The New Jersey Employment Law Firm Blog

January 22, 2013

New York Pharmacy Law Unlawfully Discriminates Based on National Origin and Alienage, According to Second Circuit

A group of pharmacists with nonimmigrant visas sued a number of New York state officials over a law limiting pharmacy licenses to U.S. citizens and legal permanent residents. The plaintiffs in Dandamundi, et al v. Tisch, et al, 686 F.3d 6 (2nd Cir. 2012) alleged that the law violated the U.S. Constitution’s Equal Protection and Supremacy Clauses by discriminating based on “alienage.” The Second Circuit affirmed the trial court’s ruling in the plaintiffs’ favor, finding that immigration status, other than a lack of documented status, is a “suspect class” and that the law failed strict scrutiny review. While this case did not directly involve allegations of discrimination by an employer, it may have an important benefit for nonimmigrant employees who face discrimination based on their immigration status or national origin.

The plaintiffs have H-1B worker visas or TN temporary worker status, giving them the right to work in the United States for a limited time in a specified job. Each plaintiff had legally worked in the United States for six or more years. The court stated that twenty-two of the thirty-two plaintiffs had applied to obtain green cards. The six-year maximum H-1B period had expired for sixteen of the plaintiffs, so they had obtained Employment Authorization Documents from immigration officials to allow them to remain in the U.S. and continue working during review of their applications.

All of the plaintiffs had New York pharmacy licenses issued through a waiver program in New York Education Law § 6805(1)(6). The law states that pharmacy licenses are only available to citizens and permanent residents, but the waiver extended the availability of licenses to people with certain nonimmigrant visas. The plaintiffs’ pharmacy licenses became void when the waiver expired in 2009.
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January 15, 2013

Former Game Show Model Receives $8 Million Verdict in Pregnancy Discrimination Suit

by Resnick Law Group, P.C.

A former model on the long-running daytime game show “The Price is Right” received a verdict totalling over $8 million in a suit against the show’s producers. The plaintiff alleged that the producers unlawfully discriminated against her because of her pregnancy by firing her after she took leave to give birth. Federal law prohibits discrimination in employment based on a worker’s gender, and includes pregnancy discrimination as a form of gender bias. Laws in most states, including New Jersey, include similar prohibitions.

Brandi Cochran worked as a model on the show for several years before becoming pregnant. She alleged in her complaint that she witnessed discrimination by the show’s producers against other models who became pregnant, and so decided not to reveal her pregnancy for some time in order, she believed, to protect her job. When Cochran informed one of the producers, the producer told her she knew, citing Cochran’s weight gain. Cochran alleged that another producer, upon learning of the pregnancy, began to avoid interacting with her and suggested that he would have fired her had he known of the pregnancy.

Cochran claimed that the producers made her announce that she was pregnant with twins on the air. After the announcement, she alleged, the producers reduced her work load. She also allegedly received ridicule regarding her weight gain from co-workers. Cochran miscarried one of the twins, and she gave birth to the other three months premature. The child had severe health problems, and Cochran said she had to balance caring for the child and attempting to lose weight so she could return to the show. She claimed that the producers would not commit to a return date, and she eventually learned that she had been fired after she was removed from the show’s website.
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January 7, 2013

Firing Employee Due to Concerns of Employer’s Wife is Not Unlawful Gender Discrimination, According to Iowa Supreme Court

by Resnick Law Group, P.C.

In a decision that has already created a firestorm of controversy, the Iowa Supreme Court ruled that a dentist did not unlawfully discriminate against an employee based on her gender when he fired her because of his attraction to her. The court acknowledged in Nelson v. James H. Knight, DDS, P.C., No. 11-1857 (Iowa, Dec. 21, 2012), that the employer’s actions were unfair, but concluded that they were not motivated by the employee’s gender. Concerns over the employer’s marriage, the court found, was the primary reason for the firing. The court held that this was lawful even though the employee had done nothing wrong, but it also noted the potential for this decision to enable future employers to make similar claims in an attempt to justify otherwise unlawful firings.

The plaintiff, Melissa Nelson, began working for Dr. James Knight’s dental practice in 1999, when she was twenty years old and just out of school. She worked for him for ten-and-a-half years as a dental assistant. Both were married and had children by 2009, and Nelson testified that she viewed Knight as a “friend and father figure.” Slip op. at 3. Knight reportedly began to complain to Nelson during the last year and a half of her employment that her attire was inappropriate for the workplace, although Nelson denied wearing clothing that was too tight or otherwise inappropriate.

During the last six months of her employment, the two began communicating via text message. Some of the texts discussed matters of a sexual nature, but none indicated a sexual relationship between the two. Nelson said that she was not uncomfortable with the correspondence, although some of Knight’s texts could be described as explicit, such as a reference to bulging pants caused by her revealing clothing. Knight’s wife, who also worked for his practice, discovered their text correspondence in late 2009, and complained to him about it, calling it a “big threat to [their] marriage.” Id. at 4. In consultation with the couple’s pastor, Knight decided it was best to fire Nelson. He informed her of her termination on January 4, 2010, by reading a prepared statement with another pastor present. Knight acknowledged that Nelson had done nothing wrong, and that she was his best dental assistant. He later hired another woman to replace Nelson, and has always employed female dental assistants.
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January 4, 2013

Holiday Party Results in Sexual Harassment Lawsuit

by Resnick Law Group, P.C.

The holidays should be a time to enjoy one another’s company and have fun. Many employers allow their workers an opportunity to unwind at least once a year at office holiday parties. The office holiday party has become, in some part of the public consciousness, synonymous with debauchery and excess. Unfortunately, some people actually do take the festive atmosphere of a holiday party too far, often with the assistance of alcohol, and inappropriate remarks, behavior, or contact may result. Employees should remember that an office holiday party is a work function, and that the same laws prohibiting harassment in the workplace apply at the party. A recent New York lawsuit demonstrates that employees who are the recipients of a supervisor’s inappropriate conduct have legal remedies.

Lesley Shiner, the plaintiff in Shiner v. State University of New York, University at Buffalo, et al, worked as a clerk for the University at Buffalo Dental School. At office holiday parties in 2008 and 2009, she claims that she witnessed two administrators, an assistant dean and the director of clinical operations, make a series of sexually explicit and inappropriate comments. Upon receiving an invitation to the 2010 holiday party, she informed her direct supervisor that she was not comfortable attending because of the administrators’ past behavior. Shiner attended the December 21, 2010 party despite her concerns. She alleges that, while at the party, the two administrators sexually assaulted her. One administrator, the associate dean, allegedly committed multiple acts of assault, while the other “encouraged and cheered” his behavior. She states that this occurred in the presence of other employees, including Shiner’s direct supervisor.
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January 3, 2013

Federal Immigration Laws Protect Employees from Discrimination Based on National Origin

by Resnick Law Group, P.C.

Federal statutes like the Civil Rights Act of 1964 are widely-known and frequently invoked in cases of allegedly unlawful discrimination or harassment. The Civil Rights Act prohibits discrimination based on a wide range of factors, including race, gender, and religion. Other statutes also protect workers from specific types of discrimination. The federal Immigration and Nationality Act (INA), for example, prohibits employment discrimination based on national origin or, in some cases, citizenship status. While the principal purpose of this statute is to protect United States citizens, it can also protect immigrants with employment authorization in many situations.

Section 274B of the INA, codified at 8 U.S.C. § 1324b, prohibits employers from discriminating in hiring or firing individuals, as well as other features or benefits of employment, based on national origin. For United States citizens and legally-admitted immigrants, the statute prohibits discrimination based on citizenship status. This includes anyone admitted as a legal permanent resident, also known as a green card, and anyone authorized by immigration authorities to work in the United States. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) handles alleged discrimination in violation of the INA.

The law differs from other federal anti-discrimination laws in two important respects. First, it does not protect undocumented immigrants or immigrants without employment authorization. It also does not prohibit employers from giving U.S. citizens preference over non-citizens, provided the applicants are otherwise equally qualified. The statute specifically prohibits filing overlapping claims with the OSC and the Equal Employment Opportunity Commission (EEOC), which investigates alleged violations of the Civil Rights Act.
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January 2, 2013

NLRB Upholds Termination of Employee Over Facebook Posts, but Strikes Down Policy that Allowed the Firing

by Resnick Law Group, P.C.

The relationship between social media and employees’ rights is still a developing field of law, with few definitive rules in place yet. In a recent case demonstrating that uncertainty, the National Labor Relations Board (NLRB) considered the complaint of a person who lost his job due to comments he allegedly posted to the social media website Facebook. The complainant in Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker alleged that his employer’s social media policies unlawfully prevented him from engaging in concerted activities protected by federal labor laws. While the NLRB ultimately concluded that the firing was justified, it also ruled that the employer’s social media policy was unlawful.

The petitioner, Robert Becker, worked for Karl Knauz Motors, Inc. as a salesperson at its BMW dealership in Lake Bluff, Illinois. Becker’s difficulties with his employer began with an “Ultimate Driving Event” held on June 9, 2010. According to the NLRB’s decision, Becker and other sales representatives met with the general sales manager several days before the event to discuss the sales representatives’ duties. The manager informed them that the company would be providing a hot dog cart, along with cookies and chips, for customers attending the event. Becker and others reportedly expressed concern that this was not appropriate for this type of event, or this type of vehicle. Becker would later testify that the food choice was important because people’s perception of the event would influence sales, which would in turn influence his compensation.

In a separate incident, an accident occurred on June 14, 2010 involving a vehicle at a Land Rover dealership also owned by Knauz. During a test drive, a customer’s son was allowed to sit in the driver’s seat, where he reportedly stepped on a vehicle’s gas pedal by accident. This caused the vehicle to roll over the customer’s foot, then down an embankment and into a pond. Aside from the customer’s foot, no injuries were reported.
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December 21, 2012

Employee Social Media Rights Addressed by New Jersey Lawmakers

by Resnick Law Group, P.C.

Employment law attorneys in
New York and New Jersey note a bill passed in the New Jersey Senate recently (A2878), which would forbid companies from requesting access to employees’ or applicants’ online social media accounts, including Facebook and Twitter. In addition, the legislation goes further by preventing employers from even asking if an employee or applicant has an account or profile on a particular social media site.

Companies could face the prospect of a $1,000 or $2,500 fine depending on if it is a first or second offense, and employees or prospective employees could sue for damages in the event they are denied employment or promotion because of an employer’s prying into social media content. Law enforcement agencies would be exempt from these regulations.Employers are also prohibited from asking candidates to waive protection under the bill as a condition of an offer of employment, and retaliation is prohibited for refusing to provide passwords, reporting a violation of the bill, or participating in an investigation of a violation.

The bill had bipartisan support, and Republican sponsor Senator Kevin O’Toole explained his support, saying, “Social networking users have the right and freedom to use their accounts to share private messages with family and friends, express their religions and sexual preferences, and post images and videos with family and friends.” O’Toole went on to say that employers have many tools during the job application process to evaluate potential employees for their qualifications for employment.

Another sponsor, Republican Senator Diane Allen, made an analogy to the right to privacy people have in their homes and with physical mail. Many privacy and employee rights advocates have also questioned why employers would have greater access to personal information about an employee or applicant simply because it is posted on an online social media network.

While labor attorneys who represent large businesses are saying that the practice of asking for social media passwords is not widespread and the bill is unnecessary, legislation such as this has become increasingly common to protect employee rights. Maryland and Illinois have passed similar laws.

Granting employers and potential employers access to social media accounts can lead to a host of information being discovered that can be used to discriminate against an employee or candidate for employment, from discovering that an employee or candidate is pregnant, learning of health conditions, to simply learning the employee or candidate’s age or marital status.

The proposal banning employers from requiring that New Jersey employees or applicants disclose social media log-in information is in the Assembly for concurrence and would then need to go to Governor Chris Christie for his signature.
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November 15, 2012

New Jersey Court Backs Alcoholic Employee’s Disability Discrimination Claim

by Resnick Law Group, P.C.

The New Jersey Superior Court recently overturned a lower court’s summary decision dismissing the plaintiff’s claims of disability discrimination on the basis of her voluntary admission of alcoholism.Our New Jersey employment lawyers know it is a little-known fact that alcoholism is considered a disability, both under the Americans With Disabilities Act of 1990 and the New Jersey Law Against Discrimination. What this means is that you cannot be discriminated or retaliated against by your employer for seeking substance abuse treatment or for simply admitting you are an alcoholic or a drug addict.

This may not summarily protect your position if you show up for work intoxicated, if your job performance is poor or if you are putting others at risk. But in this case, the long-term employee was performing well and had no disciplinary issues. What’s more, the company’s internal policy on which her termination was based was found by the state’s Superior Court to be “facially discriminatory,” though the company vehemently defended it.

The case, A.D.P. v. Exxonmobil Research and Engineering Company, originated with a voluntary admission from the employee to her employer that she was an alcoholic and was in an inpatient rehabilitation center receiving treatment. This admission was not the result of an inquiry or pressure from the employer based on poor job performance. In fact, she was performing quite well. Regardless, the company, by its own policy, subsequently required the employee to undergo regular alcohol testing in the form of breathalyzer tests and mandated that she sign an agreement pledging to abstain from alcohol.

When the employee in turn failed a random breathalyzer test, she was fired.

The Superior Court found that because the employee’s required breathalyzer test was based not on job performance or imposed on every employee regardless of disability, the employer in fact was engaging in discrimination.

The court underscored the fact that the employer had not made her sign this agreement as part of a “last chance agreement,” which might have been extended to an employee on shaky ground stemming from poor performance due to alcoholism. The employee was not the subject of any pending disciplinary action or internal investigation. In fact, managers for the defendant testified that the employee’s work was exemplary, and that the tests were mandated on factors other than her job performance.

Therefore, the court ruled, it was discriminatory.

N.J.S.A. 10:5-1 outlines that employers may not terminate a defendant on the basis of a disability. As alcoholism is a disability, employers are required to make reasonable accommodations for alcoholics.

Because substance abuse is not widely accepted as a legitimate illness, many employers may not understand their responsibilities under the reasonable accommodations requirement. It doesn’t mean, for example, that an employer has to tolerate it if you come in late to work on a Monday or leave early on a Friday in order to binge. It does, however, mean the employer can’t target you for discipline because you sought substance abuse treatment or you had to leave a little early to attend an Alcoholics Anonymous meeting. Reasonable accommodation means an employer has to be willing to work with you on these matters, so long as it does not create an undue hardship.
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November 9, 2012

NLRB Finds Costco’s Social Media Policy Violates Rights of Union Workers

by Resnick Law Group, P.C.

The National Labor Relations Board recently invalidated several sections of Costco’s employee manual, including its social media policy. The United Food and Commercial Workers union filed an unfair labor practices charge, contending the rules violated Section 8(a)(1) of the NLRA because they prohibited protected activities under Section 7 of the NLRA.

The decision is seen as a victory for unions and workers’ rights in the face of an increasing number of these corporate social media policies.

Section 7 gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”The case is Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371 (Case 34-CA-012421). At issue was a section in Costco’s employee handbook that said message board comments or social media posts that violated company policy would be subject to discipline up to and including termination.

The three-member panel of the National Labor Relations Board noted any social media rule that violates Section 7 rights would be unlawful. Otherwise, a violation depends on one of the following: The employee could reasonably construe that the language violates Section 7 activity; the rule was formed in response to union activity; or that the rule’s aim is to restrict Section 7 rights.

The panel found that wording prohibiting employees from posting comments detrimental to the company or to a person’s reputation “clearly encompasses concerted communications protesting … treatment of its employees.” However, the panel found a rule prohibiting employees from leave company property during a work shift without the permission of management was not in violation.

New Jersey employment attorneys understand technology plays a critical communications role for a union and its members. Consequently, social media use is increasingly becoming an issue addressed in employee handbooks. In this case, the ruling by the Administrative Law Judge invalidates several sections of Costco’s employee handbook that are likely found in the employment policies of many companies. These include prohibitions against sharing personal health information, personal employee contact information, and information protected by the Family and Medical Leave Act and the Americans with Disabilities Act.

In the last year, the Acting General Counsel for the NLRB has issued three advisory reports regarding corporate social media policies. However, this is the first case decided by the board.

In this case, the National Labor Relations Board ordered Costco to cease and desist from:

-Maintaining social-media provisions that could be interpreted as prohibiting employees from discussing working conditions, wage or other employment issues.

-Maintaining provisions prohibiting employees from posting statements damaging to a person’s reputation.

-Maintaining a social media policy that is overly broad or could be construed as negatively impacting an employee’s collective-bargaining rights.

-Maintaining policies that prohibit an employee from posting negative information about the company.

Our New Jersey employment attorneys continue to see employers run afoul of state of federal laws by developing social media policies aimed at protecting the best interests of the company, without regards to the rights of the workforce.
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November 2, 2012

New Jersey Passes Law Against Gender Discrimination

by Resnick Law Group, P.C.

By signing into law new posting requirements aimed at combating pay and gender discrimination, Gov. Chris Christie advanced the fight for equal pay in the workforce.

Under the new law, companies that employ more than 50 people must post gender equality information in the workplace. This information must also be provided to employees at the time of hire, annually thereafter, and upon an employee’s request.The law is scheduled to take effect Nov. 21 and employers will have 30 days to comply once the New Jersey Department of Labor issues notice.

However, our NJ employment lawyers understand there is much work left to be done. Employees, particularly women, must remain vigilant in making sure they are fairly compensated, particularly in relation to men holding similar positions within the company.

Christie vetoed a measure that would have increased the reporting requirements for public contractors in an effort to better determine and enforce compliance. Those doing business within New Jersey would have been required to report gender, job title, occupational category, race and total compensation to the New Jersey Department of Labor.

“When Gov. Chris Christie had a chance to sign legislation I authored to prevent gender wage discrimination in public contracts, he vetoed the bill, calling it ‘senseless bureaucracy,'” wrote Assemblywoman Pamela Lampitt (D-Camden/Burlington), in the Star-Ledger. Lampitt is also chairwoman of the Assembly’s Women and Children Committee.

Christie said it would have been burdensome and would have ultimately driven up the cost of public contracts paid for by tax dollars.

However, fact remain that women continue to fight for the equal pay owed them for equal work; this remains particularly true for jobs traditionally held by men. Lampitt notes a nationwide annual gender wage gap of $15.8 billion. In New Jersey, women earn just 79 cents for every dollar a man earns in the workforce.

Christie returned two New Jersey employment discrimination bills to the legislature for significant amendments.

The first would have eliminated the statute of limitations for bringing compensation discrimination claims. The Christie Administration contends that asserting into the bill limitations on the amount of backpay that can be recover would bring it into better agreement with the holdings of the New Jersey Supreme Court and the Lilly Ledbetter Fair Pay Act of 2009. The governor proposed a two-year limit.

The next measure would have prohibited retaliation against employees requesting pay information. The governor recommended the provisions be included in the New Jersey Law Against Discrimination rather than being made part of NJ’s whistleblower law.

Establishing whistleblower protections is a key component that must be part of any real solution. The secrecy around pay in the workforce is one one the primary reasons why this form of silent discrimination is allowed to continue. Until employees who have reason to believe they are being paid unfairly are given access to compensation information, such discrepancies in pay will remain commonplace.
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