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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.

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It’s a sad fact that many companies in our country discriminate against American workers in favor of cheaper foreign temporary labor. In fact, the U.S. Department of Labor released a 2018 job report showing that while employment for foreign workers in the U.S. increased by 3%, employment for American workers increased a little less than 1.5%.  To combat this disturbing trend, on August 1, 2018, the United States Department of Justice joined forces with the Unites States’ Departments of Civil Rights Division and Labor to announce the agencies’ joint effort to target companies that exhibit “unlawful discrimination” against American workers by hiring foreign labor. These employers often hire cheap foreign labor through the H-1B, H-2B and L-1 visa programs. These visa programs are briefly described as follows:

  • H-1B visas are issued to foreign workers who can fill positions so “specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.” Foreign computer programmers serve as a common example of those who have been issued a H-1B visa.
  • H-2B visas allow U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs where there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.  Examples of these may be persons filling housekeeping positions for companies operating in the travel and leisure industry.
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New Jersey is a national leader and model for paid family leave legislation. For example, this year marks the 10th anniversary of the New Jersey’s paid family leave program. Ten years ago, New Jersey enacted the New Jersey Family Leave Act (“NJFLA”) and became the second state in the country (after California) to offer family leave allowing workers to take off time to care for a newborn or sick relative while collecting a portion of their pay while on leave.

Family leave is becoming more important than ever as the baby boomer generation ages, and increasingly needs care and assistance from family members.  The number of Americans ages 65 and older is projected to more than double from 46 million today to over 98 million by 2060.  See Population Reference Bureau Fact Sheet at https://www.prb.org/aging-unitedstates-fact-sheet/.  For all too many working families, taking time off from work to care for their ill family members is exceedingly stressful, costly and difficult.

Under the present law, New Jersey provides up to six (6) weeks of Family Leave Insurance (“FLI”) cash benefits and is 100% financed by worker payroll deductions.  Employers do not contribute to the program.  The benefits are available to allow for workers to bond with a newborn or adopted child, or to care for a family member with a serious health condition.  Claimants are paid two-third (2/3) of their average weekly wage, up to a maximum weekly benefit.  For workers seeking to bond with a newborn or adopted child, you must provide your employer with thirty (30) days’ notice.  To care for an ill family member, you must give your employer fifteen (15) days’ notice.

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The Law Against Discrimination (“LAD”) was designed to protect employees in New Jersey from discrimination in the workplace, including, but not limited to, disability discrimination. N.J.S.A. 10:5-12(a). The LAD also requires an employer to provide a disabled employee with a reasonable accommodation “unless the nature and extent of the disability reasonably precludes the performance of the particular employment.” N.J.S.A. 10:5-4.1. However, until recently, an employer could openly discriminate against an employee for using medical marijuana to treat a medical condition. See Cotto v. Ardagh Glass Packing, 2018 U.S. Dist. LEXIS 135194 (D.N.J. August 10, 2018). In fact, New Jersey case law has said an employer is not required to accommodate an employee’s use of medical marijuana to treat an illness. Id. This is because the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”) specifically states “[n]othing” in the CUMMA “require[s] an employer to accommodate a medical marijuana user.” N.J.S.A. 24:6I-14.

Notably, CUMMA was enacted because the New Jersey Legislature determined “[m]odern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other systems associated with certain debilitating medical conditions.” N.J.S.A. 24:6I-2(a). One of CUMMA’s professed purposes is “to protect from arrest, prosecution … and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions…” N.J.S.A. 24:6I-2(e).

In our blog article of January 11, 2019 entitled “Medical Marijuana Can Cost Workers Their Jobs, But Laws Are Coming To Correct This Wrong”, we discussed pending State Assembly Bill 1838 and State Senate Bill S10 which, if enacted, would prevent employers in New Jersey from firing an employee for using medical marijuana unless the employer was able to produce evidence showing that such use impaired the employee’s ability to perform their job in a safe and effective manner. Now, it appears state case law maybe moving in the same direction as this pending legislation. We state this because the New Jersey Appellate Division in Wild v. Carriage Funeral Holdings, Inc., 2019 N.J. Super. LEXIS 37 (App. Div. March 27, 2019) recently held that the LAD prohibits disability discrimination, including discriminating against an employee who lawfully uses marijuana for medicinal purposes.

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Clear evidence the seismic effects of the national #Me Too movement has reached the shores of New Jersey occurred when New Jersey Governor Phil Murphy recently signed into law S.121 which effectively stops employers from requiring employees to sign nondisclosure confidentiality agreements – commonly referred to as “NDAs” – when settling employment discrimination, harassment, or retaliation claims. The use of NDAs has become a notorious legal tool used to protect serial harassers and abusers from the shaming cleanse of public disclosure. Further, the law also severely limits an employer’s ability to impose forced arbitration clauses and jury waiver clauses on its employees.

Following other states such as California which have banned the use of NDAs in settlement agreements and employment contracts, proponents of S. 121 argue that it adds new protections for victims of serial abusers in the workplace. “Non-disclosure agreements have, for a long time, been used to silence and intimidate the victims of sexual assault and harassment,” said Senator Weinberg (D-Bergen), one of the law’s chief architects. “Too many victims have been forced to suffer in silence for far too long, leaving abusers to continue to prey on countless women with impunity. Limiting these so-called ‘confidentiality agreements’ will help lift the secrecy that allows abusers to carry on abusing and make our workplaces safer for everyone.”

S.121 has two important components. First, it renders any term in an employment contract or settlement agreement unenforceable against a current or former employee if it “has the purpose of concealing the details relating to a claim of discrimination, retaliation, or harassment.”  Importantly, these broad limitations on NDAs apply to new agreements which are executed on or after the law’s effective date of March 18, 2019.  While the new law does not appear to apply retroactively, the law’s restrictions would apply to new or renewed agreements with existing employees, and to modifications of previous agreements. However, NDAs regarding non-public trade secrets and proprietary information as well as non-competition provisions are specifically carved out from the law’s reach.

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When enacting the New Jersey Law Against Discrimination (NJLAD), the New Jersey Legislature declared, “that practices of discrimination against any of its inhabitants…are matters of concern to the government of the State, and that such discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State.” N.J.S.A. 10:5-3. While there is no denying the public policy of eradicating discrimination in the workplace as embodied in the NJLAD is a laudable one, it begs the question as to what good such remedial laws provide us if the institutions of our free society, not to mention our very lives, are threatened by the unrestrained use of climate warming fossil fuels. The science on this point is indisputable, and our federal government has admitted as much in filings made in the Oregon federal court case of Juliana v. United States, 217 F. Supp. 3d. 1224 (D. Ct. Ore 2016). It is not an overreach to characterize Juliana as possibly the most monumental lawsuit of our time given it seeks to hold the U.S. Government legally accountable for its alleged complicity in permitting the fossil fuel industry to jeopardize our right to a climate system capable of sustaining human life.  It is for this existential reason that this employment law blog is devoting its space this week to an environment-based civil rights case, and the question of whether the Constitution guarantees a life-sustaining climate.

In Juliana, the Plaintiffs, a group of young people between the ages of eight and nineteen, an association of young environmental activists known as Earth Guardians, and Dr. James Hansen, acting as guardian for future generations, filed a civil rights case before the United States District Court in Oregon. They allege the federal government has known for more than 50 years that carbon dioxide pollution was causing catastrophic climate change, and that a nation-wide transition away from fossil fuels was needed to protect their substantive due process rights to life, liberty, and property.  By failing to act, the Plaintiffs claim the U.S. Government violated its obligation to hold certain natural resources in trust for the people of our country and for future generations.

The lawsuit argues that despite knowing the severe dangers posed by carbon pollution, the U.S. Government deliberately and recklessly allowed fossil fuel extraction, production, consumption, transportation and exportation, to escalate atmospheric C02 concentrations to levels unprecedented in human history. It is alleged our government’s policies and practices have destabilized the climate system in a way that presents a significant endangerment to plaintiffs, with the damage persisting for millennia. Although many different nations and entities contribute to greenhouse gas emissions, plaintiffs assert the U.S. Government bears “a higher degree of responsibility than any other individual, entity, or country” for exposing plaintiffs to the dangers of climate change.

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In furtherance of its continuing effort to protect and promote fair wages for workers, the New Jersey Assembly Labor Committee recently approved two bills which would have that effect. The first bill A1094 was sponsored by Assemblypersons sponsored by Joann Downey, Pamela R. Lampitt, Gary S. Schaer, Eric Houghtaling, Daniel R. Benson and Wayne P. DeAngelo, seeks to minimize the wage gap between men and women in New Jersey by strengthening protections against employment discrimination and prohibiting any employer from: a)  screening a job applicant based on the applicant’s wage or salary history; or b) requiring that the applicant’s salary history satisfy any minimum or maximum criteria. The New Jersey Senate’s companion bill, S5559, passed the upper chamber in March 2018.

Under the bill, an employer still may consider salary history in determining salary, benefits and other compensation for the applicant.  Although the employer may also verify an applicant’s salary history, it may do so only if the applicant voluntarily and without coercion provides the employer with that history. Put differently, it will be unlawful for an employer to consider an applicant’s refusal to volunteer salary history information when making an employment decision.

“In an ideal world, your gender would not influence how much you earn at work. But that’s not the world we live in,” said Downey (D-Monmouth). “This provides a means of narrowing the wage gap by making it less likely for employers to unintentionally perpetuate the gap by basing salary offers for new hires on their previous salary, which has a disproportionate impact on female hires.”

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The class action lawsuit is an effective way for employees with small individual wage claims to band together and recover unpaid wages from large, powerful employers. Class action lawsuits provide a cost-effective way for employees to share the costs and fees incurred in the effort to collect relatively small amounts of wages owed to them individually and to hold employers legally accountable when they circumvent federal and state laws designed to ensure employees receive a fair wage.  A class action “is a procedural device that was adopted with the goals of economies of time, effort and expense, uniformity of decisions, the promotion of efficiency and fairness in handling large numbers of similar claims.” In re West Virginia Rezulin Litigation, 585 S.E. 2d. 52, 62 (5th Cir. 2004).

For a class action to be approved or “certified,” the named plaintiff(s) bringing the lawsuit must demonstrate that they are “similarly situated” with others of the same class, meaning the class members must have been subjected to the same state-wide or nation-wide policy or scheme that resulted in the unpaid wages.  Class members who are similarly situated are generally employed by the same employer and often have the same job title. Class actions arising out of the employment context typically allege violations of wage and hour laws, including but not limited to, violations of the New Jersey Wage and Hour Law (“NJWHL”) and its federal counterpart the Fair Labor Standards Act (“FLSA”).

A common claim under the FLSA and NJWHL for unpaid overtime wages is where an employer misclassified an employee as exempt from receiving overtime wages. Generally, employees are entitled to overtime wages at a rate of 1 ½ times their regular rate of pay for all hours worked over 40 in a workweek. N.J.S.A. 34:11-56a4. However, employees are exempt if the work they perform is primarily executive, administrative or professional in nature. Id.; N.J.A.C. 12:56-7.1. The definition of these exempt categories is defined by the provisions of 29 CFR § 541.0, et. al. An employee may have a misclassification class claim if an employer has a common policy to not pay the employee and others similarly situated overtime wages because the employer misclassified the employees as exempt from receiving overtime. For example, a manager who has little to no independent discretion as to their job duties, who cannot independently make managerial decisions and primarily performs the same customer service duties and manual labor as non-exempt employees could have a potential legal claim for being misclassified as exempt from receiving overtime pay. 29 C.F.R. § 541.700.