The New Jersey Employment Law Firm Blog

October 25, 2019

Class Action Alleges Age Discrimination in Job Advertisements on Social Media

While Title VII of the Civil Rights Act of 1964 is considered to be the primary federal antidiscrimination law, the Age Discrimination in Employment Act (ADEA) of 1967 also provides important protections for workers nationwide. Both the ADEA and New Jersey’s antidiscrimination statute prohibit employers from advertising job openings in ways that restrict eligibility on the basis of age. A pending federal class action against several major companies addresses a relatively new method of advertising. The lawsuit alleges that the defendants restricted the visibility of job advertisements on social media to users in certain age ranges. Several recent decisions by the Equal Employment Opportunity Commission (EEOC) support the plaintiffs’ position that this violates the ADEA’s advertising restrictions.

The ADEA’s protections against age discrimination apply to workers who are at least forty years old. 29 U.S.C. § 631(a). The New Jersey Law Against Discrimination (NJLAD), on the other hand, does not set a minimum age but states that employers may “refus[e] to accept for employment or to promote” a person who is more than seventy years old. N.J. Rev. Stat. § 10-5:12(a). Both statutes prohibit the publication of job advertisements that demonstrate “any limitation, specification or discrimination” based on age. 29 U.S.C. § 623(e), N.J. Rev. Stat. § 10:5-12(c). Job listings that only purport to limit the eligibility of minors typically do not violate these statutes, since minors are subject to separate work restrictions. A job advertisement stating that a job is only open to applicants between the ages of eighteen and forty would violate both the ADE and the NJLAD.

In July 2019, the EEOC issued determination letters to seven companies based on charges filed under the ADEA. All of the charges alleged unlawful posting of job advertisements on the social media platform Facebook, which allows companies to target advertisements to certain audiences. The EEOC reported that it found evidence that the companies “used language to limit the age of individuals who were able to view the advertisement.” It notified the companies that it had found “reasonable cause to believe that [they] violated the ADEA.”

October 18, 2019

Supreme Court Rules on Class Arbitration in Employment Disputes

by Resnick Law Group, P.C.

New Jersey employment lawsuits can take months or years before getting to trial. Alternative dispute resolution (ADR) offers other ways for litigants to deal with their disputes. Many employment contracts now include clauses stating that employees agree to submit employment-related disputes to arbitration, a type of ADR that resembles a trial, before going to court. The Federal Arbitration Act (FAA) sets standards for arbitration agreements, and establishes limited guidelines for when courts have the authority to vacate or modify “binding” arbitration awards. The U.S. Supreme Court recently ruled on whether an arbitration agreement in an employment contract can require an employer to engage in arbitration with a class of employees, rather than separate proceedings with each employee asserting a claim. The ruling in Lamps Plus, Inc. v. Varela, 587 U.S. (2019), holds that an arbitration agreement must explicitly allow for class arbitration. Courts cannot infer consent to class arbitration from an ambiguous agreement.

In an arbitration, the parties to a dispute choose a neutral third-party arbitrator who acts in a role similar to that of a judge. This process offers the advantage of moving faster than a lawsuit. Its disadvantages often weigh heavier on employees, such as the confidentiality of arbitration proceedings and, in the case of binding arbitration, a lack of further recourse if the arbitrator rules against them. The FAA presumes that any agreement to arbitrate is “valid, irrevocable, and enforceable” as long as it complies with all requirements for an enforceable contract. 9 U.S.C. § 2.

Federal and state civil procedure rules allow large groups of plaintiffs with similar claims against a defendant to join their claims into a single lawsuit, known as a class action. Class arbitration operates on a similar principle, allowing a group of claimants to present their cases together in one proceeding. The alternative is to have each claimant bring their claims individually, with each individual bearing the full cost of doing so. While a well-established set of procedural rules govern class actions, however, class arbitration derives from contractual agreements, such as those between employees and their employer. The Supreme Court ruled that courts cannot compel class arbitration when the arbitration agreement is “silent” on whether the parties have consented to it.

October 11, 2019

Third Circuit Rules Reinstates ADA Discrimination Claims in Employment Lawsuit

by Resnick Law Group, P.C.

The Americans with Disabilities Act (ADA) of 1990 is a groundbreaking law that protects the rights of people with disabilities in the workplace and in many public businesses. Employers may not discriminate against employees or job applicants on the basis of a covered disability, and they may be required to provide “reasonable accommodations” to allow employees to perform their job duties. The statute also bars employers in many circumstances from requiring medical examinations, or making other inquiries regarding medical conditions. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled on a disability discrimination claim that included alleged violations of the ADA provisions regarding reasonable accommodations and medical inquiries. The court reversed a lower court order dismissing those claims, allowing them to move forward. If you feel your employer is not providing reasonable accommodations in light of your medical condition, it may be to your advantage to contact a New Jersey disability discrimination attorney.

In order for a person to establish that they have a “disability” under the ADA, they must show that their impairment “substantially limits one or more major life activities,” or that they are “regarded as having such an impairment.” 42 U.S.C. §§ 12102(1)(A), (C). A “reasonable accommodation” might include physically modifying the work environment or making adjustments to work schedules. See id. at § 12111(9). An employer commits unlawful disability discrimination when, without establishing that doing so would “impose an undue hardship,” they fail to provide a reasonable accommodation to a qualified employee. Id. at § 12112(b)(5)(A).

Employers may not require employees to undergo medical examinations, nor may they inquire about employees’ medical history or medical conditions, except as specifically authorized by the statutes. The ADA specifically prohibits medical examinations or inquiries intended to determine whether an employee has a disability, or to ascertain “the nature or severity of the disability,” except when an employer can show that it is “job-related and consistent with business necessity.” Id. at § 12112(d)(4)(A).

October 4, 2019

U.S. Department of Labor Issues New Guidance on Designation of FMLA Leave by Employers

by Resnick Law Group, P.C.

The Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to twelve weeks of unpaid leave. It is the only federal statute that provides medical leave nationwide, and it only provides unpaid leave. New Jersey is one of five U.S. states, plus the District of Columbia, to provide paid leave for new parents and for certain other purposes. The U.S. Department of Labor (DOL) revised its guidance on the accrual of FMLA leave by employees in an opinion letter released in March 2019. This guidance bars employers from delaying the designation of accrued leave as FMLA leave. It might also affect how and when employees can take leave under the FMLA or another program. If you need to take paid leave and wonder if doing so is permissible under state law, you should reach out to a New Jersey employment law attorney at your earliest convenience.

Employers with at least fifty employees must provide FMLA leave. 29 U.S.C. § 2611(4)(A). In order to be eligible, employees must have worked for the employer for at least one year, and they must have actually worked at least 1,250 hours during that time. Id. at § 2611(2). Unpaid leave is available for up to twelve weeks per twelve-month period, for reasons like the birth or adoption of a child, serious illness or injury, or caring for an ill or injured family member. Id. at § 2612(a)(1).

If an employer provides paid leave to its own employees, but the total amount of leave available under the program is less than twelve weeks, the FMLA only requires that employer to provide enough unpaid leave to bring the total amount of leave to twelve weeks. Id. at § 2612(d). For example, if an employer provides six weeks of paid family leave, the FMLA would only require it to provide an additional six weeks of unpaid leave.

September 26, 2019

New Jersey Legislature Considers Bill Addressing Hairstyle Discrimination in Employment

by Resnick Law Group, P.C.

Race discrimination in employment can take many forms. Sometimes an employer commits an adverse act against an employee that is unambiguously based on that employee’s race, but it is usually that obvious. Employment policies that do not appear to be motivated by any sort of racial animus, can still have a substantially disproportionate impact on employees of certain races. Workplace dress codes and grooming standards, for example, can reinforce racial discrimination by placing undue burdens on people who identify as African American or Black. These policies often, without a clear business justification, prohibit Black employees from wearing their hair in certain common hairstyles, including natural hairstyles. New York City issued guidelines in early 2019 about hairstyle discrimination. The state legislatures in California and New York later enacted laws adding hairstyle discrimination to state law definitions of race discrimination. A bill currently pending in the New Jersey Legislature would make similar changes to the New Jersey Law Against Discrimination (NJLAD). If you are concerned that your hairstyle may be related to a dispute you are having at work, reach out to a New Jersey employment discrimination lawyer today.

Employment discrimination on the basis of race is prohibited under the NJLAD. N.J. Rev. Stat. § 10:5-12(a). The statute does not currently provide a definition for “race.” It relies on common usage, but even in everyday conversation, the word “race” is fraught with subtext. Dictionary definitions like “a category of humankind that shares certain distinctive physical traits” do not capture the full meaning of the term. New York City sought to address this lack of detail in its antidiscrimination law by focusing on hairstyle discrimination.

In February 2019, the New York City Commission on Human Rights (CHR) published guidelines on “race discrimination on the basis of hair.” It described this as “discrimination based on characteristics and cultural practices associated with being Black.” The term “Black,” as used by the CHR, includes people who identify as African or African American, as well as people with Afro-Caribbean and Afro-Latinx heritage. Workplace dress codes and grooming standards “are often rooted in white standards of appearance,” the CHR stated, and contribute to perceptions “that Black hairstyles are unprofessional.” Many such policies do not allow Black employees to maintain natural hairstyles. This requires them to undergo treatments to straighten their hair that are both expensive and damaging.

September 20, 2019

Hospital Settles New Jersey FMLA, Pregnancy Discrimination Case

by Resnick Law Group, P.C.

New Jersey family and medical leave laws provide eligible workers with guaranteed time off from work for the birth of a child. State and federal laws also protect workers from discrimination by their employers because of pregnancy or childbirth. A company that operates a hospital in Middlesex County, New Jersey, recently settled a lawsuit brought by a former employee alleging discrimination on the basis of both pregnancy and medical leave. The settlement includes $500,000 in damages, plus attorney’s fees.

At the federal level, the Family and Medical Leave Act (FMLA) provides eligible employees of covered employers up to twelve weeks of unpaid leave per year for certain purposes, such as the birth of a child or a serious illness. 29 U.S.C. § 2612(a)(1). The eligibility criteria are based on both the total number of employees and the number of hours worked by each individual employee. See id. at §§ 2611(2)(A), (4)(A). Employers may not interfere with employees seeking to exercise their rights under these laws, nor may they discriminate against anyone for taking legally authorized leave. Id. at § 2615(a). The New Jersey Family Leave Act (NJFLA) provides similar rights and protections, with some differences. See N.J. Rev. Stat. §§ 34:11B-3(e), (f); 34:11B-4; 34:11B-9.

Both federal and New Jersey antidiscrimination statutes prohibit discrimination on the basis of pregnancy or childbirth. Title VII of the Civil Rights Act of 1964 defines pregnancy and childbirth discrimination as a form of sex discrimination. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating on the basis of “familial status,” which includes “being the natural parent of a child” and “any person who is pregnant.” N.J. Rev. Stat. §§ 10:5-5(ll), 10:5-12(a).

September 13, 2019

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

by Resnick Law Group, P.C.

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.