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Forced arbitration is bad for employees. It is bad because it requires employees to waive their right to sue in court and in doing so denies employees the opportunity to have legal disputes with their employer resolved by a jury. This means that laws prohibiting workplace discrimination and retaliation are not enforceable in a court of law where forced arbitration exists. Rather, forced arbitration requires employees to submit their disputes to a privately-retained arbitrator, a person who often earns their living in whole or in part from handling claims brought against employers. This means that employers are their repeat customers. Furthermore, arbitrators aren’t required to take the law and legal precedent into account in making their decisions. There is no appeal or public review of decisions to ensure the arbitrator made a correct decision. Moreover, employers like arbitration because arbitrators tend to either rule in their favor or render awards favoring employees at monetary values typically much lower than an employee is likely obtain from a jury.

Although our New Jersey Supreme Court has declared that courts must treat and enforce arbitration agreements like all other contracts, to be enforceable it must be shown that the employee who entered into an arbitration agreement understood they were agreeing to waive their statutory right to sue for discrimination and retaliation in court of law. Atalese v. United States Legal Services Group, L.P., 219 N.J. 430, 441 (2011). Because arbitration results in a waiver of the right of an employee to pursue their claims in court, “courts take particular care in assuring the knowing assent of both parties to arbitrate, and a clear mutual understanding of the ramifications of that assent.” Atalese, 219 N.J. at 442-43. The Appellate Division of the New Jersey Superior Court recently rejected the validity of an arbitration agreement in Flanzman v. Jenny Craig, Inc., 2018 N.J. Super. LEXIS 156 * (App. Div. decided Nov. 13, 2018), because the employee there did not understand she was waiving her right to a jury trial by signing the agreement.

At the time her employment was terminated, the Plaintiff in Flanzman was 82 years old and had worked for Jenny Craig as a weight loss consultant for some 26 years. Jenny Craig gradually reduced the Plaintiff’s work hours to only three hours per week eventually resulting in her job termination. The Plaintiff filed a lawsuit alleging, among others, age discrimination. Jenny Craig responded by filing a motion to compel arbitration relying on an arbitration agreement allegedly signed by the Plaintiff in 2011, twenty years after she was hired. The appeal required the Appellate Division to decide whether to invalidate the arbitration agreement because it failed to identify any arbitration forum and any process for conducting the arbitration. As the appellate court explained:

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New Jersey Governor Phil Murphy recently signed into law Bill A-3871 which immediately takes effect and amends N.J.S.A. 43:21-5 by removing the “simple misconduct” and “severe misconduct” standards for unemployment insurance benefits disqualification and instead replaces them with a more straightforward and manageable “misconduct” standard. Previously, a finding of severe misconduct would result in work totally forfeiting their rights to unemployment insurance benefits. Misconduct is now defined as follows:

“Misconduct” means conduct which is improper, intentional, connected with the individual’s work, within the individual’s control, not a good faith error of judgment or discretion, and is either a deliberate refusal, without good cause, to comply with the employer’s lawful and reasonable rules made known to the employee or a deliberate disregard of standards of behavior the employer has a reasonable right to expect, including reasonable safety standards and reasonable standards for a workplace free of drug and substance abuse.

The new law makes clear that the burden of establishing misconduct before the New Jersey Department of Labor and Workplace Development, Division of Unemployment Insurance (the “Division”) is on the employer who must do so by providing the Division with “written documentation demonstrating that the employee’s action constitute misconduct …”

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Trump’s judicial nominee to fill the open seat on the Supreme Court of the United States (SCOTUS) is District of Colombia Circuit Court of Appeals Judge Brett Kavanaugh. This should be of great concern to workers throughout the country especially after the Court’s 5-4 decision in Janus v. AFSCME, Council 31, which stripped away decades of settled law when it ruled government workers can’t be forced to contribute to labor unions to help pay for the costs of representing them. Richard Trumka, President of the AFL-CIO, observed, “Kavanaugh routinely rules against working families” and denies “employees’ relief from discrimination in the workplace.” In 2012, a Washington Post columnist described Kavanaugh as “nothing more than a partisan shock trooper in a black robe waging an ideological battle against government regulation.” A look at Judge Kavanaugh’s judicial record suggests that if confirmed by the Senate, he would be far more conservative than Justice Anthony M. Kennedy, the seat he would replace. This means that should Judge Kavanaugh’s nomination be approved by the Senate, he would likely push SCOTUS further in the direction of favoring Big Business over the rights of workers to unionize, and to have a safe workplace free of harassment, discrimination, and retaliation.

American Fed. Of Gov’t Employees, AFL-CIO v. Gates, 486 F.3d 1316 (D.C. Cir. 2007), Kavanaugh authored the majority opinion that reversed the lower court’s partial blocking of Department of Defense (DOD) regulations, which had found that many of the Pentagon’s regulations would “entirely eviscerate collective bargaining.”

Agri Processor Co. v. N.L.R.B., 514 F.3d 1 (D.C. Cir. 2008) Kavanaugh dissented from a decision that ordered a company to bargain with a union, reasoning that the employees were ineligible to vote as undocumented immigrants.

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The LGBTQ community has been scoring civil rights victories nationwide over the past few years, including the seminal Obergefell v. Hodges, 576 U.S. 135 (2015) decision that legalized gay marriage, and the repeal of the controversial HB-2 bill in North Carolina, commonly referred to as the “Bathroom Bill”, requiring all citizens to use the bathrooms designated for the gender assigned at birth. The latest victory comes from New Jersey, where Governor Phil Murphy signed into law 3 bills expanding rights for the New Jersey transgender community.

The first two bills (2018 Bill Text NJ S.B. 478 & 2018 Bill Text NJ S.B. 493) allow for gender assignment to be changed on birth certificates without proof of gender reassignment surgery.  For individuals who wish to change their gender on their birth certificate, the law now requires,

(1) a certified copy of an order from a court of competent jurisdiction which indicates that the name of the person has been changed, if the person has changed his or her name; and (2) a [medical certificate from] form provided by the State registrar and completed by the [person’s licensed [physician] health care provider] person, or the person’s guardian, which [indicates] [the sex of the person has been changed by surgical procedure] [that the person has undergone clinically appropriate treatment for the purpose of gender transition, based on contemporary medical standards, or that the person has an intersex condition.]

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The LGBTQ community’s long battle to legalize same-sex marriages finally ended on June 26, 2015 when the Supreme Court of the United States (SCOTUS) delivered its opinion in Obergefell v. Hodges, 576 U.S. 135 (2015). This seminal decision resulted in same-sex couples planning wedding ceremonies and receptions. In turn, Obergefell raised the issue of whether a cake baker could refuse to create a cake for a same-sex wedding based on the baker’s religious beliefs. Although this issue was recently addressed by SCOTUS in Masterpiece Cake Shop, LTD. v. Colorado Civil Rights Comm’n, 2018 U.S. LEXIS 3386 (2018) (Masterpiece), it was left largely unsettled.

In Masterpiece, SCOTUS ruled in favor of Jack Phillips (Phillips), a Christian cake shop owner in Colorado who refused to create a wedding cake for a same-sex couple in 2012 because he claimed to do so violated his religious beliefs. This case presented two significant constitutional concerns to the Court, specifically, whether Phillips constitutional rights to freedom of speech and free exercise of religions would be infringed if forced to contract with and create wedding cakes for same-sex couples. While the Court did give passing consideration to these issues, it focused its analytical attentions to its view that the Colorado Civil Rights Commission’s (the “Commission”) handling of the Phillips’ case was biased because of the Commission’s belief that religion had historically played a role in fostering discriminatory behavior referencing religion’s role in slavery and the Holocaust. In doing so, SCOTUS reversed the Colorado Court of Appeals’ affirmation of the Commission’s decision in favor of the same-sex couple who wanted Philips to bake a wedding cake for them.

In rendering its decision in favor of baker Phillips SCOTUS found significant: a) Phillips’ refusal to bake the couple their cake occurred in 2012, before Obergefell was decided, and before the state of Colorado recognized same-sex marriage; b) the Commission in 2012 had a practice of finding no violations of the Colorado Anti-Discrimination Act in cases where the bakers had refused to create cakes with derogatory messages that demeaned same-sex couples; and c) Commissioners presiding over the case below called Phillips’ religious justification for discrimination a despicable piece of rhetoric and compared his argument to those that Nazis made to justify the Holocaust. This showed the Court that the Colorado Civil Rights Commission violated the free exercise clause of the first amendment which required the Commission to approach Phillips’ beliefs with neutrality and tolerance.

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The issue of whether an employee has suffered a requisite “adverse employment action” under our state’s whistleblower law when transferred out of his longstanding job into another after he blows the whistle on his employer’s violations of law or public policy, was recently addressed by the New Jersey Appellate Division in Jeffrey Scozzafava v. Somerset County Prosecutor’s Office, 2018 N.J. Super. LEXIS 1125, (App. Div. decided May 14, 2018). There, the appellate court significantly expanded employee protections within the meaning of New Jersey’s Conscientious Employee Protection Act (CEPA) by providing clarity on the issue of lateral transfers.

In Scozzafava, the Appellate Division reversed a trial court’s decision dismissing Detective Jeffrey Scozzafava’s complaint against his employer. The Court held that Detective Scozzafava’s transfer from his long-time service in the Somerset County Prosecutor’s Office’s forensic unit to the Office’s fugitive squad, constituted an adverse employment action by the employer stemming from Scozzafava’s whistle-blowing conduct of filing complaints against the forensic unit and supervisor for improper and deficient evidence collection and casework.

To establish a New Jersey whistleblower claim, a plaintiff must satisfy four elements:

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Having a new baby is an exciting time of life but can bring many anxieties regarding the logistics of coming back to work after delivery. New mothers coming back to work after giving birth are faced with a multitude of questions, concerns, and uncertainties, including how they will continue breastfeeding their infant. Although a very personal parenting and health decision, the medical benefits of breastfeeding have been shown to cause fewer illnesses in children, reduced risk of asthma or allergies.  After new moms decide they want to continue the breastfeeding relationship with their babies after going back to work, they may wonder what their rights are to do so in the workplace.

For employees considered “nonexempt” under the Fair Labor Standards Act (“FLSA”), meaning they are entitled to earn overtime pay, federal law requires a break time for mothers to express milk, and a location shielded from view other than a bathroom. Since the Affordable Care Act (“ACA”) was signed into law on March 23, 2010, section 7 of the FLSA was amended to require employers provide reasonable break time for an employee to express breast milk for one year after childbirth.  See 29 C.F.R. 207(r).  This law is also known as the “Break Time for Nursing Mothers Law.” Employers are also required to provide a place other than a bathroom that is shielded from view and free from intrusion from coworkers and the public.  All employers are subject to the FLSA break requirement unless the employer can show that (1) they have 50 or fewer employees, and (2) compliance would pose an undue hardship.

In New Jersey breastfeeding is a protected act under the New Jersey Law Against Discrimination (“LAD”) (N.J.S.A. 10:5-2 et. seq.). On January 8, 2018, the LAD was amended to include all breastfeeding mothers (with no one-year time limitation as in the FLSA).  It is now illegal for employers to refuse to hire, take adverse employment action and discriminate against an employee because of breastfeeding. Employers must also make available to the employee reasonable accommodations including reasonable break time each day and a suitable private location other than a toilet stall, in close proximity to the work area to allow the employee to express milk. N.J.S.A. 10:5-2(s). There is an exception if the employer can demonstrate that providing the accommodation would be an undue hardship on their business operations. Courts will examine the overall size of the business, number of employees, number and type of facilities, budget, type of operations, structure of workforce, cost of the accommodation needed, and the essential requirements of the job.  Id.

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On May 2, 2018, New Jersey Governor Phil Murphy signed into law the Paid Sick Leave Act requiring all public and private employers in the State of New Jersey, regardless of their size, to offer paid sick leave. The law is scheduled to go into effect on October 29, 2018.

Under the Paid Sick Leave Act, an employee shall be permitted to paid sick leave as follows:

(a) Diagnosis, care, treatment, recovery and/or preventive care for the employee’s own mental or physical illness or injury or the employee’s family member’s mental or physical illness or injury;

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After overwhelming support and passage through the New Jersey Senate and Assembly, New Jersey Governor Phil Murphy signed into law a historic and sweeping equal pay legislation that is being deemed the strongest equal pay law in America.  The new law affords equal pay protections to all minorities and protected classes, not just women.

 
Although New Jersey already has a law prohibiting discrimination in pay based on sex under N.J.S.A. 34:11-56.2, the new Equal Pay Act goes even further and extends to equal pay protections to all protected classifications of sex, race/ color, national origin/ancestry, religion/creed, disability, age, pregnancy, marital status, sexual orientation, gender identity,  N.J.S.A. 10:5-12(a).  The Equal Pay Act also has a six (6) year statute of limitations, where LAD only has a two (2) year statute of limitations. Under the new law a discriminatory compensation decision or other employment practice that is unlawful under the New Jersey Law Against Discrimination (LAD) occurs each time that compensation is paid in furtherance of that discriminatory decision or practice – effectively making each paycheck another instance of discrimination.

 
When the Equal Pay Act takes effect on July 1, 2018, it will be an unlawful employment practice for employers to pay less in wages, benefits, or compensation to members of a protected class for “substantially similar work, when viewed as a composite of skill, effort and responsibility” as those not in a protected class. In other words, if an employer pays one employee more than another who falls under a protected classification, the employer will have to show permissible exceptions for the pay disparities.  Such exceptions include a seniority system, a merit system or a bona fide factor other than the characteristics of the members of the protected class.  “Bona fide factors” can include training, education, experience, performance, productivity, and skill sets.

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America is in the middle of a social reckoning. Brave women are standing up and telling their stories of sexual harassment, assault, or other abuses by men in positions of power through use of the hashtag, #MeToo. The #MeToo movement, focused primarily on sharing stories of abuse, evolved into a call for action and female empowerment aptly named #TimesUp.  Although there has long been legal recourse found in our federal and state law for victims of sexual harassment in the workplace and/or victims of retaliation for reporting it, women today are being believed and vindicated on a larger scale than ever seen before. Here in New Jersey, our Law Against Discrimination (LAD) employees protects women and men alike from sexual harassment in the workplace. There are two kinds of sexual harassment: (1) quid pro quo, which is an agreement or an offer to receive a benefit (promotion, raise, continued employment, etc.) in exchange for the performance of sexual favors; or (2) a sexually hostile work environment, where, for example, a co-worker makes unwelcome and offensive sexual comments and/or advances. Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993). Any person who aids, abets, or otherwise assists in the harassment is in violation of the LAD. N.J.S.A. 10:5-12(e).

To prove the existence of a hostile work environment under the LAD, an employee must demonstrate that the conduct in question was unwelcome, that it occurred because of his or her sex, and that a reasonable person of the same sex would consider it sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. Id.  However, a victim of harassment should be mindful that the LAD is not intended to be “a ‘general civility’ code” for conduct in the workplace.'” Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 73 (App. Div. 2004) certif. denied, 183 N.J. 213 (2005). “‘[D]iscourtesy or rudeness should not be confused with [protected status-based] harassment.'” Ibid.

The LAD expressly protects workers from retaliation for having reported sexual harassment of themselves or coworkers. This includes retaliation in the form of a hostile work environment, demotion, failure to promote, transfer, cut in pay or benefits, unpaid suspension, wrongful discharge, or even “constructive discharge”.  A constructive discharge occurs when an employer takes no official action, but creates a work environment so hostile and unbearable that a reasonable employee would have no choice but to resign.