The New Jersey Employment Law Firm Blog

April 25, 2014

NLRB Proposes New Procedures for Union Representation Votes, Rules that College Football Players May Vote on Unionizing

The National Labor Relations Board (NLRB) took two recent actions affecting union representation. In early February, it issued proposed rule changes for representation cases, when employees or unions seek a vote to determine whether employees want to form or join a union for collective bargaining. Existing rules have faced criticism for allowing excessive delay and other inefficiencies. In late March, the NLRB issued a ruling in a dispute between an organization representing college football players and Northwestern University. It found that scholarship players are “employees” within the meaning of the National Labor Relations Act (NLRA), and that they are entitled to vote on union representation.

On February 6, 2014, the NLRB published proposed changes to representation-case procedures. 79 F.R. 7317. The new rules, according to the NLRB, would “remove unnecessary barriers to the fair and expeditious resolution” of petitions for union representation. This would include simplifying and standardizing case procedures, and improving the transparency of the process. The current rules, found at 29 C.F.R. Parts 101-103, have been criticized for allowing a substantial amount of time to pass between a petition by non-union workers and a vote on union representation, allowing employers to pressure employees to vote against the union. The new rules are similar to a proposal first made in June 2011. A district court struck down the rules that resulted from that proposal, finding that the NLRB enacted them without the required quorum. Chamber of Commerce v. NLRB, 879 F.Supp.2d 18 (D.D.C. 2012).

The College Athletes Players Association (CAPA), a labor organization, petitioned the NLRB on behalf of football players receiving grant-in-aid scholarships from Northwestern University, seeking a ruling that the players are “employees” within the meaning of the NLRA. Northwestern argued that the players are not employees, comparing them instead to graduate student assistants who were ruled not to be employees in Brown University, 342 NLRB 483 (2004). The NLRB’s Region 13 Director ruled that the players are employees, and directed that an election take place. Northwestern University, No. 13-RC-131359, decision (NLRB, Mar. 26, 2014).
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April 18, 2014

New Ordinance Closes Loophole Preventing New York City Unpaid Interns from Asserting Rights Against Workplace Harassment

by Resnick Law Group, P.C.

The New York City Council unanimously passed a bill in late March 2014 amending the New York City Human Rights Law (NYCHRL) to extend the anti-discrimination provisions of the law to unpaid interns. A 2013 federal court case, in which an unpaid intern filed suit for sexual harassment and hostile work environment, inspired the bill. The court dismissed the intern’s claims because city and state law, it found, do not apply to interns. Wang v. Phoenix Satellite Television US, No. 1:13-cv-00218, mem. order (S.D.N.Y., Oct. 3, 2013).

The plaintiff in Wang was a graduate student in journalism at Syracuse University in December 2009 when she began working as an unpaid intern for the American subsidiary of Phoenix Media Group, a television news company based in Hong Kong. She viewed the internship as a training opportunity, with the possibility of a full-time job after she graduated. She reported to the Washington DC bureau chief, who also oversaw operations in New York.

While the bureau chief was in New York one night in January 2010, she and several employees met him at a restaurant. She alleged in her lawsuit that he asked her to stay after the meal to discuss job prospects, then invited her back to his hotel. He allegedly made sexual comments that made her uncomfortable, but she felt that she could not refuse his invitation to go to his room because he was her boss. Once they were alone, he allegedly threw his arms around her, groped her, and attempted to kiss her. She broke free of him and left the hotel. After that, she claims, he ceased to express any interest in hiring her.
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April 18, 2014

McDonald’s Faces Multiple Lawsuits in New York for Alleged Wage Violations

by Resnick Law Group, P.C.

Workers and state regulators have filed multiple lawsuits against McDonald’s, the national fast-food chain, and its franchisees for alleged violations of state and federal wage and hour laws. The company has faced widespread protests from employees, who allege that they have been denied overtime pay. A federal lawsuit filed in mid-March 2014 in New York claims that the company regularly failed to pay employees for time they were required to be at work, failed to pay overtime as required by law, and did not reimburse employees for certain work-related expenses. The New York Attorney General’s office announced around the same time that it has settled a claim against a McDonald’s franchisee regarding violations of state wage and hour laws.

Six McDonald’s employees filed a putative class action lawsuit against McDonald’s for violations of the federal Fair Labor Standards Act (FLSA) and New York laws regulating minimum wage and the cost of maintaining work uniforms. Beard, et al v. McDonald’s Corp., et al, No. 1:14-cv-01664, complaint (E.D.N.Y., Mar. 13, 2014). McDonald’s has annual gross revenues of more than $27 billion, according to the complaint, and it directly operates thirty-four restaurants in New York out of more than 33,000 around the world. The plaintiffs work at McDonald’s restaurants in the Queens, New York area. Their job duties include working the cash registers and drive-through windows, food preparation, restocking, and cleaning.

The plaintiffs state that they are paid a “nominal hourly rate only at or slightly above the minimum wage.” Id. at 2. The company requires them to maintain their own work uniforms, but does not reimburse them for maintenance expenses. It also does not pay them for time spent on uniform maintenance. Because of this additional, uncompensated work time, the plaintiffs claim that their wages are below the minimum set by the FLSA and state law. The lawsuit claims violations of the New York Hospitality Industry Wage Order, 12 N.Y.C.R.R. Part 146, which requires employers to reimburse employees for certain expenses related to uniform maintenance, as well as minimum wage violations under FLSA and state law.
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March 31, 2014

New Jersey Law Against Discrimination Now Protects Workers from “Salary Secrecy” by Prohibiting Retaliation for Inquiring About Wage Discrimination

by Resnick Law Group, P.C.

An amendment to the New Jersey Law Against Discrimination (NJLAD) that took effect in January 2014 protects employees from retaliation by employers for asking about co-workers’ salaries as part of an investigation into wage discrimination. Prior to this amendment, New Jersey labor law already protected workers, commonly known as whistleblowers, who investigated or reported various unlawful practices by their employers, but did not protect workers who investigated certain practices. Many companies employment have “salary secrecy” policies that prevent employees from inquiring about other employees’ wages, making wage discrimination claims difficult.

Despite laws at the state and federal level prohibiting overt wage discrimination based on gender, the gap in wages between men and women is alive and well in New Jersey and around the country. Salary secrecy is among the biggest reasons for this continued disparity. Companies discourage employees from discussing pay with one another, and in some cases, even terminate employees for asking about other employees’ wages. A 2012 Forbes article found that companies with salary secrecy policies often had little justification for the policies aside from management’s unwillingness to explain their salary decisions to others. Such policies may also increase employee dissatisfaction and reduce overall efficiency, while more transparent policies have had positive results. The new amendment to the NJLAD effectively bans salary secrecy in New Jersey.

New Jersey law prohibits sex discrimination “in the rate or method of payment of wages.” N.J. Rev. Stat. § 34:11-56.2. It also prohibits employers from retaliating against employees who complain to the employer or the New Jersey Civil Rights Commission about alleged wage discrimination. N.J. Rev. Stat. § 34:11-56.6. The statute does not specifically mention investigations of possible wage discrimination, and this is where salary secrecy policies can prevent employees from asserting their rights.
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March 28, 2014

Lawsuit Claims Employer Fired Plaintiff for Reporting Racial Discrimination, Sexual Harassment Within Company

by Resnick Law Group, P.C.

A federal lawsuit accuses a New York business of firing the plaintiff in retaliation for his report of unlawful employment practices. Giraldo v. The Change Group New York, Inc., et al, No. 1:14-cv-00375, complaint (S.D.N.Y., Jan. 21, 2014). The plaintiff, who is a gay man, also alleges that he was subjected to ongoing sexual harassment, discrimination, and a hostile work environment based on sexual orientation. The lawsuit asserts causes of action for retaliation, discrimination, and harassment in violation of federal, state, and city law.

The plaintiff was employed as a sales consultant by a currency exchange group in Manhattan from December 2012 until November 2013. He alleges multiple instances of harassment by two managers in the office, including inappropriate comments about his sexual orientation. One of the managers allegedly displayed similar behavior towards female employees and customers on a regular basis. The plaintiff claimed that he also frequently made “ethnically and racially discriminatory comments towards African American employees,” Muslim employees, and the plaintiff, who is Hispanic of Colombian descent.

In a seemingly-anonymous email sent to company executives just after midnight on October 8, 2013, the plaintiff complained about the two managers’ allegedly widespread discrimination and harassment. He identified multiple specific instances of inappropriate sexual and racial comments directed to the plaintiff, and inappropriate comments and behavior directed at others. He also noted his concern that speaking out publicly would cost him his job, as people who expressed dissenting opinions were often “squashed or treated as heretics” by the managers. He specifically stated that if he attached his name to the email, he believed he would be fired.
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March 20, 2014

Lawsuit in New Jersey State Court Accuses Police Department of Sexual Harassment, Race Discrimination, and Harassment

by Resnick Law Group, P.C.

A lawsuit filed in a New Jersey Superior Court against a police department and several police officials seeks over $1 million in damages for alleged race discrimination, sexual harassment, and retaliation. The plaintiff in Cruz v. Old Bridge Police Department, et al alleges that the department ignored her repeated complaints of sexual harassment because of her race, and then subjected her to retaliation and a hostile work environment that prevented her from returning to work. The New Jersey Law Against Discrimination (NJLAD) protects workers from employment discrimination based on factors like race and sex, and includes sexual harassment as a form of gender discrimination.

The plaintiff, according to local news coverage, was hired in May 2004 as an auxiliary police officer for the Old Bridge Police Department. This is a part-time position that works certain events, assisting the police department by providing crowd and traffic control. She alleges that a lieutenant began sexually harassing her shortly after she was divorced by asking her questions and making comments of an inappropriate sexual nature, and with direct sexual advances. She asserts that she asked him to stop and reported the matter to the department’s Internal Affairs unit, but the harassment continued.

When the lieutenant was promoted to captain, he became the plaintiff’s direct supervisor. She claims that he created a hostile work environment by “ostraciz[ing] here” and behaving in a “disrespectful and…demeaning manner.” The department ignored her complaints, she claims, because she is a black Hispanic woman. She received a charge of “conduct unbecoming” that she claims was false, and in September 2011 she was suspended without pay for allegedly submitting false time records in order to increase her pay. She also denies this charge. The department did not fire her, but reportedly also did not set an end date for her suspension. The township listed her employment status as “did not return,” according to the Home News Tribune. She either quit or was terminated by the department in December 2011.
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March 18, 2014

NLRB Addresses the Question of When the NLRA Protects Employees’ Statements on Social Media

by Resnick Law Group, P.C.

The National Labor Relations Act (NLRA) protects employees from retaliation from their employers for union organizing and related “concerted activities.” Courts are constantly reviewing the question of what constitutes protected concerted activity. The growth of social media in recent years has led to numerous disputes over the extent of NLRA protections for online statements and activity. Two recent decisions from the National Labor Relations Board (NLRB) offers the possibility of clarity about the line beyond which the NLRA does not apply. Both cases involved activity on Facebook involving harsh language directed at one or more supervisors, including words that generally get films an “R” rating. The NLRB’s two decisions make an important distinction, seeming to draw the line based on whether the employee’s activity harms the employer.

Two rules have emerged for employees regarding social media posts. The first rule is that statements or discussions via social media, when directed to other employees or intended to spotlight an employment issue, are generally considered to be concerted activity protected by the NLRA. The unsettled question for social media is how far is too far before a statement or discussion exceeds the scope of the NLRA’s protection. The second rule is that employers will continue to push this still-hazy limit, so employees should be prepared and know their rights.

In Pier Sixty, No. 02-CA-068612 (NLRB, Apr. 18, 2013), the NLRB found that an employee’s colorful statements on Facebook were protected by the NLRA. An employee at a catering company reportedly became frustrated during the course of negotiations over union representation. While the employee was working an event, he felt that a supervisor was harassing him. He stepped outside the building and posted an update to his Facebook calling the supervisor a “NASTY M———-R” and a “LOSER,” followed by a call to vote yes on the union proposal. The employee was fired soon afterwards. The NLRB held that the employee’s statements were protected, the generous use of swear words notwithstanding, because they were directly related to ongoing union organizing. It ordered the employee’s reinstatement with back pay.
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March 14, 2014

New Jersey Employers Required by State Law to Provide Employees with Notice of Gender Equity Rights

by Resnick Law Group, P.C.

A 2012 law amending the New Jersey Equal Pay Act requires employers with at least fifty employees to provide official notice to workers of their rights regarding gender equity under state and federal anti-discrimination and pay equity statutes. The New Jersey Department of Labor and Workforce Development (NJDOL) published final notice forms on January 6, 2014. Under the thirty-day deadline established by the 2012 law, employers had until February 5 to provide the notice to all current employees. The 2012 law does not identify a penalty for failing to meet this deadline, and the NJDOL has not stated how it will handle noncompliance. Penalties for similar regulatory infractions might offer some idea of what employers might face.

The New Jersey Assembly passed A2647, which “[r]equires employers [to] post notice of worker rights under certain State and federal laws,” on June 25, 2012, and the governor signed it into law on September 19, 2012. It did not provide a specific date for employers to comply with its requirements, but rather set a deadline of thirty days after publication of final notice forms by the NJDOL. This took place on January 6, 2014, making the initial deadline February 5. For employees hired after that date, employers must provide the notice by the end of the calendar year in which an employee was hired.

The official notice form published by the NJDOL, entitled “Right to be Free of Gender Inequity or Bias in Pay, Compensation, Benefits or Other Terms and Conditions of Employment,” outlines workers’ rights under two federal statutes and two New Jersey statutes:
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February 26, 2014

New Jersey Appellate Division Upholds State Law Prohibiting Hiring Discrimination Based on Unemployment

by Resnick Law Group, P.C.

The Appellate Division of the Superior Court of New Jersey ruled that a state law prohibiting discrimination based on unemployment did not violate employers’ First Amendment rights of free speech. New Jersey Dept. of Labor and Workforce Development v. Crest Ultrasonics, No. A-0417-12T4, slip op. (N.J. App. Div., Jan. 7, 2014). The plaintiffs alleged that the statute, N.J.S.A. §§ 34:8B-1 et seq., infringed on their free speech rights by improperly regulating the content of public job listings. The court held that the statute meets the requirements set forth by the U.S. Supreme Court for content-based restrictions on commercial speech. The ruling is excellent news for New Jersey’s workers and job seekers, many of whom have experienced lengthy periods of time without work.

Unemployment can become a catch-22 for some job seekers, as employers might be unwilling to hire someone who has been out of work for six months or more. The longer one goes without work, the harder it can be to find a job. The law, enacted by the New Jersey Legislature in 2011, seeks to address this problem by placing restrictions on advertisements in print media or on the internet for job openings within the state. Advertisements may not state that current employment is a requirement for a job, that an employer will not consider applicants who are currently unemployed, or that an employer will only consider applicants who are currently employed. The law does not, however, prevent employers from using unemployment as a criterion in their actual decision-making.

Shortly after the law took effect, the plaintiff placed a classified advertisement in the Burlington Times for a service manager position. The ad appeared on August 31, 2011 and stated that applicants for the position “[m]ust currently be employed.” The Department of Labor and Workforce Development (LWD) determined that the company had violated N.J.S.A. § 34:8B-1 and assessed a fine of $1,000. The Commissioner of the LWD affirmed the penalty in an administrative decision issued on August 17, 2012, and the company appealed the decision to the Superior Court.
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February 21, 2014

Third Circuit Court of Appeals Addresses Legal Definition of “Employer” in Sexual Harassment Case

by Resnick Law Group, P.C.

A plaintiff could not maintain a sexual harassment complaint because the defendant was not her employer under state or federal law, according to a recent appellate court ruling. Plaso v. IJKG, LLC, No. 13-2565, slip op. (3rd Cir., Jan. 21, 2014). The plaintiff worked at the defendant’s business location, and the sexual harassment forming the basis of her complaint allegedly took place there. Her salary and the authority to hire or fire her, however, originated with another company. Although the court ruled against the plaintiff, she was able to settle claims with the alleged harasser and the company that employed both of them. The case offers useful guidance for New Jersey workers considering a claim sexual harassment or other forms of employment discrimination
The U.S. Supreme Court developed a three-part test to determine whether a party is an “employer” in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), and the Third Circuit has adopted the test for Title VII and other laws. It identifies the party that has “the right to control the manner and means” of the plaintiff’s employment, id. at 323-24, through three “indicia of control”: (1) who pays the worker’s salary, (2) who has the right to hire and fire the worker, and (3) who controls the worker’s “daily employment activity.” Plaso, slip op. at 9, quoting Covington v. Intern. Ass’n of Approved Basketball, 710 F.3d 114, 119 (3rd Cir. 2013).

The plaintiff began working for a consulting firm based in Ohio, Healthcare MCR, in early 2008. Her direct supervisor, R. Brent Martin, assigned her to work at the office of a client, Bayonne Medical Center (BMC) in Bayonne, New Jersey. Martin also worked there as Chief Restructuring Officer. The plaintiff worked at BMC five days a week; had her own office, along with telephone and email account; and interacted with BMC staff on a daily basis. Martin was usually working at BMC, and the plaintiff went through him for most employment concerns, such as work hours and leave. Her paycheck came from Healthcare.
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