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New Jersey’s Law Against Discrimination has rightly been called one of the strongest employee protection laws in the nation.  This is true both because of the broad range of inherent characteristics  which it protects from discrimination, and the strong legal protections and remedies it provides.  In short, the Law Against Discrimination prohibits employers from discriminating against employees because of a wide range of inherent qualities which make them who they are. It likewise prohibits harassment because any of these characteristics as well.  These protected characteristics include race, creed, color, national origin, nationality, ancestry, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, including AIDS and HIV related illnesses.  It also prohibits discrimination or harassment because of an employee’s age.

The Andujar Case

The Third Circuit Court of Appeals, which hears appeals from the federal district courts in New Jersey, Pennsylvania, Delaware and the United States Virgin Islands, recently issued an instructive opinion in the appeal of an age discrimination verdict under the Law Against Discrimination in the case of Santos Andujar versus General Nutrition Corporation.

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The Federal Fair Labor Standards Act requires that employers, including New Jersey employers, pay their non-exempt employees minimum wage and overtime (the vast majority of employees are not subject to an exemptions; the major exemptions are for executive, administrative and professional employees, and outside sales).  Independent contractors, however, are not protected by the Fair Labor Standards Act.  Claims of misclassification of employees have recently led to significant amounts of litigation.

The United States Third Circuit Court of Appeals recently issued an opinion on misclassification of workers in the case of Priya Verma v. 3001 Castor, Inc., which found that adult dancers were employees entitled to the protection of the Federal Fair Labor Standards Act.  While the case arose in Pennsylvania Federal Court, the Third Circuit rules on appeals from federal courts in New Jersey, Pennsylvania, Delaware and the United States Virgin Islands, so it’s decisions determine how federal law, including the Fair Labor Standards Act, will be applied are binding in New Jersey.

Background

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Willful Violations Under The Fair Labor Standards Act

352099_construction_3-002-300x225The Federal Fair Labor Standards Act establishes rates of minimum wage and overtime pay which employers must pay to their employees.  Employees successfully suing their employers for violations of these requirements can recover their lost wages, and their employers will be required to pay their attorneys fees and litigation costs.  The Fair Labor Standards Act provides that willful violations of these requirements will result in double damages – ie., the employer will be required pay the employee twice the amount of wages or overtime it did not pay.  A willful violation also extends the statute of limitations for suing from two years to three.

Willfulness: The Question Facing the Third Circuit

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New Jersey passed the Wage Theft Act on August 6, 2019.  It is being viewed as one of the strongest and broadest wage theft laws in the nation, and rightly so.  The New Jersey Wage Theft Act increases penalties that employers may be subject to under New Jersey’s Wage and Hour Law with the addition of a liquidated damages provision and further protections for employees who bring retaliation claims.  The New Jersey Wage Theft Act also expands the employers who may be liable for employee claims by making both employers and labor contractors jointly and severally liable for violations and prohibiting waivers regarding joint and several liability.

What is Wage Theft?

Wage theft can come in a variety of different forms but boils down to circumstances where an employer does not pay an employee the amount he is owed.  The following are a few examples where an employee may have a claim for wage theft: (1) an employee is not getting paid for the full amount of hours worked; (2) a non-exempt employee is not be getting paid overtime wage rates for hours he has worked in excess of 40 hours for a week; (3) an employee’s paycheck from his employer bounces; and (4) an employer deducts time out of an employee’s paycheck for breaks which the employee never took.  As you can see from these examples, wage theft is not limited to any one industry or job.

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In New Jersey, you cannot sell alcohol unless you have a license issued by the New Jersey Division of Alcoholic Beverage Control.  New Jersey issues many types of licenses which broadly fall within three general categories:  Manufacturing Licenses, Retail Licenses, and Wholesale Licenses.   Each license is attached to the “Licensed Premises,” and any change in the location or size or configuration of the Licensed Premises requires a place to place transfer application to  be filed and approved before changes to the Licensed Premises can be completed.   This transfer application is substantially the same as the process for transfer of ownership of the license.  While the majority of licenses issued by the State of New Jersey fall into the Retail Licenses category, Manufacturing Licenses (designated as Class A licenses) include Brewery, Winery and Distillery Licenses which are a growing category.  Wholesale Licenses (designated as Class B licenses) apply to wholesale distribution of alcoholic beverages to retail licensees.

The Retail Licenses (designated as Class C licenses) are issued to bars, restaurants, and liquor stores. There are 11 different types of New Jersey Liquor Licenses which fall within the Retail License categories:

Plenary Retail Consumption License (identified by license number 33): This license permits the liquor license holder to sell alcoholic beverages for consumption at the licensed premises, and the sale of packaged goods for consumption off premises, the sale of packaged goods must take place in the public barroom.  This license counts toward the municipality’s population restriction which allows 1 license per 3,000 residents of a municipality based upon the most recent census data.

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The law firm of McLaughlin & Nardi, LLC, has been awarded the Equal Justice Medal by Legal Services of New Jersey for the Firm’s pro bono contributions to low income New Jersey residents.

While all of our attorneys do community service and pro bono legal services, Pauline Young by far does the most, and this award was mainly due to her.  Pauline does a wide variety of pro bono work, but concentrates on providing services which help remove barriers to employment for prisoners reentering society after their terms of incarceration have ended, most often through engagement of their criminal records.

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Pauline generally does her pro bono work through Legal Services of Legal Services of New Jersey and Volunteer Lawyers for Justice’s Reentry Legal Services program.

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The Appellate Division of New Jersey’s Superior Court recently issued an important construction law decision examining the effect of New Jersey’s Consumer Fraud Act in cases also involving the breach of a construction contract or negligent construction.

By way of background, coverage under New Jersey’s Consumer Fraud Act was expressly extended to include contractors engaging in home improvements and home repair.  The New Jersey Department of Community Affairs issued regulations requiring specific items in contracts between home improvement contractors and homeowners.  Violation of these technical requirements are “per se” violations of the Consumer Fraud Act, entitling the homeowner to triple damages and reimbursement of their attorneys fees by the contractor.

Under these regulations, the  specific requirements which home improvement contracts must contain include the following.

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New Jersey employment law recognizes the concept of “constructive discharge.”   Constructive discharge occurs when an employee’s working conditions are made so intolerable that the employee has no choice but to quit.  When the actions causing the hostile work environment are undertaken because of discriminatory harassment, this can constitute wrongful termination even though the employee quit, rather than being fired.  However, the burden of proof to prove constructive discharge is on the employee.  The Appellate Division of New Jersey’s Superior Court recently issued an unpublished opinion addressing the question of proof.

Background

The Appellate Division explained that the evidence in the case revealed the following facts.

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The United States Court of Appeals for the Third Circuit recently issued an opinion interpreting the New Jersey Civil Service Act regarding the reemployment rights of laid off civil service employees.  It probably reached the right decision, but its reasoning was far too broad and may have a negative impact on future cases.

In that case, Tundo vs. County of Passaic, two probationary Passaic County Corrections officers with disciplinary problems were laid off as part of a mass layoff for budgetary reasons.  They had not completed their “working test period” (probationary period) yet.  Thereafter, the County obtained funds and sought to rehire some of the laid off employees.  It therefore contacted the New Jersey Civil Service Commission so that the Commission could create a list from which the County could rehire laid off workers, which the Commission did.  There was dispute about whether the list was a “revived” list – or not whether this was a revived “regular reemployment” list or a revived “open competitive” list was left unclear.  The County challenged the placement of the two laid off officers on the list.  The Civil Service Commission rejected the challenge.  The County therefore had the officers apply for the job, but as part of the application process the County required them to sign a release of their right to sue the County.  They refused to sign and the Civil Service Commission removed their names from the list.  The officers then sued under Section 1983 of the Civil Rights Act of 1871, arguing that their due process rights were violated by their removal from the list.  The Third Circuit disagreed, holding that employees do not have a property right to their position on a reemployment list.

The decision was correct in this case because the officers had no right to be on a special reemployment lists.  However, in many cases, other officers do have a legal right to be on employment or remployment list, which would give them a “property interest” triggering due process protections before their governmental employer could remove them.

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The United States Third Circuit Court of Appeals (which hears appeals from the federal district courts in New Jersey, Delaware, Pennsylvania and the United States Virgin Islands) recently had the opportunity to address the state of New Jersey employment law on restrictive covenants in the case of ADP, LLC v. Rafferty.

Background

In the Rafferty case, two ADP employees, Kristi Mork and Nicole Rafferty, agreed to restrictive covenants in exchange for an award of company stock.  Because they were high performing employees, they agreed to restrictions in exchange for the stock award which were more onerous than lower performing  employees were required to agree to.  The restrictions applied whether they quit or were fired.