The New Jersey Employment Law Firm Blog

June 21, 2019

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

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.
Continue reading

June 20, 2019

Age, Disability Discrimination Lawsuit May Proceed to Trial, New Jersey Court Rules

by Resnick Law Group, P.C.

The New Jersey Law Against Discrimination (NJLAD) bars employers from discriminating against their employees on the basis of factors like age, race, sex, and disability. This includes terminating an employee, refusing to hire a job applicant, demoting or declining to promote an employee, and many other decisions involving employment benefits and conditions. The New Jersey Appellate Division recently ruled (the “Opinion”) that a woman’s claims for age and disability discrimination can move forward, finding that she had raised sufficient questions of fact about the defendant’s claimed reasons for terminating her employment.

The NJLAD prohibits discrimination on the basis of numerous factors, including age and disability. In the Opinion, the court reviewed the process for a claim under the NJLAD. A plaintiff must establish four elements: (1) they are part of a protected class and (2) are qualified for the position they held; and (3) the employer took an adverse employment action and (4) replaced the plaintiff with someone who is not part of the protected class. The burden of proof then shifts to the defendant to “articulate a legitimate, nondiscriminatory reason” for the adverse action. Finally, the plaintiff must demonstrate that the defendant’s alleged reason was pretextual, meaning that it was merely cover for a discriminatory purpose.

Reportedly, the defendant terminated the plaintiff shortly after she underwent gallbladder surgery. She was fifty years old at the time and had recently received “a ‘strong performance’ evaluation” from the defendant. She alleged that the defendant replaced her with “a person nearly half her age.” The reason given by the defendant for the termination involved a claim that she “attempted to defraud [the defendant] by failing to take steps to remove her ex-husband from the company’s health insurance plan.”
Continue reading

June 18, 2019

New Jersey Legislature Amends Law Against Discrimination to Bar Waivers of Rights, Nondisclosure Agreements

by Resnick Law Group, P.C.

When an employee begins working for an employer, they are often required to sign an employment agreement that establishes numerous features of the employer-employee relationship. Most provisions involve standard matters like job expectations, wages, and termination of the employment relationship. Employment agreements may also include provisions for nondisclosure of various types of information, as well as waivers of certain rights. When employers and employees enter into settlement agreements to resolve disputes, an employer may seek a nondisclosure clause as well. Provisions like these may hinder individuals’ ability to assert their rights under employment statutes like the New Jersey Law Against Discrimination (NJLAD). At least partly in response to increased attention on sexual harassment in the workplace, the New Jersey Legislature enacted a bill in January 2019 that amends the NJLAD to prohibit enforcement of certain nondisclosure agreements, as well as waivers of rights under the NJLAD or similar statutes.

The NJLAD prohibits employers from discriminating against employees on the basis of race, religion, sex, age, sexual orientation, gender identity or expression, and many other factors. Courts have held that prohibitions on sex discrimination in the NJLAD and other laws cover sexual harassment, as well as harassment based on other protected factors. Unlawful harassment generally includes two scenarios: (1) acquiescence to or tolerance of harassing behavior, including sexual advances, is made a condition of employment; and (2) pervasive and unwelcome harassing behavior creates a hostile work environment that interferes with an individual’s ability to perform their job duties.

The #MeToo movement has allowed people all over the country to come forward with their own experiences, when many of them might have been afraid to do so before. Nondisclosure agreements (NDAs) in discrimination and harassment cases may prevent people with similar experiences from sharing their stories. Last year, California and New York enacted limits on NDAs in situations involving alleged sexual harassment. California now prohibits NDAs that purport to “prevent[] the disclosure of factual information related to a” lawsuit or administrative complaint alleging sexual harassment. New York now has similar provisions in its laws barring NDAs in settlements and other resolutions of sexual harassment disputes.
Continue reading

May 14, 2019

New Jersey Appellate Court Reinstates Lawsuit Claiming Disability Discrimination Based on Medical Marijuana Use

by Resnick Law Group, P.C.

New Jersey is among the more than half of all U.S. states that allows the possession and use of small amounts of marijuana for medical purposes, under the supervision of a physician. Recreational use is still prohibited by state law, and federal law still prohibits possession and use for any purpose. Conflicts among various laws have led to much confusion. The New Jersey Superior Court, Appellate Division recently ruled on how this state’s marijuana laws affect employment discrimination laws. The court reversed the dismissal of a lawsuit brought by an individual whose cancer treatment plan included a medical marijuana prescription. The plaintiff alleged that his former employer fired him in violation of state laws prohibiting disability discrimination. Published Decision (the “Decision”).

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of factors like race, religion, sex, and disability. N.J. Rev. Stat. § 10:5-12(a). It defines the term “disability” to include “physical disability [or] infirmity…which is caused by…illness.” Id. at § 10:5-5(q). This includes many the physical and other symptoms caused by many forms of cancer.

A plaintiff alleging disability discrimination under the NJLAD must prove four elements:
1. The employee had a disability, or the employer perceived the employee as having a disability;
2. The employee was still qualified to perform, and was still performing, “the essential functions of the job”;
3. The employee suffered “an adverse employment action” because of the actual or perceived disability; and
4. The employer “sought a similarly qualified individual” to replace the employee.
Continue reading

May 8, 2019

U.S. Department of Labor Proposes Changes to Overtime Rules for New Jersey Workers

by Resnick Law Group, P.C.

The Fair Labor Standards Act (FLSA) requires employers in New Jersey and around the country to pay overtime to non-exempt workers when they work more than forty hours in a week. Employers are not obligated to pay overtime to individuals who work “in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) has developed a definition of executive, administrative, and professional (EAP) jobs. It includes a requirement that a worker receive a minimum salary amount, currently set at $455 per week, or $23,660 per year. In 2016, the WHD sought to increase this minimum threshold, but a federal judge struck that rule down. A new proposal from the WHD, published in March 2019, would increase the minimum amount, but not nearly as much as the 2016 proposed rule. 84 Fed. Reg. 10900 (Mar. 22, 2019).

Employers must pay overtime to non-exempt workers at a rate of at least one-and-a half times their regular hourly rate. See 29 U.S.C. § 207(a)(1). The FLSA itself does not define the terms “executive,” “administrative,” or “professional.” The WHD has established guidelines for determining when an individual could legitimately be deemed to hold an EAP position that is exempt from the FLSA’s overtime rule. The guidelines are intended to prevent employers from labeling a job as an “executive” position for the sole purpose of avoiding overtime. The regulations specify that job titles are “insufficient to establish the exempt status of an employee.” 29 C.F.R. § 541.2. Among other criteria, a position must have a salary of at least $455 per week. Id. at §§ 541.100, 541.200, 541.300. The WHD set this minimum salary rate in 2004. 69 Fed. Reg. 22121 (Apr. 23, 2004).

The WHD sought to increase the minimum salary rate for EAP employees to $913 per week, or $47,476 per year, in 2016. 81 Fed. Reg. 32391 (May 23, 2016). This would be slightly more than double the existing rate. The previous increase in 2004 more than tripled the then-existing rate of $155 per week, which had been in place since 1975. 69 Fed. Reg. 22122. A group of state governments and business organizations filed suit against the DOL, which was part of the Obama administration at the time, seeking to block the new rule. A federal district court granted a preliminary injunction in Nevada, et al v. U.S. Dept. of Labor, et al, 218 F.Supp.3d 520 (E.D. Tex. 2016). In August 2017, the court granted summary judgment to the defendants, finding the rule invalid.
Continue reading

April 26, 2019

Department of Labor Recovers Over $350,000 in Unpaid Wages from New Jersey Employer

by Resnick Law Group, P.C.

Federal and state law require New Jersey employers to pay a minimum wage to non-exempt employees, and to compensate them for overtime at a rate of time-and-a-half. Employers who fail to do so may be liable to their employees for back wages and other damages. They may also be liable for civil penalties to federal or state regulatory agencies. The U.S. Department of Labor (DOL) announced late last year that it had recovered more than $350,000 in damages from a New Jersey employer. The DOL’s Wage and Hour Division (WHD) reportedly found that the company paid its employees a flat salary, and that this amount was less than minimum wage when compared to the actual number of hours worked.

Under the federal Fair Labor Standards Act (FLSA), the minimum wage is currently $7.25 per hour nationwide. 29 U.S.C. § 206(a)(1)(C). Non-exempt employees are entitled to compensation of at least “one and one-half times the regular rate” for time worked over forty hours in a week. Id. at § 207(a)(1). New Jersey has the same rule regarding overtime. As of January 1, 2019, the minimum wage in New Jersey is $8.85 per hour. N.J. Rev. Stat. § 34:11-56a4, N.J.A.C. § 12:56-3.1.

Employers commonly find themselves in violation of minimum wage and/or overtime laws when they require employees to perform job-related duties before they clock in, or after they clock out. For example, an employer might require workers to change into and out of uniform while they are not “on the clock.” The employees do not get paid for the time spent performing those tasks, which are considered to be a requirement of their job.
Continue reading

April 19, 2019

New Jersey Warehouse Employees Seek Better Working Conditions

by Resnick Law Group, P.C.

New Jersey employment law protects workers in this state by requiring payment of a minimum wage and overtime, prohibiting discrimination and harassment, and setting standards for workplace safety, among many other measures. As with anything, there is always room for improvement. Recent developments in New Jersey’s warehousing industry may demonstrate an area where improvement is needed. E-commerce has vastly increased the demand for warehouse space and workers to operate fulfillment centers. New Jersey is reportedly home to over one billion square feet of warehouses, which employ tens of thousands of people. An incident at one fulfillment center in late 2018, which sent two dozen employees to the hospital, has led to demands for improvements in working conditions. A report from the labor organization Warehouse Workers Stand Up (WWSU) calls on New Jersey lawmakers to help push companies operating warehouse distribution centers to adopt a ten-point “code of conduct.”

The WWSU’s proposed code of conduct covers numerous areas of employment law, including wage and hour laws, workplace safety, medical leave, and labor organizing. State and federal laws address many of these areas to some extent, although many gaps and loopholes exist. According to the WWSU’s report, many distribution centers employ people on a temporary or part-time basis. Different definitions of “employee” in different statutes mean that not all legal protections may apply to people who do not have full-time, permanent employment, or who are employed in certain capacities. The National Labor Relations Act (NLRA), for example, protects employees’ right to organize for the purpose of collective bargaining, but it defines “employee” in a way that might exclude some people, such as those considered to be an “independent contractor” or “supervisor.” 29 U.S.C. § 152(3).

In early December 2018, multiple employees at a distribution center in New Jersey were injured when a can of bear repellant, an aerosol product similar to pepper spray, fell off of a shelf. An automated machine reportedly punctured the can, causing its contents to disperse. About two dozen people went to the hospital, including one person who had to go to the intensive care unit. This incident appears to have been what led workers to rally in support of the WWSU’s proposed code of conduct.
Continue reading

April 12, 2019

United States Department of Labor Discards “80/20 Rule” for Tipped Employees

by Resnick Law Group, P.C.

The federal Fair Labor Standards Act (FLSA) requires employers nationwide to pay a minimum wage of $7.25 per hour, although many states, including New Jersey, have set a higher minimum wage. Workers who customarily receive tips are not subject to the same federal minimum wage rules. The FLSA sets a much lower base wage for tipped employees and allows employers to take a “tip credit” when the employee receives an amount of tips that puts their total compensation at or above $7.25 per hour. The U.S. Department of Labor (DOL) has developed rules for determining when an employer may take a tip credit for employees who do both tipped and untipped work. The Wage and Hour Division’s (WHD) Field Operations Handbook (FOH) established the “80/20 rule,” which proved to be unpopular among many employers. An opinion letter issued by the DOL in November 2018 disavowed that rule. In February 2019, the DOL updated the FOH to make rescission of the 80/20 rule official.

Employers are obligated to pay tipped employees a base rate of $2.13 per hour, plus any amount needed to bring the employee’s total hourly compensation, including tips, to $7.25. 29 U.S.C. §§ 203(m), 206(a)(1)(C). The FLSA defines a “tipped employee” as anyone who “customarily and regularly receives more than $30 a month in tips” in the course of their job. Id. at § 203(t). Tipped employees therefore often rely on tips for any income over minimum wage.

The 80/20 rule arose from the DOL’s rule regarding dual jobs, which states that employers cannot take tip credits for hours that are not spent on tipped work. The rule gives an example of “a maintenance man in a hotel [who] also serves as a waiter.” 29 C.F.R. § 531.56(e). It draws a distinction, however, between that and workers in tipped occupations who occasionally perform “related duties,” such as “a waitress who spends part of her time cleaning and setting tables.” Id.
Continue reading

April 2, 2019

The “Gig Economy” and the Minimum Wage in New Jersey

by Resnick Law Group, P.C.

Advocates for increasing minimum wage rates around the country argue that the current federal rate is insufficient to cover expenses in many American cities. A campaign known as the “Fight for $15” seeks to raise the minimum wage to $15 nationwide. Under newly-enacted legislation, the New Jersey minimum wage will gradually increase to $15 per hour over several years. As advocates succeed in this effort, however, the workforce is undergoing changes that could lessen the impact of their success. Workers in the “gig economy” are often classified as independent contractors rather than employees, or they only work part-time. Either way, many are excluded from a wide range of protections under federal and state employment laws, including minimum wage. Recent news reports have shown, however, that workers and their advocates are fighting for better terms.

The federal minimum wage last increased on July 24, 2010, from $6.55 to $7.25 per hour. 29 U.S.C. § 206(a)(1)(C). New Jersey’s minimum wage has been higher than that for some time. A new law signed by the governor in February 2019 will increase the minimum wage for many New Jersey workers to $10 per hour on July 1. On the first day of 2020, it will increase to $11 per hour. A $1 increase will follow on January 1 of each following year until the rate reaches $15 per hour in 2024. See N.J. Rev. Stat. § 34:11-56a4, as amended by P.L.2019, c.32. The definitions provided by state wage laws, however, continue to omit many gig economy workers. An “employee” is still simply “any individual employed by an employer.” Id. at § 34:11-56a1(h).

The term “gig economy” has no distinct definition, but generally refers to individuals who work for companies on a job-by-job basis. This includes people who provide freelance services to multiple clients, but also people who provide services to customers of companies like Uber or Instacart. Driving for a ridesharing company might look like a full-time job. On paper, the relationship between the two parties is not employer/employee, but employer/independent contractor.
Continue reading

March 21, 2019

What Fitness Trackers in Workplaces in New Jersey and Around the Country Could Mean for Employees’ Rights

by Resnick Law Group, P.C.

Technology is constantly providing new ways to help both employers and employees in New Jersey. Unfortunately, sometimes a technology that helps employers does so at employees’ expense. Our legal system can be slow to catch up with new innovations. Fitness trackers, which are devices individuals can wear to track movement and other vital statistics, are becoming more and more common. Many employers have taken notice of this. A recent Washington Post article describes fitness trackers as “an increasingly valuable source of workforce health intelligence for employers.” Employers’ access to, and use of, employees’ fitness tracker data raises concerns about privacy. In some cases, it could raise concerns about employment discrimination. Federal and New Jersey employment laws prohibit discrimination on a wide range of factors, and protect privacy in certain areas. Opinions are mixed on the extent to which they cover fitness tracker data.

Arguably, employers use employee fitness tracker data to monitor performance. The devices record information about an employee’s movement, or lack thereof. This could be relevant to job performance, but it could also present problems. The New Jersey Law Against Discrimination (NJLAD) prohibits employers from discriminating against employees and job applicants on the basis of disability. N.J. Rev. Stat. § 10:5-12(a). The statute defines this term very broadly, covering a wide range of physical and mental conditions that “prevent[] the normal exercise of any bodily or mental functions.” Id. at § 10:5-5(q). At the federal level, the Americans with Disabilities Act (ADA) of 1990, as amended by the ADA Amendments Act (ADAAA) of 2008, also prohibits employment discrimination. This statute’s definition of “disability” includes both actual and perceived disabilities. See 42 U.S.C. §§ 12102(1)(C), 12112.

State and federal antidiscrimination law also prohibit discrimination by employers based on genetic information. This could be an issue for employers using fitness tracker data in some situations. The NJLAD defines “genetic information” as “information about genes, gene products or inherited characteristics.” N.J. Rev. Stat. § 10:5-5(oo). The plain language of the statute suggests that the information does not have to come from a genetic test ordered by the employer. The federal Genetic Information Nondiscrimination Act (GINA) focuses more specifically on genetic testing. It defines “genetic information” as information derived from a person’s genetic test or that of a family member, or “the manifestation of a disease or disorder” in a member of that person’s family. 42 U.S.C. §§ 2000ff(4)(A), 2000ff-1(a).
Continue reading