The New Jersey Employment Law Firm Blog

September 22, 2016

New York City Mayor Issues Executive Order Regarding Union Organizing

Interactions between employers and labor unions generally fall under the purview of the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., which protects workers’ rights in regard to various labor organizing activities nationwide. In New York City, Mayor Bill de Blasio has imposed additional restrictions on employers and labor unions in certain situations. Executive Order No. 19 (EO19), issued in July 2016 and entitled “Labor Peace for Retail Establishments at City Development Projects,” requires covered employers and employees to enter into “labor peace agreements.” EO19 has come under criticism by various business interests, and it could be subject to court challenge.

The NLRA protects the rights of workers to organize for the purpose of collective bargaining and to engage in “concerted activities” toward that end. 29 U.S.C. § 157. Employers are generally prohibited from interfering with employees’ exercise of these rights or discriminating or retaliating against employees for union-related activity. Id. at § 158(a). The NLRA does not specifically say, however, that an employer cannot state its opposition to a union representing its employees. Employers are generally permitted to state a case for or against union organizing. It is theoretically then left to the employees to decide for themselves.

Before discussing how EO19 affects union organizing activities in New York City, it is important to note the limitations on its coverage. It only applies to “city development projects” that are larger than 100,00 square feet if commercial, or larger than 100 units if residential. “Covered employers” include retail and food-service businesses operating on the premises of a covered city development project, provided that they have at least 10 employees and occupy at least 15,000 square feet. Although EO19 only applies to business establishments physically located in New York City, it could affect New Jersey-based businesses that operate retail or food-service locations there.

September 16, 2016

NLRB Rules Against Employer that Fired Employee for Giving Testimony to State Legislature

by Resnick Law Group, P.C.

The National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects the right of workers to organize for the purpose of collective bargaining with their employers. It prohibits discrimination or retaliation for engaging in union-related activities, as well as interference with those activities. The National Labor Relations Board (NLRB) is responsible for enforcing these protections, as well as ruling on disputes between employees and employers. A recent NLRB decision found that an employer engaged in unfair labor practices by terminating an employee for testifying before a legislative committee. Oncor Electric Delivery Co., 364 NLRB No. 58 (Jul. 29, 2016). The employer argued that the employee’s testimony was an individual act, rather than “concerted activity” protected by the NLRA. It further claimed that termination was justified because of “malicious falsehoods” in the employee’s testimony. Id. at 2. The NLRB rejected the employer’s arguments and ruled in the employee’s favor.

Section 8(a)(3) of the NLRA prohibits employers from using disparate treatment or other forms of discrimination to “encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). In order to demonstrate a violation of § 8(a)(3), an aggrieved employee must establish that they were engaging in activity protected by the NLRA, including both direct union activity and “concerted activity.” See NLRA § 7, 29 U.S.C. § 157. They must also show a causal connection between the employee’s protected activity and the employer’s adverse action. The NLRB calls this a Wright Line analysis, after Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 495 U.S. 989 (1982).

The Wright Line analysis requires an employee to establish four elements: (1) their conduct was protected under the NLRA; (2) their employer knew about or suspected the employee’s conduct; (3) the employer “harbored animus” toward the employee because of the conduct; and (4) the employer took an adverse action against the employee because of this animus. Oncor at 22.

September 1, 2016

EEOC Touts Success of Program to Combat Systemic Discrimination in Employment

by Resnick Law Group, P.C.

Employment discrimination is not limited to individual acts of overtly disparate treatment based on factors like race, sex, national origin, or disability. It can also take much more subtle forms, which might only be visible if one takes a much broader look at an employer’s practices. The Equal Employment Opportunity Commission (EEOC) calls this “systemic discrimination.” While it can affect large numbers of workers in one or more protected classes, it can also be difficult to prove in a legal proceeding. The EEOC recently published a review touting “significant success” in a nationwide program that it launched in 2006 to fight systemic discrimination. New Jersey courts have addressed systemic discrimination under federal and state employment laws, providing workers with a variety of means for asserting their rights.

The EEOC defines systemic discrimination as any “pattern or practice, policy, or class case” having “a broad impact on an industry, profession, company, or geographic area.” Examples of unlawful systemic discrimination might include questions on job applications that unlawfully exclude people with disabilities, as well as restrictions on access to “management trainee programs” or “high level jobs” that disparately affect prospective trainees or employees based on factors like race or gender.

According to the EEOC’s 10-year review, published in July 2016, the agency has prevailed in 94 percent of the lawsuits brought through its nationwide systemic discrimination program. The amount of monetary damages recovered during the period covering fiscal years 2011 through 2015 was reportedly three times as much as the amount recovered during the previous five fiscal years. Between fiscal year 2007 and fiscal year 2015, the EEOC also increased the rate of “successful voluntary conciliations of systemic investigations” from 21 percent to 64 percent.

August 25, 2016

Employment Contract May Not Restrict Employee’s Rights Under New Jersey Law Against Discrimination, According to State Supreme Court

by Resnick Law Group, P.C.

The New Jersey Law Against Discrimination (LAD) protects workers in this state from a wide range of unlawful employment practices. In order to assert their rights and claim damages, individuals must follow procedures outlined in the LAD, as well as case law interpreting the statute. This includes a two-year statute of limitations for filing suit. The New Jersey Supreme Court recently ruled that an employment contract may not limit the protection offered by the LAD by reducing this time period from two years to six months. Rodriguez v. Raymours Furniture Co., No. A-27 Sept. Term 2014, 074603, slip op. (N.J., Jun. 15, 2016). The court held that any such restriction “defeats the public policy goal” of the LAD. Id. at 4.

The LAD prohibits employers from discriminating against employees on the basis of various protected categories, including race, sex, religion, national origin, sexual orientation, gender identity or expression, and disability. N.J. Rev. Stat. § 10:5-12. It also prohibits retaliation against an employee for asserting their rights, such as by making an internal complaint to a human resources official or an external complaint to state or federal officials.

An individual may file a complaint with the New Jersey Division on Civil Rights, or they may file suit in Superior Court against an employer for alleged violations of the LAD. The statute does not specify a time frame during which a complainant must file suit, but the state Supreme Court has determined that the applicable statute of limitations is two years. Montells v. Haynes, 627 A.2d 654, 133 N.J. 282 (1993).

August 18, 2016

New Jersey Lawsuit Accuses Employer of Failing to Make Disclosures Related to Credit Checks, as Required by Federal Law

by Resnick Law Group, P.C.

Digital technology has brought all sorts of conveniences into our lives, but these conveniences might come at a significant cost for some people. Our daily activities leave a trail of information behind, which is accessible to credit reporting agencies (CRAs). Employers often ask to conduct credit checks as part of the hiring process. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., offers some protection to job applicants by making this process reasonably transparent. An employer must provide job applicants with various disclosures, particularly if it decides not to hire an applicant because of information in their credit report. A proposed class action currently pending in New Jersey claims that a transportation network company (TNC), also known as a rideshare company, failed to provide disclosures required by the FCRA to prospective drivers. Cuccinello v. Uber, Inc., No. 2:15-cv-06604, am. complaint (D.N.J., Dec. 7, 2015). The complaint also alleges FCRA violations against a CRA.

A person’s credit report potentially includes their complete financial history for the previous seven years, if not longer, along with other information about their current life and history. This might include criminal convictions and arrests, marriages, divorces, and children. In order to protect people’s privacy, the FCRA places restrictions on the CRAs that collect consumer credit information and issue credit reports, as well as on individuals and businesses that request those reports.

An employer that wants to obtain a job applicant’s credit report must give the applicant “a clear and conspicuous disclosure,” stating that it intends to use the report “for employment purposes.” 15 U.S.C. § 1681b(b)(2)(A). The disclosure must be provided “in a document that consists solely of the disclosure.” Id. The job applicant must consent in writing to the issuance of a credit report for this purpose. CRAs are not permitted to issue a credit report unless the employer certifies that it has complied with these provisions. Id. at § 1681b(b)(1).

August 12, 2016

Department of Labor Expands Eligibility for Overtime Pay Under the FLSA

by Resnick Law Group, P.C.

The Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., guarantees overtime pay for employees of covered employers for work performed in excess of 40 hours in a week, provided that they do not fall under one of the law’s exemptions. Regulations promulgated by the U.S. Department of Labor (DOL) set a minimum salary level, above which some employees are exempt from the overtime rule. The DOL issued a new regulation in May 2016 raising this level, giving more than four million workers nationwide access to overtime pay. 81 Fed. Reg. 32391 (May 23, 2016). The new rule will go into effect on December 1, 2016.

Workers are entitled to one and a half times their regular pay under the FLSA if they work over 40 hours in a week. 29 U.S.C. § 207(a). Employees who work “in a bona fide executive, administrative, or professional capacity,” however, are exempt from the FLSA’s overtime rules. Id. at § 213(a)(1). This applies to a wide range of workers, and the DOL’s regulations go into great detail about how the overtime exemption applies to executive, administrative, professional, computer, and outside sales employees. See 29 C.F.R. § 541.0 et seq.

Current DOL regulations only exempt executive, administrative, and professional employees from the overtime rules if their salary is at least $455 per week, also calculated as $910 biweekly, $985.83 semimonthly, or $1,971.66 per month. 29 C.F.R. § 541.600. Annually, this equals a salary of just under $23,660. The DOL set these levels in 2004, and that was reportedly its first revision of the salary levels since 1975. 69 Fed. Reg. 22122 (Apr. 23, 2004). The new rule is partly a response to concerns that the cost of living has exceeded the 2004 level.

August 5, 2016

New Employment-Related Bills Pending in the New Jersey Legislature

by Resnick Law Group, P.C.

Several bills currently pending in the New Jersey Legislature could make substantial changes to state laws dealing with employees’ rights in the workplace. Two bills address various forms of employment discrimination, and another two would raise the state’s minimum wage. Each bill was introduced in early 2016 and referred to a committee. Three bills are still awaiting committee hearings, while one of the minimum wage bills passed both chambers and is now waiting for the governor’s signature or veto. Whether any of these bills pass or not, they bring needed attention to issues that employees face throughout New Jersey.

Minimum Wage

The minimum wage in New Jersey is currently $8.38 per hour. N.J. Rev. Stat. § 34:11-56a4, N.J.A.C. § 12:56-3.1. A bill that would gradually raise the state’s minimum wage to $15 per hour has passed both houses of the Legislature. A15 would raise the minimum wage to $10.10 per hour on January 1, 2017. On the first day of each subsequent year, the minimum wage would increase by the greater of either $1.25 per hour or $1.00 plus that year’s increase in the consumer price index.

The goal of the bill is for the minimum wage to reach or exceed $15 per hour by 2021. The bill was introduced in the New Jersey Assembly on February 8, 2016. The Assembly passed it on May 26, followed by the Senate on June 23. The governor has reportedly threatened to veto the bill but has not yet done so. He also has not signed it into law.

July 27, 2016

Federal Minimum Wage Law Protects Workers in Public Assistance Programs, According to New York’s Highest Court

by Resnick Law Group, P.C.

The Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., requires payment of a minimum wage. Violations of this provision can take many forms, including deductions from a person’s compensation that result in a total net pay below the minimum wage for the amount of work performed. Compensation is also not limited to wages, as demonstrated in a decision from late 2015 from the New York Court of Appeals. The court ruled that an individual who worked for the city in exchange for public benefits was an “employee” within the meaning of FLSA, allowing his claims for minimum wage violations to go forward. Matter of Carver v. State of New York, 26 N.Y.3d 272 (2015). The incident that gave rise to the lawsuit involved the seizure of the plaintiff’s lottery winnings by the state under a law allowing reimbursement for benefits paid out in the previous decade. The plaintiff alleged that this reduced his overall compensation to below minimum wage.

In order to prevail in a claim under FLSA, a plaintiff must establish that they have standing as an employee. FLSA’s definition of “employee” is simply “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). The law defines “employer” to include public agencies. Not all employees, however, are entitled to protection under FLSA and other federal employment laws. Exemptions identified by FLSA include individuals “employed in a bona fide executive, administrative, or professional capacity”; certain types of agricultural and food industry workers; and various other jobs. Id. at § 213(a).

The plaintiff in Carver worked almost full-time for the City of New York for about seven years, in exchange for public assistance under a state program. Benefits included cash payments of $176 every two weeks and food stamps. About seven years after he left the work program, he won $10,000 in the lottery. He filed suit against the State of New York when it seized 50 percent of the winnings.

July 14, 2016

Uber Faces Misclassification Claims in New Jersey and Around the Country

by Resnick Law Group, P.C.

Ridesharing companies like Uber are relative newcomers to the marketplace, but they have already had an enormous economic and legal impact. In numerous employment law claims, drivers are alleging that they are misclassified as independent contractors rather than employees. The last year has seen several important court decisions and settlements that offer good news for ridesharing drivers. Courts have ruled in plaintiffs’ favor in cases from California to Massachusetts, and putative class actions are currently pending in New Jersey and New York

Many of the lawsuits against Uber, generally considered the leading ridesharing company, assert claims under the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., which governs minimum wage and overtime pay for many employers. Employees are entitled to payment of a minimum wage of $7.25 per hour, and non-exempt employees must be paid time-and-a-half for hours worked in excess of 40 per calendar week. Employers might violate the FLSA simply by failing to pay overtime, or they may do so less obviously, such as by imposing obligations on employees outside the time that they are “clocked in.” This can result in uncompensated overtime, or an hourly rate of pay that, when calculated for the amount of time actually worked, is less than minimum wage.

Drivers for Uber are challenging their status as independent contractors in lawsuits and administrative complaints around the country. A key distinction between an employee, who is entitled to the protection of statutes like FLSA, and an independent contractor is the degree of control the employer has over the person’s work. Just over one year ago, the California Labor Commissioner ruled that an Uber driver is an employee in Berwick v. Uber Technologies, Inc., No. 11-46739, order (Cal. Lab. Comm, Jun. 3, 2015).

July 11, 2016

U.S. Supreme Court Rules for Demoted Employee in First Amendment Claim

by Resnick Law Group, P.C.

The U.S. Supreme Court recently ruled in favor of a New Jersey police officer who claimed that his employer violated his First Amendment rights. Heffernan v. City of Paterson, 578 U.S. ___ (2016). This case is particularly notable because the underlying action by the plaintiff’s employer was based on a mistake. The employer thought the plaintiff was engaging in a “constitutionally protected political activity,” Heffernan, slip op. at 1, by supporting a political candidate opposed by the police chief. The district court and the Third Circuit Court of Appeals ruled against the plaintiff on the grounds that, since he was not actually engaging in constitutionally protected speech, his employer could not have deprived him of any constitutional right. The Supreme Court reversed this ruling based on a 1994 case, which held that an employer’s subjective belief is the controlling factor.

The First Amendment’s guarantee of “freedom of speech” means, in part, that the government cannot punish a person for the content of their speech. In an employment law context, this protects public employees like the plaintiff, a police officer. Government employers are generally prohibited from taking adverse action against an employee for acts that are protected by the Bill of Rights. This restriction does not necessarily apply to private employers, since the First Amendment only restrains government actions. Congress enacted a statute in the 19th century giving individuals the right to file suit against a government official for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” while acting in an official capacity. 42 U.S.C. § 1983.

The plaintiff in Heffernan was a 20-year veteran of the police department in Paterson, New Jersey. He was assigned to work in the police chief’s office in 2005, according to the court’s opinion. The mayor, who had appointed both the chief and the plaintiff’s direct supervisor, was running for reelection at the time. The plaintiff was reportedly “a good friend” of the mayor’s challenger. Heffernan, slip op. at 2.