The New Jersey Employment Law Firm Blog

January 25, 2019

New Jersey Legislature Adds Protections to Antidiscrimination Statute for Breastfeeding Employees

Federal and New Jersey employment statutes prohibit discrimination against employees on the basis of pregnancy, childbirth, and conditions related to either, but these legal protections have omitted some aspects of the pregnancy and childbirth process. Pregnant workers and workers who have recently given birth often need accommodations in the workplace. The specific needs of breastfeeding employees have long been omitted from both Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD). In early 2018, however, the New Jersey governor signed a bill, A2294, amending the NJLAD to provide express protections against discrimination based on breastfeeding, and to require certain reasonable accommodations. The federal Fair Labor Standards Act (FLSA) makes some provision for reasonable accommodations in this context, but only provides for unpaid time.

The Pregnancy Discrimination Act of 1978 amended Title VII’s definition of discrimination “on the basis of sex” to include “pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §§ 2000e(k), 2000e-2(a). The NJLAD identifies pregnancy as a distinct protected category alongside factors like sex, race, and religion. N.J. Rev. Stat. § 10:5-12(a). It goes further, stating that employers may not treat employees that they know, or should know, are pregnant differently than non-pregnant employees as long as the employees are capable of performing similar work. Id. at § 10:5-12(s).

Even before the amendments in A2294, the NJLAD went further than federal law, requiring employers to provide certain accommodations to pregnant workers reflecting the need for rest, water intake, restroom usage, lifting restrictions, and schedule modifications. Id. Title VII does not include any provisions for such reasonable accommodations, although the Americans with Disabilities Act may provide some assistance. The ADA Amendments Act of 2008 applies a broader definition of disability that, while not expressly mentioning pregnancy, could include some conditions related to pregnancy. See 29 C.F.R. Appendix to § 1630.2(h).
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January 18, 2019

New Jersey Court Rules that Plaintiff in Age Discrimination Suit Cannot Be Compelled to Arbitrate

by Resnick Law Group, P.C.

Many New Jersey employers include provisions for arbitration of disputes in written contracts with new employees. In order for an arbitration agreement to be legally enforceable, it must, among other criteria, contain enough information to demonstrate a “meeting of the minds” between the parties. The New Jersey Appellate Division recently ruled that an arbitration agreement, signed decades after the plaintiff began working for the defendant, was not enforceable because there was no “meeting of the minds” in evidence. Flanzman V. Jenny Craig, Inc., No. A-2580-17T1, slip op. (N.J. App., Nov. 13, 2018).

The plaintiff in Flanzman is alleging age discrimination under the New Jersey Law Against Discrimination (NJLAD). This statute prohibits employers from discriminating against employees on the basis of numerous factors, including age. Whereas the federal statute addressing age discrimination expressly states that it only applies to individuals who are forty years of age or older, 29 U.S.C. § 631(a), the NJLAD does not set a minimum age. It does, however, state that an employer does not automatically violate the law if they “refus[e] to accept for employment or to promote any person over 70 years of age.” N.J. Rev. Stat. § 10:5-12(a). This exception only covers two specific discriminatory acts: refusal to hire and refusal to promote. It does not mention other acts, such as termination or unequal pay.

In order for a contract to be enforceable, the party seeking enforcement must demonstrate that the other party knowingly assented to the agreement. Courts are particularly strict about this requirement when the contractual term at issue involves a waiver of legal rights. An arbitration agreement waives the right to seek redress in court. If the agreement provides for binding arbitration, the parties may have no recourse in the court system at all. New Jersey courts therefore require evidence that an employee “clearly and unambiguously agree[d] to waive his or her statutory rights.” Flanzman, slip op. at 8, quoting Leodori v. Cigna Corp., 175 N.J. 293, 302 (2003).
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January 10, 2019

Employment Discrimination Lawsuit Alleges Age, Race Discrimination by High-End Department Store

by Resnick Law Group, P.C.

A group of former male employees of a high-end Manhattan department store have filed a lawsuit alleging race and age discrimination against the store and its corporate parent. They claim that they were subjected to a hostile work environment because of their age or race, or both in some cases, and that the defendant unlawfully terminated their employment. Although the lawsuit is pending in a New York court, federal and New Jersey antidiscrimination laws provide a helpful comparison of varying levels of protection against age discrimination. New Jersey’s antidiscrimination statute provides broader protections than its federal counterpart.

Federal and state law provide a similar range of protections against race discrimination. Title VII of the Civil Rights Act of 1964, a federal statute, prohibits employment discrimination on the basis of race and color, as well as religion, national origin, and sex. 42 U.S.C. § 2000e-2(a). The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of numerous factors, including race, color, national origin, and ancestry. N.J. Rev. Stat. § 10:5-12(a).

New Jersey law and federal law differ in the extent to which they address age discrimination. The Age Discrimination in Employment Act (ADEA), a federal statute, only applies to individuals who are forty years old or older. 29 U.S.C. § 631(a). It prohibits discrimination by employers based on age, using language similar to that found in Title VII. Id. at § 623(a). The statute allows exceptions, such as in cases of people who work in “a bona fide executive or a high policymaking position,” are at least sixty-five years old, and meet other criteria related to employment benefits. Id. at § 631(c).
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January 4, 2019

The Uncertain Privacy of Genetic Information, and How It Could Affect New Jersey Employees

by Resnick Law Group, P.C.

Employment discrimination on the basis of genetic information is an important area of law that has not received as much attention as other forms of discrimination. This is partly because the laws protecting against genetic information discrimination have not been on the books very long. At the federal level, the Genetic Information Nondiscrimination Act (GINA) of 2008 prohibits various types of discrimination in employment and health insurance. The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination by employers based on specific genetic traits. This area of law is likely to gain prominence as a wider range of genetic information becomes available. Multiple companies conduct genetic testing to provide genealogy information to consumers. They are then able to use those consumers’ genetic information in a variety of ways that are not well understood. Privacy laws and consumer contracts are likely to play as important a role as employment statutes in New Jersey and around the country. If you have questions of this nature, reach out to a New Jersey employment discrimination attorney.

GINA defines “genetic information” as information obtained from “genetic tests” of an individual or their family members, or from “the manifestation of a disease or disorder in family members of such individual.” 42 U.S.C. § 2000ff(4)(A). It defines a “genetic test” as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites,” provided that it is able to “detect genotypes, mutations, or chromosomal changes.” Id. at § 2000ff(7). The statute prohibits discrimination by employers based on genetic information, using language that is similar to the prohibitions on employment discrimination found in Title VII of the Civil Rights Act of 1964. Id. at §§ 2000ff-1(a), 2000e-2(a).

Under the NJLAD, an employer commits an “unlawful employment practice” if they discriminate on the basis of an “atypical hereditary cellular or blood trait of any individual,” or an individual’s “refusal to submit to a genetic test or make available the results of a genetic test to an employer.” N.J. Rev. Stat. § 10:5-12(a). The statute specifically identifies the following traits: “sickle cell trait, hemoglobin C trait, thalassemia trait, Tay-Sachs trait, or cystic fibrosis trait.” Id. at §§ 10:5-5(x)-(cc). Its definition of “genetic test” is similar to the one found in GINA. Id. at § 10:5-5(pp).
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December 28, 2018

Lawsuit Alleges Failure to Pay Overtime in Violation of FLSA and New Jersey Wage Laws

by Resnick Law Group, P.C.

New Jersey employees are entitled by law to receive overtime compensation, at a rate equal to one-and-a-half times their usual wage, for time worked in excess of forty hours in a week. Although state and federal law identify various groups of employees who are exempt from this requirement, nonexempt employees may recover damages in court if their employer fails to pay them at the overtime rate. Employers are also prohibited under federal law from retaliating against employees who report alleged wage violations. A lawsuit filed last month in a New Jersey federal court alleges that a company failed to pay overtime to the plaintiff, and then fired him in retaliation for reporting the matter to the human resources department. Buchspies v. Pfizer, Inc., No. 2:18-cv-16083, complaint (D.N.J., Nov. 13, 2018). The complaint asserts causes of action under both federal and state law.

The federal Fair Labor Standards Act (FLSA) requires employers to pay nonexempt workers “at a rate not less than one and one-half times the regular rate” for any amount of time over forty hours in a week. 29 U.S.C. § 207(a)(1). The statute provides a lengthy list of exempt employees, such as “bona fide executive, administrative, or professional” employees, certain agricultural workers, employees of small newspapers, certain individuals informally employed as domestic caregivers, and border patrol agents. Id. at §§ 213(a)(1), (6), (8), (15), (18). New Jersey wage law requires overtime pay at the same rate. It includes an exemption for “executive, administrative, or professional” employees, as well as other groups. N.J. Rev. Stat. § 34:11-56a4. The FLSA also states that employers may not take adverse action against employees who make a complaint alleging violations of the statute. 29 U.S.C. § 215(a)(3).

The plaintiff in Buchspies, according to his complaint, began working for the defendant in 2013 “as a chemical analyst in a pharmaceutical laboratory.” Buchspies, complaint at 2. He claims that the defendant’s payroll system identified him as an “overtime eligible employee.” Id. He states that he received a base pay rate of $34.00 per hour. Although he allegedly worked more than forty hours during some weeks, he claims that the defendant only paid him at the rate of $34/hour, instead of the $51/hour that would be payable for overtime hours under the FLSA and state law. The plaintiff states that he complained about the overtime issue to human resources in May 2018, and alleges that he was fired two weeks later, with no reason given.
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December 21, 2018

New Jersey Federal Court Rules for Employee in Age Discrimination Lawsuit

by Resnick Law Group, P.C.

Under federal and New Jersey state law, age discrimination is an unlawful employment practice. If you have questions related to this area of law, contact a New Jersey employment discrimination attorney. The federal Age Discrimination in Employment Act (ADEA) of 1967 prohibits discrimination based on age involving employees who are at least forty years old. Workers cannot waive their rights under the ADEA unless employers to make specific written disclosures under the Older Workers Benefit Protection Act (OWBPA) of 1989. A lawsuit currently pending in New Jersey alleges that the defendant presented the plaintiff with a proposed severance agreement that violated the OWBPA. The defendant argued that the severance agreement was moot because the plaintiff never signed it. The court rejected this argument. It found that the severance agreement could serve as evidence of a broader pattern of age discrimination in violation of the ADEA. Fowler v. AT&T, Inc., et al, No. 3:18-cv-00667, mem. op. (D.N.J., Oct. 31, 2018).

The ADEA prohibits age discrimination against workers who are forty years of age or older. 29 U.S.C. §§ 623(a), 631(a). The statute allows exceptions, such as “compulsory retirement” of an employee who is at least sixty-five years old, has worked for at least two years “in a bona fide executive or a high policymaking position,” and meets certain criteria related to retirement benefits. Id. at § 631(c).

The primary purpose of the OWBPA is to prevent discrimination against older workers with regard to fringe benefits like health insurance and retirement plans. For example, the statute requires employers to incur the same costs for benefits provide to workers age forty or older as are provided to younger workers, and prohibits refusal to hire an older worker solely in order to avoid the requirement to provide benefits. Id. at § 623(f)(2). It also states that employees cannot waive their rights under the ADEA unless the waiver is “knowing and voluntary,” based on specific disclosures. Id. at § 626(f).
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December 14, 2018

Major Technology Companies No Longer Require Arbitration in Sexual Harassment Cases

by Resnick Law Group, P.C.

Litigation is perhaps the most well-known method of dealing with legal disputes, but it is not the only method. Our legal system increasingly encourages would-be litigants to use alternative dispute resolution (ADR) before, or instead of, going to court. Many contracts now include clauses requiring the parties to submit disputes to arbitration. While arbitration may offer some benefits over the court system, it is subject to numerous criticisms in disputes involving a significant imbalance of power and resources. If you have questions of this nature, contact a New Jersey employment attorney without delay.

Court decisions interpreting New Jersey’s employment antidiscrimination statute have invalidated provisions of arbitration agreements that infringe on statutory rights. Federal law, on the other hand, favors arbitration over litigation in most cases. Several major technology companies, employing thousands of people, recently dropped mandatory arbitration of sexual harassment claims, which may allow more claims to see the light of day.

Statutes like Title VII of the federal Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) prohibit discrimination in employment on the basis of sex, and include sexual harassment as a form of unlawful sex discrimination. In order to assert a claim under these statutes, an individual must first file a complaint with a state or federal agency like the Equal Employment Opportunity Commission (EEOC). The agency will investigate the claim, and if it determines the claim to have merit, it will issue a “right to sue” letter. This allows the complainant to file suit in state or federal court. Arbitration clauses in employment contracts prevent employees from accessing this process.

December 7, 2018

Jury Awards $6 Million to Former Employee in National Origin, Age Discrimination Case

by Resnick Law Group, P.C.

A federal jury recently found in favor of a former employee claiming national origin and age discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and state law. Middlebrooks v. Teva Pharmaceuticals USA, Inc., et al, No. 2:17-cv-00412, 2nd am. complaint (E.D. Pa., Apr. 25, 2017). The case is notable in part because the plaintiff alleged that the defendants, an Israeli pharmaceutical company and its American subsidiary, discriminated against him because of his “American origin.” Id. at 1. If you have questions of this nature, contact a New Jersey employment discrimination attorney.

In early 2018, the court allowed the plaintiff’s claims against the Israeli parent company to proceed under a theory of joint-employer liability. The case went to trial against both defendants in November 2018. The jury awarded the plaintiff over $6 million in damages.

Title VII prohibits discrimination on the basis of national origin, among other factors, and retaliation for reporting alleged unlawful acts. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). The ADEA prohibits discrimination on the basis of age against individuals who are at least forty years old. 29 U.S.C. §§ 623(a)(1), 631(a). Unlawful discrimination may include harassment on the basis of a protected category, particularly when it creates a hostile work environment that prevents an individual from performing their job duties effectively.

November 30, 2018

New Jersey Court Rules on Mandatory Arbitration in Whistleblower Case

by Resnick Law Group, P.C.

Arbitration clauses are an increasingly common feature of New Jersey employment contracts, as well as around the country. If a dispute arises between the employee and employer, they agree to submit it to arbitration, a form of alternative dispute resolution (ADR) that somewhat resembles a trial, instead of the court system. Employment contracts may state that the results of the arbitration process are binding or non-binding. While arbitration may offer some advantages, it is widely perceived as favoring employers. New Jersey courts therefore tend to examine arbitration clauses very closely to ensure that employees have knowingly entered into an agreement that effectively bars them from taking their claims to court. A recent decision by the New Jersey Appellate Division, Walsh v. Prospect EOGH, Inc., et al, No. A-328-17T2, slip op. (N.J. App., Nov. 21, 2018), provides an example of this sort of scrutiny.

The arbitration process is essentially an informal trial, conducted by one or more arbitrators, who are often retired judges or attorneys. The parties submit evidence and arguments, and the arbitrators render an “arbitration award.” This could include an award of damages to one party, an order to do or refrain from doing something, or a declaration of some matter in dispute. If an arbitration clause states that the process is binding, statutes like the Federal Arbitration Act prevent courts from reviewing arbitration awards, except in cases involving alleged fraud or other misconduct.

Arbitration is arguably advantageous because it bypasses the slow-moving court system, where a lawsuit may wait years for a trial date. Parties in an arbitration may be able to select an arbitrator with knowledge of the specific issues involved in the dispute, rather than having the case decided by a randomly-assigned judge. These advantages, however, can also be distinct disadvantages employment disputes. The employer is likely to be at an advantage in selecting an arbitrator.
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November 19, 2018

New York and New Jersey Airport Workers Gain Minimum Wage Increase

by Resnick Law Group, P.C.

Workers at major airports in New Jersey and New York City will see their minimum wage increased over the next few years to $19, the highest in the country, after a unanimous vote by the Board of Commissioners of the Port Authority of New York and New Jersey (PANYNJ). The federal minimum wage has remained at $7.25 per hour for almost a decade, while New Jersey and New York have enacted higher state-level minimum wages. Despite these laws, New Jersey wage and hour law claims routinely allege failure by employers to pay their workers at or above the minimum rate. The PANYNJ’s wage increase, while only binding on employers at certain airport facilities, will hopefully lead to increases elsewhere.

Congress last amended the minimum wage provisions of the Fair Labor Standard Act (FLSA) in 2007. The minimum wage increased to $5.85 per hour on July 24, 2007; to $6.55 an hour on July 24, 2008; and to $7.25 an hour on July 24, 2010. 29 U.S.C. § 206(a)(1). New Jersey’s minimum wage has been set at $8.60 per hour since the beginning of 2018. N.J. Rev. Stat. § 34:11-56a4, N.J.A.C. § 12:56-3.1. The minimum wage in New York varies by location. As of December 31, 2017, employers in New York City with eleven or more employees must pay at least $13.00 per hour, while employers with ten or fewer employees must pay $12.00 per hour. N.Y. Lab. L. § 652(1)(a).

The PANYNJ is a government organization created by a compact between the states of New Jersey and New York, with the approval of Congress. It was formally established in 1921, although the two states first agreed to work together in 1834 to manage the port area, which now covers an area of about 1,500 square miles. The governors of the two states appoint the members of the Board of Commissioners. The PANYNJ manages multiple seaports, the PATH train system and numerous bus lines, multiple bridges and tunnels, and six airports. Its authority includes the ability to set a minimum wage for workers employed at its sites.
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