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.
August 1, 2019
The New Jersey Supreme Court recently granted certification in Skuse v. Pfizer, Inc., 457 N.J. Super. 539 (App. Div. 2019), an Appellate Division case that addresses the appropriate manner in which employers should seek an employee’s agreement to arbitrate, when consent is sought through electronic means, such as online modules. The Court’s view on this issue will shed light on how employers can achieve legally enforceable arbitration agreements through the use of digital techniques.
Skuse examined two issues: (1) the enforceability of an arbitration agreement that was transmitted to employees through a mandatory online “training module”; and (2) whether an employee who did not acknowledge his/her agreement to be bound by the arbitration agreement was nevertheless bound by “default” because she continued to work for the company for more than sixty days after receiving the arbitration agreement. On the second issue, the Skuse panel expressly acknowledged that it was diverging from the view taken by a sister panel in a previous published case, Jaworski v. Ernst & Young U.S. LLP, 441 N.J. Super. 464 (App. Div. 2015), which was almost certainly a critical factor in the Supreme Court’s decision to grant certification.
In Skuse, Pfizer presented its mandatory arbitration policy to thousands of employees as part of a four-slide “training module” or “activity” or “course” sent via mass email. The email in turn linked to the company’s computer-based training portal. In a separate email, Pfizer provided a link to frequently asked questions concerning the arbitration policy which included questions such as “Do I have to agree to this?” and “Can I change any parts of the terms of the Arbitration Agreement?” The first slide stated that employment was conditioned on the parties’ agreement to resolve certain disputes through arbitration; that the agreement was contained in the Mutual Arbitration and Class Waiver Agreement that would be available to review and print of the following slide; that it was important the employee be aware of the terms of same; and that the employee would be asked to acknowledge receipt of the agreement. The second slide provided employees with access to a “resource” link to the full text of the policy. On the third slide of the module, employees were asked to “acknowledge” the policy by clicking a box or electronic button. Further, this slide expressly stated that continuing to work for the company for more than sixty days would constitute agreement to the policy. The final slide of the module thanked employees for reviewing the arbitration agreement and provided an email address where they could direct any questions.
Three months after being terminated from Pfizer for her failure to receive a yellow fever vaccination, employee Amy Skuse filed a Complaint against Pfizer alleging violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-41 to 49, based on religious discrimination and failure to provide reasonable accommodation for her religious beliefs against receiving injections containing animal protein. In response to the Complaint, Pfizer filed a motion to dismiss the action and to compel Skuse to submit the claims to binding arbitration pursuant to the arbitration agreement Skuse admittedly “acknowledged.”
The trial court granted Pfizer’s motion. In reversing the trial court’s decision, the Appellate Division held that Pfizer’s procedure was inadequate to substantiate Skuse’s knowing and unmistakable assent to arbitrate any claims. In so holding, the court re-emphasized the Supreme Court’s holding in Leodori v. CIGNA Corp., 175 N.J. 293 (2003), which requires explicit, affirmative, and unmistakable assent to arbitration.
Importantly, in its decision, the Appellate Division provided guidance as to best practices for seeking an employee’s legally binding assent to arbitration policies transmitted through electronic means. The following represents a summary of these best practices:
A company’s binding arbitration agreement should be conveyed in a manner that emphasizes the “legal significance and necessary mutuality of contractual process.” Pfizer’s conveyance of its arbitration agreement through a “training module” or “training activity” failed in this respect. To this end, the Appellate Division clearly stated: “obtaining an employee’s binding waiver of his or her legal rights is not a training exercise.”
An arbitration policy must be “presented in a fashion that produces an employee’s agreement and not just his or her awareness or understanding.” Stated differently, an employee’s mere receipt or acknowledgement of the company’s arbitration policy is not enough to make it enforceable against him. The employee must voluntarily agree to the policy. Thus, the acknowledgment “click box” on the third slide of Pfizer’s training module critically failed to extract Skuse’s “explicit, affirmative agreement.”
The material terms of an arbitration agreement cannot be inconsistent or vague. With regards to Pfizer’s training module, the Appellate Court found that although the Company intended for the employee’s click of the acknowledgment box to substitute for a physical signature and thus represent an agreement to the policy, the term “acknowledge” near the click button was made vague by language in the opening slide explaining that the employee would be asked at the end of the presentation to “acknowledge receipt” of the agreement, without mentioning the employee’s need to also convey his assent to the terms of the policy. Further, the court found that the final slide of the module merely thanked the employee for “reviewing” the document. Finally, Pfizer referred to the entire process as a “training activity,” thus further confusing whether the employee was engaging in an agreement and waiver of rights.
If an employer wishes to obtain an employee’s knowing and voluntary consent to an arbitration agreement by electronic means, the employee’s click of a button or electronic signature must be “tethered to and spotlighted with a clear and proximate direction that, by clicking the button, the employee is knowingly agreeing to waive his or her legal rights” to access the courts and have a trial. To this end, although the words “agree” and “agreement” appeared several times on the slides in Pfizer’s module and also within the linked policy, the use of these words outside of the click button was deemed insufficient to satisfy the requirements of Leodori.
To comply with the tenets of Leodori, the Appellate Court suggested that in order to seek an employee’s legally binding response to an arbitration agreement, a “click box” could read as follows: “Click here to convey your agreement to the terms of the binding arbitration policy and your waiver of your right to sue.” Indeed, the panel also noted that Pfizer could use a touch screen or other electronic method for employees to supply their signatures.
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.
July 12, 2019On June 26, 2019, United States District Court Judge Denise Cote, Southern District of New York, held in Latif v. Morgan Stanley & Co., LLC, et al., No. 1:18-cv-11528 (S.D.N.Y. June 26, 2019), that New York’s ban on mandatory arbitration agreements of employment-related sexual harassment claims is preempted by the Federal Arbitration Act (“FAA”)
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.
May 20, 2019
Over fifty years ago on their Sgt. Pepper album the Beatles sang about turning sixty-four. But executives should be asking companies: “[w]ill you still need me, will you still feed me when I’m sixty-[five]?”
You may be aware that there are no age parameters under the New Jersey Law Against Discrimination. See N.J.S.A. 10:5-1 et seq. (“NJLAD”). You can sue if you suffered an adverse employment action because you were considered too old (regardless of age) or even too young for a job. Bergen Commercial Bank v. Sisler, 157 N.J. 188 (1999). The one exception under the NJLAD is with regard to job applicants who are at least age 70. Employers may refuse to hire them, but cannot refuse to renew their contracts based upon their age. In Nini v. Mercer County Community College, 202 N.J. 98 (2010), the New Jersey Supreme Court held that the NJLAD protects those workers over seventy (70) who have a pre-existing relationship with the employer from being pushed out of the workforce based on age.
Under the 1967 Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §623 and §631(a), the upper limit for bringing a federal age discrimination claim was age 65. In 1978 the cap was moved to age 70 and in the 1986 amendments to the ADEA the upper limit age cap was totally removed, enabling a Plaintiff to bring an ADEA claim no matter how old they are. For example, an eighty (80) year old can pursue an age discrimination claim if the plaintiff can establish that he or she was still qualified for the job but was denied it due to his or her age. However, these are two exceptions where an employee lawfully can be fired because of his or her age.
One exception is where an employer can establish that age is a bona fide occupational qualification (“BFOQ”). For example, the Federal Aviation Administration used to have an Age 60 Rule which barred individuals who reached their sixtieth birthday from serving as pilots or copilots on commercial flights because their age allegedly caused them to no longer be qualified to fly. An EEOC regulation sets forth what an employer must prove to establish that age is a BFOQ: That (1) the age limit is reasonably necessary to the essence of the business and either (2) that all or substantially all individuals are excluded from the job involved are in fact disqualified, or (3) that some of the individuals so excluded poses a disqualifying trait that cannot be ascertained except by reference to age. If the employer’s objective in asserting a BFOQ is the goal of public safety, the employer must prove that the challenged practice does indeed effectuate that goal and that there is no acceptable alternative which would better advance it or equally advance it with less discriminatory impact. 29 C.F.R. §1625.6(b)(2006).
The other, lesser known, exception to the age discrimination law applies to executives. At age 65 or older, companies are permitted to fire executives to make room for younger employees to run their businesses. Does this law make sense today? As we age, it is more likely that we consider age 65 to be the new 55, but whether the ADEA needs to be amended to increase the age from 65 to 70 or some other age when companies can force executives to retire is a debate for another day.
29 C.F.R. §1625.12 permits the compulsory retirement of any employee who is 65 and who, for the two year period immediately before retirement, is employed in a bona fide executive (as defined in one of the white collar exemptions to the overtime laws) or higher policymaking position, but only if the employee is entitled to an immediate, nonforfeitable annual retirement benefit of at least $44,000. Alternatively, a company can offer a position of lesser status or a part-time job (but if the employee accepts a position of lesser status or a part-time position, he or she cannot be treated any less favorably, on account of age, than any similarly situated younger employee).
Management-side attorneys who draft executive contracts should make note that companies lose the ability to let an executive age 65 or older go if the executive’s retirement benefit is forfeitable. For example, if a pension, profit-sharing, savings or deferred compensation plan provides for the cessation of payments to a retiree if the executive engages in litigation with the company or goes to work for a competitor, the exemption from the ADEA for a bona fide executive is lost.
Do executives lose their touch at 65? As baby-boomers get older they probably don’t think so. Experience outweighs any slowing down. On the other hand, companies are entitled to set long range plans and have executives young enough to see them through. Therefore, even executives who ran their companies for many years, and steered them down “The Long and Winding Road,” are subject to being terminated even if the company’s decision is based upon their age.
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”)).
March 25, 2019
Effective March 17, 2019, employers with four or more employees in New York City must provide employees with break time and a private place to express milk. Like with other protected classes, employers can refuse to make these accommodations if they impose an undue hardship.Under New York City law, employers must notify employees about the new law in a detailed, written policy. The New York City Commission on Human Rights has posted three sample policies on its website. Companies needing help drafting a lactation policy should contact counsel.
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.
February 12, 2019
In a recent unreported decision of the New Jersey Appellate Division, the Court reaffirmed that the two year statute of limitations for claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“NJLAD”), begins to run from the first day after a plaintiff comes off payroll.
In Turner-Barnes v. Camden County College, N.J. Super. App. Div. L-2623-17 (Jan. 31, 2019) Plaintiff was terminated by letter, dated January 23, 2015, but it indicated she would remain on the payroll through June 30, 2015. Plaintiff filed her age and race discrimination complaint on June 29, 2017.
NJLAD is subject to a two year statute of limitations under N.J.S.A. 2A:14-2(a) which means that an adverse employment action must have occurred within two years of filing suit. In Alderiso v. Medical Center of Ocean County, 167 N.J. 191 (2001), a whistleblower suit under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. (“CEPA”), our Supreme Court held the controlling date for limitations purposes is not the date the employee receives notice of termination but the date on which pay ends, i.e., the first full day of unemployment. For clarity, the Supreme Court noted that “… the date of discharge for limitations purposes does not include any subsequent date on which severance, health or other … extended benefits are paid.” Id. at 199-200. Accordingly, in Turner-Barnes, the Appellate Division reversed the trial Court and held that Plaintiff’s Complaint was timely filed. As with CEPA claims, suits under the NJLAD must be brought within two years from the date of discharge, even if a Plaintiff receives severance thereafter.
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.
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:
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:
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:
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 email@example.com.
January 16, 2019
After a sixteen year battle, New York state legislators passed a bill this week to specifically outlaw gender identity and gender expression discrimination. The Gender Expression Non-Discrimination Act (“GENDA”) adds gender identity and expression as protected classes in employment, housing and public accommodations. Governor Andrew Cuomo has indicated he will sign the bill into law.
GENDA will give those working in New York State similar protection to that already provided in New York City by adding these protected categories to New York State’s anti-discrimination laws. Should you have any questions concerning this, or any other labor or employment topic, contact Steven Adler.
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:
Remind employees in advance of the Company's anti-harassment policy;
Consider no alcohol or using drink tickets
Designate a member of management to monitor employees
Have rides home available or remind employees to consider Uber/Lyft, etc.
Consider day-time parties
No slow dancing;
No unsupervised speeches or skits;
Avoid religious symbols and religious music;
If during off hours, do not require attendance or there may be exposure to wage and hour claims;
If exchanging gifts, instruct employees as to what is appropriate and no gag-gifts;
When selecting a menu, make sure it is inclusive to accommodate religious needs, i.e. Kosher meals; and
If all else fails, promptly investigate any claims!
November 27, 2018
As we are now in the middle of the holiday season, it is worth noting a recent, interesting decision concerning an employer’s obligation to accommodate an employee’s religious beliefs. In Miller v. The Port of Authority, 15-cv-6370 (KM)(MAH), the District Court rejected a worker’s suit that the Port Authority of New York and New Jersey (the “Port Authority”) failed to accommodate his religious beliefs that precluded him from working on the Sabbath.
There are two types of religious discrimination, a disparate treatment claim (where an employee claims he is being treated differently because of his religion) and a claim for a failure to accommodate. In Miller, plaintiff argued the latter, that his request for an accommodation was rejected by his employer. In contrast, the employer argued that it offered various options to Miller, including the option to swap shifts with other employees, or that he could use vacation, personal excused time or compensatory time for religious purposes. The Port Authority also argued that exempting Miller from work on the Sabbath, without first offering that option to more senior employees, would have violated the governing collective bargaining agreement’s (“CBA’s”) seniority provision. The Hon. Kevin McNulty held that the religious accommodation offered by the Port Authority was reasonable and that the blanket exemption proposed by plaintiff would have imposed more than a de minimis hardship. Therefore, the employer was not required to accept it, and granted summary judgment in favor of defendant.
Judge McNulty’s decision is interesting for a number of reasons. First, it notes that “the standard imposed on employers for a religious accommodation is not as demanding as the accommodation of a disability required under the Americans with Disabilities Act.” As noted above, the Court held that an accommodation would impose an “undue hardship” if it would impose more than a de minimis burden on the employer. “Such a burden may take the form of economic costs, but may also include non-economic costs, such as damage to employee morale or compromise of a CBA …” Second, the decision confirms that an employer’s accommodation proposal simply must be “reasonable.” It is not required to totally eliminate any conflict and an employer is not required to accommodate the religious practices of an employee in exactly the way the employee would like. Third, while noting that the Third Circuit Court of Appeals hasn’t endorsed the approach, Judge McNulty held that an employer could offer a combination of accommodations, and found that what the Port Authority offered was reasonable.
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.
November 13, 2018
We hope you enjoyed Veterans Day yesterday but we should honor our military every day throughout the year. In that regard, we want to remind employers of their legal obligations to those in the military, including those in active or reserve military status.
The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) was signed into law by President Bill Clinton in 1994 to protect the civilian employment of active and reserve military personnel called into active and reserve military duty. Its main purpose is to eliminate employment discrimination by employers, regardless of size, because of an employee’s military status. USERRA ensures that persons who serve or have served in the Armed Forces, Reserves, National Guard or other uniformed services (1) are not disadvantaged in their civil careers because of their service; (2) are promptly reemployed in their civil jobs upon return from duty; and (3) are not discriminated against based upon past, present or future military service. It, therefore, provides protection for both active military service and veterans.
The New Jersey Law Against Discrimination (“NJLAD”) also protects those in the military by making service in the military a protected class. Just last year the NJLAD was amended to broaden the protection for those in the military by prohibiting discrimination in the context of, among other things, housing and loans. It also requires that contractors and subcontractors on state projects guarantee equal employment opportunities to all veterans.
So let’s honor our military throughout the year by treating them right, as required by USERRA and the NJLAD.
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.
August 31, 2018
Billy Joel wrote in his song “Shades of Grey” that what was “perfectly clear with the vision of youth” is not quite so clear anymore. “Black and white is how it should be, but shades of grey are the colors I see.” This holds true with regard to secretly tape recording at work, too.
In the past, employment lawyers told employers they should strictly prohibit employees from secretly recording anything at work. There were a number of reasons for this advice. First and foremost, audio or video recording could result in the misappropriation of an employer’s trade secrets. In fact, for trade secret protection, a company must show that it took reasonable steps to protect that information and, therefore, a written policy is important. Second, fear among supervisors that they are being surreptitiously recorded could lead them to mistrust certain employees, which is not conducive to a healthy work environment.
But times have changed somewhat. From the #MeToo movement, we now know that harassment and even sexual assault have been rampant in certain industries. If employees are allowed to secretly record at work, would the likelihood of harassment be reduced? It could, but probably not. However, it would make it easier to prosecute such a claim against the harasser — and also the employer. This is why the harassment claims of Gretchen Carlson against Roger Ailes supposedly settled so quickly. It also is why we were able to recover millions of dollars to resolve whistleblower claims of a senior executive against the CEO of a major brokerage firm. This type of proof is powerful, because harassment cases often are “he said-she said” situations with no other witnesses. Juries also often expect to hear this type of evidence because they know how easy it is to obtain.
Recordings also allow employees to fend off false accusations by others at work. Recent examples include Omarosa Manigault Newman, the former White House communications director, who allegedly has audio and video recordings of President Donald Trump, and attorney Michael Cohen, who secretly tape recorded discussions he had with his client, Trump. On rare occasions, secretly taping at work can also be harmful to an employee’s case. Years ago, we defended a Berkshire Hathaway company in a gender discrimination and sexual harassment lawsuit involving an employee who had about 10 hours of recordings. The people recorded said nothing inappropriate and we were able to make good use of the plaintiff’s numerous admissions on those tapes to tear apart her case.
The National Labor Relations Board also has held that blanketly denying employees, whether unionized or not, the right to secretly tape record could violate their right to engage in concerted activity regarding their conditions of employment. The NLRB held that photographs and recordings, as well as the posting them on social media, are protected by Sec. 7 of the National Labor Relations Act if “employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.” For example, employees should be allowed to document unsafe equipment or hazardous working conditions. As a result, employers should have their policies reviewed to make sure they explain the business justification for the restrictions on recordings and to confirm that they don’t ban all recordings.
Regardless of a company’s prohibition against recordings, recording no doubt still will take place, considering how easy it is to do these days from anyone’s phone. For this reason, in all harassment and discrimination litigation, it is important to inquire about the existence of this evidence. Keep in mind that improperly obtained evidence, such as a secret recording in a state that requires both parties’ consent, or a recording in violation of an employer’s policy, still can be admissible in a civil case. Unlike criminal cases, where an improper search and seizure by the government may lead to the discovery of other evidence that will be suppressed at trial based upon the “fruit of the poisonous tree” doctrine, that doctrine is inapplicable in civil cases in New Jersey. In other words, secretly recorded conversations are admissible at a civil trial even if improperly obtained.
Weighing all the pros and cons, it is still best for employers generally to preclude covert tape recording, but the policy should be tailored to the specific client especially where employers have valuable trade secrets. Employers should combat harassment using other tools, including anti-harassment training and strong policies.
In the past, black and white were easy to see, but now drafters of employee handbooks and policies need to also see various shades of grey.
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:
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.
May 29, 2018
How healthy is your Company? Does it comply with all of its obligations under ever-expanding employment laws? Considering all of the recent developments in New Jersey and New York employment law, now is an appropriate time to take your Company’s temperature.
If your Company has an employee manual, now is the time to update it especially considering that New Jersey and New York recently passed legislation dealing with paid sick leave which may impact your current sick leave policy.
As a result of the #Metoo movement, and as reported recently in this blog, there have been significant changes concerning having employees sign settlement agreements in sexual harassment cases or separation agreements containing non-disclosure/confidentiality provisions waiving these claims. Both New York and federal law have changed in this regard. It is, therefore, important to review any form releases your Company uses when terminating employees.
As also reported previously in this blog, the law also has changed concerning equal pay. In New Jersey, it will not only apply to women who are paid less than men but also all other protected classes in the New Jersey Law Against Discrimination. It is, therefore, important to take your Company’s temperature with regard to employee pay.
Lastly, based upon an executive order recently signed by Governor Murphy organizing a task force to review the issue of misclassification of workers, we expect a crackdown on employers who misclassify workers as independent contractors. Now is the time to review those relationships as well.
In summary, having experienced legal counsel help in taking your Company’s temperature now will enable your Company to avoid costly litigation not too far down the road.
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.
May 16, 2018
On May 5, 2018, NYC’s Earned Safe and Sick Time Act (the “ESSTA”) went into effect. It amends NYC’s Earned Sick Time Act by (a) permitting an employee to use accrued “sick leave” for “safe leave” and (b) expanding the definition of “family member.” Employers are required to provide notice to employees by June 4, 2018.
Under the ESSTA, employees have the right to use leave for the medical care of themselves or a family member, as well as the right to seek assistance or take other safety measures if the employee or a family member is a victim or has been threatened with domestic violence, “unwanted sexual contact”, stalking or human trafficking.
“Safe leave” includes absences to:
“Family member” is now defined as:
Employers with five (5) or more employees must provide up to 40 hours of paid sick/safe leave; all other employers must provide up to 40 hours of unpaid sick/safe leave.
For more information, see: http://www1.nyc.gov/assets/dca/downloads/pdf/about/Paid-Safe-and-Sick-Leave-Law-Rules.pdf
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.