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There are many religions and religious beliefs. There’s Judaism, Christianity, Islam, Bahá’í Faith, Hinduism, Taoism, Buddhism, Sikhism, Slavic neopaganism, Celtic polytheism, Heathenism (German paganism), Semitic neopaganism, Wicca, Kemetism (Egyptian paganism), Hellenism, Italo-Roman neopaganism to name a few. Whatever your sincerely held religious belief is, if any, federal and state law protects your right to observe those beliefs. 42 U.S.C. §§ 2000e et al 2012 (“Title VII”); N.J.S.A. 10:5-1, et. seq., the New Jersey Law Against Discrimination (“NJLAD”). In fact, an employer may be required to reasonably accommodate your religious belief so long as to do so does not cause the employer or co-workers an undue hardship.

Protected religious beliefs are based on an employee’s sincerely held belief. It does not matter whether the employee has a relatable or probable belief. Rather, if the employee indisputably has a sincere religious belief, the employee is entitled to receive a reasonable accommodation from their employer regardless of whether the employer likes or agrees with that belief.  The case of United States EEOC v. Consol Energy Inc., Nos. 16-1230, 16-1406, 2017 U.S. App. LEXIS 10385, at*1 (4th Cir. June 12, 2017), while somewhat factually unusual, underscores how important it is for an employer to focus on whether a requested accommodation is reasonable, and not whether the employee’s religious belief is reasonable. There, the Fourth Circuit held that so long as the employee has a legitimate religious belief, regardless how farfetched, they are entitled to be reasonably accommodated.

In United States EEOC v. Consol Energy Inc., the Fourth Circuit affirmed a $586,000 award to Beverly R. Butcher (“Butcher”) because his employer violated his religious rights under Title VII. Id. Butcher, a lifelong Evangelical Christian, worked for Robinson Rue Mines (owned by Consol Energy Inc. “Consol”) for 37 years without incident. Id. When Consol decided to use biometric scanners as a method of tracking timesheets Butcher protested. Butcher explained that as a devout Christian he believed using a biometric scanner to clock in and out of his job would mark him as a follower of the Antichrist, subjecting him to an eternity of fire and brimstone. Id. at *6. Consol chose to debate the legitimacy of these beliefs with Butcher and even presented him a letter explaining how the scanner leaves no physical marks and that Butcher’s understanding of the scriptures was incorrect.  Butcher persisted and a lawsuit was filed.

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People get aches and pains all the time. Your back hurts, your stomach is upset, or you are coughing and congested from a bad cold. Generally, that’s what sick days are for. And then there are times when someone sustains an injury or illness that temporarily prevents them from physically, mentally,or emotionally doing their job. In such instances, under the federal American with Disabilities Act (“ADA”), and the New Jersey Law against Discrimination (“LAD”), an employee is entitled to be reasonably accommodated by their employer. Under the LAD and ADA employees are even entitled to be accommodated for temporary disabilities. Temporary conditions that meet the definition of disability may be covered by the LAD and ADA. See, Failla v. City of Passaic, 146 F.3d 149 (3d Cir. 1998); Clowes v. Terminix Int’l, Inc., 109 N.J. 575 (1988); Enriquez v. West Jersey Health Systems, 342 N.J. Super. 501, 519 (App. Div. 2001) (observing that LAD “is very broad and does not require that a disability restrict any major life activities to any degree”); see also, Summers vs. Altarum Institute Corp., No. 13-1645 (4th Cir. January 23, 2014), (ruling that a temporary and severe impairment does in fact qualify as a disability under the ADA, thus, persons with temporary and severe impairments are protected by the ADA)

For an employee to be entitled to a reasonable accommodation for a disability, the ADA and LAD requires the injured or disabled employee can perform the essential functions of their job with or without an accommodation.  Put differently, an employer is not required to accommodate an employee who cannot perform his or her essential job functions even with an accommodation. Hennessey v. Winslow Township, 368 N.J. Super. 443, 452 (App. Div. 2004), aff’d, 183 N.J. 593 (2005). What constitutes an “essential function” is a very fact specific question. For example, if the essential functions of a job require heavy lifting and the employee can no longer lift heavy objects, the employer does not have to accommodate the employee.Furthermore, the ADA and LAD require an employer to reasonably accommodate a temporarily disabled employee by offering the employee, if available, the opportunity to fill a preexisting light duty position; in doing so the employee is helped to transition back to their original job.

In a landmark case, the United States Supreme Court in Young v. UPS ruled that under the federal Pregnancy Discrimination Act (“PDA”) (where under federal law pregnancy is not inherently a disability) an employer must accommodate a pregnant employee with accommodations the employer gives to other workers who are similarly disabled. There, a pregnant Ms. Young was ordered by her doctor not to lift objects weighing more than 20 pounds. UPS refused to accommodate Young and move her to an available “light duty” job. Instead, UPS required Ms. Young to use up her vacation days, and when those ran out, to take an extended unpaid leave of absence. The Supreme Court found that if other similarly disabled UPS workers with lifting restrictions were being accommodated by the giving of light duty assignments,so too was Ms. Young entitled to the same light duty accommodation from UPS.

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Expressing ourselves through social media is the norm. Whether it’s a wacky, funny selfie with dog ears on Snapchat, or posting a snarky comment on Facebook; it is a way to express ourselves. However, it is also a quick way for employers to find out about what their employees are thinking and saying.

As a citizen of the United States you have a First Amendment right to freely express a controversial opinion or inflammatory statement in in a public forum. While the United States Constitution and its Bill of Rights protects free speech, this protection only extends to government employees. As far as private employees’ job security is concerned, they do not enjoy similar carte blanche freedom to say whatever they want with impunity, i.e., without being disciplined. This is because New Jersey is an “employment at will” state. This means a private employer can decide to fire an employee for no good reason at all, so long as this decision does not violate the law. For instance, an employee of a private company who criticizes their boss or a customer may be fired for doing so.

In our electronically interconnected viral world, comments typed onto an iPad may impact your job security. Publicly accessible internet posts blur the boundaries between personal and work life, and all that matters are whether a comment, post, tweet, or picture offends your employer. Accordingly, you must be aware that what you post or tweet may set in motion the loss of your job. However, when employees discuss legally protected topics such as discrimination, they can by and large be protected from adverse employment action.

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The Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) protects physically and mentally disabled employees from discrimination.  An employer cannot discriminate in their job applications, hiring, firing, training, pay, promotion, benefits, or leave against a disabled employee. Furthermore, an employer may not harass or retaliate against an employee who has a disability. Most critically, employers must provide disabled employees with reasonable accommodations at work.

When bringing disability claims, the LAD is more inclusive than the ADA. While the ADA does not include pregnancy itself as a disability and only a medical condition or complication due to pregnancy is considered a disability; the LAD includes even pregnancy itself as a disability. Also, the ADA does not protect an employee from an employer who is a private club while the LAD has no such limitation. 42 U.S.C. § 12111 (5)(B)(ii); N.J.S.A. 10:5-5(e).

The ADA and LAD protect employees whose disabilities substantially affect their major life activities. Such activities include hearing, seeing, speaking, thinking, walking, breathing, or performing manual tasks. Further, long-term disabilities/illnesses, such as cancer or diabetes, are still protected even though they are not permanent. However, if a disability is clearly short-term, for instance a cold or a sprain, it is generally not a “disability” which is protected. Finally, an employee’s disability does not need to be constant. Rather, disabilities which cause flair ups, such as chrome’s disease or cancer that is in remission, are also protected.

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The federal Fair Labor Standards Act (“FLSA”) and the New Jersey Wage and Hour Law (“NJWHL”) protect the wages of New Jersey’s hourly workers. They do this by requiring employers to compensate hourly wage employees for each hour worked at a minimum wage rate (in New Jersey the minimum wage rate in 2017 is $8.44/hour), and to pay overtime wages at 1.5 times an employee’s regular hourly rate for each hour worked in excess of 40 hours in a workweek. This means that an employee is not permitted to work any time “off the clock” without pay even if the employee does so willingly.

Any time an employee is working for the employer he or she is required to be paid even when the employer did not ask the employee to work that time. For example, if the employer asks an employee to do a job and it takes the employee an extra hour to finish the job properly, the employee is entitled to overtime pay for that hour – even if the employer has a policy forbidding overtime pay. And if that hour means that employee has worked 41 hours in the workweek, the employee is entitled to 1.5 times her regular hourly rate for working that extra hour even if the employer has a policy forbidding overtime.

If an employee’s job requires him or her to wait around for an assignment, they must be paid for that time spent waiting. Indeed, even if the job is not to wait but merely to be “on call,” the time the employee is on call is to be considered work time warranting compensation. For example, if a job requires an employee to be available to respond to a security call, the time spent being on call must be compensated by the employer and can be calculated as part of work.

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Mashel Law, L.L.C. filed a nationwide collective class action against Trans World Entertainment Corp., Record Town, Inc. and Record Towns USA, LLC (collectively referred to herein as “Trans World”) on behalf of its client Carol Spack and all similarly situated current and former employees of the Trans World to recover for the Defendants’ willful violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., The New Jersey Wage and Hour Law N.J.S.A., 34:11-56.1 to -56.12 (“NJWHL”) and Pennsylvania’s Minimum Wage Act 35 P.S. § 333.101 et seq. (“PMWA”).  Trans World Entertainment Corp. is a chain of entertainment media retail stores in the United States operating just over 300 freestanding and shopping mall-based stores. Trans World united its mall-based portfolio and retail Web site under the F.Y.E. (For Your Entertainment) brand name. In October 2016, the company acquired etailz, Inc., a leading digital marketplace expert retailer.  Trans World Entertainment Corp reported total revenue of $147.1 million for Fourth Quarter 2016.

Under the collective action brought under FLSA, the proposed Class consists of all persons employed by the Trans World as Store Managers or Sr. Assistant Managers at any time three years prior to the filing of this action through the entry of judgment who worked over 40 hours per week and were not paid overtime pay at a rate of one and one-half times their regular rate for hours worked in excess of 40 hours during a workweek (the “Nationwide Collective Class”). The complaint also asserts pendent state claims for violations of New Jersey’s Wage and Hour Laws and Pennsylvania’s Minimum Wage Act.

Specifically, as to Sr. Assistant Managers, Plaintiff also complains Trans World violated FLSA by using a fluctuating work week method (FWW) when calculating overtime wages rightfully due Plaintiff and all other members of the proposed Nationwide Collective Class when they worked as Sr. Assistant Managers at Trans World stores nationwide.  Under federal law, FWW provides under certain conditions for the payment of an unchanging salary that compensates an employee for all hours worked in a week regardless of whether the employee works fewer or greater than 40 hours a week, and payment for overtime hours at a rate of one-half employee’s regular rate of pay. 29 C.F.R. § 778.114(a).

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New Jersey’s Whistleblowing Law is “remedial social legislation designed to promote two complementary public purposes: ‘to protect and [thereby] encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.”’ D’Annunzio v. Prudential Ins. Co., 192 N.J. 110, 119 (2007) (quoting Yurick v. State, 184 N.J. 70 (2005)). 

New Jersey’s public policy to protect whistleblowers is so strong that it even permits an employee working outside of New Jersey to bring a whistleblower claim alleging violations of New Jersey’s Conscientious Employee Protection Act (CEPA). This is exactly what occurred in Moore v. Novo Nordisk, Inc., 2011 WL 1085015 (S.C. Dist. Ct. Mar. 22, 2011). There, Plaintiff Moore, a resident of South Carolina, worked as a sales representative for Novo Nordisk (“Novo”), a global pharmaceutical company, at one of Novo’s locations in South Carolina.  Novo maintains its United States corporate headquarters in Plainsboro, New Jersey.

Moore claimed she was told by a supervisor, who was also South Carolina resident, to give autographed basketballs to doctors to increase sales. Such an activity is a violation of the federal pharmaceutical marketing anti-kickback statute, 42 U.S.C. § 1320a-7b(b).  Moore did as her supervisor told her to do.  However, this unlawful kickback scheme came to the attention of Novo’s corporate counsel who conducted an investigated into the scheme and eventually questioned Moore about it. At first Moore lied to Novo’s corporate counsel denying her involvement, only to later admit she did gift autographed basketballs to doctors, but only at the direction of her supervisor. Moore was later fired by that same supervisor for admitting Moore’s role in the bribery scheme. Novo offered Moore a severance package in exchange for her waiving all legal claims she had against Novo.  Moore rejected this, and instead filed a lawsuit against Novo in the United States District Court of South Carolina alleging, among others, that Novo wrongfully terminated her employment in violation of New Jersey’s CEPA law.

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Bed Bath & Beyond’s (BBB) effort to dismiss a class action lawsuit filed by Mashel Law, L.L.C. has failed.  The class action alleges BBB violated New Jersey’s Wage and Hour Laws (NJWHL) by not paying its Assistant Store Managers (ASMs), Customer Service Representatives (CSRs) and Department Managers (DMs) in its New Jersey stores overtime wages at a rate of one and one-half (1 ½ times) an employee’s regular rate of pay. BBB claimed it had the right to pay these class of workers’ overtime at a rate of only one-half (1/2 times) their regular rate of pay through use of a fluctuating workweek method (FWW) when its employees’ work hours fluctuated from week to week. Under federal law, FWW provides for the payment of an unchanging salary that compensates an employee for all hours worked in a week regardless of whether the employee works fewer or greater than 40 hours a week, and payment for overtime hours at a rate of one-half employee’s regular rate of pay. 29 C.F.R. § 778.114(a).

To use FWW, an employer must satisfy five (5) requirements: 1) the employee must work hours that fluctuate week from week; 2) the employee must be paid a fixed salary that serves as compensation for all hours worked; 3) the fixed salary must be large enough to compensate the employee for all hours worked at a rate not less than the minimum wage; 4) the employee must be paid an additional one-half of the regular rate for all overtime hours worked; and 5) there must be a “clear mutual understanding” that the fixed salary is compensation for however many hours the employee may work in a particular week, rather than for a fixed number of hours per week. Id.; See O’Brien v. Town of Agawam, 350 F.3d. 279, 288 (1st Cir. 2003), Griffin v. Wake County, 142 F. 3d. 712, 716 (4th Cir. 1998).  By example, for DMs working for BBB in New Jersey being paid $20.00 per hour, BBB contends by using FWW to calculate overtime wages, it was permitted to pay its DMs overtime wages of only $10.00 per hour rather than $30.00 per hour as Mashel Law, L.L.C. argues is required under NJWHL’s overtime provisions.

FWW does not enjoy uniform acceptance nationally under state wage and hour laws. For instance, while FWW is an accepted methodology for calculating overtime wages under New York’s wage and hour laws, Anderson v. Ikon Office Solutions, Inc., 833 N.Y.S. 2d. 1 (1st Dep’t 2007), it is not permitted under Pennsylvania’s wage and hour laws. See Foster v. Kraft Foods Global, Inc., 285 F.R.D. 343 (W.D. Pa. 2012); Cerutti v. Frito Lay, Inc., 777 F. Supp. 2d 920 (W.D. Pa. 2011). As for New Jersey, no statute has been adopted or amended permitting the use of FWW under state law when calculating overtime wages. Similarly, no New Jersey Department of Labor regulation has been adopted or amended to permit FWW for calculating overtime wages under the NJWHL. While there remains a dearth of New Jersey case law on this topic, there does exist a decision issued by Mark B. Boyd, former Commissioner of the New Jersey Department of Labor entitled New Jersey Department of Labor, Division of Workplace Standards, Office of Wage and Hour Compliance, et. al. v. Pepsi Cola Company, 2000 WL 34401845 (N.J. Adm.) decided August 29, 2000 (hereafter referred to as “the Pepsi-Cola Case”) rejecting the use of FWW for calculating overtime wages under New Jersey law.

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New Brunswick, N.J., November 1, 2016 – Brent Carter, Robert Haynes and Kenneth Cuoco, filed a class action lawsuit in Middlesex County Superior Court against Bed Bath & Beyond, Inc. (BBB) on behalf of themselves and all similarly situated current and former employees who worked in BBB stores located in New Jersey to recover for BBB’s failure to pay overtime wages in violation of The New Jersey Wage and Hour Law (NJWHL). The proposed Class consists of all persons employed by Defendant BBB in New Jersey who worked as either a Department Manager, Customer Service Representative, or Assistant Store Manager at any time two years prior to the filing of the lawsuit who worked over 40 hours per week and were not paid overtime pay at a rate of one and one-half times their regular rate for hours worked more than 40 hours during a workweek.

Carter, Haynes and Cuoco specifically complain that rather than Defendant BBB paying Plaintiffs and all other members of the proposed Class overtime pay at a rate of one and one-half times their regular rate for hours worked in excess of 40 hours during a workweek as required by the NJWHL, BBB instead unlawfully paid them and proposed Class members overtime pay based on a calculation which divided an employee’s base weekly salary by all hours worked in the week divided by 2 multiplied by all hours worked over 40 in the week.  The Complaint alleges that BBB unlawfully applied this Fluctuating OT formula to avoid paying their Department Managers, Customer Service Representatives and Assistant Store Managers overtime compensation at a rate required by law.  Indeed, the Complaint goes on to claim that by using its Fluctuating OT formula, Defendant BBB often paid Class members for hours worked over 40 hours in a week less than the State’s mandated minimum wage rate.

Plaintiffs’ attorney, Stephan T. Mashel, Esquire of the law firm of Mashel Law, L.L.C., located in Marlboro Township, New Jersey, said that his clients seek class certification and an award of money damages because BBB unjustly enriched itself by failing to pay its workers overtime pay at the legal overtime pay rate required under state law. As Mashel explains, “The overtime wage rate requirements contained in New Jersey’s Wage and Hour Laws benefits workers by dissuading employers from forcing employees to work excessively long hours. Such a disincentive has the salutary effect of promoting the health and quality of life of workers who value leisure and family time.  Conversely, these same overtime pay requirements afford workers the right to earn extra pay at a time when lower and middle class workers wages have remained stubbornly stagnant. BBB used its Fluctuating OT formula to defeat these public policy goals.”

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A constructive discharge occurs when conditions at work become so unlawfully and intolerably hostile an employee is left with no choice but to resign. Previously, to recover under New Jersey’s Whistleblower Law – the Conscientious Employee Protection Act (CEPA) – a litigant was required to prove actual or constructive discharge. This changed when the New Jersey Supreme Court in Donelson v. DuPont Chambers Works expanded the scope of liability and broadened potential litigants’ avenues of recovery in holding that an employee who files suit under CEPA may recover back and front pay, even if the employee was not fired or constructively discharged.  This can be done if the employee shows he or she became mentally disabled because of the employer’s retaliation. Such retaliation typically takes the form of a hostile work environment.

In Donelson, Plaintiff, John Seddon, a thirty-year employee of DuPont Chambers Works, filed complaints with DuPont management and the Occupational Safety and Health Administration regarding unsafe conditions in the workplace. Seddon believed that after he engaged in whistleblowing activities, DuPont retaliated by placing him on an involuntary short-term disability leave. Following his return to work, DuPont required that Seddon work twelve-hour shifts in an isolated work assignment, a requirement that he characterized as “torture.” Consequently, Seddon sought psychiatric treatment and took a voluntary six-month leave of absence. After his six-month leave, Seddon retired with a disability pension from DuPont.

In his lawsuit, Seddon alleged that DuPont retaliated against him for complaining about workplace safety concerns, and as result of DuPont’s retaliatory actions, he suffered a mental breakdown rendering him unable to hold gainful employment. Following a trial, a jury rendered a verdict in favor of Seddon awarding him $724,000 for economic losses and $500,000 in punitive damages. However, on appeal the Appellate Division reversed, determining a lost wage claim under CEPA is not cognizable unless actual or constructive discharge was proved.