The New Jersey Employment Law Firm Blog

February 25, 2016

NLRB Rules Against Company that Prohibited Employees’ Smartphone Use at Work

Smartphones, mobile devices with an ever-expanding list of capabilities that make the “phone” part seem like an afterthought, have become a common feature of daily life throughout the U.S. Most smartphones include cameras capable of taking both pictures and video, often with better quality than some of the best digital cameras of a few years ago. This feature has made smartphones an indispensable tool in a wide range of legal matters, from police brutality investigations to employment law cases. The National Labor Relations Board (NLRB) recently found that an employer violated federal law by barring employees from using smartphones to take pictures or make recordings without permission. Whole Foods Market Group, Inc., et al., 363 NLRB No. 87 (Dec. 24, 2015). The policy, while perhaps not originally intended to do so, prevented workers from documenting workplace conditions that violate federal or state employment laws.

The NLRB investigates and adjudicates alleged violations of the National Labor Relations Act (NLRA), the federal statute that protects the right of workers to organize for collective bargaining and other purposes, and to engage in other “concerted activities” aimed at protecting workers’ rights. 29 U.S.C. § 157. In the present case, the NLRB was investigating whether a policy prohibiting smartphone use constituted “interfer[ence] with, restrain[t], or coerc[ion of] employees in the exercise of [their] rights” to engage in concerted activity. 29 U.S.C. § 158.

The use of smartphones to take photographs and record videos in the workplace, and to record conversations among employees or between employees and supervisors, can assist employees and their advocates in building a case under various employment statutes. This might include, for example, an audio recording of a supervisor making derogatory statements about employees of a certain race, sex, or religion, used in support of a claim for discrimination under Title VII of the Civil Rights Act of 1964 or the New Jersey Law Against Discrimination. The NLRA protects these activities, but wiretap statutes present a separate challenge.

February 23, 2016

Laws in New Jersey and at Federal Level Prohibit “Pay Secrecy” Policies by Employers

by Resnick Law Group, P.C.

Federal law and New Jersey state law generally prohibit wage discrimination, in which an employer pays different wages to employees of different genders who hold substantially similar positions or have substantially similar job duties. As the issue of wage disparity between male and female employees gains attention nationwide, understanding these laws is critically important. It can be difficult to establish that one employee has the same job as a higher-paid employee. Some employers, however, prevent workers from ever reaching that point by prohibiting their employees from disclosing or inquiring about wage information with co-workers. This practice, commonly known as “pay secrecy,” remains common despite laws prohibiting it at the federal and state levels.

The federal Equal Pay Act amended the Fair Labor Standards Act (FLSA) to ban payment of different wages to male and female employees for jobs requiring “equal skill, effort, and responsibility…performed under similar working conditions.” 29 U.S.C. § 206(d). The law allows exceptions for seniority, merit, and quantitative or qualitative factors, and the broadly-construed “differential based on any other factor other than sex.” Id. A bill that would have limited this last category, the Paycheck Fairness Act, died in the Senate in 2014. New Jersey law merely states that employers may not discriminate in the payment of wages based on sex, and it allows exceptions for any “reasonable factor or factors other than sex.” N.J. Rev. Stat. 34:11-56.2.

In order to assert their rights under federal or state wage discrimination laws, employees must know that a difference in wages exists. Many employers keep that from happening by enacting pay secrecy policies. Among private-sector employees, estimates of how many are subject to such policies range from one-third to more than 60 percent. Penalties for discussing pay rates or inquiring about pay rates can include anything from reprimands to termination.

February 19, 2016

New Jersey Lawsuits Allege Discrimination for Flu Shot Refusals

by Resnick Law Group, P.C.

Winter and spring are “flu season” throughout the U.S. and much of the world, and millions of people obtain flu vaccine shots in order to obtain some protection against the disease. Influenza, or the “flu,” can be a very serious disease. The health care industry has required employees to obtain annual flu shots for some time, but other employers have also begun to require flu shots. Some people cannot get flu shots for medical reasons, and others decline them for a variety of personal reasons. Several recent lawsuits have considered whether New Jersey law prohibits employers from taking adverse action against an employee who refuses to get a flu shot, based on various theories of religious discrimination.

For most people, a case of the flu means a few miserable days in bed, but it can mean hospitalization or even death for some. According to the Centers for Disease Control and Protection (CDC), the annual death toll from 1976 to 2007 ranged from a low of around 3,000 to a high of close to 49,000 in a single season. The vast majority of fatalities are people who are 65 years old or older.

Preparing a vaccine against seasonal influenza, the type of the disease that rears its head during the winter and spring months, is difficult, since it requires advance predictions of which strains are most likely to appear. Unlike vaccines for childhood diseases like measles and whooping cough, a flu vaccine obtained one year is not likely to provide protection beyond that year. It is also not guaranteed to prevent the flu. It only bolsters the immune system.

February 19, 2016

EEOC Publishes Guidance on Workplace Rights Under the ADA of People with HIV

by Resnick Law Group, P.C.

The Americans with Disabilities Act (ADA) of 1990 prohibits employers from discriminating against employees on the basis of “disability,” as defined by the statute, and requires them to provide “reasonable accommodations” to disabled employees and job applicants. 42 U.S.C. §§ 12102, 12112(b)(5)(A). The ADA’s definition of “disability” includes a wide range of conditions that “substantially limit[] one or more major life activities.” Id. at § 12102(1)(A). Courts have found that infection with the human immunodeficiency virus (HIV) may constitute a disability under the ADA. The Equal Employment Opportunity Commission (EEOC) recently published two guidance documents addressing the rights of HIV-positive employees and job applicants.

The U.S. Supreme Court first ruled that an HIV infection may constitute a disability under the ADA in 1998, although it did so without a clear majority of justices. Bragdon v. Abbott, 524 U.S. 624, 655 (1998); see also Fiscus v. Wal-Mart Stores, 385 F.3d 378, 383 (3rd Cir. 2004). In order to qualify for ADA protection, an individual must demonstrate a limitation on their “life activities” caused by their condition. The regulations implementing the ADA state that, by “substantially limit[ing] immune function,” an HIV infection can qualify as a substantial limitation. 29 C.F.R. § 1630.2(j)(3)(iii).

The New Jersey Law Against Discrimination (NJLAD) also protects employees and job applicants from disability discrimination, including discrimination based on an HIV infection. The definition of “disability” under the NJLAD expressly includes “AIDS or HIV infection.” N.J. Rev. Stat. 10:5-5(q). Unlike the ADA, the NJLAD’s definition of “disability” does not require evidence of substantial impairment of life activities. The NJLAD also requires employers to make reasonable accommodations for employees with disabilities, unless doing so would create an “undue hardship.” N.J.A.C. § 13:13-2.5(b).

January 21, 2016

Proposed New York City Legislation Would Protect Independent Contractors from Wage Theft

by Resnick Law Group, P.C.

The term “wage theft” refers to a broad range of unlawful employment practices that deprive employees of wages they have earned. This might include under-reporting of hours worked, underpayment for reported hours, illegitimate paycheck withholdings, requiring employees to work extra hours without pay, or even outright theft of tips. Employment statutes at the federal and state levels, such as the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and the New Jersey Wage and Hour Law (NJWHL), N.J. Rev. Stat. § 34:11-56a et seq., require employers to pay a minimum wage, pay extra for overtime, and keep detailed payroll records. None of these protections, however, applies to independent contractors, who are defined as independent of any one employer but are also just as susceptible to wage theft. A bill pending in the New York City Council would remedy this situation for independent contractors, including thousands of people who identify as freelancers, within the city.

The FLSA requires employers to maintain payroll records for all exempt and non-exempt employees. These records must include personal information like name and address, and non-exempt employee records must identify hourly rates, days worked, and hours worked each day, amounts owed for regular and overtime hours, itemized amounts deducted from paychecks, and dates and amounts of all paychecks. 29 C.F.R. §§ 516.2, 516.3. The U.S. Department of Labor’s Wage and Hour Division (WHD) enforces these regulations.

Payroll records assist regulators investigating alleged wage theft, as well as employees asserting claims for themselves. Employees can bring claims for underpayment or non-payment of wages under the minimum wage and overtime provisions of the FLSA and the NJWHL, and the WHD and New Jersey officials may also enforce these laws on workers’ behalf. In addition to civil liability for back wages and other damages, penalties under the FLSA include a fine of up to $10,000 and, for repeat offenders, imprisonment for up to six months. 29 U.S.C. §§ 215(a)(2), 216(a).

January 15, 2016

New Jersey Judge Approves Settlement in FLSA Class Action for Unpaid Overtime

by Resnick Law Group, P.C.

A New Jersey federal judge approved a settlement in a lawsuit brought by Essex County corrections officers, alleging underpayment of overtime. Davis, et al. v. Essex County, No. 2:14-cv-01122, opinion (D.N.J., Dec. 1, 2015). The plaintiffs asserted causes of action under both the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.; and the New Jersey Wage and Hour Law (NJWHL), N.J. Rev. Stat. § 34:11-56a et seq. They brought suit on behalf of themselves and other employees with similar claims, as allowed by the FLSA. The parties eventually came to an agreement regarding unpaid wages, liquidated damages, costs, and attorney’s fees. The court reviewed the settlement to ensure that it satisfied the FLSA’s requirements regarding collective actions. It certified a class of plaintiffs and approved a settlement totaling $300,000.

Both the FLSA and the NJWHL require employers to pay overtime compensation to certain employees. This generally applies to hourly workers who do not hold a managerial or executive position. An employer must pay a rate of time-and-a-half for any time worked more than 40 hours during a calendar week. See 29 U.S.C. § 207, N.J. Rev. Stat. § 34:11-56a4. A common example of an overtime claim involves an employer who requires employees to perform certain tasks while they are “off the clock,” such as changing into or out of uniform. Since this task is mandatory, it is legally considered part of the employee’s job. If it pushes the amount of time spent at work over 40 hours in a week, the employee is entitled to overtime pay.

An employee can collect unpaid overtime, court costs, and other damages under the FLSA and the NJWHL. Individual employees may not have a large enough claim for a lawsuit to be feasible, which is where a type of lawsuit known as a collective action comes into play. Much as in a class action, see Fed. R. Civ. P. 23, one or more plaintiffs can sue on behalf of a class of individuals who are in similar situations and have similar legal claims. 29 U.S.C. § 216(b). An employee who might be owed thousands of dollars in overtime pay is more likely to get the employer’s attention if the lawsuit includes hundreds or thousands of their co-workers. Plaintiffs must consent to be part of a collective action under the FLSA, while many class actions require class members to “opt out.”

January 8, 2016

New Jersey Supreme Court Considers Whether Firing an Employee for Getting Divorced Violates Anti-Discrimination Law

by Resnick Law Group, P.C.

The New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq., protects employees against multiple forms of discrimination by employers. It is one of the most expansive anti-discrimination laws in the country. The New Jersey Supreme Court heard oral arguments in early December 2015 in a case, Smith v. Millville Rescue Squad, alleging discrimination based on marital status. The plaintiff specifically claims that the defendant fired him because he was getting divorced. The case involves the question of whether the plaintiff has established sufficient grounds for a claim under the NJLAD, and also whether divorce is included in the NJLAD’s protected category of “marital status.”

An employer may not discriminate against an employee, according to the NJLAD, on the basis of “marital status, civil union status, [or] domestic partnership status.” N.J. Rev. Stat. § 10:5-12(a). This applies to hiring, firing, and other decisions related to a person’s employment. The statute does not define “marital status,” so one could argue that the scope of protection is limited to situations in which an employer prefers an unmarried employee to a married one, or vice versa. It may not be clear, from that standpoint, whether an ongoing divorce falls under the statute’s concept of “marital status.” This is the central issue now presented in the Smith case. The trial court dismissed the plaintiff’s lawsuit, but the appellate court partly reinstated it. Smith v. Millville Rescue Squad, No. A-1717-12T3, slip op. (N.J. App., Jun. 27, 2014).

The plaintiff in Smith worked for the defendant for about 17 years, starting as an emergency medical technician (EMT) and eventually rising to the position of director of operations. His wife was a volunteer for the defendant, and they met through work. She generally worked in a subordinate position to him. After eight years of marriage, they separated in early 2006. The plaintiff had reportedly had an affair with another employee, who voluntarily resigned around the same time. The defendant learned about both the affair and the divorce at some point during this time period.

January 4, 2016

Former New Jersey Prison Official Awarded $7.7 Million in Whistleblower Lawsuit

by Resnick Law Group, P.C.

A jury in a New Jersey superior court awarded $7.7 million in damages to a former prison official in her lawsuit alleging retaliation for cooperating with a federal extortion investigation. Easley v. N.J. Dept. of Corrections, et al., No. L-000094-13, complaint (N.J. Super. Ct., Burlington Co., Jan. 10, 2013). A Department of Corrections deputy commissioner went to prison as a result of the investigation, and the plaintiff alleged that she was terminated by the department in retaliation. The lawsuit asserted claims under state whistleblower protection law, including the Conscientious Employee Protection Act (CEPA), N.J. Rev. Stat. § 34:19-1 et seq. The judgment includes both compensatory and punitive damages.

Common-law whistleblower protections in New Jersey are based on an employer’s duty “not to discharge an employee who refused to perform an act that is a violation of a clear mandate of public policy.” Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). After the New Jersey Legislature enacted the CEPA, the New Jersey Supreme Court held that its protections apply to a wide range of individuals defined as “employees.” D’Annunzio v. Prudential Ins. Co., 192 N.J. 110 (2007). The court has continued to affirm that the statute has broad applicability. See Lippman v. Ethicon, ___ N.J. ___, Nos. A-65/66-13, 073324, slip op. (Jul. 15, 2015).

December 27, 2015

Job Applicant Claims Employment Background Check Violates Federal Law in New Jersey Lawsuit

by Resnick Law Group, P.C.

A putative class action is alleging that an internet retailer conducts background checks of job applicants in violation of federal consumer protection law. Information about individuals’ credit history has become critically important for a wide range of purposes. Background checks for criminal history have long been common in the hiring process, but background checks for credit history have also become widespread. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., governs access to, use of, and disclosure of consumer credit information for various purposes, including employment. The lawsuit claims that the defendant failed to follow the FCRA’s procedures for use of background information in the hiring process. Feldstein v. Amazon.com LLC, et al., No. 3:15-cv-07322, complaint (D.N.J., Oct. 5, 2015).

The FCRA governs activities by both credit reporting agencies (CRAs), which collect consumer credit information and package it in reports, and individuals and companies that obtain these reports and use them to evaluate individual consumers for various purposes. The FCRA defines a “consumer report” as information collected by a CRA about credit history and various personal details, including criminal history, intended for use in decisions about matters like credit, insurance, or employment. 15 U.S.C. § 1681a(d).

Prior to requesting a report from a CRA, an employer must provide “a clear and conspicuous disclosure…in writing to the” job applicant that they intend to obtain a consumer report, and they must obtain the applicant’s authorization. 15 U.S.C. § 1681b(b)(2). If the employer makes an adverse hiring decision based on information in a consumer report, the FCRA requires it to notify the applicant in advance and provide a copy of the report and a written statement of the applicant’s right to dispute its contents. 15 U.S.C. §§ 1681b(b)(3), 1681g(c).

December 18, 2015

New Jersey Woman Alleges Her Employer Fired Her When She Requested Breastfeeding Breaks

by Resnick Law Group, P.C.

Employment discrimination against a person based on pregnancy, medical conditions associated with pregnancy, or recent childbirth is prohibited under state and federal law. The question of whether employers are obligated to provide reasonable accommodations for pregnant workers, or workers who have recently given birth, however, remains unsettled in many jurisdictions. The Fair Labor Standards Act (FLSA) requires employers to allow workers who are breastfeeding their newborns to express breast milk at work, a process that requires a sanitary and private environment. This federal statute does not apply to smaller employers, however, and New Jersey has no statute specifically addressing the issue. The termination of a woman from her job earlier this year, allegedly based on her request for additional breaks during the work day to express milk, has brought renewed attention to this issue.

The Americans with Disabilities Act (ADA) of 1990 requires employers to provide “reasonable accommodations” for workers with disabilities. 42 U.S.C. § 12112(b)(5). Pregnancy is not, by itself, considered a disability under the ADA, but the Pregnancy Discrimination Act (PDA) of 1978 prohibits employers from treating a pregnant employee differently from an employee with a comparable temporary disability. A prohibition on discrimination is different, however, from an obligation to accommodate an employee’s condition. The ADA Amendments Act (ADAAA) of 2008 expanded the definition of “disability” to include many conditions commonly associated with pregnancy, to the extent that they “substantially limit[] a major life activity.” 29 C.F.R. Appendix to § 1630.2(h).

Denying an employee the opportunity to express breast milk while at work does not constitute pregnancy discrimination under the PDA, nor is it a disability for which an employer must make an accommodation under the ADAAA. The Patient Protection and Affordable Care Act (ACA) of 2010 offers some protection. It amended the FLSA to require employers to allow “reasonable break time” for breast milk pumping for up to one year after the child’s birth, and to provide employees with a private location “other than a bathroom” to do so. 29 U.S.C. § 207(r)(1).