Civil Rights

November 22, 2024

New Jersey Employment Law and Political Speech in the Workplace

The 2024 election is over, but arguments over politics are likely to continue for quite some time. Families might fight about politics at the dinner table, but what happens when political speech enters the workplace? What rights do employees have to speak about matters of political importance at work, and what rights do employers have to limit or restrict such speech? The answer depends, in part, on whether an employer is public or private. Public employers are subject to the First Amendment’s free speech provisions. Private employers are not, but they are still subject to limitations regarding restricting political speech. Federal and New Jersey employment laws allow employees to discuss certain issues at work, some of which may be deemed political.

Public Employers

The First Amendment states, in part, that the government may not “abridg[e] the freedom of speech.” This protection only applies to actions by or on behalf of the government. Public employers, as part of the government, are bound by the First Amendment. This does not mean that public employees have an unlimited right to speak their minds without concern for their jobs.

First of all, public employers have a right to maintain a professional and orderly workplace. Employees do not have a First Amendment right to speak in ways that disrupt their employer’s ordinary operations. This is similar to how governments can regulate the time and place of certain types of speech. A person can hold a rally in a park in the afternoon, for example, but not at 2:00 a.m. on a residential street.
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November 1, 2024

Third Circuit Allows Religious Discrimination Claim Involving Vaccine Mandate to Proceed

by Resnick Law Group, P.C.

Both private and public employers have obligations to their employees under New Jersey employment laws. These include obligations to pay a minimum wage and to maintain a workplace reasonably free from discrimination and harassment. Public employers, such as state and local agencies and officials, may also have a duty to respect their employees’ constitutional rights. An employee who believes their employer has discriminated against them because of their religion can bring a claim under a state or federal employment statute. If they work for a public employer, they may also be able to claim a violation of their First Amendment right to freedom of religion. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled in favor of an employee’s religious discrimination claim. Rather than suing under an employment statute, the employee alleged violations of the First Amendment’s Free Exercise Clause.

Public employees may be able to assert claims against their employers for violations of certain constitutional rights. Many claims rely on 42 U.S.C. § 1983, which allows a person to sue for deprivation of constitutional rights for actions taken “under color of any statute” or other law. Section 1983 claims are common in a wide variety of incidents involving government officials or agencies, from police brutality to employment discrimination.

It is also possible to allege a constitutional violation directly as a cause of action. These types of claims often involve First Amendment rights. For example, public employers do not have as much leeway to restrict their employees’ speech as private employers do. Public employees may be able to assert claims involving violations of their rights to free speech, freedom of religion, or other rights under the First Amendment.
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July 5, 2024

Third Circuit Reinstates New Jersey Employee’s Civil Rights Claim

by Resnick Law Group, P.C.

While federal and New Jersey employment laws offer protections for most employees against a variety of adverse employment actions, public employees have an additional layer of protection from the U.S. and state constitutions. Certain employment actions could violate employees’ constitutional rights, and those employees may be entitled to damages. Section 1983 and the New Jersey Civil Rights Act (NJCRA) allow people to file lawsuits for deprivation of constitutional rights under certain circumstances. This may include rights that other statutes also protect. The Third Circuit Court of Appeals recently ruled in favor of a public employee in a claim alleging retaliation based on his union activities. While the National Labor Relations Act addresses this kind of retaliation, the suit asserts claims under § 1983 and the NJCRA. The Third Circuit reinstated claims that the plaintiff had brought against the county and a former county official.

Both § 1983 and the NJCRA allow individuals to file suit in connection with actions that allegedly deprive them of constitutional rights. The NJCRA also includes alleged interference with the “exercise or enjoyment” of such rights through “threats, intimidation or coercion.” The two statutes only allow lawsuits for actions taken “under color of law.” This generally refers to actions taken in an official capacity or based on the legal authority of one’s public position.

The Third Circuit case examined the lawsuit under several precedent cases that may relate to civil rights claims against employers. In a 2006 ruling, the Third Circuit established a three-prong test for certain constitutional claims based on retaliation. A plaintiff must prove the following:
1. They engaged in constitutionally protected conduct.
2. They faced “retaliatory action” that would “deter a person of ordinary firmness from exercising [their] constitutional rights.”
3. The retaliatory action resulted from the constitutionally protected conduct.
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September 23, 2022

Updated COVID-19 Guidance for New Jersey Employers

by Resnick Law Group, P.C.

The COVID-19 pandemic has presented numerous employment law challenges. Employers, employees, government regulators, and others have had to balance financial needs, public health, and workplace safety. The Centers for Disease Control and Prevention (CDC) has issued various guidelines related to testing and isolation. The Equal Employment Opportunity Commission (EEOC) has addressed questions about what employers may require of their employees under laws like the Americans with Disabilities Act (ADA). These agencies have modified their guidelines as our knowledge about the coronavirus has increased, and as pandemic conditions have changed. Recent updates present relaxed standards for workplace safety, mandatory COVID testing, and other matters. New Jersey employees should be aware of their rights under both federal and state laws. If you have questions about COVID-19 guidelines at your workplace, please contact a New Jersey employment lawyer to discuss.

EEOC guidance on testing

On July 12, 2022, the EEOC updated the guidance document entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” One of the main issues the document addresses is whether the ADA allows employers to require COVID-19 testing among employees. Generally speaking, the ADA requires any medical examinations or inquiries by employers to be “job-related and consistent with business necessity.” A medical condition that presents a “direct threat” to others in the workplace usually meets this requirement.

In the early days of the pandemic — particularly before a vaccine became widely available — the EEOC concluded that mandatory testing was acceptable because of the broad risk posed by exposure to the coronavirus. Much has changed since 2020. The agency has modified its interpretation of “business necessity” in light of improved public health measures, while also considering the ongoing mutation of the virus.
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April 29, 2021

New Jersey Teacher Settles Lawsuit with School District Alleging Scapegoating for Censorship Controversy

by Resnick Law Group, P.C.

New Jersey is an “at will employment” state, meaning that employers can fire an employee for any reason, or no reason at all, provided that they do not violate the New Jersey Law Against Discrimination (NJLAD) or other applicable laws or regulations. Private employers are subject to laws like the NJLAD and any contractual relationships they have with their workers. Public employers, including many government entities at the city, county, and state level in New Jersey, may also be bound by constitutional protections for due process and civil rights. A recent settlement between a New Jersey public school district and a former teacher illustrates how public employers may have additional obligations to their employees. The former teacher alleged that the school district scapegoated her for a controversy over the alleged censorship of a student’s yearbook photo. She claimed violations of her free speech and due process rights.

Both the U.S. and New Jersey Constitutions protect certain civil rights against infringement by the government. This may include infringement of employees’ civil rights by government employers. The First Amendment to the U.S. Constitution protects the right to free speech. Section 6 of the New Jersey Constitution specifically states that “[e]very person may freely speak, write and publish his sentiments on all subjects.” The Fourteenth Amendment guarantees due process and equal protection at all levels of government.

These protections would not be worth much without some method of enforcement. The New Jersey Civil Rights Act (NJCRA) allows individuals to file suit against the government for civil rights violations by government agents or employees. See N.J. Rev. Stat. § 10:6-2. This law is similar to § 1983, the federal statute that allows lawsuits for deprivation of civil rights.
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July 24, 2020

New Jersey Law Prohibits Discrimination Against Employees Who Display the U.S. Flag

by Resnick Law Group, P.C.

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination on the basis of a wide range of factors. In late 2001, the New Jersey Legislature passed a bill that adds display of the American flag to the list of protected categories. The law allows for New Jersey employment discrimination lawsuits to be filed, but also provides a defense for employers and sanctions for claims that lack “substantial justification.” In the eighteen years since the bill became law, it does not appear that New Jersey courts have issued any published decisions. This leaves portions of the law’s language up to interpretation.

Flag Discrimination Under the NJLAD

The “flag discrimination” statute, N.J. Rev. Stat. § 10:5-12.6, prohibits discrimination against an employee “for displaying the American flag on the employee’s person or work station.” Employers could still enact general bans on the display of symbols in the workplace, or possibly even more specific policies that focus on particular symbols. The statute appears to address employers who single out employees.

The employer could be liable for actual damages, punitive damages, attorney’s fees, and court costs. Unlike other discrimination claims under the NJLAD, an employee who brings a flag discrimination claim “without substantial justification” could be liable for the employer’s attorney’s fees and court costs.

June 21, 2019

Third Circuit Rules on Due Process Claims by Former New Jersey State Employees

by Resnick Law Group, P.C.

Employment in New Jersey is considered to be “at will,” meaning that an employer can terminate an employee for any reason, or no reason at all, as long as they do not violate any employment statutes or contractual provisions. Some government employees have an additional layer of protection under the Due Process Clause of the Fourteenth Amendment, or the Fifth Amendment in the case of federal government employees. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, ruled on a Due Process claim against Passaic County and several county officials in early May 2019. The ruling, along with several earlier Third Circuit decisions, offer some ideas about how a civil service employee could assert a constitutional claim based on deprivation of a property interest.

The Due Process Clauses of the Fifth Amendment and the Fourteenth Amendment prohibit the government, its agencies, and its officials from depriving people “of life, liberty, or property, without due process of law.” An employee must establish that they have a property interest in some aspect of their employment, and that their employer wrongfully deprived them of it. A 1972 decision by the U.S. Supreme Court, Bd. of Regents v. Roth, found that establishing a property interest requires “a legitimate claim of entitlement,” rather than merely “a unilateral expectation.”

The Third Circuit cited Roth in a 2006 decision holding that, in an at-will employment state, a person’s job is not inherently a property interest protected by the Constitution. The court ruled that the question of entitlement to a benefit, including retaining one’s job, is a matter of state law. Since the case originated in an at-will employment state, the plaintiff did not have a protected property interest in their job. The court also found that an employee could still demonstrate the deprivation of a constitutionally-protected liberty interest, based on the manner in which their employer terminated them or took some other adverse action. That particular case involved a claim of defamation against the employer. The court left open the possibility that various claims in tort or other law could support a Due Process claim.
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November 2, 2018

New Jersey’s New Public-Sector Union Law Faces Challenge in Light of Recent Supreme Court Ruling

by Resnick Law Group, P.C.

A new law protecting New Jersey public sector unions, which was signed into law by Governor Phil Murphy in May 2018, faces a legal challenge based on a U.S. Supreme Court decision one month later. The law, entitled the Workplace Democracy Enhancement Act (WDEA), establishes standards for interactions between public-sector unions and government employers, and addresses several controversial issues. The Supreme Court’s ruling in Janus v. AFSCME, 585 U.S. ___ (2018), however, could represent a significant reduction in the power of public-sector unions. A lawsuit filed by several union members against their union and various state government officials argues that Janus invalidates certain provisions of the WDEA. Thulen, et al v. AFSCME, et al, No. 1:18-cv-14584, complaint (D.N.J., Oct. 3, 2018). The lawsuit is among the first to test how Janus will impact New Jersey employees’ rights.

Federal and state laws protect workers’ rights to organize for the purpose of collective bargaining, and either to form a union or to join an existing union that can negotiate with management on their behalf. The WDEA declares that any public sector union chosen as “the exclusive representatives of employees in a collective negotiations unit” must “hav[e] access to and be[] able to communicate with the employees it represents.” P.L. 2018, c. 15 § 2 (N.J. Rev. Stat. § 34:13A-5.12). The law requires public employers to allow union representatives to have reasonable access to employees, and to provide certain employee information to the union within a specified time frame.

Public-sector union members may authorize their employer to deduct union membership dues from their paychecks. The WDEA provision at issue in Thulen involves a restriction on employees’ ability to withdraw authorization for this payroll deduction. An employee may only withdraw authorization by giving written notice to the employer “during the 10 days following each anniversary date of their employment.” Id. at § 6, amending N.J. Rev. Stat. § 52:14-15.9e.

June 29, 2018

Lawsuit Alleges Wrongful Termination for Making a Rude Gesture Toward a Government Official

by Resnick Law Group, P.C.

The U.S. Constitution limits the government’s ability to infringe on a range of rights, including the First Amendment right to free speech. In the context of New Jersey employment matters, this usually places far more limits on public employers than private employers. As a general rule, a private employer does not infringe on an employee’s freedom of speech if they discipline or fire that employee because of statements they have made. Since public employers are part of the government, they have less leeway with regard to employee speech. A lawsuit filed earlier this year, however, alleges that a private employer violated the plaintiff’s constitutional rights by firing her because of her speech. Briskman v. Akima, LLC, No. 2018-5335, complaint (Va. Cir. Ct., Fairfax Cty., Apr. 4, 2018). The plaintiff claims that the defendant fired her “out of fear of unlawful retaliation by the government for constitutionally protected speech,” id. at 8, and that this makes her termination a violation of her First Amendment rights.

Caselaw has largely established broad protections for the free speech rights of public employees with regard to their employment. According to the U.S. Supreme Court, a public employee who speaks out about “issues of public importance” cannot be subject to termination by their employer, unless their statements were “knowingly or recklessly” false. Pickering v. Board of Education, 391 U.S. 563, 574 (1968). This does not apply, however, when the employee is speaking in their official capacity as a government employee. Garcetti v. Ceballos, 547 U.S. 410 (2006).

Private employers have fewer restrictions with regard to disciplining employees, including terminating them, for statements they have made. This often applies even when the statement or statements at issue involved matters of public concern that were unrelated to the employee’s position with the employer. Some exceptions apply, such as when the speech involves activities protected by the National Labor Relations Act, 29 U.S.C. § 157, or when a state or local anti-discrimination law includes protections for “political activities,” N.Y. Lab. L. § 201-D. The Third Circuit Court of Appeals has ruled that termination for an employee’s political activities, or their refusal to participate in political activities, could violate public policy. Novosel v. Nationwide Ins. Co., 721 F. 2d 894 (3rd Cir. 1983).

March 2, 2018

New York City Lawsuit Alleges Race Discrimination in Violation of Federal Employment Law

by Resnick Law Group, P.C.

In New York City and New Jersey, employment laws prohibit discrimination on the basis of race and multiple other factors. Race discrimination in employment remains a serious problem all over the country, despite advances in the past 50 years. Some organizations, which were once quite open about their willingness to discriminate on the basis of race, still retain elements of that culture to this day. A putative class action filed late last year in a Manhattan federal court alleges that the Fire Department of New York (FDNY) has a long history of discrimination against African American employees and job applicants. Richardson, et al. v. City of New York, No. 1:17-cv-09447, complaint (S.D.N.Y., Dec. 1, 2017).

The New York City Human Rights Law (NYCHRL) prohibits employers from discriminating against employees and job applicants “because of the actual or perceived…race…of any person.” N.Y.C. Admin. Code § 8-107(1)(a). This provision is similar to those found in federal law and in state laws all over the country, including New Jersey race discrimination laws. The federal Civil Rights Act of 1991 protects the right to “make and enforce contracts” on equal terms, regardless of race, which includes employment contracts. 42 U.S.C. § 1981. A government employer, such as a city, state, or federal agency, that engages in employment discrimination on the basis of race may also be liable for civil rights violations under 42 U.S.C. § 1983.

The Richardson complaint describes a history of race discrimination in the FDNY, claiming that only “token integration” started in the 1960s. Richardson, complaint at 1. It notes two prior class actions alleging race discrimination against the FDNY in the hiring of firefighters. The first involved discrimination against African American and Hispanic firefighter applicants. Vulcan Society of New York City Fire Dep’t, Inc. v. Civil Serv. Comm’n, 490 F.2d 387 (2d Cir. 1973). The injunction issued by the court expired in 1977, and the city allegedly resumed discriminatory hiring practices for firefighters. The U.S. Department of Justice eventually filed suit, resulting in a ruling “that the FDNY’s hiring procedures discriminate against black applicants.” United States v. City of New York, 683 F.Supp.2d 225, 250-51 (E.D.N.Y 2010).