Labor and Employment

Published on: May 8, 2018

Governor Murphy Signs Diane B. Allen Equal Pay Act Into Law

dollar-1362243__340-300x200 Fulfilling one of his campaign promises, Governor Phil Murphy signed the Diane B. Allen Equal Pay Act on April 24, 2018. The Act amends New Jersey’s Law Against Discrimination. The main purpose of the Equal Pay Act is to close the pay gap between men and women. Governor Murphy explained, “From our first day in Trenton, we acted swiftly to support equal pay for women in the workplace and begin closing the gender wage gap. Today, we are sending a beacon far and wide to women across the Garden State and in America – the only factors to determine a worker’s wages should be intelligence, experience and capacity to do the job. Pay equity will help us in building a stronger, fairer New Jersey.”

While its main purpose was to protect women and close the gender pay gap, the Act protects against discrimination in pay because of an employee’s immutable characteristic, such as race, religion, sexual orientation, age, etc. The bill strengthens the Law Against Discrimination in several ways, and makes it one of the strongest anti-discrimination laws in the United States.

Pay Disparities Illegal. The Act makes it illegal to pay members of a “protected class” at compensation rates, including both pay and benefits, less than other employees not in a protected class. Protected classes include not just gender, but also race, religion, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, gender identity, gender expression, disability, atypical hereditary cellular or blood trait, liability for military service, nationality, refusal to submit to a genetic test, or refusal make available the results of a genetic test to an employer.

Published on: April 13, 2018

United States Supreme Court Issues Important Wage and Hour Law Decision

by Maurice W. McLaughlin

Wage and hour claims dealing with overtime requirements are among the most contentious in employment law litigation. The United States Supreme Court recently issued a decision exempting one narrow class of employees (“service advisors” at automobile dealerships) from coverage. While the specific effect of the ruling is limited, the reasoning behind it may signal a shift in the way the Supreme Court interprets the exemptions from overtime requirements in federal employment law.

The Federal Fair Labor Standards Act governs wage and hour issues for most employees in the United States. Generally speaking, unless an employee is an “exempt employee” she must receive minimum wage for all hours worked, and overtime pay at the rate of one and a half times her normal pay rate (known as “time and a half”) when she works more than forty hours in a week. Broad categories of employees are exempt, however. The major categories of exemptions are professional, executive and administrative employees. Many other smaller or sub-categories of employees are also exempt.

New Jersey’s Wage and Hour Law provides similar coverage for New Jersey employees, who receive protection under both state and federal law. Both laws also prohibit retaliation against employees who file complaints about violations (although there are technical requirements about what constitutes a “complaint”), and both require the employer to pay the employee’s attorneys fees if she prevails in a lawsuit. The main difference is that the Fair Labor Standards Act provides for double damages if the violation is “willful” – this means that if the employer willfully underpaid the employee by $1000, it must pay her $2000 in damages plus reimbursing her for her attorneys fees. The New Jersey Wage and Hour Law, on the other hand, does not provide for double damages.

Published on: April 9, 2018

Appellate Division Rules on New Jersey Employment Discrimination Law in the Age of Telecommuting

by Maurice W. McLaughlin

In 1945, New Jersey’s Legislature enacted the Law Against Discrimination. It has been repeatedly revised to increase its inclusion and scope. However, its goal remains the same today as it was in 1945: “nothing less than the eradication of the cancer of discrimination in the workplace.” The Law Against Discrimination declares that a workplace free from discrimination is a civil right in New Jersey.

The main section of New Jersey’s Law Against Discrimination dealing with employment bars employers from firing, refusing to hire, or discriminating against employees in their pay or other terms, conditions or privileges of their employment because of their “race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or because of the liability for service in the Armed Forces of the United States or the nationality of any individual, or because of the refusal to submit to a genetic test or make available the results of a genetic test to an employer.”

When the Legislature enacted the Law Against Discrimination, it listed its purpose as protecting “inhabitants” of New Jersey. However, every other section of this long Law prohibits discrimination against “any individual” or “any person.” In 1945, this discrepancy was not an issue. However, in today’s cyber-world, a conflict inevitably arose between the term “inhabitants,” and “any individual” or “any person” in the context of telecommuting. The Appellate Division of New Jersey’s Superior Court recently issued an unpublished opinion helping to clarify this issue.

Published on: February 21, 2018

Tenure Rights of Part-Time New Jersey Teachers

by Maurice W. McLaughlin

books-2826380__340-300x200 One of the areas which counterintuitively generates among the most questions in New Jersey employment law is teachers’ tenure. Although teacher tenure dates back over a century, tenure is still an area of the law which generates much controversy and litigation. The Appellate Division of New Jersey’s Superior Court recently issued a decision in one such area of contention in the case of Zimmerman v. Sussex County Educational Services Commission.

In that case, Beryl Zimmerman and Judy Comment were tenured, part-time teachers for the Sussex County Educational Services Commission. They provided remedial instruction to eligible students. For reasons that were unclear, the Commission reduced their hours, but not their rate of pay. During the 2013-2014 school year, Comment worked approximately 1117 hours, and earned a gross salary of $36,838.74. The following year, however, the Commission reduced Comment’s teaching to only 305 hours, a reduction of 784 hours and $26,507.61. Zimmerman’s hours were reduced from 954 during the 2013-2014 school year to 658 the next, reducing her gross earnings from $27,668.81 to $19,603.42, a reduction of $8,065.39.

Zimmerman and Comment appealed to the New Jersey Commissioner of Education claiming that the reduction violated their tenure rights. The Commission argued that it did not violate the teachers’ tenure because their hourly rate not reduced (and in fact they received an annual incremental raise in their hourly rate), and their individual contracts and collective negotiations agreement contained no guaranteed minimum number of hours they would work. After proceedings before an administrative law judge, the Commissioner of Education agreed with the Commission and rejected Zimmerman’s and Comment’s appeal. The Commission of Education found that because the hourly rate was not reduced, and because the union and individual contracts did not guarantee Zimmerman and Comment a certain number of hours, the reduction in their hours did not violate their tenure protections. Zimmerman and Comment then appealed the Commissioner’s decision to the Appellate Division, which reversed the Commissioner’s decision.

Published on: February 13, 2018

Restrictive Covenants in Employment Agreements and Business Law

by Maurice W. McLaughlin

What is a Restrictive Covenant?

A restrictive covenant is a contractual agreement in which one party receives something of value in exchange for a promise not to engage in a particular type of behavior. Restrictive covenants can bind people or businesses.

What Types of Restrictive Covenants Are There?

Published on: February 6, 2018

Mandatory Pay for Breaks Under the Fair Labor Standard Act

by Pauline M.K. Young

The Fair Labor Standards Act (“FLSA”) is a federal statute enacted in 1938 with the goal of setting national minimum requirements for employee compensation. It covers areas such as minimum wage and overtime, among other things.

On February 9, 2017, the Third Circuit Court of Appeals was the first United States Federal Circuit Court to address an area of the FLSA which is invoked relatively rarely in civil lawsuits involving compensation disputes. In a case captioned: Secretary, United States Department of Labor v. American Future Systems, Inc., the Department of Labor (“DOL”) sued on behalf of the employees of American Future Systems, Inc., claiming that the employer was violating the FLSA by not paying employees for time that they were logged off of their computers over 90 seconds.

The employer did not deny that it was not paying employees for “breaks” in excess of 90 seconds. The dispute was whether that non-payment violated the FLSA. Two different sections of the FLSA were evaluated.

Published on: February 5, 2018

When Does the Statute of Limitations on Harassment Begin: The Continuing Violation Doctrine

by Maurice W. McLaughlin

By typography-2858715__340-300x150 enacting the Law Against Discrimination, New Jersey has provided its workers with some of the strongest anti-discrimination laws in the United States. New Jersey’s Law Against Discrimination protects against employment discrimination, including harassment, because of these protected categories

race
creed

Published on: February 2, 2018

The United States Supreme Court Issues Major Decision on Tolling of Statute of Limitations in Employment Cases Under Supplemental Jurisdiction

by Maurice W. McLaughlin

partnership-2750197__340-300x200 The United States Supreme Court issued a major decision on tolling the statute of limitations on state law claims while the case is in federal court which has significant impact on New Jersey employment litigation. In the case of Artis v. District of Columbia, the Supreme Court answered a major procedural question regarding the interplay of federal and state claims being heard together in federal district court and state statutes of limitations. While the case involved an employment case in District of Columbia, it would be equally applicable to cases brought under New Jersey employment law.

Background

Stephanie Artis worked as a health inspector for the city government of the District of Columbia. She was fired. Thereafter, she filed suit in the United States District Court for the District of Columbia. She alleged a federal claim under Title VII of the Civil Rights Act of 1964 (known as “Title VII”). She also sued under District of Columbia law for whistleblower retaliations, false claims and gender discrimination.

Published on: January 22, 2018

Third Circuit Issues Important Decision on Religious Discrimination in Employment

by Maurice W. McLaughlin

votive-candles-2903933__340-300x200 Both New Jersey’s Law Against Discrimination and the Federal Title VII of the Civil Rights Act of 1964 expressly prohibit employers from discriminating against employees because of their religious practices if they can be reasonably accommodated. In many cases the most difficult question is whether an accommodation which the employer could have provided was “reasonable.” However, the Third Circuit Court of Appeals recently issued an important decision on the unusual question of whether an employee’s honestly and strongly held beliefs could be considered “religious” under Title VII.

Paul Fallon had been an employee of Mercy Medical Center since 1994. In 2012, Mercy instituted a rule that all employees had to receive a flu vaccination each year. Mercy allowed for religious exemptions. Fallon requested and was granted exemptions in 2012 and 2013. However, she was denied in 2014 because Mercy had changed its definition of religious exemption. There was no question that Fallon’s objection was because of his sincerely held belief that the vaccination did more harm than good. However, he cited no religious source, just his belief that it is wrong to cause harm to your own body. Mercy decided that this reason was not “religious” under its policy, and ordered Fallon to get the shot or provide a letter from clergy explaining why he could not get the vaccination for religious reasons. He failed to provide the letter and refused to be vaccinated. Mercy therefore fired him.

Fallon filed suit in Federal District Court alleging that Mercy had fired him because of his religious beliefs, and therefore committed religious discrimination in violation of Title VII. The trial judge disagreed and dismissed his suit. Fallon appealed to the United States Court of Appeals for the Third Circuit. The Third Circuit agreed with the trial judge’s opinion and upheld the decision.

Published on: January 19, 2018

Potential Roadblock for Certain Whistleblower Claims

by Pauline M.K. Young

whistle-2496555__340-300x200 In the case of DiFiore v. CSL Behring, LLC, a former pharmaceutical employee brought an action in the District Court for the Eastern District of Pennsylvania against her former employer for retaliation in the form of a wrongful, constructive discharge. In that case, the employee specifically brought claims under the federal False Claims Act (“FCA”) https://www.law.cornell.edu/uscode/text/31/3729 and Pennsylvania’s common law wrongful discharge cause of action. She claimed that she had raised concerns about off-label marketing of products which caused her employer to retaliate.

In that case, the District Court instructed the jury that, in order to prove retaliation under the FCA, the employee had to prove that the whistleblowing by the employee was the sole cause for the adverse action (firing or other retaliatory action). However, the plaintiff-employee argued that she need only provide that the whistleblower action was a motivating factor for the wrongful discharge – not that it was the only reason for the adverse employment action. The plaintiff was relying on a prior Third Circuit case, Hutchins v. ABC Corp. However, the Court determined that the “motivating factor” language in the Hutchins case was merely dicta – meaning that the language was extraneous to the decision and does not act as precedential.

The Court also decided that the United States Supreme Court decisions in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v Nassar indicate that a “motivating factor” test is inappropriate. (The Gross case considered a claim under the Age Discrimination in Employment Act (“ADEA”) and the Nassar case considered a claim under Title VII of the Civil Rights Act.) In both cases, the Supreme Court found that the language “because of” in those laws, equated to the requirement of “but-for” causation. In other words, the adverse action would not have happened “but for” the improper motivation, requiring that to be the exclusive motivation. The ADEA, Title VII, and the FCA all contain that same language.