The New Jersey Employment Law Firm Blog

June 3, 2013

New Jersey Company Settles With New York Attorney General’s Office Over Alleged Discrimination Against Applicants With a Criminal History

One of the world’s largest medical and diagnostic testing companies in the world, Quest Diagnostics, has reportedly settled with regulators from the State of New York over allegations that the company engaged in employment discrimination. According to the New York State Attorney General’s Office, Quest violated state law by automatically disqualifying job applicants based solely on their criminal history. As part of the settlement, the Fortune 500 Company apparently agreed to pay $70,000 in fines and submit periodic compliance reports to state regulators. The Madison, New Jersey-based company will also reportedly modify its hiring policies, conduct employee training regarding the changed policies, and preserve all of its hiring records. Quest purportedly employs more than 42,000 people nationwide and operates at least 200 facilities in New York.

An investigation into Quest’s hiring practices allegedly resulted after a prospective job applicant filed a complaint with the Attorney General’s Office. In the State of New York, potential employers must consider a number of mitigating factors in conjunction with an applicant’s criminal history. Following the investigation, Quest was accused of refusing to hire applicants with a criminal past without regard for their qualifications, the amount of time that passed since the conviction, and evidence of rehabilitation. In addition, a Quest subsidiary, ExamOne Worldwide Inc., allegedly violated New York law by summarily refusing to consider any applicant with a criminal conviction that occurred within the previous seven years.

As this case demonstrates, employment discrimination can affect job applicants as well as those who are employed. Unfortunately, such discrimination is not always immediately obvious. Under both state and federal law, workers have a right to sue for damages if they were discriminated against. In order to recover financial compensation, employees must be part of a group that is statutorily protected. Workers who were discriminated against based upon their age, gender, race, disability, religion, military status, pregnancy, and more may have a discrimination claim against an employer. Oftentimes, employers discriminate against such classes of persons by failing to hire, demoting, firing, or harassing them. If you suffered employment discrimination during the application process or after you were hired, you should contact a skilled employment lawyer to discuss your rights.
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May 23, 2013

Jury Award Demonstrates Why Disabled Workers in New Jersey and Nationwide Must be Defended Against Unlawful Discrimination

by Resnick Law Group, P.C.

On May 1st, a federal jury in Iowa awarded $240 million to 32 mentally-disabled workers who were allegedly abused and controlled by their now-defunct employer. According to the nation’s Equal Employment Opportunity Commission (EEOC), the disabled workers were paid 41 cents per hour, housed in unsanitary conditions, denied basic medical care, and physically and verbally abused by individuals who were charged with overseeing their care for years. The EEOC sued their employer, Henry’s Turkey Service, on behalf of the workers after the State of Iowa closed the facility in 2009. The company was allegedly investigated and closed in Iowa after state officials received a complaint from one of the worker’s family members.

According to Sue Gant, a Developmental Psychologist who purportedly testified on behalf of the workers, the disabled individuals were “virtually enslaved” by the company. The Iowa jury allegedly found that Henry’s Turkey Service violated the workers’ civil rights and imposed discriminatory conditions of employment in violation of the Americans with Disabilities Act (ADA). The jury’s award of $7.5 million per worker was reportedly the largest handed down in the 48-year history of the EEOC. Gant stated she believes the jury award was so large due to the level of discrimination suffered by the workers.

President of Henry’s Turkey Service, Kenneth Henry, stated the allegations were exaggerated and said the company has plans to appeal. Although it is unlikely the now-closed Texas-based company has the financial means to pay the award, federal officials have reportedly stated they will work to recover as much as they can for the disabled workers. In 2012, Henry’s Turkey Service was also ordered to pay the workers $1.3 million in back wages.

Although the workers in this case suffered reprehensible discrimination, not all employment discrimination is immediately obvious. Sadly, many employers choose to unlawfully discriminate against employees who suffer from a disability due to biased thinking. If a disability does not physically prevent a worker from performing his or her essential job duties, an employer has no legal basis to discriminate based on that disability.

Workers in New York and New Jersey are protected from disability discrimination no matter the severity of their disability. In addition to more severe limitations such as blindness or paralysis, depression, anxiety, and learning disabilities are protected as well. If you believe you suffered employment discrimination as a result of your disability, you should contact a quality employment law attorney.
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May 9, 2013

Unpaid Intern Lawsuits Seek to Enforce Wage and Hour Laws

by Resnick Law Group, P.C.

Internships are often a good way for college students and others to gain experience in a field, such as film or journalism, in the hopes of getting a full-time job after graduation. Some of these internships include a salary, stipend, or course credit, but many interns essentially work for free. While some students might be willing to make such a sacrifice in order to gain experience or contacts, unpaid internships might violate state or federal labor laws. The federal Fair Labor Standards Act (FLSA) and other laws provide guidelines to help identify when employers must pay interns at least minimum wage, and multiple pending lawsuits are seeking to enforce interns’ right to compensation for their work.

The FLSA, 29 U.S.C. §§ 201 et seq., has a very broad definition of “employ,” describing it as “to suffer or permit to work.” 29 U.S.C. § 203(g). It allows exceptions for individuals volunteering for charitable groups and other nonprofit organizations, but generally nearly anyone working for a for-profit company may be considered “employed.” The U.S. Department of Labor has developed a set of guidelines for determining whether an internship falls under the FLSA’s coverage regarding overtime compensation and minimum wage. An internship program that meets these six criteria is not subject to FLSA requirements:
1. The internship resembles a training program in an educational institution;
2. The purpose of the internship is to benefit the intern;
3. The employer does not benefit directly from the intern’s experience;
4. The intern works under existing employees and does not displace them;
5. The employer makes no promise or representation of a job after the internship; and 6. Both the employer and the intern understand and agree that the intern will not receive compensation for the internship.
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April 30, 2013

NYPD Takes a Stand on Hair Color Discrimination, but What Does the Law Say?

by Resnick Law Group, P.C.

The New York City Police Department (NYPD) issued an anti-bias message alert that warned sergeants and lieutenants about harassment or discrimination against red-haired officers. The story, reported in the New York Post, has met with mostly bemused responses from people who do not feel that redheads are a particularly disadvantaged group in the United States right now. It raises the question of exactly where hair color falls within the law of employment discrimination. To the extent that hair color is seen as an indication of race, ethnicity, or national origin, it could give rise to a claim for unlawful employment discrimination. The U.S. Supreme has never addressed the question directly, but lower courts have considered the role of hair color and other physical attributes.

According to the New York Post, no lawsuits against the city have alleged employment discrimination based on red hair. Officers quoted in the Post‘s story say they have “endured years of ridicule,” but none seemed to think that it rose to the level of actionable discrimination or harassment. From a legal standpoint, however, red hair could be a protected category if an employment practice had a significantly disparate impact on redheads. The Post article also quoted red-haired British model Lily Cole, who suggested that bias against redheads may be a bigger problem in the United Kingdom.
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April 26, 2013

Fashion Models Sue Former Employer for Likeness Rights, Unjust Enrichment

by Resnick Law Group, P.C.

A former fashion model has filed suit against a major designer for alleged misappropriation of his likeness, claiming that it reused photographs taken of him more than a decade ago without his consent. Hamideh v. Dolce & Gabbana S.r.L., et al, No. BC502164, complaint (Cal. Super. Ct., Los Angeles Co., Mar. 4, 2013). In addition to the intellectual property claims, the plaintiff is asserting a claim related to breach of contract, seeking restitution for commercial benefits the defendant allegedly received from the use of his pictures. The case resembles situations faced by employees who contribute intellectual property to an employer, and who may continue to have rights to that intellectual property even after their employment ends.

According to the plaintiff’s complaint, Dolce & Gabbana (D&G), an Italian company known for high-end fashion, hired the plaintiff in 2002 for an advertising campaign. He was the featured male model of the campaign, appearing alongside world-famous female model Giselle Bundchen. D&G’s rights to the plaintiff’s likeness allegedly expired at the end of 2003. The plaintiff alleges that, in May 2012, D&G published photos of him taken for the campaign in 2002 without his permission. He claims that D&G did so “for the purpose of advertising [its] products and promoting [its] brand.” Hamideh, complaint at 4.
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April 19, 2013

New Jersey Legislature Passes Bill Protecting Employees’ Social Media Accounts from Employer Scrutiny

by Resnick Law Group, P.C.

The New Jersey Legislature passed a bill in March 2013 that, if signed by the Governor, will be one of the strongest laws in the country protecting employees against online snooping by employers. Some employers have taken to requesting passwords or other access to social media accounts like Facebook from their employees, or as part of the job application process. At least five other states already have laws prohibiting employers from requiring employees to provide their passwords to their social media accounts. More than half of all U.S. states are reportedly considering such legislation.

The bill, A2878, was introduced in the New Jersey General Assembly on May 10, 2012, and first passed the Assembly on June 25. The New Jersey Senate passed an amended version of the bill, by a vote of 28-0, in October. The Assembly then passed the amended bill, with seventy-five voting in favor and two voting against, on March 21, 2013. The final bill applies to all employers in the state except for state and local law enforcement agencies. Earlier drafts also governed educational institutions.

Employers, the bill states, may not “require or request” any passwords or other form of access to an employee’s or job applicant’s personal social media or email accounts. It further prohibits employers from requiring employees or job applicants to disclose whether or not they have personal accounts on social media sites. An earlier version of the bill would have barred employers from even asking if an employee or applicant has such an account. Employers may not require a person to waive any of the protections of this bill as a condition of hiring, and they may not retaliate against an employee for exercising any rights guaranteed by the bill.
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April 11, 2013

Professor Sues College for Gender and Race Discrimination, Saying It Promoted Less-Qualified Professors Ahead of Her

by Resnick Law Group, P.C.

A college professor is suing the college where she teaches for gender and race discrimination, alleging that the administration prevented her from advancing on the tenure track at the same rate as her colleagues. Wang v. Macalester College, No. 62-CV-12-9750 (Minn. Civ. Ct. – Ramsey Co., Dec. 21, 2012). She further claims that, after denying her requests for promotion, the college retaliated against her for speaking out about it.

Wang Ping, the plaintiff, is a professor of English at Macalester College in St. Paul, Minnesota. A native of China, she began working at Macalester in 1999 after getting a doctorate from New York University. She became an assistant professor in the English department in 2001. According to her complaint, she requested promotion to associate professor in 2003, but was denied. She finally made associate professor in 2005. A committee denied her request for promotion to full professor in 2009, allegedly stating that her academic record “did not meet the high standard for promotion to full professor.” After she reported the matter to the Equal Employment Opportunity Commission (EEOC), Wang alleges, the college retaliated against her by “refusing to facilitate her projects.” She received a promotion to full professor in 2012.
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April 5, 2013

Non-Solicitation Agreement Not Violated by Former Employee’s Facebook Posts, Court Rules

by Resnick Law Group, P.C.

A federal court ruled in favor of a former employee in a key portion of the former employer’s request for a preliminary injunction. Pre-Paid Legal Services, Inc. v. Cahill, No. 12-cv-346, order affirming magistrate’s report (D. Okla., Feb. 12, 2013). The decision is one of the first to address employees’ use of social media versus their contractual obligations to a former employer. The employer alleged that social media activity by the former employee, such as posts to his Facebook page, breached a non-solicitation agreement. The court disagreed, finding that his activities on Facebook and Twitter were not expressly targeted to employees of the former employer, and as such did not violate the specific terms of his non-solicitation agreement.

The defendant, Todd Cahill, worked for Pre-Paid Legal Services, Inc. (PPLSI) in San Diego from 2004 until August 2012. PPLSI sells legal service plans, using a multi-level marketing model that allows sales associates to recruit additional sales associates to work “downline” from them. A sales associate receives commissions for their own sales and those of downline associates. Cahill began as a sales associate, and received a promotion to regional manager in 2008. He signed an “Associate Agreement” when he began working for PPLSI, which included a clause prohibiting him from “proselytiz[ing], recruit[ing], or solicit[ing]” other associates while employed by PPLSI and for two years after termination or departure. Cahill, magistrate’s report at 3 (Jan. 22, 2013).
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April 3, 2013

Restaurant Settles Pregnancy Discrimination Lawsuit with EEOC

by Resnick Law Group, P.C.

A restaurant has agreed to pay $20,000 to a former employee, along with other relief, to settle a pregnancy discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). EEOC v. Reed Pierce’s, No. 3:10-cv-00541, consent decree (S.D. Miss., Feb. 5, 2013). The lawsuit alleged that the restaurant unlawfully terminated the employee because she was pregnant. The restaurant continues to deny the EEOC’s allegations, but agreed via a consent decree to pay damages, allow injunctive relief, modify its employment policies, and mandate training for its employees.

The complainant worked for Reed Pierce’s, a restaurant in Byram, Mississippi, as a waitress. According to the amended complaint filed by the EEOC, the complainant notified supervisors that she was pregnant in November 2008. She reportedly had an allergic reaction to prenatal vitamins in February 2009, and asked to leave work as a result. The employer had allegedly granted similar requests by non-pregnant employees to leave work because of illness, but it denied her request. She made a similar request to take off from work for a doctor’s appointment in March 2009, but was denied. The employer had allegedly granted requests to leave work for medical appointments for other employees. The complainant received notice of her termination from the employer on March 7, 2009, allegedly because “her pregnancy was interfering with her ability to do her job.” Reed Pierce’s, am. complaint at 3-4 (Oct. 18, 2010). She maintains that she was still able to perform her job duties, but received disparate treatment from her employer because of her pregnancy.
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March 20, 2013

New York City Court Dismisses Lawsuit Alleging Height Discrimination, Holding that Adult Height is Not a Protected Genetic Characteristic

by Resnick Law Group, P.C.

An employer did not violate New York state or city human rights laws by firing an employee because of her height, according to a Supreme Court judge in Queens County. The court ruled in Peterson v. City of New York, et al, 2012 N.Y. Slip Op. 51472(U) (Sup. Ct., Queens Co., Aug. 7, 2012), that the plaintiff’s height was not a “genetic characteristic” protected by state law, as she presented no evidence of a genetic condition creating a risk of future illness or disability. It further found that the plaintiff failed to state a claim for relief under New York City’s civil rights law, which does not include protections for genetic conditions.

The plaintiff was employed by the New York City Parks Department from June 2010 until February 2011. Her job involved cleaning bathrooms and taking out trash at the Lost Battalion Hall in Queens. Of the five people employed at Lost Battalion Hall, the plaintiff claimed she was the shortest. Her supervisor allegedly told her that she was “too short” to do her job and that “there was something medically wrong with her.” Slip op. at *1. She alleges that the supervisor required her to see a doctor, and that he was verbally abusive towards her. The plaintiff claims that she rejected a different job offer from the supervisor on February 9, 2011, after which he fired her. She filed suit against the city and the supervisor, alleging violations of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).
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