Articles Tagged with “New Jersey Employment Lawyers”

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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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Background: The Law Against Discrimination

New Jersey’s Law Against Discrimination (often referred to as the “LAD” or the “NJLAD”) prohibits discrimination and harassment against employees because of a wide variety of immutable characteristics. Among these are protections against discrimination and harassment because of an employee’s age and disability. The Law Against Discrimination’s protections have been described as among the strongest in the country.

The Caraballero Case

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Tenure is one of the most important protections for teachers in New Jersey employment law.  Both full-time and part-time teachers may receive tenure protection.  However, no New Jersey court has addressed the situation where a part-time tenured teacher’s earnings were reduced when her hours were cut, even though her hourly rate of pay was slightly increased.  However, in the recent case of Zimmerman v. Sussex County Educational Services Commission, the New Jersey Supreme Court addressed this issue head on.

Background: General Principles About Tenure for New Jersey Teachers

One of the bedrock principles of New Jersey public education employment law is tenure protection.  Tenure of teaching staff members employed in the positions of teacher, principal, assistant principal, vice-principal, assistant superintendent, athletic trainer, school nurse and other positions in public schools requiring certification is generally governed by Title 18A of New Jersey Statutes. It was designed to protect competent and qualified teaching staff member from being subject to removal, discipline or “reduction in compensation” for “unfounded, flimsy or political reasons.” Tenure is a statutory right, not contractual.  It cannot be waived, forfeited or bargained away.  When a teacher satisfies the statutory requirements, she receives tenure protection.

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Gender discrimination is one of the most heavily litigated areas of New Jersey Employment Law. The United States Third Circuit Court of Appeals recently issued an opinion involving the issue of “sex plus” gender discrimination which will apply equally to New Jersey’s state and federal courts.

What is “Sex Plus” Discrimination?

Although it didn’t call it that, the concept of “sex plus” discrimination was first adopted by the United States Supreme Court in a 1971 decision involving Title VII of the Civil Rights Act of 1964, in the case of Phillips v. Martin Marietta Corp. In that case a woman applied for a job in which three quarters of the employees were female, and thus it was clear that the employer did not discriminate against women. However, it did not accept applications from women with pre-school age children, while at the same time it accepted and employed men with pre-school age children. The Supreme Court found that this was sex discrimination because it placed barriers to work on women that it did not place on them.

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medical-marijuana-300x300While the sale and possession of marijuana are flatly illegal under federal law, and the illegal status of recreational marijuana under New Jersey law has not changed yet, the medical use of marijuana is legal under New Jersey’s Compassionate Use Act for ALS, anxiety, certain chronic pain conditions, migraine headaches, MS, opioid addiction, terminal cancer, muscular dystrophy, inflammatory bowel disease, Crohn’s disease, terminal illness with less than twelve months of life expectancy, and Tourette’s Syndrome. It may also be used to treat HIV, acquired immune deficiency syndrome and cancer if severe or chronic pain, severe nausea or vomiting, cachexia or wasting syndrome result from treatment.  Additionally, seizure disorder, epilepsy, Intractable skeletal muscular spasticity, glaucoma and PTSD qualify for medical marijuana treatment if the patient is intolerant of or resistant to conventional therapy.

The Interplay of Medical Marijuana and Disability Protections under New Jersey Employment Law

The Compassionate Use Act contains the language that “Nothing in this act shall be construed to require… an employer to accommodate the medical use of marijuana in any workplace.”  On the other hand, New Jersey’s Law Against Discrimination does require employers to make reasonable accommodation for an employee’s disability if the accomodation would allow her to work without causing undue hardship for the employer.  The conditions which allow for the use of medical marijuana under the Compassionate Use Act would in all likelihood constitute “disabilities” under the Law Against Discrimination.  These two laws, both of which laudably aim to protect vulnerable people, thus appear to be in conflict.

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New Jersey’s Law Against Discrimination makes it illegal for employers to discriminate against employees because they have a “disability.”

Law Against Discrimination also requires employers to make “reasonable accommodations” so that employees can do their jobs despite their disabilities.  New Jersey’s Workers Compensation Act requires employers to carry workers compensation insurance which provides for medical coverage and compensation for employees who are injured on the job.  However, there are relatively few cases examining the interplay of these two important New Jersey employment laws.  However, New Jersey’s Supreme Court recently issued an important decision on just this interplay in the case of Caraballo v. City of Jersey City Police Department.

Disability Discrimination and Reasonable Accommodation Under New Jersey Employment Law

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office-2009693__340-300x200New Jersey employment law generally recognizes that employees have a limited right to privacy in the workplace, including in their digital life.  However, a recent federal appellate decision limited the reach of employee privacy.  It is an unpublished decision, and therefore not binding.  However, it is a troubling outcome.

The New Jersey Supreme Court Finds Employees Have Privacy Rights

People generally have a right to privacy which they do not lose when entering the work force.  The New Jersey Supreme Court explained in the 1992 case of Hennessey v. Coastal Eagle Point Oil Co. that the source of this right in New Jersey Employment law comes from the New Jersey Constitution and the common law.  However, in that same case, the Supreme Court ruled that the right to privacy in the workplace is not absolute, and may yield to legitimate public policy concerns such as public and employee safety.

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whistleblower-1764379__340-300x300New Jersey employment law has some of the strongest employee protections in the United States.  A recent unpublished decision by the Appellate Division of New Jersey’s Superior Court may have expanded those already strong protections.

New Jersey Whistleblower Laws

New Jersey has two main employment laws protecting whistleblowers.  The first is the common law rule established by New Jersey’s Supreme Court in the case of Pierce v. Ortho Pharmaceutical Corp. in 1980, which prohibits an employer from retaliating against an employee in violation of a “clear mandate of public policy” found in legislation; administrative rules, regulations and decisions; and judicial decisions.  Thus, an employer may not discipline an employee for disclosing, objecting to or refusing to participate in a practice which violated one of these policies.