Labor and Employment

Published on: September 20, 2013

Harassment and Anti-Discrimination Policies

New Jersey protects employees from discrimination and harassment in employment when the discrimination or harassment is based upon a protected type or classification of person. For instance the following classes are protected by New Jersey’s Law Against Discrimination: age, race, creed/religion, color, national origin (your family’s country of birth), nationality (your country of birth or where you are a citizen), and service in the United States armed forces.

The Law Against Discrimination also protects people from discrimination based upon their gender, pregnancy, sexual orientation, marital status, familial status (though typically only with respect to housing discrimination), civil union status, domestic partnership status, gender identity or expression. Further, it also protects classifications based upon mental or physical handicaps or disability, perceived disability, AIDS/HIV status, genetic information, atypical hereditary cellular or blood trait, refusal to submit to a genetic test or make available the results of a genetic test to an employer, and any other characteristic protected under applicable federal, state or local laws or regulations.

The Law Against Discrimination not only covers employment practices, but also prohibits unlawful discrimination in housing, credit and business contracts, and places of public accommodation.
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Published on: August 23, 2013

New Jersey Employers Must Take Discrimination Complaints Seriously or Face Significant Consequences

by Boris Peyner

New Jersey employers should be wary to take all allegations of retaliation or discrimination seriously or face significant consequences. New Jersey employment law provides some of the strongest protections in the nation for employees. In New Jersey employees are protected against discrimination and whistle-blowing retaliation.

New Jersey’s Law Against Discrimination (the “LAD”) applies to all employers. The LAD prohibits discrimination or harassment in employment for a prohibited reason, including race, religion, color, gender, national origin, nationality, ancestry, age, marriage status, domestic partnership or civil union status, sexual orientation, identity, and disability. The LAD is remedial in nature and therefore is applied by the Court expansively.

New Jersey’s Conscientious Employee Protection Act (“CEPA”), which is New Jersey’s “whistleblower law,” prohibits employers from retaliating against employees who disclose, object to, or refuse to participate in actions which they reasonably believe are either illegal, fraudulent or in violation of public policy. CEPA protects all New Jersey employees and some independent contractors. The New Jersey Supreme Court has described CEPA as the most far-reaching whistleblower law in the United States.

Given the expansive interpretation of these two laws courts have been interpreting them with a very liberal standard. As a result, New Jersey employers that do not take discrimination or whistleblowing seriously can face dire legal consequences.
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Published on: August 9, 2013

Standards for Proving Age Discrimination Can Be Difficult to Navigate

by Noelle Robinson

Federal employment law, in the Age Discrimination in Employment Act (the “ADEA”),prohibits employers from firing, refusing to hire, or discriminating in compensation, terms, conditions, or privileges of employment because of a person’s age. Case law has evolved over time regarding the extent to which age needs to influence employer decisions for the employer to violate the ADEA. A 2009 Supreme Court decision made a distinction between the ADEA’s prohibition against age discrimination and federal law prohibiting so-called status-based discrimination based on race, color, religion, sex, or national origin (Title VII of the Civil Rights Act of 1964). Title VII finds an employer culpable for employment practices for which race, color, religion, sex, or national origin is “a motivating factor,” even if other factors also motivated the practice.

When an employee claiming age discrimination tried to use the “motivating factor” standard for the court’s decision, the Supreme Court disagreed that the standard was appropriate for age discrimination, instead turning to the language in the age discrimination law specifically, which states, “It shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The Supreme Court found that the “because of” language brought the issue back to a term familiar in the legal realm, “but-for” causation — the idea that “but for” discrimination against the person’s age, the employer’s action would not have occurred. As applied in that way, the standard requires an employee to show that employer’s action (such as hiring and firing decisions) would not have occurred in the absence of age discrimination. That standard is harder to prove than proving that age discrimination was one of possibly other motivating factors.

Although the case itself and case law that followed emphasized that the decision reflected a distinction between the age discrimination law and discrimination for other reasons (such as race and religion), the reasoning behind the case has begun to seep into case law about other forms of discrimination. A 2013 case held that similar to the 2009 decision on age discrimination, a civil rights claim of unlawful employer retaliation for status-based discrimination requires proof that the desire to retaliate was the but-for cause of the challenged employment action (Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 978 (2013)).
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Published on: August 8, 2013

Defining Severe Misconduct when Denying Unemployment Benefits

by Pauline M.K. Young

In 2010, the New Jersey State Legislature and Governor Chris Christie revised New Jersey’s Unemployment Compensation Law to combat the significant increase in funds needed to pay unemployment benefits as a result of the rise in the unemployment rate in New Jersey.

To achieve this problem of fast-depleting funds for unemployment benefits, the state created a new category of conduct, called “severe misconduct,” which would allow the state to disqualify employees from receiving unemployment benefits.

The prior two categories of misconduct which could be assessed were: “simple misconduct” and “gross misconduct.” Simple misconduct includes actions that are improper, intentional, malicious, or exhibit a willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design. Simple misconduct disqualifies the individual from disability for eight weeks (the week in which the misconduct occurred and seven weeks immediately following that).

Gross misconduct includes acts that are criminal, in the first, second, third, or fourth degree under the New Jersey Code of Criminal Justice. Employees fired for gross misconduct are disqualified from receiving any unemployment benefits.

The revisions implemented by the State in 2010 regarding “severe misconduct” failed to define severe misconduct, but included examples, such as: repeated violations of an employer’s rules, repeated lateness or absences after a written warning, falsification of records, physical assault or threats, misuse of benefits, sick time, or leave, theft of company property, excessive use of intoxicants or drugs on work premises, or where the behavior is malicious and deliberate.
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Published on: July 29, 2013

New Jersey’s Law Against Discrimination: Discrimination Not Always Required

by Pauline M.K. Young

New Jersey’s Law Against Discrimination (“LAD”) protects employees from wrongful termination or other acts based on their race, nationality, ethnicity, gender, age, or other protected characteristic. The LAD is a remedial statute, meaning that the legislature enacted the law not only as a preventative measure, but as a direct response to the rampant discrimination in employment that was being observed. As a result, New Jersey’s courts read the LAD law broadly, providing for expansive protection to employees.

Not only does the LAD protect employees from being fired because of their race, gender, or other protected classification, it also protects employees from being fired, demoted, or mistreated in retaliation of that employee’s objections to discriminatory practices that she has observed against other employees. Therefore if one employee observes another employee being discriminated against and the observing employee complains, protests against, or objects to the discriminatory action, she cannot be fired in retaliation for objecting. The observing employee also cannot be retaliated against for aiding or encouraging any other person from objecting to discriminatory acts by the employer.

Therefore an employee may have a valid retaliation claim under the LAD if she was fired, demoted, or otherwise mistreated in retaliation for that employee’s objections to discriminatory acts by the employer. There needs to sufficient evidence to show that the employee’s objections played a role in the decision to fire her (or take other negative action). It is the employee’s burden to prove these elements.
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Published on: July 17, 2013

Litigation Implications of Social Media

by Boris Peyner

The impact of social media continues to grow in litigation. Social media is becoming increasingly more popular in society. Social media is important for companies to utilize for advertising and marketing to allow businesses to stay competitive. Various sites like Facebook, Google Plus, Twitter, Instagram, Flicker, LinkedIn, YouTube and the like provide companies the opportunity to connect with millions of people. However, they simultaneously create legal risks that can range from bad public relations to brand confusion. Social media is also used by many people during their free time to make various posting about all aspects of life.

In litigation, lawyers are using social media to screen jurors, jurors use social media to post about cases they are sitting in, judges are using social media to make sure jurors are not using it, people use social media in general to offer legal advice on matters in which they have no experience, and jury consultants are following social media to give advice on trial strategy. Social media is paving the way to new litigation strategy.

Social media implicates considerable privacy concerns, allowing people to learn the most intimate information about one another. Posted content may be available to family, potential employers, school admission officers, romantic contacts, and others. Even if the content is removed from the social media site it may still continue in cyberspace. Further, once litigation is pending or reasonably foreseeable, there is a duty to preserve evidence. The material can be taken down off the social media website, but must be preserved. This means that even if a post is removed, it still must be maintained and produced if requested in discovery.
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Published on: March 12, 2013

Individual Liability for Violations of the Conscientious Employee Protection Act

by Pauline M.K. Young

New Jersey’s Conscientious Employee Protection Act (“CEPA”) is one of New Jersey’s employment protection laws. The Act, enacted in 1986, is often referred to as the “whistleblower law.” In fact, it is one of the most liberally interpreted and expansive whistleblower laws in the country. It protects employees from being fired in retaliation for the employee’s disclosure of or objection to a wrongful practice of the business or one of the business’s employees.

In order for the statute’s protections to apply, the employee must disclose, object to, or refuse to participate in an act, policy, or practice of the employer which the employee reasonably believes violates a law, regulation, or public policy. Further, the employee must be fired, harassed, or otherwise retaliated against as a direct result of the disclosure, objection, or refusal. The employee does not even have to be right about her belief that the conduct is illegal or against public policy to be protected by the act. The employee merely has to have a reasonable belief of such.

CEPA includes in its definition of “employer” any individual, partnership, association, corporation or any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent.
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Published on: March 4, 2013

An Employee Should Choose His Court Well or He Might be Shut Out From Any At All

by Maurice W. McLaughlin

New Jersey has several “tracks” for a government employee who is in civil service to fight when he believes he was wrongfully fired. The first, is in the Civil Service Commission, which can order reinstatement and back-pay. However, this process goes through the Office of Administrative Law and does not provide for a jury trial. The other way is to challenge the firing in the Superior Court, with the constitutional right to have a jury decide the employee’s case. Some statutes, such as the New Jersey Law Against Discrimination and the Conscientious Employee Protection Acts, provide for the award of punitive damages and attorneys fees.

The Conscientious Employee Protection Act (“CEPA”) is New Jersey’s whistleblower law. It protects whistleblowing employees. Employers may not retaliate in any way, whether through firing, harassment, demotion, or in any other manner because the employee has disclosed, objected to, refused to participate in or threatened to disclose a violation of law or public policy regarding public safety, or fraudulent acts. N.J.S.A. 34:19-1.

The New Jersey law had been that an employee could challenge his termination in the Civil Service Commission on the fact that the employer did not have a basis to discharge him, but not be foreclosed from also filing a whistleblower lawsuit under CEPA in Superior Court if she did not raise the retaliatory action before the Civil Service Commission.

The New Jersey Supreme Court, generally is one of the most protective courts of employees rights in the country, was recently issued an opinion by his employer which should give civil servants concern.
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Published on: January 14, 2013

Due Process and “Stigma” Under the New Jersey Civil Rights Act

by Maurice W. McLaughlin

The Appellate Division recently issued an important decision on “stigma” due process claims under New Jersey’s Civil Rights Act. The case involved a gym teacher in the Newark Public School system. He did not have tenure.

Several accusations were made against the teacher, the first that he had disciplined students in gym class by allegedly kicking them and, in one instance, locking them in a “cage” made from a table flipped on its side which trapped the boys in the corner of the gym. He was also alleged to have demanded “that the boys fight like animals and kill each other in your make shift cage.” Allegations were also made of inappropriate physical contact by the teacher with students.

The Newark public school system’s investigation report indicated that the complaints were “unfounded.” However, a meeting was to be held regarding the allegations. The focus was the cage incident, at which the students confirmed the incident, contradicting their prior interview with the investigator, who recommended that defendant be transferred to a high school, rather than disciplined. Thereafter, the teacher was warned in writing, and thereafter terminated.

After the teacher was fired, he had difficulty finding a job. He hired a private investigator who called the school district pretending to be a prospective employer asking for a reference for the teacher. The principal and vice-principal, also named as defendants, indicated that “there was a DYFS situation” (DYFS was New Jersey’s child protection agency), but could not provide any information, and indicated that plaintiff had then been ” released.” Although she would not say why, the vice-principal said words to the effect that the school cared for its children who were the priority and should be safe and sound at all times, and then said “so I think you can be able to determine something from that.”
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Published on: November 30, 2012

New Jersey Employee Handbooks

by Boris Peyner

Businesses, regardless of size, can benefit from an employee handbook. Similarly, an employee handbook can provide benefits to people working in New Jersey.

Generally, an employee handbook (also an employee manual) is a written record of a company’s policies and procedures. A well written employee handbook can provide clear guidelines and procedures for all employees and can help avoid lawsuits and other legal actions for employers. However, handbooks can also create contracts of employment which can bind employers if they are not careful.

Business owners can save time and money by having an experienced employment attorney draft its employee handbook providing employees with answers, explaining business rules, and allow the employer to comply with state and federal laws. A handbook should be drafted both to help the employee and prevent litigation. A poorly written employment handbooks could contain provisions that violate New Jersey or federal law, opening an employer up to liability.

An experienced employment attorney should review all employee manuals. An employment manual can under some circumstances create a employment contract with an employer. This can be detrimental to a company that intends to hire employees on an “at-will” basis. New Jersey is an “employment-at-will” state. This means that an employer can generally terminate an employee at any time for virtually any reason. Having an employment handbook that creates an employment contract could change a company’s outlook on its operations, and ability to hire and fire in its business judgment.
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