The New Jersey Employment Law Firm Blog

December 3, 2013

Jury Verdict Sends Message to Employers that Disability Discrimination is Unacceptable in New Jersey and Across U.S.

A federal jury has ruled in favor of a 25-year-old mentally disabled man who was discriminated against by his employer in Texas. According to a lawsuit filed against the Kroger chain of grocery stores, the mentally challenged former employee worked at one of the company’s stores without incident for four years before he was transferred to a grocery store in Plano. The man claims a store manager began verbally abusing him and calling him names about one-week after the transfer. The 25-year-old also alleges that he was regularly asked to perform duties by himself that normally required at least two people. Approximately one year after he was transferred, the disabled man filed a discrimination and harassment lawsuit against the company. The young man also claims he was fired as a direct result of filing the legal complaint.

After four days of testimony regarding the alleged harassment endured by the mentally challenged 25-year-old, a jury issued an award of $450,000 in damages. His father stated he was happy with the verdict because it sends a message to employers that discrimination against the disabled will not be tolerated. A representative for Dallas-based Kroger said the company is currently considering whether to appeal the jury’s verdict.

Unfortunately, not all disability discrimination is immediately so obvious. Sadly, many employers in New Jersey and elsewhere choose to unlawfully discriminate against or harass workers who suffer from a disability due to biased thinking. Disabled persons in New York and New Jersey have a right to expect that their employers will provide them with reasonable accommodations that allow them to perform their essential job duties. If a disability does not physically prevent a worker from performing his or her job requirements, an employer has no legal basis on which to discriminate. If your request for reasonable accommodations at work due to a disability was denied, your rights may have been violated.
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November 5, 2013

Strippers Win Employee Misclassification Case in New York

by Resnick Law Group, P.C.

A federal judge in New York has ruled that dancers at Rick’s Cabaret are hourly workers who must be paid minimum wage. According to a class-action lawsuit filed on behalf of nearly 2,000 dancers in 2009, the company improperly classified strippers as independent contractors. By categorizing dancers in this way, Rick’s Cabaret avoided paying employment taxes, benefits, and hourly wages to strippers at the company’s 23 clubs located across the nation. Additionally, independent contractors are not entitled to the same legal protections under state and federal labor laws that employees receive. In effect, dancers at the New York club were being paid solely in tips and subject to fees and fines imposed by management without legal protections.

Judge Paul Engelmayer determined the dancers were employees after analyzing the degree of control company management exerted over the women. According to the judge, the long list of entertainer guidelines and fees demonstrated that the company “exerted significant control over its dancers’ behavior.” At this time, no award for back pay has been determined. Rick’s Cabaret CEO Eric Langan stated the company plans to appeal the judge’s decision.

Although classifying strippers as independent contractors has apparently become an industry-wide practice, a number of dancers have won judgments against strip clubs in a variety of states across the country in recent years. Unfortunately, many dancers continue to work despite an erroneous employee status because they are simply unaware of their rights.
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November 4, 2013

New Jersey Law Allows Victims of Domestic Violence and Sexual Crimes to Take Unpaid Work Leave

by Resnick Law Group, P.C.

A New Jersey law that is scheduled to take effect on October 1 will require public and private employers with 25 or more employees to grant job-protected leave to the victims and certain family members of sexually violent and domestic violence offenses. The New Jersey Security and Financial Empowerment Act (SAFE Act) provides workers with up to 20 days of unpaid leave in any 12-month period. Leave may be taken in order to seek medical treatment, obtain assistance from a victim services organization, seek psychological counseling, speak with an attorney, attend or prepare for court proceedings, and take specified safety actions such as relocating.

In order to utilize the provisions of the Act, an employee must have worked at least 1,000 hours during the preceding year and all leave must be used in the 12 months immediately following the reported act of violence. Where possible, workers who take leave pursuant to the SAFE Act are required to provide their employer with advance written notice. All SAFE Act leave must be taken in increments of one day and any leave must be taken concurrently with leave requested under the New Jersey Family Leave Act and the federal Family and Medical Leave Act where applicable. Additionally, a New Jersey employer may request documentation related to the act of violence. Such documentation must be maintained in a confidential manner and may not be disseminated without the express written permission of the employee.

The provisions of the SAFE Act prohibit an employer from harassing, terminating, discriminating against, or engaging in retaliation against a worker who takes leave under the new law. If an employer violates this requirement, a worker may file a civil lawsuit against the company within one year of the alleged incident. An employee who suffered discrimination or retaliation for taking leave pursuant to the SAFE Act may be eligible to receive compensation for lost wages and benefits, emotional distress, attorney’s fees, and other damages. In addition, an employer who violates the Act may be subject to a significant civil fine.
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November 1, 2013

New Law Protects Social Media Account Privacy for New Jersey Workers and Job Applicants

by Resnick Law Group, P.C.

Increasingly, Americans are utilizing social media accounts like Facebook, Twitter, LinkedIn, Google+, and more both on and off the job. In recent years, a growing number of employers have reportedly asked workers and job applicants for access to their personal social media accounts as a condition of employment. In response to this practice, Governor Chris Christie recently signed into law a bill that prohibits New Jersey employers from requesting access to the personal social media accounts of workers or job candidates.

Companies who violate the new social media law will be subject to a $1,000 fine for the first offense and a $2,500 fine for each additional offense. The measure also allows employees and applicants the option to seek financial compensation for lost earnings from an employer who violates the law. Additionally, employers may not require a job candidate to waive any of the protections of the law as a condition of hiring, and they may not retaliate against a worker for exercising any rights guaranteed by the legislation.

The measure, which goes into effect on December 1st, does not apply to employer policies related to use of company-issued electronic devices such as laptops and smartphones. Also, employers are not prohibited from viewing employee or candidate information that is generally available to the public. State and local law enforcement agencies are not required to adhere to the provisions of the new law.
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November 1, 2013

New Jersey Governor Signs Law Designed to Help Women Gain Access to Equal Pay in the Workplace

by Resnick Law Group, P.C.

New Jersey Governor Chris Christie has signed into law a bill designed to assist women in the fight for equal pay. The new law prohibits employers from punishing workers who disclose their rate of pay or other compensation information to co-workers who seek to investigate whether a company or employer is engaging in compensation discrimination.

In 2009, data compiled by the United States Census Bureau found that women earn about three-fourths the pay rate of their male counterparts. In high paying professions, the pay gap is reportedly even wider. Census data also found that minority women tend to suffer the highest pay disparity when compared with white men.

The new law was sponsored in the New Jersey Assembly by legislators Angel Fuentes, Pam Lampitt, and Celeste Riley. According to Fuentes, the law will make it more difficult for employers to continue “discriminatory compensation practices” based on gender because workers will be protected from retaliation over sharing their compensation information. Lampitt, who also serves as Assembly Women and Children Committee Chair, stated she hopes the law will help to chip away at the remaining glass ceiling. Riley added that it only makes sense for women with equal education and experience to receive equal pay for the same job.
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October 31, 2013

Employers in New Jersey and Across the U.S. May Not Engage in Religious Discrimination

by Resnick Law Group, P.C.

A federal judge in San Francisco has ruled that clothing retailer Abercrombie & Fitch engaged in religious discrimination against a former employee. According to a lawsuit filed by the nation’s Equal Employment Opportunity Commission (EEOC) in 2011, the company fired a female Muslim worker for refusing to remove her hijab during work hours. The former worker claims she wore a hijab to the job interview and to work after initially employed by a San Mateo Hollister store. Months later, the company allegedly told the woman the head scarf violated the company’s policy regarding how an employee should look and terminated her. In June, the federal judge who heard the case reportedly criticized Abercrombie & Fitch for failing to provide evidence that the worker’s hijab caused the company to lose revenue. A damages award has not yet been determined.

This is not the first time Abercrombie & Fitch has been accused of illegal discrimination. In 2011, the company lost a wrongful termination lawsuit that was filed against it by another Muslim employee who was apparently fired for refusing to remove her hijab. Earlier this year, Abercrombie & Fitch also lost a disability discrimination lawsuit related to lack of wheelchair access at the company’s Hollister stores. A federal judge gave the company until 2017 to build handicapped accessible store fronts.

Although this situation occurred in California, New Jersey employers are also required to make reasonable accommodations for workers with regard to religious needs. In general, discrimination has occurred if an employer fails to make religious accommodations that do not have a major impact on business operations. Workers who were discriminated against in New Jersey have a right under both state and federal law to sue for damages. Before an employee may recover damages for discrimination, however, he or she must be part of a group that is protected by statute. Workers who suffered discrimination based upon their religion, gender, age, pregnancy status, military status, disability, race, and more may have a discrimination claim against an employer.
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October 31, 2013

ADA Protects Workers Suffering From Postpartum Depression in New Jersey, New York, and Nationwide

by Resnick Law Group, P.C.

An Indiana-based power grid company recently agreed to settle a disability discrimination lawsuit for more than $90,000. The United States Equal Employment Opportunity Commission (EEOC) reportedly filed the lawsuit against Midcontinent Independent Transmission System Operator (MISO) in response to a complaint filed by a former employee who was allegedly terminated as a result of a medical leave request related to postpartum depression treatment. MISO reportedly fired the employee for lack of attendance despite that the leave she requested was allowed by company policy. MISO also apparently told the employee that she could not be absent due to the critical nature of her job duties. Still, the company purportedly waited nearly two months after her requested return date to fill the former worker’s position.

According to the EEOC, the former worker’s postpartum depression severely limited more than one of her major life activities for a substantial period of time. Because of this, the agency charged that it was a protected disability pursuant to the Americans with Disabilities Act (ADA). Under the ADA, U.S. employers must provide reasonable accommodations to disabled workers unless the accommodation would cause undue hardship for the employer.

As part of a consent decree, the federal court ordered MISO to pay the former employee $90,500, provide ADA training to company workers, provide annual disability request and compliance reports to the EEOC, and notify other workers about the lawsuit and settlement. The EEOC is also tasked with monitoring company compliance with the ADA over the course of the next three years.
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September 19, 2013

Arbitrator Recommends $4.5 Million Award for Sexual Harassment of Former Long Branch School District Worker

by Resnick Law Group, P.C.

In early August, an arbitrator awarded a former Long Branch School District worker $4.5 million. In a 2011 civil complaint filed against the school district and prior Superintendent Joseph Ferraina, the former secretary alleged that she was sexually assaulted by and forced to perform sex acts for Ferraina beginning in 2004. The woman also stated Ferraina threatened her with termination if she reported the abuse. According to the former secretary, the school board ignored her complaints regarding the allegedly hostile work environment and instead engaged in a cover-up. Eventually, the woman apparently suffered a nervous breakdown. Ferraina retired from his position at the end of June.

Following a non-binding arbitral hearing, a former Monmouth County judge who acted as arbitrator in the case found in favor of the former secretary. Still, either side of the case may disagree with the arbitrator’s recommendation and file a “trial de novo” before 30 days pass. By doing so, the non-binding arbitral decision would be rendered moot.

As this case shows, one type of sexual harassment is quid pro quo sexual harassment. Quid pro quo sexual harassment may arise when a supervisor conditions a worker’s employment upon his or her submission to sexual advances or demands. As allegedly occurred here, an employee may have a claim for quid pro quo sexual harassment if a supervisor makes him or her feel as if sexual advances must be tolerated in order to keep a job, obtain a raise, be promoted, or to avoid discipline, a demotion, or other negative work-related consequences.
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September 19, 2013

High Profile Lawsuit Demonstrates Why New Jersey Employers Should Always Protect Workers From Unlawful Sex Harassment

by Resnick Law Group, P.C.

In August, an undisclosed settlement was reached in a highly publicized sexual harassment and race discrimination case. According to a document filed in a Savannah, Georgia federal court, both sides agreed to settle a lawsuit that was filed against celebrity television cook Paula Deen and her brother, Bubba Hiers. The case was brought by a former manager at Uncle Bubba’s Seafood and Oyster House. The woman’s complaint alleged that the restaurant’s employment practices treated black workers unfairly. She also claimed that she endured sexual harassment from Hiers and was forced to listen to racially offensive statements at work. Before a settlement was reached, a federal judge threw out the white woman’s race discrimination claims for lack of standing.

A nationwide uproar against Deen began after she apparently admitted to making racially derogatory statements during a deposition related to the case. As a result, the celebrity’s television show was cancelled and a number of retailers reportedly dropped her numerous product lines. Prior to the lawsuit, the Paula Deen franchise was reportedly worth millions. At the request of the parties, the case was dismissed with prejudice.

In New York, New Jersey, and across the rest of the country, employers are not legally required to treat all of their workers fairly. For example, an employer may engage in nepotism, favoritism, or simple “office politics.” An employee who is treated unfairly may seek legal action only if the discrimination resulted from his or her gender, race, age, religion, pregnancy status, a mental or physical disability, color, national origin, sexual orientation, veteran or military status, or another legally protected status.
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August 27, 2013

Disabled Workers in New Jersey and Nationwide May Suffer Discrimination

by Resnick Law Group, P.C.

According to data filed with the nation’s Department of Labor (DOL), Goodwill Industries paid disabled workers in at least 10 states an hourly wage of less than 22 cents in 2011. In fact, two Texas locations reportedly paid more than 50 employees less than a dime per hour. Additionally, an Ohio location allegedly paid a disabled worker a paltry three cents per hour. Goodwill franchises in Florida, Maryland, Michigan, North Carolina, Oklahoma, Pennsylvania, Virginia, and Wisconsin purportedly paid employees 21 cents per hour or less between 2008 and 2011. In contrast, Goodwill executives generally earn at least a six-figure annual income.

A little-known federal law reportedly allows Goodwill Industries and other non-profit groups to pay disabled workers wages that fall below the national minimum. Section 14 (c) of the Fair Labor Standards Act allows employers to pay disabled employees based upon their abilities so long as the employer obtains a wage certificate from the DOL. The law, however, was passed in 1938. According to the National Council on Disability’s Clyde Terry, organizations like Goodwill have failed to maintain appropriate wage levels for disabled employees. As a result, Terry believes that disabled persons are often devalued by their employers. He also stated sheltered workshops like those run by Goodwill should be phased out.

Section 14 (c) apparently allows non-profit employers to use so-called time studies to determine the pay rate for disabled employees. The studies reportedly use a stopwatch to determine the amount of time it takes each worker to complete an assigned task. That rate is then compared with the amount of time it takes an employee who is not disabled to complete the same task. Disabled worker pay rates may fluctuate as time studies are allegedly completed once every six months. Goodwill data shows that 69 franchises in the United States employ about 7,300 disabled workers who are currently eligible to receive an hourly wage below the federal minimum of $7.25.

Although Goodwill apparently acted within the limits of federal law, many disabled workers suffer reprehensible and illegal discrimination. Too many employers in New Jersey and across the nation choose to unlawfully discriminate against employees who suffer from a disability as a result of biased thinking. If an individual’s disability does not physically prevent the performance of any essential job duties, an employer has no legal basis to discriminate. If you feel that you suffered discrimination at work as a result of your disability, you are advised to contact a quality employment lawyer to discuss your rights.
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