a national leader and model for paid family leave legislation. For example, this year marks the 10th anniversary of the New Jersey’s paid family leave program. Ten years ago, New Jersey enacted the New Jersey Family Leave Act (“NJFLA”) and became the second state in the country (after California) to offer family leave allowing workers to take off time to care for a newborn or sick relative while collecting a portion of their pay while on leave.

Family leave is becoming more important than ever as the baby boomer generation ages, and increasingly needs care and assistance from family members. The number of Americans ages 65 and older is projected to more than double from 46 million today to over 98 million by 2060. See Population Reference Bureau Fact Sheet at https://www.prb.org/aging-unitedstates-fact-sheet/. For all too many working families, taking time off from work to care for their ill family members is exceedingly stressful, costly and difficult.

Under the present law, New Jersey provides up to six (6) weeks of Family Leave Insurance (“FLI”) cash benefits and is 100% financed by worker payroll deductions. Employers do not contribute to the program. The benefits are available to allow for workers to bond with a newborn or adopted child, or to care for a family member with a serious health condition. Claimants are paid two-third (2/3) of their average weekly wage, up to a maximum weekly benefit. For workers seeking to bond with a newborn or adopted child, you must provide your employer with thirty (30) days’ notice. To care for an ill family member, you must give your employer fifteen (15) days’ notice.

UNDER NEW JERSEY’S LAW AGAINST DISCRIMINATION, AN EMPLOYER MAY BE HELD LIABLE FOR TERMINATING AN EMPLOYEE BECAUSE OF THEIR LAWFUL USE OF MEDICAL MARIJUANA

Published on: March 29, 2019 | by Mashel Law, L.L.C.

The Law Against Discrimination (“LAD”) was designed to protect employees in New Jersey from discrimination in the workplace, including, but not limited to, disability discrimination. N.J.S.A. 10:5-12(a). The LAD also requires an employer to provide a disabled employee with a reasonable accommodation “unless the nature and extent of the disability reasonably precludes the performance of the particular employment.” N.J.S.A. 10:5-4.1. However, until recently, an employer could openly discriminate against an employee for using medical marijuana to treat a medical condition. See Cotto v. Ardagh Glass Packing, 2018 U.S. Dist. LEXIS 135194 (D.N.J. August 10, 2018). In fact, New Jersey case law has said an employer is not required to accommodate an employee’s use of medical marijuana to treat an illness. Id. This is because the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) specifically states “[n]othing” in the CUMMA “require[s] an employer to accommodate a medical marijuana user.” N.J.S.A. 24:6I-14.

Notably, CUMMA was enacted because the New Jersey Legislature determined “[m]odern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other systems associated with certain debilitating medical conditions.” N.J.S.A. 24:6I-2(a). One of CUMMA’s professed purposes is “to protect from arrest, prosecution … and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions…” N.J.S.A. 24:6I-2(e).

In our blog article of January 11, 2019 entitled “Medical Marijuana Can Cost Workers Their Jobs, But Laws Are Coming To Correct This Wrong”, we discussed pending State Assembly Bill 1838 and State Senate Bill S10 which, if enacted, would prevent employers in New Jersey from firing an employee for using medical marijuana unless the employer was able to produce evidence showing that such use impaired the employee’s ability to perform their job in a safe and effective manner. Now, it appears state case law maybe moving in the same direction as this pending legislation. We state this because the New Jersey Appellate Division in Wild v. Carriage Funeral Holdings, Inc., 2019 N.J. Super. LEXIS 37 (App. Div. March 27, 2019) recently held that the LAD prohibits disability discrimination, including discriminating against an employee who lawfully uses marijuana for medicinal purposes.

NEW JERSEY ENACTS NEW LAW OUTLAWING EMPLOYERS’ USE OF NON-DISCLOSURE AGREEMENTS TO SUPPRESS DISCLOSURE OF DISCRIMINATION CLAIMS AND SEVERELY CURTAIL THE USE OF FORCED ARBITRATION CLAUSES AND JURY WAIVER PROVISIONS

Published on: March 22, 2019 | by Mashel Law, L.L.C.

Clear evidence the seismic effects of the national #Me Too movement has reached the shores of New Jersey occurred when New Jersey Governor Phil Murphy recently signed into law S.121 which effectively stops employers from requiring employees to sign nondisclosure confidentiality agreements – commonly referred to as “NDAs” – when settling employment discrimination, harassment, or retaliation claims. The use of NDAs has become a notorious legal tool used to protect serial harassers and abusers from the shaming cleanse of public disclosure. Further, the law also severely limits an employer’s ability to impose forced arbitration clauses and jury waiver clauses on its employees.

Following other states such as California which have banned the use of NDAs in settlement agreements and employment contracts, proponents of S. 121 argue that it adds new protections for victims of serial abusers in the workplace. “Non-disclosure agreements have, for a long time, been used to silence and intimidate the victims of sexual assault and harassment,” said Senator Weinberg (D-Bergen), one of the law’s chief architects. “Too many victims have been forced to suffer in silence for far too long, leaving abusers to continue to prey on countless women with impunity. Limiting these so-called ‘confidentiality agreements’ will help lift the secrecy that allows abusers to carry on abusing and make our workplaces safer for everyone.”

S.121 has two important components. First, it renders any term in an employment contract or settlement agreement unenforceable against a current or former employee if it “has the purpose of concealing the details relating to a claim of discrimination, retaliation, or harassment.” Importantly, these broad limitations on NDAs apply to new agreements which are executed on or after the law’s effective date of March 18, 2019. While the new law does not appear to apply retroactively, the law’s restrictions would apply to new or renewed agreements with existing employees, and to modifications of previous agreements. However, NDAs regarding non-public trade secrets and proprietary information as well as non-competition provisions are specifically carved out from the law’s reach.