The New Jersey Employment Law Firm Blog

March 31, 2014

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

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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February 21, 2014

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

by Resnick Law Group, P.C.

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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