Governor Christie Vetoes Amendment to New Jersey Law Against Discrimination

Posted by on Jun 23, 2016 in Gender Discrimination, Racial Discrimination, Uncategorized

On May 2, 2016, New Jersey Governor Chris Christie conditionally vetoed Senate Bill 992 (“S. 992”), which was intended to amend the New Jersey Law Against Discrimination (“NJ LAD”) to make wage disparities among similarly situated employees expressly unlawful. While S. 992 is aimed at reducing gendered or race-based pay disparity, Governor Christie stated that the bill would make New Jersey “very business unfriendly,” and criticized several aspects, including:

  1. Restarting the statute of limitations each time an employee receives unequal pay, and allowing for back pay for the entire period of continuous violation, which is currently capped at two years and is identical to the federal Lily Ledbetter Fair Pay Act of 2009;
  2. Prohibiting employers from requiring employees to waive or voluntarily limit their equal pay protections;
  3. Allowing treble damages upon any employer found to be in violation;
  4. Protecting employees from retaliation if they disclose their salary to a co-worker; and
  5. Shifting responsibility and burden of proof to the employer to justify pay differences, which would be permitted only based on seniority, merit, or objective factors such as training, experience, education, and productivity.

Additionally, S. 992 is substantially similar to the California Fair Pay Act, which was adopted last year. Governor Christie has made several recommendations, with which he would revoke his veto and sign a revised version of S. 992. Some of these recommendations include eliminating fact-based evaluation in alleged discrimination cases as well as treble damages. Governor Christie also would like the revised version to limit back pay to two years, as opposed to the proposed unlimited amount. While S. 992 passed the State Senate by a vote of 28 to 4, and the General Assembly by a vote of 54 to 14 to 6, it is unclear whether the legislature will attempt to override Governor Christie’s veto, which requires a two-thirds margin.

Employers should be mindful of the status of this bill, along with others like it, as there will be far-reaching consequences should one be successful in being signed into law. Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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EEOC Issues Fact Sheet Reminding Employers Not to Discriminate Restroom Use Based on Gender

Posted by on May 31, 2016 in Gender Discrimination, Sexual Orientation Discrimination

-Scott D. Salmon, Esq. and Susan L. Swatski, Esq.

North Carolina (as well as other states) has become infamous for HB-2, a law that restricts restroom use in government buildings based on the gender listed on an individual’s birth certificate, and which is directed towards transgender individuals. The law additionally prohibits municipalities from enacting anti-discrimination laws of their own.

The reaction to HB-2 has been swift and furious. PayPal and Deutsche Bank, among other businesses, are halting planned expansions into the state, and multiple cities and states across the country have implemented travel bans for government employees going to North Carolina. The National Basketball Association (“NBA”) said it will change the location of the 2017 All-Star Game if the law does not change, and a significant number of filming projects and entertainers are refusing to perform in North Carolina, which has led some experts to conclude that North Carolina will lose $77 million in revenue as a result of HB-2. Additionally, the American Civil Liberties Union filed a federal lawsuit challenging the law; the case is captioned, Carcaño v. McCrory and is pending in the U.S. District Court for the Middle District of North Carolina. Also, the United States Department of Justice and the State of North Carolina are currently in litigation over whether HB-2 violates Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972.

In response to HB-2 and similar laws in other states, the Equal Employment Opportunity Commission (“EEOC”) issued a fact sheet to remind employers that discrimination based on transgender status is sexual discrimination under Title VII of the Civil Rights Act. The EEOC’s fact sheet also reminded employers that HB-2, and other similar state laws, is not a defense to any action brought under federal laws. The EEOC’s fact sheet goes on to state, based on multiple rulings:

  1. denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sexual discrimination;
  2. an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
  3. an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom.

In addition, the EEOC fact sheet warns that “gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.”

While employers everywhere should be mindful of the EEOC’s position on this matter, it is especially important for those in states subject to laws such as HB-2, as contrary state law is not a defense against potential litigation given the federal statutes. Hill Wallack employment law attorneys are available to help navigate issues such as these and how they may affect clients in New Jersey, New York, and Pennsylvania.

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The District Court of New Jersey Rejects Class Action Certification Under the FLSA

Posted by on May 31, 2016 in FLSA

In a recent case in the United States District Court for the District of New Jersey, a plaintiffs’ motion for final certification of a collective action under the Fair Labor Standards Act was denied. At its core, Plaintiff Fred Adami and two remaining Opt-In Plaintiffs alleged that their employer, Cardo Windows, Inc. mischaracterized them as independent contractors, rather than employees, and asserted claims for unpaid overtime.

Judge Simandle found that while the Plaintiffs properly alleged common employer practices, they failed to sufficiently demonstrate the similarity between the circumstances of their employment. For example, while Adami was a long-time employee that was at the core of Cardo’s operations, the Opt-In Plaintiffs “worked sporadically and had differing work environments from Adami.” Adami v. Cardo Windows, Inc., No. 12-2804 (JBS/JS), 2016 WL 1241798, at *2 (D.N.J. Mar. 30, 2016).

Specifically, Adami and the Opt-In Plaintiffs worked a considerably different number of hours, which changed on an individual basis. Schedules varied based on customer needs, and the Opt-In Plaintiffs could take breaks when they wished. In addition, Defendants noted that the Opt-In Plaintiffs were entitled to hire “helpers” for each project, and were able to choose both the number and how much each were paid, which changed the profit or loss for each Opt-In Plaintiff. Lastly, while Adami worked for Cardo for approximately ten years, the Opt-In Plaintiffs had worked at the company for just a few months. Subsequently, the Court found that while Adami’s employment relationship had been described in significant detail, there was a considerable amount of evidence that showed Adami’s employment was “the exception rather than the rule.” Adami, 2016 WL 1241798, at *6.

In so finding, the Court applied the “circumstances of the whole activity” test to determine whether an employment relationship existed and noted that it is the plaintiff’s burden to show by a preponderance of the evidence that “all members of the class are all employees covered by the FLSA.” Id. (emphasis in original).

Ultimately, Judge Simandle held that the Opt-In Plaintiffs were closer to independent contractors than employees. As such, the circumstances of each Opt-In Plaintiffs’ employment were too dissimilar for a collective action.

Employers should consider the similarity between their employees’ work, and the degree to which the company controls the day-to-day actions of its employees to determine if they are truly employees or independent contractors. Hill Wallack employment law attorneys are available to help navigate these options and how they may affect clients in New Jersey, New York, and Pennsylvania.

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Supreme Court Holds That Where Violation of First Amendment Rights at Issue, Employer Perception Rules

Posted by on May 12, 2016 in Retaliation, Supreme Court, Wrongful Termination

In a decision that may be particularly timely in this heated election season, the United States Supreme Court recently considered the issue of whether an employee who was demoted because the employer mistakenly believed he participated in political activity can file a lawsuit against the employer under 42 U.S.C. § 1983 for deprivation of his First Amendment rights under the U.S. Constitution. The facts of this case took place right here in our region in Paterson, New Jersey.

In Heffernan v. City of Paterson, 136 S.Ct. 1412 (2016), a police officer went to a political campaign site to pick up a lawn sign for a mayoral candidate, who was a friend of his, on behalf of his bedridden mother. The police officer had no involvement in the candidate’s campaign. The officer’s supervisor and the chief of police had been appointed by the candidate’s opponent, the incumbent mayor. His fellow officers spotted the officer at the campaign site, and word got back to his supervisors about it. The officer was demoted the very next day for his “over involvement” in the campaign of the mayoral candidate.

The officer filed a lawsuit under 42 U.S.C. § 1983 (which provides a cause of action for violations of constitutional rights) alleging that he was unlawfully demoted “because he had engaged in conduct that (on [the employer’s] mistaken view of the facts) constituted protected speech.” The Court observed, citing to Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980), that “[w]ith a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.” However, the officer in this instance had just picked up a sign for his mother and was not actually engaging in political activity or supporting the candidate.

The question before Court in Heffernan was whether it is the employee’s actions, or instead the employer’s motivation in an employment decision, that determines whether an employee was deprived of a constitutional right. Put another way, does the analysis of whether the employee’s constitutional rights were violated by an employment decision focus on the employee’s conduct in engaging in protected activity, or is it instead focused on whether the employer believed (even mistakenly) that the employee was doing so?

The Court held in a 6-2 decision that whether the employee’s right was violated is determined by the employer’s motivation in the employment decision. In its decision, the Court looked to Waters v. Churchill, 511 U.S. 661 (1994), in which an employer terminated an employee when the employer believed the employee had engaged in speech that was not protected by the First Amendment, even though the employee’s speech was in fact protected. In Waters, the Court held that the employer did not violate the employee’s constitutional rights if it “(1) had reasonably believed that the employee’s conversation had involved personal matters, not matters of public concern, and (2) had dismissed the employee because of that mistaken belief.” The Court in Heffernan noted that the Waters decision focused on the perception of the employer, not the actions of the employee. The Court then stated:

“In Waters, the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander.”

Notably, the Court also addressed whether its decision would increase the burden placed on employers to defend against claims, and held that a ruling that creates liability for an employer for a factual mistake does not place an increased burden on an employer. After all, the Court held, the employee still shoulders a heavy burden of showing the employer’s motive.

The case was then sent back to the lower court, who will hear, among other issues, if the employment decision was based on a policy prohibiting all officers from engagement in “overt involvement in any political campaign,” and if that policy was constitutional.

In light of the Heffernan decision, employers should be aware that they may not be able to defend adverse employment decisions where the employee’s engagement in protected speech is at issue merely by asserting that the employee was not actually engaged in protected speech. Their mistaken view will not relieve them of potential liability. Employers may wish to tread carefully when making an adverse employment decision and ensure that their investigatory procedure clearly documents that a decision was made as a result of unprotected speech by an employee or other just cause. As always, we advise that employers consult with an employment attorney prior to making adverse employment decisions.

The full text of the Heffernan decision can be found at: http://www.supremecourt.gov/opinions/15pdf/14-1280_k5fl.pdf.

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New Jersey Senate Fast Tracks Paid Sick Leave Bill

Posted by on Feb 24, 2016 in Benefits

Currently, there is no New Jersey state law requiring private sector employers to provide employees with paid or unpaid sick leave. However, the New Jersey State Senate has fast tracked legislation, Bill 799, to impose a mandatory sick leave requirement on private employers.  S-799 stipulates that all companies, regardless of size, would have to provide at least five, and as many as nine, sick days per year to all of their employees – even part-time workers.   More specifically, the Senate bill would require employers to grant workers an hour of paid sick leave for every 30 hours worked.  Workers at businesses with fewer than 10 employees would be able to accrue up to 40 hours of sick time that could be carried over from one year to the next.  Employers with 10 or more workers would be required to allow them to accrue and carry over up to 72 hours of sick leave.

At least nine municipalities in New Jersey already require some form of mandatory sick leave. For example, private employers within the city limits of Jersey City with 10 or more employees are required to provide up to 40 hours of paid sick leave per calendar year to eligible employees.

This debate in New Jersey is taking place amid a growing interest nationwide for paid sick leave, exemplified by an executive order issued by President Obama on Labor Day that requires federal contractors to provide employees with paid sick leave.

Employers should stay abreast of developments on this bill which, if passed, would require employers to rewrite their existing sick leave policies and perhaps rethink their vacation and other leave policies. Employers who operate in multiple states should also follow changes in local and state laws, as other jurisdictions and cities, Philadelphia, for example, have enacted paid sick leave laws which may affect out- of-state employers operating within their jurisdictional limits.  Hill Wallack employment law attorneys are available to help navigate paid sick leave laws and how they may affect clients in New Jersey, New York, and Pennsylvania.

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Recent Amendments to New York Law Provides More Protections to Women in the Workplace

Posted by on Feb 4, 2016 in Gender Discrimination, Pregnancy Discrimination, Sexual Harassment

On October 21, 2015, Governor Andrew Cuomo signed multiple pieces of legislation designed to protect and further women’s equality in the State of New York. While the new laws, which all went into effect on January 19, 2016, deal with a broad range of legal issues, including human trafficking and domestic violence, a substantial focus of the legislation was strengthening women’s rights in the workplace.

All of these changes are not merely cosmetic, or intended to codify prior court decisions. Rather, they represent significant substantive changes to New York employment law, and have substantially updated what many deemed to be outdated and incomplete protections for women in the workplace (though all of these changes, sans pregnancy, apply equally to men).

Should you have any questions or require further detail regarding this legislation, the employment and labor attorneys at Hill Wallack LLP are fully prepared to assist and help guide you through this sea of change.

Pay Equity- the first piece of legislation amended New York Labor Law s. 194, which addresses equal pay in the workplace. The bill eliminates a loophole in the prior law that allowed employers to prohibit employees from discussing their salaries (as well as the salaries of others) under the threat of termination or suspension. Specifically, the bill would allow employees to discuss their wages with each other. Further, the bill increases the amount of damages available to an employee if an employer willfully violates the law.

Sexual Harassment- another bill amends the New York State Human Rights Law (“NYSHRL”) to protect all employees from sexual harassment in the workplace regardless of the size of the employer. Previously, the definition of “employer” excluded employers with fewer than four employees, thus prohibiting individuals from filing harassment complaints with the Division of Human Rights against those employers. This new law expands the definition of “employer” to cover all employers within New York in sexual harassment cases so that an employee of any business, regardless of size, can file a workplace sexual harassment complaint.

Attorneys’ Fees- a further bill now allows successful plaintiffs to recover attorneys’ fees in employment discrimination cases based on sex. Under prior New York State law, plaintiffs could not recover attorney fees for employment discrimination cases, making it costly to bring a case.

Familial Status- an additional amendment to the NYSHRL prohibits employment discrimination based on familial status. Previously, New York State law only prohibited discrimination based on familial status in the areas of housing and credit, however, employees often suffer from stereotypes relative to their status as parents or guardians of children under the age of eighteen. It is believed that women have been disproportionately affected by stereotyped views of parents in the work place and are less likely to be recommended for hire or promoted.

Pregnancy Discrimination- a further amendment to the NYSHRL now requires employers to provide reasonable accommodations for pregnant employees (or those suffering from “pregnancy-related conditions”). Some pregnancies can result in medical conditions requiring certain accommodations within the workplace and prior protections for pregnant women were deemed confusing and subject to misinterpretation. This new law clarifies that employers must perform a reasonable accommodation analysis for pregnant employees. Essentially this amendment puts pregnant women, as well as those suffering from pregnancy-related conditions, on equal footing with disabled employees when it comes to requests for reasonable workplace accommodations.

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“BORGATA BABES” LOSE BID TO OVERTURN DISMISSAL OF SEX DISCRIMINATION AND HARASSMENT CLAIMS

Posted by on Sep 24, 2015 in Gender Discrimination, Sexual Harassment

The bid by a majority of a group of twenty-one (21) plaintiffs, all former employees of the Borgata Casino Hotel & Spa, to overturn the dismissal of their sex discrimination and sexual harassment claims was recently rejected by the Appellate Division. The plaintiffs were employed as “Borgata Babes,” a specialized group of costumed beverage servers on the Borgata casino floor. As “Borgata Babes,” the plaintiffs were subject to specific “personal appearance standards” (“PAS”) that governed the plaintiffs’ dress, appearance, weight and overall grooming. While the plaintiffs in this case were all female, the “Borgata Babes” also included men who were subject to a similar PAS.

The trial court dismissed the entirety of the plaintiffs’ claims on summary judgment, finding that the PAS did not constitute gender stereotyping nor did it have a disparate impact on the female employees. In an opinion published on September 17, 2015, the Appellate Division readily agreed with the trial court’s ruling. However, the Appellate Division did reverse the dismissal of those claims asserted by some of the plaintiffs that the weight policy set forth in the PAS was applied in a discriminatory harassing manner by unlawfully targeting female employees returning from maternity and medical leave. Those claims were remanded back to the trial court for further proceedings.

Given the hotly-contested nature of this litigation, it is highly likely that the plaintiffs will next ask the New Jersey Supreme Court to certify the matter for appeal. Moreover, given the attention this case has garnered in the media as well as the somewhat novel factual circumstances giving rise to the claims themselves, there is a decent chance of the Supreme Court granting certification and hearing the appeal.

We will continue to monitor the case as it progresses, as its novel, broad-ranging issues could have an impact on various employers, such as restaurants, hotels, professional sports franchises and adult-oriented businesses.

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