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Although a Plaintiff may attempt to prove his discrimination claim by showing how he was treated differently than similarly situated workers not of his protected class, e.g., race, according to a recent decision of the federal District Court of New Jersey there must be little or no difference in the offered comparator evidence other than the protected class characteristic of the Plaintiff. Wilson v. M & M Mgmt. Co., 2019 U.S. Dist. LEXIS 107955 (D.N.J. decided June 27, 2019). For example, in the race discrimination claim brought in Wilson, the Court required an African American Plaintiff to show there was no discernable difference between his conduct and those of the Caucasian coworkers he was comparing himself to other than their race. Unfortunately, for Aaron Wilson he was not able to do so.

Plaintiff Aaron Wilson worked as a driver for Defendant M & M Management Company which housed a thrift store located in West Berlin, New Jersey. Id. at *1. Wilson was terminated in January 2016, after which he filed a lawsuit against his employer alleging hostile, work environment, retaliation and wrongful discharge based on his African American race under both Title VII and the New Jersey Law Against Discrimination (LAD) Id. at *6-7. Wilson alleged that M & M terminated him in retaliation for his complaints about a white coworker’s racially discriminatory behavior toward him. Id. However, M & M argued instead that the actual reason for Wilson’s termination was his excessive documented disciplinary infractions over a period of two years. Id.

In its decision the district court emphasized that even though M & M met its burden of articulating a legitimate nondiscriminatory reason for firing Wilson based on his extensive disciplinary record, Wilson would still have opportunity to prevail on his claims if he was able to show the reasons offered by the employer for firing him were pretextual, and in fact he was actually terminated in retaliation for the exercise of his protected right to complain of a racially biased hostile work environment. Id. (citing to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for the proposition that once a plaintiff makes prima facie showing of discrimination and a defendant successfully refutes it, the burden shifts to the plaintiff to show that defendant’s reasons were pretextual). To show pretext, the relevant standard requires a plaintiff to “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them ‘unworthy of credence.’” Wilson at *11 (quoting Keller v. Orix Credit Alliance, 130 F.3d 1101, 1109 (3d Cir. 1997).

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The Appellate Division recently held that in enacting the New Jersey Law Against Discrimination (NJLAD), the Legislature intended the Act to be construed as broad enough to extend to certain nonresidents who sought employment in the State. Calabotta v. Phibro Animal Health Corp., N.J. Super. LEXIS 100 (June 27, 2019).

Plaintiff David Calabotta, an Illinois employee, sued his New Jersey-based employer Phibro Animal Health Corporation under the NJLAD after his supervisors first failed to consider him for a promotion due to his wife’s battle with breast cancer. His employment was ultimately terminated. Defendant Phibro argued that Illinois law should apply because Calabotta resided in Illinois and worked out of the Illinois office. Id. at 6. However, Calabotta maintained that New Jersey law and the NJLAD should apply because the company headquarters were in Teaneck, the senior executives who made all employment decisions regarding Calabotta’s status were at the New Jersey headquarters, and the promotional position he sought was in New Jersey. Id at 6 and 11.

The court in Calabotta found that, after careful examination of the NJLAD’s text and legislative history that there was no legislative intent to limit LAD to job applications who live in New Jersey or to those who perform all of their employment functions in New Jersey. Generally, the best indicator of the legislative intent behind the enactment of a statute is the statute’s plain language. Calabotta, N.J. Super. at 25 (citing Lippman v. Ethicon, Inc., 222 N.J. 362, 380-81 (2015) and quoting Donelson v. DuPont Chambers Works, 206 N.J. 243, 256 (2011)). However, if a statute’s plain language is ambiguous, then courts look at extrinsic evidence for their analysis, such as legislative history. Parsons v. Mullica Twp. Bd. of Educ., 226 N.J. 297, 308 (2016). In this case, the confusion and ambiguity stemmed from the construction of the NJLAD’s preamble, which uses the word “inhabitant,” despite the fact that “inhabitant” is not used in the rest of the statute. Calabotta, N.J. Super. at 27-28.

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Recognizing the unique vulnerability of hotel housekeeping and room service employees who often work alone while cleaning guests’ rooms, New Jersey Governor Phil Murphy signed into law this month a requirement that ensures hotels with over 100 guest rooms provide its employees with panic button devices to protect them when confronted with sexual assault and harassment situations. This new law was proposed in the aftermath of the sexual assault of a 51-year old room cleaner in Bally’s Hotel and Casino in 2018, which sparked outrage among similarly situated workers throughout the state who feared for their safety. In enacting this law, which will take effect in January 2020, New Jersey becomes the first state to require such protection for its employees.

The new law additionally recognizes that hotel employees who are often recent immigrants who speak little English and therefore may feel intimidated to report inappropriate or criminal conduct for fear of retaliation from their employers. The public policy goals of this legislation are in line with existing pro-employee rights laws in effect in our state such as the New Jersey Law Against Discrimination (LAD).

The LAD provides a significant level of protection to New Jersey workers by prohibiting employers from retaliating against employees for complaining about harassment or discrimination. N.J.S.A., 10:5-12(d). Under the LAD, it is an unlawful practice “for any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act.” Id. The panic button legislation adds an additional layer of protection for hotel service employees underscoring the fact that hotel employers had been failing to adequately address these workers’ safety concerns.

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Under the New Jersey Law Against Discrimination (LAD) employees may now be able to pursue a failure to accommodate disability discrimination claim even if they do not suffer an adverse employment action for having requested such an accommodation. Put differently, a worker may sue their employer under New Jersey state law for failing to grant their request to reasonably accommodate their disability even if they are not fired, suspended, demoted, had their hours reduced, salary/rate of compensation cut and/or were not subjected to a hostile work environment for having asked their employer to accommodate their disability. In Richter v. Oakland Bd. of Educ., 2019 N.J. Super. LEXIS 84 (App. Div., June 11, 2019), our Appellate Division recently decided that an employee “need not demonstrate an adverse employment action to establish a prima facie case of a failure to accommodate claim under the LAD.” Richter, N.J. Super at 4.

Plaintiff Mary Richter suffered from a hypoglycemic episode, in which her blood sugar dropped too low causing her to have a seizure and faint in front of her students. Richter, N.J. Super. at 7. Richter alleges that as a result of her fall, she had to undergo extraction of her right front tooth and implantation of a dental bridge and bone grafts. Id. She also now suffers from such symptoms as loss of smell, vertigo, dizziness, post-concussion syndrome, severe emotional distress, among others. Id. Prior to this incident, Richter asked the school principal to adjust her schedule to an earlier lunch period. The principal told her that she was needed for cafeteria duty during the earlier lunch period and while the vice principal advised her that she should skip her assigned cafeteria duty to eat lunch earlier, Richter thought she was obligated to work during cafeteria duty because she did not receive permission in writing. Id. at 6. Her late lunch schedule required Richter to consume three or more glucose tablets while teaching to maintain her sugar at stable levels, which ultimately did not work and allegedly caused her to faint. Id. The Superior Court below dismissed Richter’s complaint because it concluded as a matter of law that Richter could not establish an adverse employment action by the BOE. Id. at 3.

To establish an employer’s failure to accommodate, an employee must show “that he or she (1) ‘qualifies as an individual with a disability, or [ ] is perceived as having a disability, as that has been defined by statue’; (2) ‘is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without reasonable accommodations’; and (3) that defendant ‘failed to reasonably accommodate [his or her] disabilities.’” Royster v. N.J. State Police, 227 N.J. 482, 500 (2017) (citing to Victor v. State, 203 N.J. 383 (2010)). Notably missing from the requirements is a showing of adverse employment action. In Victor, the Court was willing to recognize a disability discrimination claim for failure to accommodate despite the absence of adverse employment action if the employee was able to show that the failure to accommodate forced him or her to “soldier on without reasonable accommodation, making the circumstances so unbearable that it would constitute a hostile employment environment.” Victor, 203 N.J. at 421.

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A worker in New Jersey who is fired for complaining to their employer about its New Jersey’s wage law violations may be able to sue to recover damages under our state’s whistleblowing laws. Recently, the New Jersey Appellate Division clarified that a plaintiff does not need to allege both a violation of a statute and a matter of public policy to state a cause of action under New Jersey’s Conscientious Employee Protection Act (CEPA). Costa v. Total Rehab & Fitness, 2019 N.J. Super. Unpub. LEXIS 1286 (App. Div., June 5, 2019). CEPA defines protected “whistle-blowing activity” to occur when an employee “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes is… in violation of a law, or rule or regulation promulgated pursuant to law.” N.J.S.A. 34:19-3.

In reversing in part the Camden County Superior Court’s earlier decision dismissing allegations of CEPA violations in plaintiff’s complaint for failure to state a claim, the Appellate Division reasoned that the complaint should have been dismissed without prejudice to give the plaintiff an opportunity to amend her complaint as the circumstances of her termination may have amounted to a violation of CEPA.

Catherine Costa worked as an occupational therapist for Total Rehab & Fitness between April and September 2013. During her employment, she agreed to be paid in accordance with a scaled compensation system based on the number of patients that visited her during the week. Despite the agreed upon compensation system in place, Costa’s employer frequently paid her less than required by her contractual rate which is a violation of the New Jersey Wage Payment Law (NJWPL). After a series of email exchanges in which Costa informed her employer about the discrepancies in her paycheck only to be met with frustration toward her demands, Costa was terminated. Id. at 4-6. The Superior Court dismissed Costa’s complaint because of her failure to specify that her employer violated the NJWPL. However, it also went one step further and concluded that Costa’s complaints about shortages in her paycheck involve “a purely personal and private dispute, insufficient to meet the elements of a CEPA claim.” Id.

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Plaintiffs attempting to sue Strategic Delivery Solutions LLC (SDS) in a class action suit over a myriad of violations of the New Jersey Wage Payment Law (WPL) and New Jersey Wage and Hour Law (WHL) must bring their claims individually through opaque private arbitration rather than as a class in open court before a jury of their peers according to an Appellate Division opinion published on June 4, 2019. Colon et. al. v. Strategic Delivery Solutions, LLC., 2019 N.J. Super. LEXIS 78. This is an unfortunate outcome for plaintiffs, who otherwise had strong claims for New Jersey wage law violations. When hired by SDS, plaintiffs entered into independent vendor agreements, which contained clear and unambiguous arbitration provisions. According to this appellate court, by signing these agreements plaintiffs gave up their rights to bring class actions claims, waived a jury trial, and agreed to binding arbitration. Colon at 4. Moreover, the appellate court concluded that even if the Federal Arbitration Act (FAA) does not apply, the New Jersey Arbitration Act (NJAA) does, and arbitration is required to settle these wage disputes.

In their initial suit filed in December 2016, plaintiffs alleged that from February 2015 to March 2016, they were working out of an SDS facility in Elizabeth performing truck driving and delivery functions for the company. They claim that SDS made unlawful deductions from their compensation in violation of the New Jersey Wage Payment Law during this time. N.J.S.A., 34:11-4.1 to 4.14. Additionally, plaintiffs allege that SDS misclassified them as independent contractors rather than employees and in doing so failed to pay them one-and-a-half hourly rate for any time they worked over forty hours per week in violation of the overtime provisions contained within the WHL. N.J.S.A., 34:11-56a to 56a38. Withholding wages and failing to pay employees the required one-and-a-half-hour overtime rate for excess hours worked are both serious abuses against New Jersey wage laws. Id. However, the Appellate Division agreed that plaintiffs must arbitrate their claims based on this arbitration provision, so sadly plaintiffs will not have their day in court.

Had the plaintiffs not entered into such agreements with the company, they would have had strong claims for a class action lawsuit against SDS for violating the New Jersey employment law statutes. The WHL was enacted to protect employees from unfair wage practices, such as giving employees excessive hours of work. N.J.S.A. 34:11-56a. Therefore, the distinction between independent contractor and employee, which is what plaintiffs are disputing in this case, is not a minor one in terms of application of the wage laws applicable to the employee-employer relationship. The WPL, which governs the time and mode of payment of wages due to employees, excludes independent contractors from its definition of “employee.” Hargrove’s v. Sleepy’s, LLC, 220 N.J. 289 (2015). Similarly, the WHL, which establishes a minimum wage or overtime rate payable to employees, does not do so for independent contractors. Neither the WPL nor its regulations differentiate between an employee and an independent contractor, however the New Jersey Supreme Court held that in distinguishing the two, courts may apply the ABC Test, which is taken from the New Jersey Unemployment Compensation Act. Id.

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A survey conducted this past January by the nonprofit Stop Street Harassment found that 81% of women had experienced some form of sexual harassment during their lifetime. Given this troubling statistic, it is not surprising that a recent series of twenty-five sexual harassment complaints have been filed with the U.S. Equal Employment Opportunity Commission (EEOC) against McDonald’s Corporation. These complaints allege the sexual harassment of female employees by male coworkers and managers. In response to these filings McDonald’s CEO released a statement on May 19, 2019, committing the company to “ensuring a harassment and bias-free workplace” for its employees. Although these words may read well on paper, it does little to explain why most of the claims of sexual harassment filed against the corporation also allege retaliation after the victims reported the sexual harassment to their supervisors.

By far claims of sexual harassment in the food service industry are not limited to McDonald’s. According to a report released by the National Women’s Law Center, the accommodations and food services industries are among the highest-ranking industries for total number of sexual harassment charges filed. The report also indicates that more than one in three women who filed such charges against their employers also alleged retaliation by their employers for doing so; a circumstance well familiar to a McDonald’s employee named Jamelia Fairley.

In September 2016, Jamelia Fairley began working for a McDonald’s store in Florida as a crew member. In her EEOC complaint filed against McDonald’s Corporation, Fairley alleges that she endured constant sexual jokes and remarks directed at her as well as at her young daughter who worked there as well. She also endured unwanted touching, groping, and physical contact at the workplace. Her complaint alleges that when she reported this harassment to her store manager, her work hours were reduced from about 25 hours per week to about 7-8 hours per week.

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The Appellate Division of the Superior Court of New Jersey published an opinion on May 20, 2019, in which it reversed an Atlantic County decision dismissing a Law Against Discrimination (LAD) claim brought by a group of employees against the Borgata Casino, Hotel, and Spa in Atlantic City.

The employees, who were all hired to work as servers for the “Borgata Babes” program, allege that Borgata engaged in disparate treatment and sexual harassment, among other LAD violations, through its implementation of personal appearance standards which focus primarily on employees’ weights. Enforcement of these personal appearance standards was done through occasional weigh-ins, which ensured employees did not go above a set weight range during their employment. The standards were imposed on women who were pregnant as well as on women who were undergoing medical treatments that caused weight gain.

This week’s decision comes after a decade of litigation in which the claims were initially dismissed by the trial court. Schiavo v. Marina Dist. Dev. Co., LLC, 2013 N.J. Super. Unpub. LEXIS 2093. That initial dismissal was reversed in 2015 when the Appellate Division held that the trial judge erred in finding the record insufficient for a showing of a prima facie claim of sexual harassment hostile work environment discrimination. Schiavo v. Marina Dist. Dev. Co., LLC, 442 N.J. Super. 346 (App. Div. 2015).

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Employer dress codes aimed toward the legitimate business interests of professionalism, safety, hygiene and neatness are legal. However, recent attention has been given toward the issue of whether it is illegal discrimination for employers to ban certain hairstyles traditionally held by and associated with African-Americans. In New Jersey, a particularly brutal story surfaced in the news in December 2018 about a 16-year old African-American wrestler named Andrew Johnson who was forced to unnecessarily cut off his dreadlocked hair just minutes before his wrestling match by a Caucasian referee and in front of a gymnasium full of spectators. This story prompted outrage and stirred controversy over discriminatory hair-grooming policies and practices in schools and in the workplace.

There is a growing movement toward protection against discrimination based on hairstyle and texture in recognition of the importance of hair to cultural identity and the historically discriminatory treatment people of color have received because of their natural hair. In February 2019, the New York City Commission on Human Rights instituted a law that bans workplace discrimination based upon hairstyle. Just this week, the California Senate passed the “CROWN” Act (Create a Respectful and Open Workplace for Natural Hair), which seeks to add hairstyle and texture associated to race with California’s anti-discrimination laws. The bill, which was introduced by Senator Holly J. Mitchell, will now move on to the California State Assembly.

Speaking before the Senate’s vote, Mitchell noted that African-American men and women have had to go through expensive and dangerous chemical treatments to alter their hair to conform with Euro-centric norms in the workplace.

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Sometime in the 1750s Benjamin Franklin wrote lamenting the influx of non-Wasp immigrant settlers into colonial America, “Those who come hither are generally the most ignorant Stupid Sort of their own Nation.”  Mr. Franklin’s caustic commentary shows how the topic of immigration has always been a heated one in this country. Hence, it is not surprising how immigrants often work in fear of being harassed and disparately treated because of their residency or immigration status. Fortunately, there is protection here in New Jersey for immigrant workers under New Jersey’s Law Against Discrimination (“LAD”).  LAD states that an employer cannot discriminate based on race, national origin, religion, gender, age, disability, marital status, etc.  Under the LAD, discrimination based on immigration or citizenship status is treated differently than national origin discrimination because the discrimination is typically based on the employee’s immigration status rather than the country where they originated from.

Although the LAD does not specifically protect employees from discrimination based on immigration and/or residency status, the Immigration Reform and Control Act (“IRCA”) does. 8 U.S.C.A. § 1324. ICRA protects workers from discrimination based on their immigration and/or citizenship status. IRCA makes it unlawful for an employer to discriminate against its employees because of their citizenship, immigration or residency status in hiring, firing, and/or recruitment. Id.  IRCA also makes it unlawful for an employer to demand more or different documents that are legally acceptable for employment verification purposes. Similarly, an employer cannot refuse to accept documents that appear to be acceptable and are legally acceptable. Id. The IRCA further prohibits intimidation, threats, retaliation, or coercion against any employee who files charges. It also prohibits retaliation of those individuals who cooperate with an investigation, proceeding, or IRCA hearing. Id.

Individuals protected under the IRCA include citizens of the United States, permanent residents, lawful temporary residents, refugees, and asylees. However, the IRCA does not protect workers from discrimination and harassment who have unlawfully entered our country and/or are illegally employed in this country. In fact, the IRCA was the first federal law to deem it unlawful for employers to knowingly hire persons who are not authorized to work in the United States. It is also illegal under the IRCA to continue to employ an undocumented worker or one who has lost their authorization to work in this country. Consequently, the IRCA requires employers to verify each employee’s work eligibility and identity.