Articles Posted in New Jersey Labor Law

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The National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects the rights of private-sector workers to organize into unions, to engage in collective bargaining, and to take collective action when needed. The law generally provides workers with a cause of action against their employers for violations of the NLRA. Employees of companies that are franchisees of a much larger company, or that are under contract with another company, may find their rights under the NLRA limited because of how the National Labor Relations Board (NLRB) has interpreted the word “employer” in recent years. In August 2015, the NLRB ruled that a company and its subcontractor were “joint employers” of the subcontractor’s employees for purposes of the NLRA. Browning-Ferris Industries of Cal., Inc., et al. (“Browning-Ferris II“), 362 NLRB No. 186 (2015).

The NLRB held in its recent ruling that it had established a general standard for joint employment over 30 years ago, based on the Third Circuit Court of Appeals’ decision in NLRB v. Browning-Ferris Industries of Pa., Inc. (“Browning-Ferris I“), 691 F.2d 1117 (3d Cir. 1982). The central question is whether the two companies “share or codetermine those matters governing the essential terms and conditions of employment.” Id. at 1123. Since 1982, the NLRB has “imposed additional requirements for finding joint-employer status” that, according to the NLRB, have no legal basis or justification. Browning-Ferris II at 1.

The respondents in the present case are a waste management company (WMC) and a staffing company (SC). The WMC operates a recycling facility that receives about 1,200 tons of material per day that must be sorted into waste, recyclable material, and usable commodities. It directly employs about 60 people, most of whom work outside the facility and who already have union representation. The SC, under a contract with the WMC, provides about 240 workers to work in the plant itself. The contract states that the workers are solely the employees of the SC. The union is seeking to represent these workers.
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The wage gap has become a matter of serious concern for many in this country. Various reports show income rising for many business executives, while wages stagnate, or even decline, for most working people. Employment statutes at the federal, state, and local levels protect workers against a wide range of untenable employment situations and unjust acts by employers, but this does not include a wide disparity in pay between a company’s low-level employees and its chief executive officer (CEO). The Securities and Exchange Commission (SEC) issued a final rule in early August 2015 requiring publicly traded companies to disclose the ratio between CEO salary and median employee compensation. This rule implements a provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), Pub. L. 111-203, but it has been the subject of substantial criticism from the business sector. It might not have an immediate impact on improving employees’ workplace rights, but it could be an important step in that direction.

Employees in New Jersey are generally protected from workplace discrimination and harassment, based on factors such as race, sex, religion, and national origin, by the New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq., and Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The NJLAD includes additional categories of protection, such as sexual orientation and gender identity. The New Jersey Wage and Hour Law (NJWHL), N.J. Rev. Stat. § 34:11-56a et seq., sets a statewide minimum wage and establishes rules for overtime compensation. At the federal level, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., performs a similar function, albeit with a lower minimum wage.

These laws could work together to protect employees in a situation where certain employees receive lower pay than other employees with the same or similar qualifications, performing the same or a similar job, if the disparity is related to one or more of the categories protected from discrimination. Nothing in state or federal law says that a CEO’s pay cannot be higher than an employee’s pay, and despite some particularly heated political rhetoric, no one is suggesting a rule like that. The issue is that many workers put in 40 or more hours of work per week, and yet they struggle to make ends meet, even frugally. The SEC’s regulation does not directly address this issue, nor issues of employee wage complaints, but it helps put these issues closer to the front burner, so to speak.
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The United States generally lags behind many other nations when it comes to various employment benefits, particularly paid leave. Allowing employees to take time off when they are sick, without having to worry about losing pay, seems like a sensible policy, but sick leave is entirely voluntary for most employers around the country. Workers without paid sick leave can put other workers’ health at risk by coming in when they should be recuperating at home. Only a handful of states and cities have laws requiring employers to provide paid sick leave, but the situation may be improving. At least eight New Jersey cities have enacted paid sick leave ordinances, and a pending New Jersey bill would require paid sick leave and would allow employees to file civil claims for violations.

Laws like the federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., require covered employers to allow qualifying employees to take up to 12 weeks of leave during a 12-month period for personal or family medical reasons. Many employees do not qualify for FMLA coverage, however, such as when they have not accrued enough work history with their employer, or the employer is too small to be covered. The FMLA and many state laws also do not require the leave to be paid.

Currently, only four states require paid sick leave: California, Connecticut, Massachusetts, and Oregon. Eligibility requirements for coverage vary from state to state, with the minimum number of employees ranging from a high of 50 in Connecticut to coverage of nearly all employers in Oregon. Employees may bring private lawsuits against their employers for violations of these laws in Massachusetts and Oregon, and the California Attorney General can enforce the law on employees’ behalf.
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Numerous laws at the federal, state, and city levels protect employees from a wide range of adverse acts by employers, including discrimination, harassment, withholding of pay, and unreasonable or excessive work hours. Whether the remedies offered by a particular law are available to you depends on two factors: whether your employer is an “employer” within the meaning of this specific law, and whether you are considered an “employee” or an “independent contractor.” The definitions of “employee” and “independent contractor” vary from one state to another, but they are critically important to assessing a potential employment law claim. Many laws are limited to employers with a minimum number of employees. The definition of “employee” in a given situation, by determining how many employees an employer has, could also determine whether or not it is subject to certain employment statutes. As more and more employers seem to be trying to classify workers as independent contractors, and more and more workers are fighting back in court, understanding the distinction between “employee” and “independent contractor” is extremely important.

Some employment laws limit their application based on a minimum number of employees or other factors. The federal Family and Medical Leave Act (FMLA), for example, only applies to employers with 50 full-time employees or more. 29 U.S.C. § 2611(4)(A)(i). New Jersey’s employment statutes have broader applicability within the state. The Wage and Hour Law, which covers the minimum wage and other matters, does not limit its application based on the employer. Certain provisions, however, do not apply to minors and workers in certain specific occupations. N.J. Rev. Stat. § 34:11-56a30.

Employment statutes do not offer particularly helpful definitions of “employee,” as opposed to “independent contractor.” The New Jersey Wage Payment Law, for example, simply defines an employee as “any person suffered or permitted to work by an employer” who is not an independent contractor or subcontractor. N.J. Rev. Stat. § 34:11-4.1(b). The U.S. Supreme Court noted that a federal statute’s definition of “employee” was “completely circular and explain[ed] nothing.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). It held that “traditional agency principles” should apply and used a multi-part test to determine whether the plaintiff was an “employee” that primarily looked at “the hiring party’s right to control the manner and means by which the product is accomplished.” Id., quoting Commun. for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989).
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A key question in many wage and hour claims is whether the complainant is an “employee,” and therefore protected by said laws, or an “independent contractor,” who is not covered. The New Jersey Supreme Court, in response to a certified question from the Third Circuit Court of Appeals, applied a very broad definition of “employee” for the purposes of state wage and hour laws. Hargrove, et al v. Sleepy’s, LLC (“Hargrove III“), Nos. A-70 Sept. Term 2012, 072742, slip op. (N.J., Jan. 14, 2015). It applied the definition used in state unemployment law, which is much more favorable to employees than state wage and hour laws have been.

The plaintiffs work as delivery drivers for the defendant, a mattress company. They contend that they are employees, while the defendant argues that they are independent contractors. They signed an “Independent Driver Agreement” (IDA) when they began working for the defendant, which they claim was “a ruse to avoid payment of employee benefits.” Id. at 3. They filed suit in federal court in 2010, alleging that the defendant was wrongfully denying them employment benefits under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., and the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.

The U.S. district court granted summary judgment for the defendant, finding that the plaintiffs did not meet the definition of an “employee” under ERISA. Hargrove, et al v. Sleepy’s, LLC (“Hargrove I“), No. 3:10-cv-01138, mem. and order (D.N.J., Mar. 29, 2012), citing Nationwide Mutual v. Darden, 503 U.S. 318 (1992). While the court acknowledged that the defendant had “extensive control of deliverer’s activities,” Hargrove I at 10, it noted other factors that led to its conclusion, including the IDAs and the facts that each plaintiff had set up their own business entities, kept their own business records, had relationships with the IRS as business entities, and purchased and maintained their own delivery trucks.
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A federal lawsuit filed by a former cosmetics company employee, which has since been settled and dismissed, raised claims of race, ethnicity, and national origin discrimination, retaliation, and other claims. Meyers v. Revlon, Inc., et al, No. 1:14-cv-10213, complaint (S.D.N.Y., Dec. 30, 2014). The plaintiff accused the chief executive officer (CEO) of numerous derogatory statements, and of retaliation for noting and reporting safety and regulatory concerns. The lawsuit asserted causes of action under federal, state, and city law, including New Jersey’s whistleblower protection statute.

According to his complaint, the plaintiff worked in the cosmetics industry for 35 years, rising from an entry-level position to the defendant’s Chief Science Officer. He took that position in 2010, and he stated that “his career progressed without impediment until November 2013.” Id. at 1. The defendant acquired Colomer, a beauty care company based in Spain, in August 2013. In November 2013, it named Colomer’s CEO as its new CEO and President.

The plaintiff claimed that he played a key role in integrating the two companies, which included reviewing Colomer’s regulatory compliance. He reported concerns about Colomer’s facility in Barcelona to the new CEO. He claimed that the CEO became angry and told him not to discuss regulatory or safety matters with him in order to maintain “plausible deniability.” Id. at 15. From then on, the CEO allegedly harassed and belittled the plaintiff, often in front of colleagues.
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Worker’s compensation (WC) is a type of insurance that compensates employees for injuries suffered in the course of their employment. Coverage is essentially assured for workers who can establish that the injury was job-related and not due to their own negligence. The tradeoff is that the amount of coverage is limited to medical benefits and lost wages, and workers have no recourse through the courts. Most states have made WC the exclusive remedy for injured workers, although New Jersey still allows employers to opt out of the system. The limited amount of benefits available to an injured worker, along with lack of access to the courts, led a Florida judge to rule that state’s WC statute unconstitutional. Florida Workers’ Advocates v. Florida (“FWA“), No. 11-13661, order (Fla. 11th Cir. Ct., Aug. 13, 2014).

The basic purpose of the WC system, if you view it in the most favorable light possible, is to remove the uncertainty and difficulty of litigation and ensure compensation for injured workers. The obligation to pay claims, in exchange for the loss of access to the courts, is sometimes known as the “compensation bargain.” In practice, of course, this “bargain” often denies workers adequate compensation for their injuries. Most states also make the WC system compulsory for injured workers, denying them the right to a civil trial. The Seventh Amendment right to a trial by jury in civil cases has never been applied to the states under the Fourteenth Amendment. The U.S. Supreme Court has affirmed this view, holding that compulsory WC systems do not violate the Constitution. Mountain Timber Co. v. Washington, 243 U.S. 219, 235 (1917). See also New York Central R. Co. v. White, 243 U.S. 188 (1917); Hawkins v. Bleakly, 243 U.S. 210 (1917).

Florida’s WC system is the exclusive remedy for workers injured on the job. Fl. Stat. §§ 440.10, 440.11. The recent decision involved a woman who tripped over boxes left on the floor at her workplace, causing injury to her shoulder. Even after shoulder replacement surgery, she was in so much pain that she was forced into early retirement. She intervened in a lawsuit seeking a declaratory judgment holding the WC statute unconstitutional.
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Concern over infectious diseases has captured the imagination of much of the country in recent months, particularly with regard to Ebola virus disease (EVD). Only a handful of EVD cases have been reported in the U.S., and health officials and experts have repeatedly stated that the disease is unlikely to pose a serious threat to the country. Other diseases, such as influenza, pose a far greater threat in the U.S. but generally receive less media attention. Regardless, since a disease outbreak is on the nation’s mind, it raises the question of what legal duties employers owe to protect their employees from infectious diseases. The answer depends largely on the type of employer.

The first case of EVD in the U.S. was diagnosed at a hospital in Dallas, Texas in September 2014. That patient has since died, and two nurses who treated him were subsequently diagnosed with EVD. The Centers for Disease Control and Prevention (CDC) is investigating reports that health care workers treated the initial EVD patient for about three days, from September 28 to September 30, without wearing protective equipment. As many as 70 workers were exposed to the patient during that time, but only the two nurses have tested positive for the disease. EVD is not airborne and can only be transmitted through direct contact with an infected person’s blood or other bodily fluids.

The actions and preparedness of the Dallas hospital, including an alleged lack of safety protocols, drew a harsh rebuke from the hospital’s nurses. The incident has raised concerns about whether the hospital took adequate precautions to protect its workers from infection. Laws like the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq., require employers to provide reasonable protection against occupational diseases. This could apply to workers in health care and other fields where ordinary job duties make exposure to infectious diseases likely. See American Dental Ass’n v. Martin, 984 F.2d 823 (7th Cir. 1993).
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As many as one in four Americans has a criminal record that could turn up during a job search. Lack of employment opportunities is a substantial factor in the difficulty people with criminal history face, including an estimated recidivism rate of 70 percent. We, as a society, are nowhere near consensus on whether the primary purpose of our criminal justice system is punishment or rehabilitation. What seems clear, however, is that barriers preventing people with criminal records from getting jobs, particularly when an applicant’s criminal record has no rational relationship to the job in question, make reentry into society all the more difficult. Cities and states around the country, including two New Jersey cities, have enacted laws limiting when employers may ask about or consider criminal history.

The “Ban the Box” campaign promotes laws that prohibit employers from asking about criminal history during the initial phase of the job application process. The campaign’s name refers to the checkbox for criminal history found on many job applications. Federal anti-discrimination law does not expressly prohibit discrimination based on criminal history, and consideration of prior convictions might be necessary for certain jobs. The Equal Employment Opportunity Commission (EEOC) has held, however, that use of criminal history in employment decisions may violate Title VII of the Civil Rights Act of 1964 in other ways, such as if it results in disparate treatment of employees or job applicants based on race or other protected categories.

The first statewide law prohibiting employment discrimination based on criminal history was adopted in Hawaii. An employer may ask about criminal history if it “bears a rational relationship to the duties and responsibilities of the position,” but only after extending a “conditional offer of employment.” HI Rev. Stat. § 378-2.5. As of May 2014, 11 more states have enacted similar laws. At least 66 local jurisdictions have also enacted ban-the-box ordinances, including New Jersey’s own Newark and Atlantic City.
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Former cheerleaders for the National Football League (NFL) have filed multiple lawsuits in New Jersey, New York, California, Ohio, and Florida for alleged violations of state and federal wage laws. Allegations include unpaid work, misclassification as independent contractors, and minimum wage violations. A report by Amanda Hess in Slate notes that cheerleading for professional football began as a volunteer activity, at a time when no one made much money from the sport. While players and coaches have significantly increased their income, cheerleaders are still paid almost as though they were volunteers.

A former Oakland Raiders cheerleader, who goes by Lacy T. in her complaint, filed the first lawsuit, Lacy T. v. The Oakland Raiders, et al, No. RG14710815, complaint (Cal. Super. Ct., Alameda Co., Jan. 22, 2014). She worked as a “Raiderette” during the 2013-14 football season and allegedly received $125 per game no matter how many hours she worked. She also claimed that cheerleaders do not receive any pay until the end of the Raiders’ season in January. Her lawsuit identified a class of cheerleaders employed as Raiderettes from January 22, 2010 to the present, and asserted causes of action for violations of minimum wage, overtime, and other provisions of the California Labor Code.

The U.S. Department of Labor found in March that the team is a “seasonal” employer, and therefore is exempt from federal minimum wage laws. California labor law, however, does not have this exemption. A second lawsuit against the team, Caitlin Y., et al v. The National Football League, et al, No. RG14727746, complaint (Cal. Super. Ct., Alameda Co., Jun. 4, 2014), makes similar wage-related allegations, but also claims sexual harassment and other unlawful practices.
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