Employment Law Blog

EEOC Updates its Interpretation of the Law Relating to Religious Accommodations and COVID-19 Vaccinations

October 29, 2021

As employers begin to welcome employees back to the office following the long hiatus related to COVID-19, the hot topic that has arisen relates to employees who do not want to be vaccinated for religious reasons. Earlier this week, the United States Equal Employment Opportunity Commission issued new Q & A’s to guide employers through this minefield. Here are the key takeaways for employers:

· The EEO laws do not prevent employers from requiring all employees physically entering the workplace to be fully vaccinated subject to the reasonable accommodation provisions of the ADA (for disabilities) and Title VII (for sincerely held religious beliefs.)

·  Employers can refuse to provide an accommodation if it imposes an undue hardship (the meaning of which might be surprising and is discussed below.)

·  Employees do not need to use any “magic words” to request an accommodation

·  As a “best practice,” employers should provide employees and job applicants with information concerning whom to contact, and the procedures to use, to request an accommodation.

·  If employers have an objective basis to question the religious nature or sincerity of the religious belief, they may make a limited factual inquiry and employees who refuse to cooperate risk losing the claim that their employer improperly denied the accommodation.

·  Title VII protects sincerely held religious beliefs but not political views or personal preferences.

·  Whether an employee has a sincerely held religious belief is largely a matter of credibility.

·  Employers can ask for an explanation of how the employee’s religious belief conflicts with the employer’s vaccination requirement.

·  As noted above, employers may deny a religious accommodation if it imposes an “undue hardship,” and this has been interpreted to mean anything more than a minimal cost. 

·  An undue hardship covers not only if there is direct monetary cost involved but also the burden on the business, including the risk of the spread of COVID-19 to other employees or the public, diminished efficiency in other jobs, or co-workers needing to carry the accommodated employee’s share of hazardous or burdensome work.

·  An undue hardship should not be based on speculation but objective information such as whether the employee works inside or outdoors, works in group settings and has contact with other employees or the public.

·  Finally, employers should keep in mind that they do not have to offer the best accommodation, only a reasonable one.

The above are helpful when navigating through the minefield that is our discrimination laws. However, nothing can take the place of sound legal advice and we caution to speak with counsel before denying an employee's religious accommodation. 

Attorney: Steven Adler
Related Practice: Labor and Employment

Analyzing Recent Employment Law Headlines

October 7, 2021

Mandatory COVID-19 Vaccinations at Work Gain Steam; Botched Sexual Misconduct Investigations Involving USA Gymnastics and the National Women’s Soccer League Remind Employers to be Vigilant.

We continue to keep our clients ahead of the curve on important employment law developments, in order to help insulate employers from liability. Events from just the past week or two bring home this point.

Many large employers across the country, including those in private industry and the government, have now advised their staff that they are mandating COVID-19 vaccinations as a condition of returning to work. Taking their lead, many small to midsized employers are considering similar measures. One month ago, we addressed the legality of requiring a vaccine, and predicted that vaccine mandates likely will be upheld in the courts. Of course, mandatory vaccine policies must provide for reasonable accommodations for employees who have disabilities or sincerely held religious beliefs. 

Two other news headlines also merit attention. The first is the resignations of the Commissioner of the National Women’s Soccer League (NWSL) and its general counsel, both women, and the cancellation of NWSL games last weekend due to allegations of sexual misconduct by a team coach. The other headline relates to the Justice Department’s inquiry concerning the FBI’s botched investigation of Larry Nassar, the former team doctor for USA Gymnastics.

What jumps out to employment lawyers is the horrific way these two matters were mishandled. With regard to Nassar, those in power looked the other way when gymnasts began reporting their allegations. Similarly, in the NWSL matter, the commissioner appears to have been notified of the coach’s actions months ago and sat on the information. To make matters even worse, when the Commissioner eventually appointed an organization to investigate, she chose one closely tied to the league that appears to be biased.

There are a number of lessons to be learned from these matters. First, as your employees begin to return to the office after the COVID-19 shutdowns, make sure your policies are clear with regard to vaccination requirements and medical testing. Also, be prepared, and know what you will require from employees who request an accommodation.

As to the matters involving the NWSL and USA Gymnastics, employers should review their anti-harassment and discrimination policies – especially now that there will be more people working together again in the office. Employers also should not delay when notified of an allegation of sexual misconduct or harassment, because the law requires employers to take prompt and effective action to remediate any inappropriate behavior. Finally, employers should retain truly independent counsel to investigate such claims or, if sued, they will have a difficult time in court convincing a jury that they properly fulfilled their duties and should not be held liable. 

Attorney: Steven Adler
Related Practice: Labor and Employment

LGBT and "Sex-Plus-Age" Now Recognized as Protected Classes Under Federal Discrimination Laws

August 31, 2020

Many employers are currently considering workforce reductions due to the impact of COVID-19. As a result of recent court decisions which expand the scope of Title VII of the Civil Rights Act of 1964, employers now need to be even more vigilant when reviewing their termination decisions.

In June, the United States Supreme Court in Bostock v. Clayton County, Georgia ruled that Title VII’s prohibition of sex discrimination covers the LGBT community. Now, the United States Court of Appeals for the 10^th Circuit in Frappied v. Affinity Gaming Black Hawk, LLC, No. 19-1063 (10^th Cir. 2020) has held that Title VII also covers “sex-plus-age” disparate impact (where a facially neutral policy has a great impact on people in a protected class) and disparate treatment claims.

In Frappied, plaintiffs alleged that the defendant discriminated against older women as part of a reduction in force. While several trial court decisions and the United States Equal Employment Opportunity Commission recognize sex-plus-age claims, Frappied is the first federal appellate court to recognize this cause of action. The court held that such claims are cognizable under Title VII even though they are also available under the ADEA, the federal law protecting employees from age discrimination. The court confirmed that “if changing the employee’s sex would have yielded a different choice by the employer, a statutory violation has occurred.” In other words, this selection would have resulted “because of sex” if the employer would not have terminated a male employee with the same “plus” category, even if the plus category, here age, is not a protected class under Title VII.

The 10^th Circuit also noted that its conclusion is consistent with Title VII’s legislative purpose of striking at the entire spectrum of disparate treatment of men and women resulting from sexual stereotypes. It is not difficult to imagine, for example, a casino letting older women go as cocktail waitresses and discriminating against them because of the combination of their gender and age would actionable according to Frappied.

What is the takeaway? If your company is considering downsizing, be sure to analyze not only the impact the layoffs may have on protected categories of employees, such as age, race and gender, but also on the LGBT community and “plus” categories.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Discrimination

Supreme Court Rules: Title VII Protects Gay and Transgender Employees

June 16, 2020

It was a surprise to many, even avid followers of the United States Supreme Court. Yesterday, in a 6-3 vote, the land’s highest court found that Title VII of the Civil Rights Act of 1964 protects the rights of gay and transgender employees from workplace discrimination “because of sex.”

Justice Anthony Kennedy, who had written landmark opinions involving gay rights, including the 2015 decision legalizing same-sex marriage, retired and it was unknown whether any of the conservative members of the Court would take up his mantle. Justice Neil Gorsuch stepped up and wrote the opinion, joined by another conservative, Chief Justice John Roberts, and all of the liberal members of the Court. Not surprisingly, Justices Kavanaugh, Alito and Thomas dissented.

Back in 1964, when the Civil Rights Act passed, a segregationist in Congress proposed adding sex discrimination, “because of sex,” to the bill covering race, creed and religion, perhaps thinking it would result in the bill being defeated. It did not, and it took the Court more than fifty years to rule that Title VII also protects gay and transgender workers. Conservative groups are attacking Justice Gorsuch, claiming he enabled the Supreme Court to legislate and read into the law based on current sentiments and not what was intended years ago when the law was adopted.

This is a monumental decision for many parts of the country. New Jersey, however, has protected gay rights for years under its Law Against Discrimination.

Anyone having any questions concerning discrimination in the workplace should contact Steven I. Adler, Co-Chair of the Firm’s Employment Law and Litigation Departments.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Discrimination

U.S. Women's National Soccer Team Fails to Score A Goal in Its Equal Pay Act Lawsuit

May 4, 2020

In a well-reasoned decision issued on Friday, May 1, 2020, United States District Court Judge R. Gary Klausner, sitting in the Central District of California, gutted most of the equal pay and discrimination claims brought by the United States Women’s National Soccer Team (“WNT”). While the WNT should be commended for its play on the field and for team members serving as role models for girls, the WNT was not an ideal plaintiff.

The Equal Pay Act (“EPA”) provides, in relevant part, that:
No employer…shall discriminate…between employees on the basis of sex by paying wages to employees…at a rate less than the rate at which it pays wages to employees of the opposite sex…for equal work on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other facts other than sex.

In the lawsuit the United States Soccer Federation (“USSF”) argued, and the Court agreed, that total compensation of the women and men should be compared. It so held because plaintiffs received more than one category of wages, and higher pay in one category of wages can offset lower pay in another category for purposes of the EPA. The evidence before the Court showed that the women’s team earned about $220,000 per game compared $212,000 for the men’s national team (“MNT”). The Court also rejected the WNT’s argument that it would have earned more under the MNT’s collective bargaining agreement (“CBA”). “[M]erely comparing what each team would have made under the other team’s CBA is untenable in this case because it ignores the reality that the MNT and WNT bargained for different agreements that reflect different performance, and the WNT explicitly rejected the terms they now seek to retroactively impose on themselves.”

The Court also threw out a large part of the WNT’s sex discrimination claim under Title VII, holding that the WNT’s lacked evidence of pretext, that they were forced to play on inferior field surfaces because of their gender rather than due to financial considerations as proffered by the USSF. The Court did, however, find that the WNT could go to trial over whether they were discriminated against with regard to travel arrangements and medical and training support.

Fame and the groundswell of support for the WNT were simply not enough to get the ball in the net. While the players have much to be commended for, they simply were a poor choice to set legal precedent for equal pay for women.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Equal Pay Act, Discrimination

COVID-19 Highlights The Importance Of Having Employers' Personnel Policies And Employee Handbooks Reviewed And Updated Now By Counsel

March 26, 2020

As we all continue to struggle with the impact of the coronavirus, the pandemic has highlighted why employers must stay vigilant with regard to updating their personnel policies and employee handbooks.

Those businesses considering furloughs (unpaid leaves of absence), individual terminations and/or downsizings must consider whether those affected have written employment agreements and whether they are covered by any stand-alone personnel policies or policies contained within an employee handbook. This must be done while at the same time analyzing numerous employment statutes and laws. For example, what does an employee’s contract say about the right to terminate with or without cause? What does it provide for vacation and sick pay? Similarly, what does your businesses personnel policies and handbooks say about whether the company must pay paid time off, vacation and/or sick days if an employee is terminated?

Once an employer understands its contractual obligations, an analysis must be done of state paid sick leave laws, wage and hour laws, whether the adverse employment action could result in a discrimination or retaliation claim or implicates the WARN Act, whether it complies with the new Families First Coronavirus Response Act (“FFCRA”), enables those terminated to receive the benefits of the stimulus package that should be approved tomorrow, and on and on.

While it may or may not be too late to change an employers’ employee handbooks now to deal with immediate employment actions that employers are considering, it is important to make certain immediate changes that could protect the company as we continue down the rocky road still ahead of all of us as a result of the pandemic.

Employers who wish to have their personnel policies and employee handbooks reviewed should contact Steven Adler at sadler@lawfirm.ms.

Attorney: Steven Adler
Related Practice: Labor and Employment

May Health Care Providers Refuse To Treat Patients With Coronavirus?

March 16, 2020

Over the last couple of weeks, clients have asked for our advice on how to properly deal with health care providers who are refusing to treat a patient suspected of having Coronavirus. It is well-known that doctors take the Hippocratic Oath to treat patients in need of medical care to the best of their abilities. This Oath state “I swear by Apollo the physician, and Asclepius, and Hygeia and Panacea and all the gods and goddesses as my witnesses, that according to my ability and judgement, I will keep this Oath and this contract: …I will benefit my patients according to my greatest ability and judgement, and I will do no harm or injustice to them.” However, does this Oath require doctors and other health care providers to treat patients who have contagious diseases, such as Coronavirus?

Under common law, a doctor does not have a duty to treat an individual so long as the relationship between physician and patient does not exist. This is referred to as the “no duty” rule. Determining whether a relationship exists, however, is not always easy. It may be established expressly or impliedly. For example, it might result if a doctor’s office schedules someone for an appointment and that person comes to the office for treatment.

Once a relationship is established, generally a doctor has a duty to treat that patient. Moreover, various laws limit a doctor’s right to refuse to provide medical care. One such federal law is the Rehabilitation Act of 1973, which prohibits denying medical care to a disabled person because of his or her disability if that person is in a program actively receiving federal financial assistance. Similarly, the Americans with Disabilities Act (“ADA”) provides broader protection to disabled patients. A disability under the ADA is a physical impairment that substantially limits one or more major life activities, a record of impairment or someone regarded as having an impairment. Various state laws are also implicated and many provide greater protection than the ADA. For example, under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“NJLAD), a disability is far easier to establish. It covers any “infirmity.”

Under Title III of the ADA, a place of public accommodation cannot deny medical care to an individual because of his or her disability unless the individual poses a direct threat or significant risk to the health and safety of others that cannot be eliminated by adequate precautions or reasonable modification of practices and procedures.

In Bragdon v. Abbott, 524 U.S. 624 (1998), a dentist refused to fill a cavity of a patient with HIV. The Supreme Court held that the patient had a disability and that the dentist had a duty to treat the asymptomatic patient because he posed no direct threat to his health or safety. Finding that a dentist’s office was a place of public accommodation, the Supreme Court relied upon Section 302 of the ADA, which provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the … services… of any place of public accommodation by any person who …operates a place of public accommodation.” The Court also referenced 42 U.S.C. 12182(b)(3) of the ADA, which limits that right to treatment “where such individual poses a direct threat to the health or safety of others.” According to the Court, “[t]he existence or nonexistence, of a significant risk must be determined from the standpoint of the person who refuses the treatment or accommodation, and the risk assessment must be based upon medical or other objective evidence.” See School Bd. Of Nassau Cty. v. Arline, 480 U.S. 273, 288 (1987). 

The bottom line: doctors and other health care providers in places of public accommodation, such as hospitals, clinics and doctors’ offices, who are provided masks and other protection, must treat patients they suspect have coronavirus unless there remains objective proof that the patient still poses a direct threat to their health or the health or safety of others. 

As the numbers of Coronavirus patients exponentially increase, it would be prudent for healthcare providers, including practices, facilities, physicians and non-physician providers to adopt and implement a policy and practice that complies with the above laws as well as laws governing employee rights/employer obligations, so as to avoid pitfalls that could result in costly litigation and negative publicity.

Healthcare Litigation Co-Chairs, Mohamed H. Nabulsi, Esq., Steven I. Adler, Esq., and Dennis J. Alessi, Esq., are experienced in advising clients on patient care and employment issues in the medical practice/healthcare facility environments, and can advise you in this area.  They can be reached at mnabulsi@lawfirm.ms, sadler@lawfirm.ms and dalessi@lawfirm.ms.  

Attorneys: Steven Adler, Dennis Alessi and Mohamed Nabulsi
Related Practices: Healthcare and Labor and Employment

New Jersey Bans Discrimination Based on Hairstyles Associated with Race

December 27, 2019

The New Jersey Legislature recently continued its efforts to remain one of the leading states in the Country in protecting employee rights. On December 19, 2019, Governor Phil Murphy signed a law banning discrimination based on hairstyles associated with race.

The law, entitled “Create a Respectful and Open Workplace for Natural Hair Act,” or the “CROWN Act,” amends the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“NJLAD”) to include “traits historically associated with race including … hair texture, hair type and protective hairstyles” such as afros, dreadlocks and cornrows. The law is not limited to the workplace. It also makes it illegal to target people at school and in public spaces.

According to the Guidance on Race Discrimination Based on Hairstyle issued by the New Jersey Division on Civil Rights, “just as it would likely violate the NJLAD to refuse to hire an Orthodox Jewish man because he wears payot, or to refuse to hire a Muslim woman because she wears a hijab, or refuse to hire a Sikh person because he wears uncut hair, it is unlawful to otherwise treat a Black person differently because he wears his hair in a style that is closely associated with being Black. New Jersey is only the third State to pass this type of legislation, following California and New York.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Discrimination

The FAIR Act

September 24, 2019

Last Friday, new legislation known as the Forced Arbitration Injustice Repeal Act (the FAIR Act), HR 1423, was passed in the US House of Representatives. There is also a companion Senate bill, S. 610. The new legislation is aimed at giving consumers, employees, patients and those whose civil rights allegedly were violated the right to file suit in Court by invalidating any pre-dispute arbitration agreement. The FAIR Act would amend the Federal Arbitration Act to prohibit any “pre-dispute arbitration agreement or pre-dispute joint-action (class action) waiver” for any employment, consumer, antitrust or civil rights dispute. This law would overturn United States Supreme Court decisions allowing such pre-dispute agreements, including Epic Systems Corp. v. Lewis, which allows pre-dispute class action waivers.

The new legislation would guaranty workers the right to go to court, which could have devastating impact on employers because it would expose them to public scrutiny and allow claims to be decided by juries rather than arbitrators. The new legislation would invalidate previously signed arbitration agreements if the dispute arises after the legislation becomes law. There is also similar legislation pending, including the Restoring Justice for Workers Act, which also would prohibit mandatory, pre-dispute arbitration in the employment context. These proposed laws must also be approved by the Republican controlled Senate, which is probably unlikely.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Discrimination, Employment Litigation, Arbitration

New Jersey Bill A1094 Limits What Employers Can Ask Job Applicants About Past Wage Or Salary

August 9, 2019

On July 25th, New Jersey Bill A1094 was signed into law and will be effective on January 1, 2020. The new law prohibits employers from asking job applicants about past wages or salaries or to screen applicants based upon wage or salary history unless such information is voluntarily offered by the applicant. The law is intended to curb workplace discrimination and wage inequality for women and minorities. It is recognized that women make roughly $10,000 less per year than men. The act of acquiring knowledge of past wages has been found to taint the hiring process by perpetuating prior discrimination. Violations of the new law carry heavy consequences: $1,000 for a first violation, $5,000 for the second and $10,000 per violation after that. Such violations are also violations of the New Jersey Law Against Discrimination and expose employers to lawsuits.

How does this prohibition change the dynamic of the interview process for New Jersey employers? Employers must be cautious about the information that they request. Even oblique wage inquiries can be illegal. Questions on the application such as “applicant’s desired salary” or “applicant’s desired hourly rate” may seem to be directed at the employee’s desire but now might be found to be prohibited as pre-employment offer questions.

Employers may consider salary history in determining salary, benefits, and other compensation, and may verify an applicant’s salary history, if the applicant voluntarily, without employer prompting or coercion, provides salary history. Employers may also, after making an offer of employment which includes an explanation of the overall compensation package to the applicant, request the applicant to provide a written authorization to confirm salary history. However, the applicant may refuse to provide such information without adverse consequence.

Questions regarding wages, salaries, or benefits must be deferred until after the offer of employment has been accepted. These prohibitions do not apply to applications for internal transfer or promotion or knowledge obtained from prior employment with that employer. The prohibition also does not apply to employers acting pursuant to any federal law or regulation expressly requiring disclosure or verification of salary history for employment purposes. Employers may verify disclosures of non-salary information when conducting a background check provided the employer stipulates that salary information is not to be disclosed. Where the application is for a position involving incentive or commission plans, an applicant’s previous experience with incentive and commission plans and the terms and conditions of those plans may be solicited, provided there is no disclosure of the applicant’s prior earnings.

Business owners should now begin preparations for 2020 compliance by reviewing their hiring process, including application forms and questions to be asked during a job interview. This would be an excellent opportunity to critically review the hiring process and to weed out all illegal inquiries that may have remained due to inertia or other forms of inaction. Asking the wrong things, including past wage history, is dangerous and can be costly.

Attorney: Gary Young
Related Practice: Labor and Employment
Category: Equal Pay Act, Wage & Hour, Discrimination

The Reports of Arbitration Agreements' Death Have Been Greatly Exaggerated

July 29, 2019

Mark Twain, upon learning his obituary was mistakenly published, wrote that the reports of his death are greatly exaggerated. The same can be said about arbitration agreements.

In 2018, New York passed a statute to deal with the “scourge of sexual harassment.” Codified as CPLR Sec. 7515, the law prohibits contracts that require “the parties to submit to mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.” In 2019, the New York Legislature passed a bill to expand this prohibition to agreements that require arbitration of all discrimination claims.

As predicted, the ban on arbitration is now under attack based upon the Federal Arbitration Act (“FAA”). Just a few weeks ago, federal Judge Denise Cote in Latif v. Morgan Stanley & Co., LLC, No. 1:18-cv-11528 (S.D.N.Y. June 26, 2019), rejected Plaintiff’s argument that New York law voids an arbitration agreement. In reliance upon Supreme Court precedence, Judge Cote held that state laws prohibiting the use of arbitration to resolve particular disputes are preempted by the FAA.

The take-away: New York employers should continue to require employees to arbitrate harassment and discrimination claims. Having employees sign arbitration agreements serves two purposes. First, it may result in employees believing they have no choice but to file their claims in arbitration. Second, if employees try to assert their claims in court, defense counsel relying on recent precedence, can argue that the FAA preempts New York state law. Accordingly, employers should not be so quick to give up on arbitration agreements. Their death has greatly been exaggerated.

Category: Harassment, Arbitration

May New York Employers Require Job Applicants to Submit to Marijuana Testing?

May 23, 2019

The answer in New York City is, in most instances, “NO,” and that’s new.

Recently, NYC banned pre-employment marijuana and THC testing.

On May 10, 2019, New York City enacted Int. 1445-A, which makes it unlawful for employers, labor organizations, employment agencies (and their agents) to require a prospective employee to submit to testing for marijuana or tetrahydrocannabinols (“THC,” the active ingredient in marijuana) as a condition of employment, with limited exceptions. The bill became law after Mayor de Blasio took no action on it for thirty (30) days.

When does this new law go into effect?

The law becomes effective May 10, 2020, and amends Section 8-102 of the New York City Code by prohibiting such pre-employment testing as an “unlawful discriminatory practice.”

Are there any limitations?

Notably, the law is limited to “pre-employment drug testing” and does not address testing of current employees and a condition of continued employment.

The law also includes several “safety-related” exceptions, which pre-employment testing for positions in law enforcement, positions that require OSHA training to work on constructions sites, or a commercial driver’s license, and any position that involves the supervision or care of children, medical patients or “vulnerable person” (as defined under New York Social Services Law §488). Other exceptions are intended to avoid testing that may be required by a collective bargaining agreement, federal law, or a federal contract or grant.

What should employers do?

Employers should stay tuned -- the New York City Commission on Human Rights is required to promulgate rules to facilitate the implementation of this law.

Category: Discrimination, Employment Litigation

Groundbreaking Employment Legislation in New Jersey Precludes Arbitration and Confidentiality

March 26, 2019

On March 18, 2019 groundbreaking employment legislation was enacted in New Jersey. While it is only a few paragraphs long, it makes three significant changes to the employment law landscape in the Garden State.

First, Senate Bill No. 121 bars provisions in an employment agreement that waive any substantive or procedural right or remedy relating to a claim of discrimination, retaliation or harassment (although it does not apply to union employees covered by a collective bargaining agreement (“CBA”)).

Second, the law bars any prospective waiver of rights or remedies under the New Jersey Law Against Discrimination, N.J.S.A. 10-5-1 et seq. (the “NJLAD”) or any other statute or case law.

Third, the law precludes confidentiality of any settlement involving a claim of discrimination, retaliation or harassment.

What does this mean for New Jersey employers? Most importantly, this law appears to run head-on into employers’ efforts over the past ten years and even longer to force these types of claims into arbitration. Since 1990 the NJLAD has provided for a trial by jury, NJLAD 10:5-13. Therefore, requiring employees to sign arbitration agreements for future claims would violate this new legislation because it would cause an employee to waive a substantive right or remedy under the NJLAD. Although it is too early to tell, the Federal Arbitration Act (“FAA”), however, may override this portion of the legislation.

Other provisions in an employment agreement that limit or waive substantive or procedural rights or remedies also are barred. For example, an agreement cannot forbid employees from filing charges of discrimination or retaliation with an administrative agency, such as the New Jersey Division on Civil Rights (“NJDCR”) or the U.S. Equal Employment Opportunity Commission (“EEOC”) and can’t require an employee to waive the right to punitive damages or legal fees if successful.

There also may be a bigger issue lurking here. Section 1b. of the law provides that no right or remedy under any employment statute or case law can be prospectively waived. Does this suggest that section 1a. -- which provides that an “employment contract” cannot waive any rights or remedies relating to a claim of discrimination, retaliation or harassment -- bars releases of previously asserted employment claims? This may require the DCR to approve proposed settlement agreements before such claims can be waived. The term “employment contract” is not defined in the law. However, section 2a. refers to both “employment contracts” and “settlement agreements” and, therefore, the likely interpretation of 1a. is that employees or former employees can release NJLAD and other employment claims in settlement agreements without DCR or EEOC approval.

As a result of the “Metoo Movement”, the legislation forbids confidentiality. The driving force behind this provision is to protect employees from harassment, retaliation and discrimination caused by someone who acted similarly in the past that they otherwise would not have known about due to confidentiality clauses. How will this impact litigation? Many employers only settle in order to avoid bad publicity. Will this legislation force more cases to trial? The legislation tries to protect employers to a limited extent. It provides that should an employee reveal sufficient details of the claim so that the employer is reasonably identifiable, the employer will not be bound to any non-disclosure provision. Does that go far enough? Why should an employer be put on the defensive and have to explain why it settled if a plaintiff’s claims were frivolous and settled by the employer solely to avoid the time and money defending such specious claims?

Finally, the law takes effect immediately and applies to all contracts and agreements entered into, renewed, modified or amended on or after the effective date. We, therefore, suggest that all employers have their employee manuals and employment agreements reviewed prior to any amendments or renewals of those agreements.

Category: Employment Litigation, Discrimination, Harassment

U.S. Women's Soccer Team Sues for Equal Pay

March 11, 2019

We have written a number of times in this blog about recent changes in New Jersey to the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“NJLAD”) relating to equal pay. See our blog from November 21, 2018 concerning the passage of the Diane B. Allen Equal Pay Act amending the NJLAD. See also our February 4, 2019 article on conducting Pay Equity Studies. We also predicted in other publications that lawsuits involving gender equality in terms of pay and working conditions would become more prevalent. Our prediction was prescient.

On March 8, 2019 the U.S. Women’s Soccer Team filed a class action lawsuit in federal court in California under the federal Equal Pay Act (“EPA”) and under Title VII of the Civil Rights Act of 1964 for gender discrimination. It follows a wage discrimination charge of discrimination filed with the United States Equal Employment Opportunity Commission (“EEOC”) in 2016 by five of the U.S. players. In February, the EEOC issued the players a right-to-sue letter.

In the lawsuit, the women complain about unequal pay and disparate treatment from the US Men’s Team in terms of travel arrangements and being required to play on turf fields. This suit is on the heels of a number of suits filed by the US Women’s Hockey Team and Norway’s women’s team‘s successful suit to be paid equally to its men’s counterpart.

The US women allege better results and higher TV ratings than the US Men’s team. However, there are some complicating factors at play here. The US Women’s Team and the US Men’s Team have different collective bargaining agreements. While the men receive higher game bonuses, they are paid only if they make the team, while the women receive guaranteed salaries supplemented by smaller match bonuses. Additionally, FIFA (soccer’s world governing body) pays men’s teams significantly more than women’s teams. In any event, stay tuned. We expect other, similar suits alleging discrimination in pay and working conditions.

Category: Equal Pay Act, Discrimination

The Importance of Engaging in a Pay Equity Study

February 4, 2019

Background on the Need for a Pay Equity Study
The recent passage of the Diane B. Allen Equal Pay Act (the “Act”) amended the New Jersey Law Against Discrimination (“LAD”) to strengthen protections against employment discrimination and to promote equal pay for women and employees in other protected categories. The Act became effective on July 1, 2018. Being proactive under these new strict protections is of the utmost importance. As such, If you are a New Jersey employer, we urge you to engage in a “pay equity study.” The goal of which would be to develop an understanding of the Company’s current pay structures, and to either explain differences in pay among comparable employees or to correct pay differences that cannot be justified. Mandelbaum Salsburg's employment law attorneys stand ready to assist in this capacity.

It is now an unlawful employment practice under the LAD for an employer to pay any employee who is a member of a protected class less than the rate paid to other employees not members of that protected class for “substantially similar work when viewed as a composite of skill, effort and responsibility.” The Act does much more than just advocating gender pay equity. It expands equal pay on the basis of membership in the protected classes of the LAD, to include race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or liability for service in the armed forces.

Limited Exceptions
There are very limited exceptions where an employer may pay a different rate of compensation to members of the protected class, including where a pay differential is due to seniority or a merit system. In all pay discrepancies, the employer must demonstrate each of the following:

1. That the differential is based on one or more legitimate, bona fide factors other than the characteristics of members of the protected class, such as training, education or experience, or the quantity or quality of production;
2. That the factor or factors are not, and do not perpetuate differential in compensation, based on sex or any other characteristic of members of a protected class;
3. That each of the factors is applied reasonably;
4. That one or more of the factors account for the entire wage differential; and
5. That the factors are job-related with respect to the position in question and based on a legitimate business necessity.

What Exactly is Unlawful?
The Act provides that an unlawful employment practice occurs each time pay practices discriminate against an employee, and the employee can seek back pay for up to six (6) years. In this way the Act substantially lengthens the statute of limitations for claims based on pay equity to beyond the LAD’s normal, two (2) year statute of limitations.

If an employer is found guilty of violating the equal pay practices required by the Act, a judge or jury can award treble damages for the violation. Treble damages are also available to an employee who proves that the employer retaliated against her/him for requesting, discussing, or disclosing to (i) any other employee or former employee of the employer, (ii) a lawyer from whom the employee seeks legal advice, or (iii) any government agency, information regarding employee compensation/pay practices. Likewise, treble damages are available to an employee or prospective employee who is asked by the employer to sign a waiver regarding discussing or disclosing pay practices or rates.

A successful claimant will also be entitled to attorneys’ fees in a practice called “fee shifting.”

For all of these reasons, it is necessary to carefully review Company hiring and compensation practices to insure there is pay equity for employees who perform “substantially similar work” –the so-called pay equity study.

Advantages of a Pay Equity Study
A pay equity study will help your company reduce its potential liability by addressing three questions:

• Which pay differences are at issue?
• Whose pay should be compared?
• What are the factors that explain differences in pay?

Specific and complete answers to the last question are critical. Absent being able to provide valid justifications and cogent explanations, your Company is potentially at great risk. The key challenge in finding these answers comes with the realization that the Company’s historic pay decisions were made one at a time, over an extended period of time and depended upon a variety of factors specific to the time at which they were made. Ultimately, the Company must able to explain and justify the cumulative results of all past pay decisions; a potentially difficult task.

Most companies keep a close eye on some of their pay decisions, such as the grant of merit raises and the starting pay of their positions. Unfortunately, tracking individual decisions are not enough. Although the Act refers specifically to pay decisions, in many cases the inability to reach into the past for data means that differences in existing levels of pay likely will be used to support a prima facie discrimination claim. The Act and other such laws refer directly to equal pay for the same work. Thus, how employees are paid today—not just the pay decisions of yesterday or yesteryear—must be examined and understood fully.

How the Process Works
The pay equity review process begins with comparing the pay of employees who are “similarly situated.” But individuals who are comparable today were not always thus. Given that pay today equals pay at hire plus all subsequent changes in pay, including those that emanate from promotion or transfer, employees that today perform similar work, in the not-so-distant past, may have worked in different jobs, different grades, different units, different locations or even different companies. Knowing this history may lead to better understanding, but this alone will do nothing to protect the Company from sustainable claims.

Differences in knowledge, skill, ability, effort or responsibility provide a legitimate basis for differences in pay among employees doing the same work. However, there are few, if any, direct measures of these factors available, and pay equity studies typically rely on the “usual suspects” to explain pay differences. These include:

• Responsibility for people.
• Knowledge.
• Communication skills.
• Physical demands.
• Emotional demands.
• Mental skills.
• Initiative.
• Length of time in job or grade.
• Part-time status.
• Physical/geographic location.
• Company service time.
• Education.
• Prior experience (as measured by age or time between leaving school and hire).

Ultimately, Employers will need in-depth information to effectively explain and defend pay differences. Information that can be collected and analyzed through a pay equity study and maintained at the ready include:

• Work activities: collect information about each job’s actual work activities and responsibilities; this may also include how, why and when the workers perform such activities.
• Human Behavior: this can include the degree of perception exercised by the employee and other human behaviors such as communicating, judgment and writing and speaking skills.
• Skilled (or not) use of Machines, Tools, Equipment and Other Work Aids: this could factor in computer use and literacy, knowledge dealt with or applied and services rendered.
• Job Context: should include such considerations as physical working conditions, work schedule and social factors.
• Human Requirements: this could include job-related knowledge or skills, education, training and/or work experience, and required personal attributes such as aptitude, physical characteristics, personality and interests.

Two caveats: first, the above factors must be dealt with as objectively as possible and, if capable of measurement, must not be tainted by cognitive bias; second, the law specifically does not permit the perpetuation of past discrimination. Thus, basing a hiring pay offer on previous pay, where such previous pay could be tainted, would only propel discrimination into the future. Employees must be placed into the pay scale in a manner that is rational and disciplined.

Ultimately, the adoption and maintenance of job descriptions is an integral part of a transparent, fair pay system. Having accurate job descriptions makes it much easier to evaluate and grade different jobs – and ensure that employees doing equal work receive equal pay. Job descriptions should follow job evaluation scheme factors. This will make jobs easier to evaluate and help avoid aspects of jobs more commonly performed by women being omitted or undervalued in the evaluation process, compared to those of jobs more commonly carried out by men. To the extent that current job descriptions exist, they should be reviewed as part of the preliminary review.

In addition to job descriptions, the second part of this comprehensive analysis involves the development of Salary Guides for all identified positions. One of the required Affirmative Action Plan reports, the Workforce Analysis, requests that the Company sort the jobs in each Department by wage or salary. Salary Guides are used by many businesses to help managers manage the compensation of new employees and to establish appropriate pay increases for existing employees while maintaining equity among the jobs in the company. Salary Guides provide a structure and logic for fairly compensating employees and managing the Company’s payroll costs.

Mandelbaum Salsburg’s Employment Law Practice can provide assistance and advice and help companies conduct this important survey. Involvement of legal counsel will provide you with necessary expertise and the protection of attorney-client privilege. If engaged, we would be prepared to work with one or more Company executives to review personnel information and compensation data. While it is clear that this process is no easy task; to do nothing (our usual default option) can lead to some very serious consequences. If you wish to learn more or to engage in this process, please contact Gary S. Young at gyoung@lawfirm.ms.

Category: Equal Pay Act

Tis the Season to be Careful, Fa-la-la-la-la, la-la-la-la

December 7, 2018

Company holiday parties are often great for camaraderie and employee morale but are fraught with danger, whether it be harassment, religious discrimination or drinking and driving.

We don’t want to be accused of being the Grinch that stole Christmas. We are all in favor of holiday parties, so long as they are done right. Here are our top ten (10) tips:

1. Remind employees in advance of the Company's anti-harassment policy;

2. No mistletoe;

3. Limit alcohol;

   1. Consider no alcohol or using drink tickets

   2. Designate a member of management to monitor employees

   3. Have rides home available or remind employees to consider Uber/Lyft, etc.

   4. Consider day-time parties

4. No slow dancing;

5. No unsupervised speeches or skits;

6. Avoid religious symbols and religious music;

7. If during off hours, do not require attendance or there may be exposure to wage and hour claims;

8. If exchanging gifts, instruct employees as to what is appropriate and no gag-gifts;

9. When selecting a menu, make sure it is inclusive to accommodate religious needs, i.e. Kosher meals; and

10. If all else fails, promptly investigate any claims!

Category: Harassment

Equal Pay Act Compliance

November 21, 2018

Without question, the most aggressive and wide-ranging Equal Pay Act in the country was enacted this past year by the New Jersey Legislature. It is wide-ranging because it applies not only to pay disparity based on sex, but also based on an employee’s race, age, religion, disability, or any other classification of employees who are protected from discrimination in employment by the New Jersey Law Against Discrimination (“NJLAD”). There are more than a dozen such classifications.

It is the most aggressive Equal Pay Act because it goes far beyond the concept of “equal pay for equal work.” An employer must pay an employee, who is in any one of these protected classifications, equal to any employee who is not so-protected, if the work the two employees perform is “substantially similar,” that is, nearly equivalent or approximately the same work. This also applies to equality in terms of other benefits, such as health insurance.

Compliance with the Act effectively requires that the employer conduct an analysis of its entire workforce, and on an ongoing basis, as new employees are hired and/or changes are made in the workforce.

The Act provides truly draconian penalties, in terms of treble damages and the employer having to pay the employee’s attorneys’ fees.

The Labor and Employment Law Department has been assisting a number of its clients, along with Human Resource consultants we have retained, to perform the detailed workforce audits required to comply with this Act.

Category: Equal Pay Act

Diane B. Allen Equal Pay Act: A Compliance Nightmare

October 8, 2018

The Diane B. Allen Equal Pay Act (“the Act”) is unique from other employment anti-discrimination laws in New Jersey which creates a compliance nightmare for employers. It is important to understand the four main differences of the Act and the challenges they bring.

First, the Act is not an equal pay for equal work law. It is actually an equal compensation for substantially similar work law. Employees, who are in those categories protected from employment discrimination under the New Jersey Law Against Discrimination (“NJLAD”), must receive not only equal pay, but also equal employment benefits, (i. e., insurances, retirement plans, paid time off, severance pay, etc.), when these protected employees perform substantially similar work as employees who are not protected by the NJLAD. This comparison must be made based on a composite considerations of skill, effort and responsibility.

“Similar work” is not the same as equal work. Similar work means almost or nearly the same work. And “substantially” means in most respects but not in all. Consequently, if an employee, who is in a category protected by the NJLAD, performs almost the same work in most respects as an employee who is not in a protected category, then this protected employee must receive equal salary and all other benefits of employment.

Deciding what equal work is appears to be an easy task by comparison to this type of analysis which an employer must perform to ensure compliance with the Act.

Secondly, the Act is not an anti-discrimination law for women in the workforce. It was initially proposed as such but, as ultimately enacted, it applies to all approximately 14 categories of employees who are protected against employment discrimination by the NJLAD. (Just some of these protected categories include, in addition to women, race, color, national origin, age, religion, disability, family and marital status, veterans status, and sexual orientation, among others.) This means that an employer with any degree of diversity in its employees must analyze its entire workforce to ensure compliance with the Act.

Third, the Act does not appear to require that the employer have any intent to discriminate. Apparently, for an employer to have violated the Act, an employee need only prove that he/she is a member of a protected category under the NJLAD; that the employee performed substantially similar work as another employee who is not in a protected category; and that this protected employee received less compensation, in salary and/or in any benefits of employment, as the employee not in a protected category.

Admittedly, an employer can raise three defenses: that the differential in compensation is due to a seniority system, a merit system, or some legitimate, bona fide and job-related difference(s) in characteristics between the employees in the protected categories and those that are not so protected. For example, inequality in compensation does not violate the Act if it is directly and wholly the result of job-related differences in training, education, experience or the quantity and quality of production. Obviously in many situations these differences will be subjective; difficult to measure; will require extensive supporting documentation developed over time; and the burden will be on the employer to prove them.

Fourth, the most distinctive and troublesome aspect of the Act is what actions employers must take to comply with it. For most employment discrimination laws an employer need only adopt a personal policy to implement the law, and then follow the policy wherever situations arise to which the law applies. But with the Act, an employer needs to implement and maintain, on an on-going basis, a comprehensive compliance plan.

The plan necessitates a comparative evaluation of the education, training, knowledge/skills and experience of each employee and their individual productivity; an analysis of the duties, tasks and responsibilities of each position in the workforce; then a determination of which employees in which positions are performing substantially similar work. Once these substantially similar employees are identified, then the final step, undoubtedly the easiest, is to determine if the salary and other benefits of these employees are equal as between protected and non-protected categories of employees under the NJLAD. (The employer cannot reduce the compensation of the higher paid substantially similar employee; but must raise the compensation of the lower paid employee).

Such an in-depth analysis of an entire workforce is a monumental task for an employer, even with a fully staffed HR Department. We appreciate the even greater difficulty for an employer with far less HR resources. Nevertheless, the need for compliance is of paramount importance because of the severe penalties for a failure to do so. These include trebel damages (i.e., the employee receives three dollars for each dollar of equal compensation which the employee did not receive in violation of the Act), and the employer having to pay the employees attorneys’ fees.

In addition, the Act provides a six (6) year statute of limitations, and allows an employee to potentially claim damages for even a longer period of time in the past under the “discovery rule.” This rule means that the six (6) year statute of limitations only begins to run after the employee discovers that he/she was not paid equally. Finally, a separate violation of the statute occurs each time the employer issues a paycheck which is less than equal pay for substantially similar work.

The “bottom line” is that, while implementing a compliance plan for the Act may be a nightmare, failure to comply could be a real life horror show for any employer.

Category: Discrimination

Class Action Liability Risks for Violations of ADA and New York Human Rights Laws

July 6, 2018

In January 2018, the federal government conformed its website accessibility requirements to the Web Content Accessibility Guidelines (WCAG), an international set of standards intended to make web content more accessible to users with perceptual or physical challenges. The WCAG addresses low vision, color perception, cognition, manual dexterity, screen reading technology, and other issues related to user abilities. The Department of Justice (DOJ) promised to do the same in the private sector by mid-year, but that initiative has been deferred.

As a consequence, there has been a surge of class action lawsuits alleging Americans with Disabilities Act (ADA) violations based on access to website information that the Courts have been addressing individually. The first federal court decision that a website violated the ADA was in early 2017. The decision was followed by 800 federal lawsuits that year alone, alleging ADA as well as state law civil rights violations. (New York led the way with more cases than any other state). Until a clear standard is set by Congress or the appropriate regulatory agency, web site ADA lawsuits will continue to increase.

The ADA prohibits discrimination on the basis of a disability “in places of public accommodations”.  As such, any business is potentially an ADA class action target. Class actions require only one named plaintiff (who brings suit individually and on behalf of those “similarly situated”), and one defendant (potentially, you). Whether you are a large or small business, brick and mortar, or web-based only, defending an ADA/Human Rights Law class action promises to be costly in two ways. Not only is there the risk of a potential damage award, the ADA is a “fee shifting statute.” As a result, a defendant must pay its own legal costs to defend the action and may be required to pay those of a successful plaintiff as well. These costs alone may run into the tens or hundreds of thousands of dollars.

Now, with the website accessibility lawsuit floodgate open, it imperative for businesses to ensure ADA compliance. The easiest and most economical approach is a website compliance audit and action-item checklist conducted by legal counsel experienced in ADA website accessibility issues. For instance, does your website include:

• Visual Alternatives (pre-recorded text for audio, descriptors for images)
• Sound alternatives (text descriptors for audio)
• Color Contrasting (that meet the minimum ratios)
• Key board navigation (i.e. function and/or tab key, not mouse-only options)
• Adjustable font size (without content or acuity loss)
• Semantic HTML (descriptive headings that identify the content that follows)

Many of these features are easy (and inexpensive) to implement once you (and your website consultant) know what is required. Please contact the firm’s cybersecurity practice attorneys Steven Teppler or Lauren Topelsohn to discuss our fixed fee consultation details.

Notorious R.B.G. and Gender Equality

May 26, 2018

Today we are not blogging about a recent development in employment law.  Instead, we wish to call attention to an entertaining source to help non-lawyers understand how we arrived at the current state of the law concerning gender equality.

A must-see movie, regardless of your political persuasion, is the documentary R.B.G. which premiered at the 2018 Sundance Film Festival.  The movie starts off with a bang when the notorious Ruth Bader Ginsburg quotes abolitionist and women’s suffragist Sarah Grimke’, stating that she asks “…no favor for my sex.  All I ask of our brethren is that they take their feet off our necks.”

Ginsburg, the diminutive dynamo, was one of only nine women in a class of 500 at Harvard Law School and the first woman on the Harvard Law Review.  She accomplished this feat while caring for her ill husband and young child.  Ginsburg did for gender discrimination in the 1970’s what Thurgood Marshall accomplished for blacks during the civil rights movement in the 1960’s. 

The movie chronicles Ginsburg’s quest for equal protection for women, including the six cases she argued before the Supreme Court (five of which she won), including United States v. Virginia, in which the Supreme Court held that qualified women could not be denied admission to the all male Virginia Military Institute.  Ginsburg also trumpeted male gender equality by successfully arguing in Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) that widowed fathers were entitled to the same benefits under the Social Security Act as widowed mothers.  More recently, Ginsburg has been a dissenter to many decisions rendered by our conservative Supreme Court, including in the Lilly Ledbetter equal pay case.  While the Supreme Court denied Ledbetter relief, Ginsburg’s dissent resulted in Congress creating new law effectively overruling the Supreme Court’s majority decision and making it easier for women to sue for previously unknown disparate pay.

The #MeToo movement has resulted in the media refocusing on gender discrimination and harassment. The R.B.G. documentary does an excellent job of explaining how we arrived at the current state of the law and Ginsburg’s role in shaping gender equality.  

Governor Phil Murphy's first act as governor was to sign an executive order promoting equal pay for equal work by prohibiting state agencies from asking job applicants about their salary history

April 23, 2018

The Governor is now about to sign legislation amending the New Jersey Law Against Discrimination (“NJLAD”) that will ban employers from paying women and other employees in a protected category less for “substantially similar work.” Rather than a two year statute of limitations, like other types of discrimination, this amendment provides for a six year statute of limitations for these pay disparity claims.  It also calls for treble (triple) damages.  The law also provides that employers cannot preclude employees from discussing their compensation.  Finally, it precludes employers from requiring employees to agree to a shorter statute of limitations for any claims under the NJLAD or to waive any other protections provided by that law.  A copy of the Bill is attached here.

Category: Wage & Hour