The New Jersey Employment Law Firm Blog

February 21, 2014

FLSA Protections May Be Available to Undocumented Immigrant Employees in New Jersey

Federal immigration law prohibits businesses from employing individuals who do not have authorization to work in the U.S., either because they have certain types of temporary visas or because they lack legal immigration status altogether. Courts have wrestled with the question of how much protection federal and state labor laws offer to undocumented immigrants. The U.S. Supreme Court ruled that undocumented immigrants may not recover damages for violations of the National Labor Relations Act (NLRA). Recent appellate court decisions, however, have left the possibility open that relief may be available under state labor and employment laws and the federal Fair Labor Standards Act (FLSA).

Under the NLRA, the National Labor Relations Board (NLRB) enforces laws protecting the rights of employees to engage in activities related to union organizing. This includes filing lawsuits seeking back pay and other damages on behalf of employees. The U.S. Supreme Court ruled in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), that undocumented immigrants may not recover damages under the NLRA. It held that the Immigration Control and Reform Act of 1986 (IRCA), which established the current system of immigrant work authorization, prohibited the employment of the worker in question and therefore preempted his NLRA claims. This preclusion only affected the immigrant employee. The NLRB could still pursue penalties against the employer for NLRA violations affecting the employee.

Appellate and district courts have generally followed Hoffman‘s ruling with regard to IRCA’s preemption of state and local employment laws. A federal district court in Pennsylvania cited preemption under IRCA in striking down a city ordinance placing restrictions on employment and housing for undocumented immigrants. Lozano v. City of Hazelton, 496 F.Supp.2d 477, 518-19 (M.D. Pa. 2007). In a case involving an NLRB ruling issued before Hoffman, the Second Circuit Court of Appeals refused to enforce the ruling after Hoffman. NLRB v. Domsey Trading Corp., 636 F.3d 33 (2nd Cir. 2011). Federal labor laws separate from the NLRA have not received much direct scrutiny from courts on the question of preemption, however, until recently.
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February 6, 2014

Pregnancy Now a Protected Class Under New Jersey’s Law Against Discrimination

by Resnick Law Group, P.C.

New Jersey Governor Chris Christie signed a bill into law in late January 2014 amending the New Jersey Law Against Discrimination (LAD) to include pregnancy as a protected class. The LAD has long protected employees from discrimination based on sex and disability, but it did not include pregnancy as a distinct class until now. New Jersey’s law, in addition to prohibiting discrimination and retaliation based on pregnancy or childbirth, identifies specific examples of reasonable accommodations employers should provide.

Strong protections for pregnant employees are critically important, as many women find it necessary to continue working well into their pregnancies. According to a report issued last year by the National Women’s Law Center, about two-thirds of first-time mothers worked during their pregnancies between 2006 and 2008, compared to only forty-four percent between 1961 and 1965. Of the women who worked while pregnant from 2006 to 2008, eighty-eight percent of them worked through their last two months of pregnancy, and eighty-two percent worked into the last month. Their income is also generally indispensable, as the study found that women are the primary “breadwinners” in forty-one percent of families, with more women in that role among lower-income households. The laws relating to pregnancy and employment, however, are still changing to reflect these realities.

Federal law, under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978, also protects against discrimination based on pregnancy. The PDA added pregnancy as a distinct type of gender discrimination. It addresses discrimination and retaliation for covered employers, but not reasonable accommodations. The Americans with Disabilities Act (ADA) applies to pregnancy discrimination, although neither the courts nor the Equal Employment Opportunity Commission (EEOC) have defined employers’ obligations to accommodate employees under this law. Only eight states, including New Jersey, specifically include pregnancy as a protected class in their anti-discrimination laws. Some cities, like New York, include it in their anti-discrimination ordinances.
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January 29, 2014

Settlement Shows Workplace Sexual Harassment Can Happen Anywhere in New Jersey and Elsewhere

by Resnick Law Group, P.C.

Three employees of the King County Sheriff’s Office will reportedly receive $1 million as part of a workplace sexual harassment settlement. In their lawsuit, three female Sheriff’s Office workers claim two of their male supervisors in the Special Assault Unit made lewd comments and exhibited other inappropriate behavior towards them. The two men are also accused of mocking the sexual assault victims the department works to protect and engaging in retaliation against the three women. According to the female employees, their formal complaints regarding the inappropriate conduct were dismissed or ignored for several years. Because of the County’s alleged indifference to the offending behavior, the women eventually filed a sexual harassment lawsuit that was accompanied by the sworn statement of at least six current and former Sheriff’s Office workers.

Prior to settling the case, a newly elected Sheriff, John Urquhart, transferred the two men accused of perpetrating the alleged harassment to different units. In the case, the women sought a combined total of up to $9 million in compensation for the emotional distress each female employee reportedly endured at work. Following mediation, the women agreed to split a $1 million sum three ways. The plaintiffs also demanded that the Sheriff’s Office provide annual sexual harassment training to workers and issue a formal apology. King County agreed to comply with both additional demands, but refused to admit liability as part of the settlement agreement.

Although this case occurred in Washington, it shows that sexual harassment can happen at any workplace. In New Jersey, most employment law complaints allege sexual harassment or sex discrimination. According to data from the United States Equal Employment Opportunity Commission, more than 600 sexual harassment or discrimination cases were filed in the State of New Jersey in 2011. Additionally, the number of sexual harassment claims filed in New Jersey has reportedly increased by approximately 10 percent since 2006. If you believe that you suffered workplace sexual harassment or discrimination, you should discuss your rights with a skilled New Jersey employment lawyer.
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January 16, 2014

Jury Award Reminds Employers in New Jersey and Across the U.S. that Race Discrimination is Illegal

by Resnick Law Group, P.C.

A California jury has issued a $1.1 million verdict in favor of an African-American firefighter who suffered unlawful race discrimination at work. In Jabari Jumaane v. City of Los Angeles, a 53-year-old man filed a lawsuit against the Los Angeles Fire Department alleging he became the victim of racial discrimination, retaliation, and a hostile work environment. According to his complaint, Jabari Jumaane was disciplined and suspended at least twice while employed as a fire inspector with the Los Angeles Fire Department after his superior officer falsified his performance evaluations. Jumaane also claims he took a voluntary demotion to firefighter after more than 27 years with the Department in an effort to avoid continued racial discrimination. His lawsuit was the second time the issue went before a Los Angeles jury. A 2007 jury verdict issued in favor of the City of Los Angeles was later overturned due to juror misconduct.

At trial, Jumaane testified that he was often subjected to racial slurs, jokes, and other verbal abuse at work. City officials alleged that Jumaane’s disciplinary history was entirely warranted and he invented his discrimination claims because he was dissatisfied with the Department’s disciplinary process. After six days of deliberations, jurors sided with Jumaane and ordered the City of Los Angeles to pay him $1.1 million. City officials are reportedly considering whether to appeal the jury’s verdict.

This case is not the first time the Los Angeles Fire Department has faced scrutiny over alleged race discrimination. The Fire Department was accused of systemic discrimination against African-Americans in the past. In addition, the City paid another firefighter $1.5 million in 2006 in order to avoid a potentially costly race discrimination trial.
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January 15, 2014

Hudson County Jury Awards Former Public Safety Director $440,000 in Back Pay for Unlawful Race Discrimination

by Resnick Law Group, P.C.

An eight-member Hudson County jury has awarded a former City of Hoboken employee $440,000 in back wages for discrimination. In the lawsuit, former Public Safety Director Angel Alicea, who is Hispanic, alleged that he resigned from his position in 2011 after he suffered race discrimination and retaliation at the Hoboken Police Department. Alicea also claims Mayor Dawn Zimmer intentionally underpaid him, sought to replace him with a white man, and attempted to destroy his reputation.

When he resigned, Alicea was reportedly earning $27,000 per year in his part-time role with the city. He was later replaced by a full-time employee who earns $110,000 annually. At trial, Mayor Zimmer testified that Alicea was asked to resign after she discovered the former Public Safety Director lied to her about meeting with a key witness in a high profile sting operation. According to Alicea, the meeting Mayor Zimmer described never took place. Alicea stated he believes he was asked to resign under threat of being fired for disclosing alleged improprieties related to steroid use and drug testing within the department.

Although a majority of jurors found the City of Hoboken discriminated against Alicea, their verdict stated Mayor Zimmer did not engage in illegal race discrimination against the man. The next day, a separate hearing regarding punitive damages was cancelled after the parties reached a settlement agreement. That agreement is now pending approval before the Hoboken City Council.
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January 14, 2014

Federal Law Protects Workers in New Jersey, New York, and Elsewhere from Unlawful Age Discrimination

by Resnick Law Group, P.C.

Restaurant chain Ruby Tuesday has agreed to settle a class-action age discrimination lawsuit for a total of $575,000. In EEOC v. Ruby Tuesday, Inc., the nation’s Equal Employment Opportunity Commission (EEOC) accused at least six Ruby Tuesday restaurants in Pennsylvania and Ohio of engaging in discrimination against job applicants over age 40 in violation of the Age Discrimination in Employment Act of 1967 (ADEA). In addition, the restaurant chain allegedly failed to comply with provisions of the ADEA and EEOC regulations that require a business to maintain a copy of employment applications.

As part of the settlement, Ruby Tuesday must work to recruit and hire employees who are over age 40 at the six affected restaurant locations and ensure that all company job advertisements are created in accordance with ADEA requirements. The restaurant chain is also required to conduct regular audits to monitor each restaurant’s compliance with the law and ensure that no future discrimination based upon a job applicant’s or worker’s age takes place. Additionally, Ruby Tuesday has agreed to evaluate managers and other individuals with hiring authority at the affected restaurants based upon his or her ability to recruit and hire older workers. The restaurant chain must also provide extensive training regarding ADEA compliance to a designated compliance monitor, human resources personnel, and anyone with hiring authority at the six restaurants. Finally, Ruby Tuesday agreed to maintain all records related to company hiring practices and provide regular written reports to the EEOC.

Older workers often bring greater experience and leadership skills to the workplace. Despite that aging is a fact of life, some employers choose to discriminate against employees who are over age 40. If a manager makes his or her hiring, compensation, promotion, termination, or other employment decisions based upon a worker’s age, discrimination has occurred. As this case demonstrates, federal law protects workers who are over age 40 from age discrimination. In addition, employment laws in both New York and New Jersey provide discrimination protections for all adult workers or job candidates regardless of age.
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January 13, 2014

OSHA Award Demonstrates that Employers in New Jersey and Elsewhere May Not Retaliate Against Workers Who Refuse to Violate the Law

by Resnick Law Group, P.C.

The owner of an Ohio-based trucking company recently agreed to pay two former truckers more than $300,000 after it fired them in violation of the Surface Transportation Assistance Act’s (STAA) whistleblower provisions. The two men were allegedly fired for refusing to operate a commercial vehicle in violation of federal law after one of the men was cited by West Virginia State Police for carrying an excessive load and operating a tractor-trailer without a log book, commercial driver’s license, or required vehicle information displayed. Both men were reportedly terminated from Star Air Inc. for refusing to continue driving company vehicles until the issues were resolved.

After the two men filed a discrimination and retaliation complaint with the United States Department of Labor’s Occupational Health and Safety Administration (OSHA), an administrative law judge ordered the company to reinstate the workers with back pay. The judge’s order was later upheld by the agency’s Administrative Review Board. As part of a consent agreement, the trucking company will pay the men $302,000 over the course of three years. If the payments are not made, the company and its owner will be liable for the entire award of nearly $700,000 issued by the U.S. District Court for the Northern District of Ohio, Eastern Division, in Civil Action Number 5:12-cv-02833.

OSHA is responsible for enforcing the whistleblower protections enumerated in the STAA and multiple other Acts. In general, employers may not retaliate against workers who raise specific concerns that are protected by federal law or notify the federal government regarding their concerns. Additionally, employees who are terminated or suffer other retaliation for voicing their concerns may file a complaint with OSHA.
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January 10, 2014

Liquidated Damages Award in FLSA Case Reminds Employers in New Jersey and Across the U.S. to Comply With Wage Laws

by Resnick Law Group, P.C.

A federal court has ordered a restaurant company to pay a group of employees liquidated damages under the Fair Labor Standards Act (FLSA). In Dobson, et al, v. Timeless Restaurants, Inc. d/b/a Denny’s, a number of diner servers sued their employer for failure to pay unpaid minimum wages and overtime. According to the restaurants workers, they were required to participate in a tip pool that redistributed a portion of their earnings to other employees whose wages were not tip-based.

After a jury found Timeless Restaurants violated the FLSA, the court considered whether to award the workers liquidated damages. The employees argued that such an award was merited under the FLSA because the jury determined that Timeless acted willfully when it failed to pay wait staff minimum and overtime wages. Timeless, on the other hand argued that the jury’s determination was not determinative and the company “had reasonable grounds to believe that its acts or omissions did not violate the FLSA.”

According to the court, liquidated damages are not required under the FLSA if an employer who failed to pay a worker the appropriate wages acted in good faith. Still, the statute places the burden for demonstrating such a good faith belief on the employer. According to the district court, Fifth Circuit precedent states that an employer may not demonstrate it acted in good faith after a jury has determined the employer willfully violated the FLSA. As a result, Timeless was ordered to pay liquidated damages for its willful FLSA violations.
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January 10, 2014

Lawsuit Demonstrates that Workers in New Jersey and Elsewhere May Not be Sexually Harassed for Failing to Conform to Gender Stereotypes

by Resnick Law Group, P.C.

A federal appeals court has ruled in favor of a construction worker in a sexual harassment lawsuit. In EEOC v. Boh Bros. Construction Co., the nation’s Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of a Louisiana man who claims he was subjected to verbal and physical harassment by a male work supervisor because he does not conform to the man’s gender stereotypes.

The employee was initially hired by Boh Bros. Construction Co. to perform welding and iron repair work on a Louisiana bridge following Hurricane Katrina. He was later transferred to a bridge maintenance crew consisting of about six men and one supervisor. According to the record presented at trial, the supervisor regularly used vulgar language at work. A few months after his transfer, the supervisor began calling the employee names, questioning his masculinity, and performing harassing acts that “embarrassed and humiliated” him.

After the employee complained about the supervisor’s behavior, he was transferred to another work crew. Later, the supervisor learned that the employee violated a company policy and told him to meet with the general supervisor. The employee again complained about the harassment and was sent home without pay. The employee claims there was no discussion of the policy violation. The general supervisor apparently performed a perfunctory investigation of the harassment allegations and determined they were without merit. Two days later, the employee was told to report to work. A few months after he filed a discrimination complaint with the EEOC, he was laid off for lack of work.
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December 6, 2013

New York Attorney General Announces Settlement Reached in Pregnancy Discrimination and Harassment Lawsuit Against Syracuse Mortuary School

by Resnick Law Group, P.C.

New York Attorney General Eric T. Schneiderman recently announced that his office has settled a sexual harassment and pregnancy discrimination lawsuit filed against a Syracuse mortuary school and its president in 2011. As part of the settlement, the Simmons Institute of Funeral Services and Maurice Wightman agreed to pay restitution to a number of former instructors and students who filed complaints against the school and to implement reforms designed to ensure future harassment and discrimination do not occur. Additionally, both the school and Wightman agreed to refrain from engaging in any sort of retaliation against the women who filed complaints against the institution and to immediately report any future harassment or discrimination allegations to the Office of the Attorney General.

According to the lawsuit, Wightman made sexual comments and inappropriately touched female students. He also allegedly refused to allow both pregnant students and faculty to engage in certain activities despite doctor approval. Ironically, Wightman is reportedly the private for-profit school’s designated contact for all discrimination and harassment complaints.

In New York, discrimination on the basis of a woman’s pregnancy constitutes unlawful sex discrimination. Title IX of the federal Civil Rights Act of 1964 prohibits any educational institution that receives federal funds from engaging in sex discrimination in education. Additionally, both New York and federal law require employers and educators to refrain from engaging in pregnancy discrimination.
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