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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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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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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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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.

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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.

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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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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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New Jersey employment laws, as well as laws around the country, must balance the rights and interests of employees with those of employers. Employees’ protected rights include fair wages, reasonable hours, and a workplace that is reasonably safe and free of harassment and discrimination. Employers need to be able to pursue their business activities, to the extent that they do not violate the rights of their employees and others. Sometimes, businesses may determine that they need to lay off a significant portion of their workforce. This is within an employer’s rights, but laws at the federal level and in many states, including New Jersey, set strict limits. A recently-filed lawsuit alleges that a video game company violated the federal Worker Adjustment and Retraining Notification (WARN) Act of 1988 when it laid off all but twenty-five employees several months ago. Roberts, et al v. Telltale Games, Inc., No. 3:18-cv-05850, complaint (N.D. Cal., Sep. 24, 2018).

The federal WARN Act generally applies to employers with at least one hundred full-time employees. The statute’s requirements are triggered by two events: a “plant closing” or a “mass layoff.” The former refers to any closure of a facility that results in fifty or more employees at a single site losing their jobs within a period of thirty days; while the latter refers to any other incident that, in a thirty-day period, results in layoffs of (1) at least five hundred employees, or (2) at least fifty employees when that number accounts for one-third of all employees. 29 U.S.C. §§ 2101(a)(2), (3). New Jersey’s equivalent law is formally known as the Millville Dallas Airmotive Plant Job Loss Notification Act of 2007, and informally known as the NJ WARN Act. It uses the same definition of “mass layoff,” and uses the term “termination of operations” to refer to the same type of incident as a “plant closing.” N.J. Rev. Stat. § 34:21-1.

Both the federal and NJ WARN Acts require covered employers to provide written notice to employees or their representatives at least sixty days prior to a plant closing or mass layoff. 29 U.S.C. § 2102(a)(1), N.J. Rev. Stat. § 34:21-2(a). If an employer fails to provide the required notice under either statute, aggrieved employees may bring a civil action for damages. Federal law allows back pay, along with benefits subject to the Employee Retirement Income Security Act of 1974 (ERISA), for up to sixty days. 29 U.S.C. § 2104(a). The NJ WARN Act allows courts to award “lost wages, benefits and other remuneration” in an amount up to “one week of pay for each full year of employment.” N.J. Rev. Stat. §§ 34:21-2(b), 34:21-6.
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A new law protecting New Jersey public sector unions, which was signed into law by Governor Phil Murphy in May 2018, faces a legal challenge based on a U.S. Supreme Court decision one month later. The law, entitled the Workplace Democracy Enhancement Act (WDEA), establishes standards for interactions between public-sector unions and government employers, and addresses several controversial issues. The Supreme Court’s ruling in Janus v. AFSCME, 585 U.S. ___ (2018), however, could represent a significant reduction in the power of public-sector unions. A lawsuit filed by several union members against their union and various state government officials argues that Janus invalidates certain provisions of the WDEA. Thulen, et al v. AFSCME, et al, No. 1:18-cv-14584, complaint (D.N.J., Oct. 3, 2018). The lawsuit is among the first to test how Janus will impact New Jersey employees’ rights.

Federal and state laws protect workers’ rights to organize for the purpose of collective bargaining, and either to form a union or to join an existing union that can negotiate with management on their behalf. The WDEA declares that any public sector union chosen as “the exclusive representatives of employees in a collective negotiations unit” must “hav[e] access to and be[] able to communicate with the employees it represents.” P.L. 2018, c. 15 § 2 (N.J. Rev. Stat. § 34:13A-5.12). The law requires public employers to allow union representatives to have reasonable access to employees, and to provide certain employee information to the union within a specified time frame.

Public-sector union members may authorize their employer to deduct union membership dues from their paychecks. The WDEA provision at issue in Thulen involves a restriction on employees’ ability to withdraw authorization for this payroll deduction. An employee may only withdraw authorization by giving written notice to the employer “during the 10 days following each anniversary date of their employment.” Id. at § 6, amending N.J. Rev. Stat. § 52:14-15.9e.

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The role of labor unions in the modern economy is often a controversial issue. It is exceedingly difficult to deny, however, that they have improved working conditions for employees in New Jersey and around the country. Today’s unions are arguably victims of their own success, as many people no longer see them as necessary. Workers nevertheless still benefit from the ability to bargain collectively with their employers. Federal and state laws protect workers’ ability to organize for purposes of collective bargaining, but many states have enacted laws that limit unions in important ways. A recent decision by the U.S. Supreme Court, Janus v. AFSCME, 585 U.S. ___ (2018), specifically impacts public sector unions and their ability to collect fees to support their collective bargaining activities. If you have a question about your union, contact a New Jersey labor law attorney.

The National Labor Relations Act (NLRA) of 1935 allows workers to organize in order to engage in collective bargaining with their employer regarding pay, working conditions, and other features of employment. See 29 U.S.C. § 157. Union members support these activities by paying membership fees. Workers who do not become dues-paying members often still benefit from the union’s efforts. This is commonly known as the “free rider problem.” Some unions dealt with this by negotiating “closed shop” agreements, by which the employer could only hire union members; or “union shop” agreements, which required all employees to join the union or pay an “agency fee” once they had been hired.

The Taft-Hartley Act of 1947 banned closed shop agreements, and only allowed union shop agreements or agency fees to the extent that they do not conflict with state law. Id. at § 164(b). Many states have enacted “right to work” laws, which prohibit unions from charging agency fees to non-members.
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