Wage and Hour Disputes

March 14, 2014

New Jersey Employers Required by State Law to Provide Employees with Notice of Gender Equity Rights

A 2012 law amending the New Jersey Equal Pay Act requires employers with at least fifty employees to provide official notice to workers of their rights regarding gender equity under state and federal anti-discrimination and pay equity statutes. The New Jersey Department of Labor and Workforce Development (NJDOL) published final notice forms on January 6, 2014. Under the thirty-day deadline established by the 2012 law, employers had until February 5 to provide the notice to all current employees. The 2012 law does not identify a penalty for failing to meet this deadline, and the NJDOL has not stated how it will handle noncompliance. Penalties for similar regulatory infractions might offer some idea of what employers might face.

The New Jersey Assembly passed A2647, which “[r]equires employers [to] post notice of worker rights under certain State and federal laws,” on June 25, 2012, and the governor signed it into law on September 19, 2012. It did not provide a specific date for employers to comply with its requirements, but rather set a deadline of thirty days after publication of final notice forms by the NJDOL. This took place on January 6, 2014, making the initial deadline February 5. For employees hired after that date, employers must provide the notice by the end of the calendar year in which an employee was hired.

The official notice form published by the NJDOL, entitled “Right to be Free of Gender Inequity or Bias in Pay, Compensation, Benefits or Other Terms and Conditions of Employment,” outlines workers’ rights under two federal statutes and two New Jersey statutes:
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February 21, 2014

FLSA Protections May Be Available to Undocumented Immigrant Employees in New Jersey

by Resnick Law Group, P.C.

Federal immigration law prohibits businesses from employing individuals who do not have authorization to work in the U.S., either because they have certain types of temporary visas or because they lack legal immigration status altogether. Courts have wrestled with the question of how much protection federal and state labor laws offer to undocumented immigrants. The U.S. Supreme Court ruled that undocumented immigrants may not recover damages for violations of the National Labor Relations Act (NLRA). Recent appellate court decisions, however, have left the possibility open that relief may be available under state labor and employment laws and the federal Fair Labor Standards Act (FLSA).

Under the NLRA, the National Labor Relations Board (NLRB) enforces laws protecting the rights of employees to engage in activities related to union organizing. This includes filing lawsuits seeking back pay and other damages on behalf of employees. The U.S. Supreme Court ruled in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), that undocumented immigrants may not recover damages under the NLRA. It held that the Immigration Control and Reform Act of 1986 (IRCA), which established the current system of immigrant work authorization, prohibited the employment of the worker in question and therefore preempted his NLRA claims. This preclusion only affected the immigrant employee. The NLRB could still pursue penalties against the employer for NLRA violations affecting the employee.

Appellate and district courts have generally followed Hoffman‘s ruling with regard to IRCA’s preemption of state and local employment laws. A federal district court in Pennsylvania cited preemption under IRCA in striking down a city ordinance placing restrictions on employment and housing for undocumented immigrants. Lozano v. City of Hazelton, 496 F.Supp.2d 477, 518-19 (M.D. Pa. 2007). In a case involving an NLRB ruling issued before Hoffman, the Second Circuit Court of Appeals refused to enforce the ruling after Hoffman. NLRB v. Domsey Trading Corp., 636 F.3d 33 (2nd Cir. 2011). Federal labor laws separate from the NLRA have not received much direct scrutiny from courts on the question of preemption, however, until recently.
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January 10, 2014

Liquidated Damages Award in FLSA Case Reminds Employers in New Jersey and Across the U.S. to Comply With Wage Laws

by Resnick Law Group, P.C.

A federal court has ordered a restaurant company to pay a group of employees liquidated damages under the Fair Labor Standards Act (FLSA). In Dobson, et al, v. Timeless Restaurants, Inc. d/b/a Denny’s, a number of diner servers sued their employer for failure to pay unpaid minimum wages and overtime. According to the restaurants workers, they were required to participate in a tip pool that redistributed a portion of their earnings to other employees whose wages were not tip-based.

After a jury found Timeless Restaurants violated the FLSA, the court considered whether to award the workers liquidated damages. The employees argued that such an award was merited under the FLSA because the jury determined that Timeless acted willfully when it failed to pay wait staff minimum and overtime wages. Timeless, on the other hand argued that the jury’s determination was not determinative and the company “had reasonable grounds to believe that its acts or omissions did not violate the FLSA.”

According to the court, liquidated damages are not required under the FLSA if an employer who failed to pay a worker the appropriate wages acted in good faith. Still, the statute places the burden for demonstrating such a good faith belief on the employer. According to the district court, Fifth Circuit precedent states that an employer may not demonstrate it acted in good faith after a jury has determined the employer willfully violated the FLSA. As a result, Timeless was ordered to pay liquidated damages for its willful FLSA violations.
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May 9, 2013

Unpaid Intern Lawsuits Seek to Enforce Wage and Hour Laws

by Resnick Law Group, P.C.

Internships are often a good way for college students and others to gain experience in a field, such as film or journalism, in the hopes of getting a full-time job after graduation. Some of these internships include a salary, stipend, or course credit, but many interns essentially work for free. While some students might be willing to make such a sacrifice in order to gain experience or contacts, unpaid internships might violate state or federal labor laws. The federal Fair Labor Standards Act (FLSA) and other laws provide guidelines to help identify when employers must pay interns at least minimum wage, and multiple pending lawsuits are seeking to enforce interns’ right to compensation for their work.

The FLSA, 29 U.S.C. §§ 201 et seq., has a very broad definition of “employ,” describing it as “to suffer or permit to work.” 29 U.S.C. § 203(g). It allows exceptions for individuals volunteering for charitable groups and other nonprofit organizations, but generally nearly anyone working for a for-profit company may be considered “employed.” The U.S. Department of Labor has developed a set of guidelines for determining whether an internship falls under the FLSA’s coverage regarding overtime compensation and minimum wage. An internship program that meets these six criteria is not subject to FLSA requirements:
1. The internship resembles a training program in an educational institution;
2. The purpose of the internship is to benefit the intern;
3. The employer does not benefit directly from the intern’s experience;
4. The intern works under existing employees and does not displace them;
5. The employer makes no promise or representation of a job after the internship; and 6. Both the employer and the intern understand and agree that the intern will not receive compensation for the internship.
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November 2, 2012

New Jersey Passes Law Against Gender Discrimination

by Resnick Law Group, P.C.

By signing into law new posting requirements aimed at combating pay and gender discrimination, Gov. Chris Christie advanced the fight for equal pay in the workforce.

Under the new law, companies that employ more than 50 people must post gender equality information in the workplace. This information must also be provided to employees at the time of hire, annually thereafter, and upon an employee’s request.The law is scheduled to take effect Nov. 21 and employers will have 30 days to comply once the New Jersey Department of Labor issues notice.

However, our NJ employment lawyers understand there is much work left to be done. Employees, particularly women, must remain vigilant in making sure they are fairly compensated, particularly in relation to men holding similar positions within the company.

Christie vetoed a measure that would have increased the reporting requirements for public contractors in an effort to better determine and enforce compliance. Those doing business within New Jersey would have been required to report gender, job title, occupational category, race and total compensation to the New Jersey Department of Labor.

“When Gov. Chris Christie had a chance to sign legislation I authored to prevent gender wage discrimination in public contracts, he vetoed the bill, calling it ‘senseless bureaucracy,'” wrote Assemblywoman Pamela Lampitt (D-Camden/Burlington), in the Star-Ledger. Lampitt is also chairwoman of the Assembly’s Women and Children Committee.

Christie said it would have been burdensome and would have ultimately driven up the cost of public contracts paid for by tax dollars.

However, fact remain that women continue to fight for the equal pay owed them for equal work; this remains particularly true for jobs traditionally held by men. Lampitt notes a nationwide annual gender wage gap of $15.8 billion. In New Jersey, women earn just 79 cents for every dollar a man earns in the workforce.

Christie returned two New Jersey employment discrimination bills to the legislature for significant amendments.

The first would have eliminated the statute of limitations for bringing compensation discrimination claims. The Christie Administration contends that asserting into the bill limitations on the amount of backpay that can be recover would bring it into better agreement with the holdings of the New Jersey Supreme Court and the Lilly Ledbetter Fair Pay Act of 2009. The governor proposed a two-year limit.

The next measure would have prohibited retaliation against employees requesting pay information. The governor recommended the provisions be included in the New Jersey Law Against Discrimination rather than being made part of NJ’s whistleblower law.

Establishing whistleblower protections is a key component that must be part of any real solution. The secrecy around pay in the workforce is one one the primary reasons why this form of silent discrimination is allowed to continue. Until employees who have reason to believe they are being paid unfairly are given access to compensation information, such discrepancies in pay will remain commonplace.
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October 4, 2012

New Jersey Overtime Pay: Know Your Workplace Rights

by Resnick Law Group, P.C.

Many of us have learned to do more with less as we climb out of the worst economic recession since the Great Depression. However, when such sacrifice is the result of wage and hour violations, an employee is protected under state and federal law.

Typically, however, it’s up to the employee to assert their legal rights to overtime. Joining co-workers in seeking advice from a NJ overtime lawyer can help you recover wages owed to you and your colleagues at work.A new survey conducted by Harris Interactive found half of U.S. workers believe that their employer violates overtime laws. Most employees feel the weak economy has also forced them to do more work for less pay. In Great Britain, France, Australia, China, Mexico, India and Brazil, about two-thirds of hourly workers report that their employer violates overtime laws at least some of the time.

Most hourly workers who were surveyed indicated an eagerness to work extra hours, presumably for additional pay. In the U.S., some 43 percent of workers said they wish more hours were available.

In the U.S., there has been an increase of nearly 50 percent in the number of employee claims alleging wage-and-hour violations – from about 5,000 complaints annually a decade ago to the current rate of more than 7,000 claims a year alleging violations of the Fair Labor Standards Act (FLSA).

The United States Department of Labor’s Wage and Hour Division is responsible for overseeing compliance with the FLSA. Under federal law, the minimum wage is $7.25. The New Jersey Assembly is debating whether to increase the state minimum wage to $8.50. Nonexempt hourly employees must be paid at least 1.5 times their regular wage for hours worked over 40 hours in a week.

Exempt Employees may include:
-Professional employees, including school teachers.
-Seasonal employees.
-Farm workers.
-Certain commission and sales positions.
-Certain salaried supervisory positions.

Tipped employees must be paid at least $2.13 an hour. However, tips must amount to at least the minimum wage or the employer must make up the difference. There can also be legal issues when employees are forced to share tips — particularly with supervisors or other non-tipped employees.

In other cases, an employee may be misclassified as a salaried employee, or wrongfully paid a salary for more than 40 hours worked. Another issue that has become commonplace is misclassifying employees as independent contractors. These violations can be particularly egregious and may also leave an employee uncovered by workers’ compensation insurance in the event of an on-the-job accident.

Unpaid or withheld wages may also constitute a wage-and-hour violation under the New Jersey State Wage Payment Law (N.J.S.A. 34:11-4.1).

Throughout the downturn, employers laid off workers and made existing staff pick up the slack. And many have been slow to increase hiring through what has been a sluggish recovery. Too often, employees do not report violations for fear of losing their job. While state and federal laws prohibit retaliation, it remains a valid concern.

But when such circumstances are permitted to become commonplace, basic employee rights become a casualty. When coworkers seek the advice of an experienced law firm, their rights are better protected.
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