The New Jersey Employment Law Firm Blog

September 13, 2019

U.S. Supreme Court Dismisses Employer’s “Administrative Exhaustion” Defense in Title VII Case

Employees who want to bring a discrimination claim against their employer under New Jersey law can file a lawsuit in court or file a complaint with a state agency. Federal law, on the other hand, requires employees to file a complaint with the Equal Employment Opportunity Commission (EEOC) before going to court. If a claimant does not complete the process with the EEOC before filing a lawsuit, the court can dismiss the suit for failure to exhaust administrative remedies. This is known as the “administrative exhaustion defense.” It is not, however, an unlimited defense for employers. The U.S. Supreme Court recently ruled in Fort Bend County v. Davis that a defendant in a federal employment discrimination lawsuit waived the defense by not raising it in a timely manner. If you are having a dispute with an employer, a discussion with a New Jersey employment attorney may help you better assess your situation.

The New Jersey Law Against Discrimination (NJLAD) gives aggrieved employees and job applicants two options. See N.J. Rev. Stat. § 10:5-13. They can file a complaint with the Division on Civil Rights (DCR), which is part of the New Jersey Office of the Attorney General. They can also file a lawsuit in New Jersey Superior Court. They cannot do both, so careful planning and preparation is key to any employment discrimination claim.

Title VII of the federal Civil Rights Act of 1964 requires complainants to file a charge with the EEOC within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). The EEOC may attempt to reach a settlement with the employer, or it may file suit against the employer on behalf of the complainant. If 180 days have passed since the charge was filed and the EEOC has not resolved the dispute, the complainant can request a formal notice, commonly known as a “right to sue” letter. Id. at § 2000e-5(f)(1), 29 C.F.R. § 1601.28. This gives the complainant ninety days to file a lawsuit in U.S. District Court. Without a right-to-sue letter, the employer can raise the administrative exhaustion defense.
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September 6, 2019

New Jersey Federal Lawsuit Alleges Religious, Disability, and FMLA Discrimination

by Resnick Law Group, P.C.

New Jersey’s antidiscrimination statute protects workers from discrimination on the basis of multiple categories. Federal law supplements these rights, and also protects the right of qualifying workers to unpaid leave for medical purposes. Employers may not take adverse actions against employees or job applicants on the basis of a protected category, nor may they interfere with an employee’s exercise of their right to medical leave. A lawsuit filed in July 2019 in a New Jersey federal court alleges that the plaintiff’s employer committed each of these forms of discrimination. It further alleges that the employer failed to provide reasonable accommodations for the plaintiff’s religious practices and her perceived disability.

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination on the basis of disability, religion, and other factors. This includes failure to accommodate an employee’s “sincerely held religious practice or religious observance,” provided that doing so does not cause “undue hardship” to the employer. N.J. Rev. Stat. § 10:5-12(q)(1). Title VII of the federal Civil Rights Act of 1964 prohibits discrimination on the basis of religion, including any “religious observance or practice” that an employer can accommodate without undue hardship. 42 U.S.C. §§ 2000e(j), 2000e-2(a).

The federal Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. It also requires reasonable accommodations, subject to a similar exception for undue hardship. 42 U.S.C. § 12112. In addition to a wide range of “physical or mental impairment[s],” the ADA defines “disability” as “being regarded as having such an impairment.” Id. at §§ 12102(1)(C), (3). The NJLAD’s definition of “disability” does not expressly include the perception of having a disability. N.J. Rev. Stat. § 10:5-5(q).

August 29, 2019

U.S. Women’s National Soccer Team Members File Equal Pay Lawsuit Against Soccer Federation

by Resnick Law Group, P.C.

On July 7, 2019, the U.S. Women’s National Soccer Team (USWNT) won its fourth Women’s World Cup title, defeating the Netherlands 2-0. This victory also brought attention to the controversy regarding the players’ wages. Twenty-eight members of the USWNT filed suit in March 2019 against the United States Soccer Federation (USSF), the governing body for both the men’s and women’s national teams. The lawsuit alleges violations of the Equal Pay Act (EPA) and Title VII of the Civil Rights Act of 1964. It seeks certification as a collective action under the EPA and a class action under Title VII. While the suit is pending in the Central District of California, one of the plaintiffs resides in New Jersey and plays for the Piscataway-based professional soccer team Skye Blue FC. Another plaintiff resides in New York.

Title VII prohibits employers from discriminating on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). This includes disparate salaries for substantially similar work. The EPA addresses this issue more directly, barring employers from paying employees at different rates based on sex, when the jobs “require[] equal skill, effort, and responsibility…under similar working conditions.” 29 U.S.C. § 206(d).

Congress enacted the EPA as an amendment to the Fair Labor Standards Act (FLSA), which governs minimum wage, overtime, and other pay-related issues. An employee may assert claims under the FLSA for themselves and on behalf of “other employees similarly situated,” provided that those employees consent in writing. Id. at § 216(b). For Title VII claims, a group of plaintiffs can ask a court to certify their case as a class action if they can establish four elements: numerosity of claimants, commonality of claims, typicality of the representatives’ claims, and ability of the representatives to represent the other class members. Fed. R. Civ. P. 23(a).
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August 22, 2019

New Jersey Governor Signs Bill that Takes on Wage Theft by Employers

by Resnick Law Group, P.C.

The days of wage theft in New Jersey are coming to an end, thanks in large part to S1790, a bill passed by the Legislature in June 2019 and signed by the governor on August 6. “Wage theft” refers to the wrongful failure by an employer to pay wages or other compensation owed to an employee. New Jersey law makes it a disorderly persons offense—the equivalent of a misdemeanor—for an employer to fail to pay wages when they are due. An employer may also be civilly liable to the employee for unpaid wages and additional damages The new bill amends the state’s wage laws and the New Jersey Code of Criminal Justice. New provisions in the wage laws increase the amount of damages that employees can recover, and significantly increase the statute of limitations to file suit.

Any failure by an employer to pay employees what they are owed can be described as “wage theft.” The term therefore encompasses a wide range of conduct by employers. Some wage theft is deliberate and intended to deprive employees of compensation. In other cases, it is more a result of carelessness or negligence. The end result is the same for the employees who are not getting paid as much as they should. The Economic Policy Institute (EPI) reported that, in 2012, regulatory agencies and private lawyers recovered nearly $1 billion in wrongfully withheld wages. This amount almost certainly represents a fraction of the total amount of wage theft that occurs in the U.S. In contrast to this number, the EPI reported that the total amount of property lost to the crime of robbery in 2012 was about $341 million.

S1790 became effective immediately after the governor signed it into law. Employees in New Jersey could previously assert causes of action for wage theft going back two years. The lookback period for wage theft claims is now six years. This applies to claims for unpaid minimum wage and overtime compensation, and also for retaliation and discrimination against employees who report wage theft. If you feel you are the victim of wage theft, you should discuss the matter with a New Jersey employment attorney at your earliest convenience.

August 15, 2019

New Jersey Court Rules the NJLAD’s Ban on Associational Discrimination Can Apply to Out-of-State Residents

by Resnick Law Group, P.C.

Many statutes that prohibit discrimination on the basis of disability also prohibit discrimination because of a person’s relationship or association with a person with a disability. For example, an employer would engage in an unlawful employment practice under one of these statutes if they terminate or otherwise take adverse action against an employee because a member of the employee’s family has a covered disability. The federal Americans with Disabilities Act (ADA) expressly prohibits this sort of “associational discrimination.” See 42 U.S.C. § 12112(b)(4). The New Jersey Law Against Discrimination (NJLAD) does not specifically mention associational discrimination, but courts have found that it is included in the statute’s prohibition on discrimination based on disability and other factors. In June 2019, the New Jersey Appellate Division ruled that an individual who resides in Illinois can assert a claim for associational discrimination under the NJLAD against his New Jersey-based former employer. If you have a workplace dispute, a New Jersey employment lawyer can help make sense of state and federal laws that could have an impact on your case.

According to the Equal Employment Opportunity Commission (EEOC), the ADA takes a broad view of associations and relationships. It is not limited to close family members like spouses, children, or parents. The EEOC offers a hypothetical example of an individual who “tutors children at a local homeless shelter” that “is well-known for providing job placement assistance for people living with HIV/AIDS.” ADA regulations identify HIV as a covered disability. See 29 C.F.R. § 1630.2(j)(3)(iii). If that individual’s employer terminates them because of that activity, the EEOC says that they would be in violation of the ADA. The “association” in this example is minimal when compared to many familial relationships.

The defendant in the case described above is based in New Jersey. It hired the plaintiff in 2008 to work as a vice president at the office of a subsidiary in Illinois. The employment agreement included choice of law clauses identifying New Jersey as the governing law and venue for disputes. The plaintiff’s wife was diagnosed with breast cancer that same year. It went into remission but returned in 2014. The defendant was aware of her condition. The plaintiff alleges that, in 2016, the defendant denied him an opportunity for a promotion and then terminated him.
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August 6, 2019

U.S. Supreme Court Agrees to Hear Two Cases Alleging Sexual Orientation Discrimination Under Title VII

by Resnick Law Group, P.C.

The New Jersey Law Against Discrimination (NJLAD) offers extensive protections against discrimination in the workplace and elsewhere. This includes factors like sexual orientation and gender identity or expression, which are not explicitly identified as protected categories under federal law or laws in many other states. Title VII of the Civil Rights Act of 1964 identifies five protected factors, including sex. Court decisions and amendments to the statute have expanded the federal definition of “sex discrimination” to include sexual harassment and pregnancy discrimination. Most federal courts have been reluctant to expand the definition further to encompass factors like sexual orientation. In April 2019, the U.S. Supreme Court agreed to hear appeals in two cases that involve sexual orientation discrimination claims under Title VII. The two appellate courts reached different conclusions, creating a circuit split. The Supreme Court also accepted a Title VII case alleging gender identity discrimination, despite the lack of a circuit split.

Employers in New Jersey may not discriminate against employees or job applicants on the basis of “affectional or sexual orientation.” N.J. Rev. Stat. § 10:5-12(a). State law defines this as various forms of “attraction or behavior” that are directed principally towards members of one particular gender or either gender. Id. at §§ 10:5-5(hh) – (kk). It includes a person’s actual “inclination, practice, identity or expression” of a particular orientation; a history of the same; or the perception of having a particular orientation. Id. at § 10:5-5(hh).

Some courts have concluded that Title VII’s prohibition on sex discrimination already includes discrimination on the basis of sexual orientation. Discriminating against an individual because of the gender or sex to which they are attracted is, in essence, discrimination on the basis of sex. A Supreme Court ruling that recognizes “sex stereotyping” as a form of sex discrimination under Title VII arguably supports this interpretation. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
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July 31, 2019

National Labor Relations Board, Department of Labor’s Wage and Hour Division Rulings on Classification of Rideshare Drivers Contrast with New Jersey Law

by Resnick Law Group, P.C.

The “sharing economy” has brought significant changes, both good and bad, to many aspects of the job market. Rideshare companies, for example, give drivers flexibility in terms of when and how long they work, but this has come with disadvantages. Some rideshare drivers have sought the protection of employment statutes in claims for unpaid wages and other matters. The question of whether they are employees, who are eligible for relief under those employment laws, or independent contractors remains largely unresolved. Various courts and administrative agencies have reached different conclusions. Two federal agencies, the National Labor Relations Board (NLRB) and the Department of Labor’s Wage and Hour Division (WHD), recently issued opinions holding that rideshare drivers are independent contractors. The bases for their conclusions differ from the legal standard used in New Jersey.

A worker in New Jersey is deemed an “employee,” and therefore not an independent contractor, unless their employer can satisfy the three-prong “ABC test.” First, the employer must demonstrate that they do not exercise control over how the person does their job, and that their agreement with the person indicates that they will not exercise such control. Next, they must show that the job performed by the person is not part of their usual business, or that the person does their work away from the employer’s place of business. Finally, they must establish that the person has their own “independently established trade, occupation, profession or business.” N.J. Rev. Stat. § 43:21-19(i)(6).

The New Jersey Supreme Court adopted the ABC test in a 2015 ruling. Several other states have also adopted it. The test generally applies to employee misclassification claims under state law. The 2015 case, for example, involved alleged violations of New Jersey’s wage and hour statutes. Claims under federal law may require separate analyses.
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July 26, 2019

Court Affirms Class Action Status in New Jersey Misclassification Lawsuit

by Resnick Law Group, P.C.

When a large number of individuals have similar claims against a defendant, federal and state law allow them to consolidate their claims into a single lawsuit. This is known as a “class action” in most circumstances. The Fair Labor Standards Act (FLSA) allows a claimant to bring a “collective action” on their own behalf and on behalf of others with similar claims. A group of distributors filed suit against a food manufacturer in 2015, alleging that the company misclassified them as independent contractors in violation of the FLSA, New Jersey wage laws, and other state laws. A federal court conditionally certified the case as a collective action under the FLSA in 2017. The court recently denied a motion by the defendant to decertify the case. In the same order, issued in May 2019, the court granted the plaintiffs’ motion for class certification under Rule 23 of the Federal Rules of Civil Procedure (FRCP).

In order to assert claims for violations of federal and state wage laws, a claimant must be able to demonstrate that an employment relationship exists. Individuals who work as independent contractors are not eligible for legal relief in most circumstances. A 2015 ruling by the New Jersey Supreme Court adopted a test for determining whether an individual is an employee or independent contractor, known as the “ABC test.” An individual is presumed to be an employee, absent evidence of three elements:
1. The individual performs their work “free from control or direction” by the employer;
2. The services performed by the individual are either “outside the usual course of the [employer’s] business,” or performed away from its usual place or places of business; and
3. The individual has their own “independently established” business, trade, or professional practice. N.J. Rev. Stat. §§ 43:21-19(i)(6)(A) – (C).

The FLSA allows collective actions when the claimants are “similarly situated,” and each claimant has consented in a document filed with the court. 29 U.S.C. § 216(b). Certification as a class action requires proof of four elements: (1) numerosity, (2) commonality of claims, (3) typicality of the claims of the representative parties, and (4) fair and adequate representation of the entire class by those parties. Fed. R. Civ. P. 23(a).
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July 19, 2019

NLRB Rules on Successorship of Employers in Collective Bargaining Disputes

by Resnick Law Group, P.C.

A collective bargaining agreement (CBA) is a contract between a labor union, which is legally authorized to negotiate on the employees’ behalf, and the company that employs the union’s members. When ownership of a business changes hands, the new owner is only subject to all of the terms of an existing CBA if it is a “perfectly clear successor” to the previous owner. The National Labor Relations Board (NLRB) developed a set of guidelines, known as the “perfectly clear successor” (PCS) rule, based on a 1972 ruling by the U.S. Supreme Court. In April 2019, the NLRB issued a ruling that seems to limit the scope of the PCS rule.

The National Labor Relations Act (NLRA) prohibits employers from interfering with or restraining efforts by employees to organize for the purpose of collective bargaining, either by forming a union or joining an existing organization. Employers may not discriminate or retaliate against employees who exercise any of the rights protected by the statute. Once an employer and a union enter into a CBA, the employer commits an unlawful act if it refuses to negotiate with its employees’ authorized representative.

In 1972, the Supreme Court ruled that a successor employer must recognize a union’s authority when it has retained a majority of the union members as employees. This does not mean, however, that the successor employer is bound by the substantive terms of its predecessor’s CBA. The court held that a successor is not bound by the old CBA and is therefore free to set the initial terms for employment, unless “it is perfectly clear that the new employer plans to retain all of the employees in the unit.” NLRB v. Burns Int’l Security Services, Inc., 406 U.S. 272, 294-95 (1972).
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July 5, 2019

U.S. House of Representatives Passes Bill Adding Employment Discrimination Protections Already Found in New Jersey Law

by Resnick Law Group, P.C.

Federal employment anti-discrimination law identifies five protected categories: race, color, religion, national origin, and sex. Court decisions have added nuance to these categories, particularly with regard to sex discrimination. Most courts, in interpreting federal law, have been unwilling to extend the law’s prohibition against discrimination on the basis of sex to include factors like sexual orientation or gender identity. New Jersey and other states have amended their own anti-discrimination laws to include specific protections against these forms of discrimination in employment, housing, and other areas. The U.S. House of Representatives passed H.R.5, known as the Equality Act, in May 2019. The bill would amend federal law to match anti-discrimination laws in states like New Jersey.

The New Jersey Law Against Discrimination (NJLAD) includes “affectional or sexual orientation,” “sex,” and “gender identity or expression” in its list of protected categories. N.J. Rev. Stat. § 10:5-12(a). The law defines “affectional or sexual orientation” as a person’s actual, perceived, or presumed orientation with regard to “affectional, emotional or physical attraction or behavior” towards members of the opposite gender, one’s own gender, or either gender. Id. at § 10:5-5(hh) – (kk). “Gender identity or expression” refers to a person’s actual or perceived identity or mode of expression that might not be “stereotypically associated with a person’s assigned sex at birth.” Id. at § 10:5-5(rr). This may include people who identify with a different gender than the one assigned at birth, or people who identify as non-binary.

Title VII of the Civil Rights Act of 1964 does not include protections against discrimination based on sexual orientation or gender identity or expression, at least officially. The Equal Employment Opportunity Commission has taken the position that the statute’s prohibition on sex discrimination includes prohibitions on both additional forms of discrimination. The Seventh Circuit Court of Appeals reached the same conclusion regarding sexual orientation in 2017, followed by the Second Circuit in 2018. The U.S. Supreme Court has agreed to hear the appeal of the Second Circuit’s ruling, alongside the appeal in an Eleventh Circuit case that reached the opposite conclusion. It will also hear the appeal of a Sixth Circuit decision applying Title VII to a gender identity discrimination claim.
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