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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.

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.

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.

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.

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.”

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.

From the nearly universal perspective of employment lawyers like the attorneys at Mashel Law who represent employees in workplace disputes, any document containing an arbitration clause forcing an employee to waive his/her right to sue their employer in court for committing wrongs such as workplace discrimination or retaliation is very bad and should be avoided whenever possible.  Although our courts will generally enforce arbitration agreements if they satisfy basic principles of contract law, a court still must be convinced the employee knowingly and voluntarily agreed to be bound by its terms. Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 442 (2014).  Recently, our Appellate Division in Skuse v. Pfizer, Inc., 2019 N.J. Super Lexis 7 (App. Div. 2019) was not convinced that an employee who had clicked a box on a computer screen acknowledging their receipt of an employer’s arbitration policy had agreed to be bound by the terms of the arbitration policy.

In Skuse, decided on January 16, 2019, the New Jersey Appellate Division rejected a forced arbitration agreement that would have required its employee to submit her religious discrimination claims to private binding arbitration.  This case began when Plaintiff Amy Skuse filed a lawsuit in the Superior Court of New Jersey against her former employer Pfizer alleging violations of the New Jersey Law Against Discrimination (the “NJLAD”) for religious discrimination and failure to provide a reasonable accommodation for her religious beliefs.  Skuse had been terminated from her employment as a flight attendant by Pfizer after she refused to receive a yellow fever vaccination containing animal-derived ingredients.  Skuse is a practicing Buddhist and as a part of her religious beliefs she has never received injections containing animal proteins.  After filing her NJLAD lawsuit, Defendant Pfizer sought to dismiss the case and compel the Plaintiff Skuse to submit her claims to binding arbitration.  The trial court granted the dismissal, but Plaintiff Skuse appealed and won.

On appeal the Appellate Division found the employer’s arbitration policy unenforceable and invalid where the employee merely clicked an “acknowledgment” button in a training module on the company’s arbitration policy that was mass emailed and identified as “training module” or “training activity”, and the employer did not use the verb “agree” in its click button arbitration policy acknowledgment.  The employer never asked for a physical signature from the employee and asked the court to accept the employee’s online “click” as a substitute for a formal signature to compel the employee to arbitrate. Therefore, the appellate court found that the acknowledgment procedure used by the employer fell critically short of legal requirements to obtain an employee’s voluntary, knowing, explicit and unmistakable waiver of an employee’s right to litigate in court, and fell critically short of New Jersey’s long-standing precedent under Leodori v. CIGNA Corp., 175 N.J. 293, 303 (2003) and Atalese v. U.S. Legal Services Group, L.P., supra., 219 N.J. at 447.  Leodori requires an employee’s waiver of the right to sue in court to be explicit, affirmative, and must unmistakably reflect the employee’s assent to arbitrate. Atalese requires arbitration language to be clear and unambiguous.  To comply with these requirements, the Appellate Division found that the button in the training module containing the word “acknowledgment” was not enough to meet these legal tenets.

Our country’s attitudes towards the use of medical and recreational marijuana are rapidly changing.  According to a recent Pew report 74% of Millennials, 63% of Gen Xers and 54% of Baby Boomers favor legalizing the use of marijuana.  Currently, recreational marijuana is legal in nine (9) states. In addition, thirty (30) states, have legalized the use of medical marijuana, New Jersey and New York among them. As the legalization of marijuana swiftly spreads across our nation, it is expected that the enactment of laws protecting medical marijuana users against unlawful job terminations will increase.  However, as things stand now, if an employer in New Jersey finds out you are using medical marijuana you may be fired.

Under federal law, the possession, sale, or use of marijuana is still illegal. Neither the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against those who are disabled, nor the Family and Medical Leave Act (FMLA), which allows qualified employees unpaid leave for their own health condition or to take care of a qualified family member, protects employees from adverse employment actions because of their use of medical marijuana. The Controlled Substance Act, a federal law which is part of the Comprehensive Drug Abuse and Prevention Act, classifies cannabis as a substance that “has a high potential for abuse . . . [and] no currently accepted medical use in treatment in the United States.” The federal Drug Free Workplace Act, which applies to a federal contractors and grantees, requires employers to provide drug-free workplaces as a condition for receiving federal grants.

While no state is found providing employment protection for recreational marijuana use, several states provide explicit employment protection for medical marijuana use. For example, in New York, an employer cannot discriminate against a “certified” patient (one who has a disability) only because of the certified medical use or manufacture of marijuana. In addition, employers in New York must reasonably accommodate the disability associates with the legal marijuana use.  Other states which provide similar protections include: Arizona, Arkansas, Connecticut, Delaware, Illinois, Massachusetts, Minnesota, Pennsylvania, and West Virginia.

It may be unsettling for some to learn that an employer under some circumstances may lawfully discriminate against an applicant or existing employee due to their disability.  However, to do so the employer must show that even with a reasonable accommodation the employee’s disability precludes their ability to perform their job safely. When an employer takes the position in a case that a worker’s disability precludes their ability to safely perform their job it is asserting a safety-hazard affirmative defense. Under New Jersey’s Law Against Discrimination (LAD), “‘an employer found to have reasonably arrived at an opinion that a job applicant [or existing employee] cannot do the job, either because the applicant [or existing employee] is unqualified or because of a given handicap, cannot be found liable for discrimination against that applicant [or existing employee].’” Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 374 (1988) (quoting Andersen v. Exxon Co., 89 N.J. 483, 497 (1982)). However, “[i]n a physical handicap case, the basic task is not discerning the reason for the discrimination, since that is generally conceded, but rather examining the reasonableness of the decision under the facts.” Andersen, 89 N.J. at 493. It is the employer’s burden to prove that its opinion was reasonably founded.” Id. at 500.

The employer’s burden of proof of establishing a safety-hazard defense is a high one because “[t]he import of the [LAD] is that the handicapped should enjoy equal access to employment, subject only to limits that they cannot overcome.” Jansen, 110 N.J. at 374. Therefore, it must be “clearly shown that a person’s disability would prevent such person from performing a particular job”, otherwise the employer’s decision remains “an unlawful employment practice to deny to an otherwise qualified person with a disability the opportunity to obtain or maintain employment …” N.J.S.A. 10:5-29.1 (emphasis added).

Jansen v. Food Circus Supermarkets, Inc., is the seminal case on the use of the safety-hazard affirmative defense in a disability discrimination case.  In Jansen, the plaintiff was employed by a supermarket as a meat cutter and suffered from a mild form of epilepsy that caused partial, complex seizures associated with loss or impairment of consciousness. Id. at 368. The plaintiff Jansen was not diagnosed as an epileptic until approximately three and one-half (3 ½) years after he began his employment with the defendant as a meat cutter. Id. at 368-69.  Six years later, while Jansen was cutting steaks with [6]  a large steak knife, he suffered a seizure in which he stopped and stood staring, with the knife in his hand.  When Jansen did not respond to inquiries from his supervisor, the supervisor removed the knife from his hand. Id. at 369. Thereafter, while sitting with “an open hand and a clenched fist and hitting his hand over and over again” Jansen stated to a co-employee that “I guess I am going to lose my job … I  [7]  think I am going to go trapping in Oregon. But before I go I am going to take six people with me”. Id. at 370.

The use of social media is ubiquitous in our society.  One of the most common forms of social media is maintaining a personal profile account or page on Facebook.  The Facebook profile is a place where a person can connect with friends, post newsfeeds, thoughts, and photos.  If you share information or photos on your Facebook page, such information and photos become public and can be accessed by others unless you create privacy settings limiting who can see your posts. When you are a litigant in a lawsuit you must be careful as to the kinds of information and photos you post on your Facebook page as the other parties in the case and their attorneys may be able to gain access to this public information and use it against you. This is what happened to Christian Angeles whose postings of photos on his Facebook page showing him posing at a gym in workout garb and on a jet ski wearing a short wetsuit caused his multi-million-dollar jury verdict to be thrown out.  Angeles v. Nieves, 2018 N.J. Super. Unpub. LEXIS 1554 * (App. Div. decided June 28, 2018)

On December 6, 2018, the New Jersey Supreme Court refused to hear and thereby upheld the decision of the Appellate Division in Angeles which tossed out a three-million-dollar verdict (remitted by the trial court to $1.1 Million) obtained by Mr. Angeles following a trial in a motor vehicle personal injury case.  Mr. Angeles testified at trial that while he was operating his motor vehicle in an intersection his vehicle was negligently struck by a motor vehicle operated by defendant Nieves.   As a result of the motor vehicle accident, Mr. Angeles claimed he was caused to suffer low back disc injuries which significantly limited his ability to perform various daily activities of living.   During the trial the defense attorney attempted to cross-examine Mr. Angeles with the use of screenshots taken from Mr. Angeles’ Facebook profile depicting him at a gym posing in a “sleeveless shirt and sweatpants at a gym near exercise equipment, with a photo caption ‘In order to maintain the artistic action figure’”, and as well a screenshot of Mr. Angeles in a short wet suit sitting on a Waverunner with the caption “In water hesitating.”  Id. at *6-*7.  However, the trial judge refused to allow the defense attorney to cross-examine using the screenshots concluding that use of the photos would have been unduly prejudicial to Mr. Angeles’ claims. *7.   After the jury rendered its verdict of $3 Million dollars the judge on defendant’s motion reduced the verdict to $1.1million but denied defendant ‘s post-verdict motion for a new trial finding the screenshots potential for prejudicing the jury’s view of Mr. Angeles claims far outweighed their “limited probative value.”  *7.

In reversing the trial court’s denial of defendant’s motion for a new trial, the appellate court found, among others, that the post-accident screenshot photos depicting Mr. Angeles engaged in apparent strenuous activity would have “substantial probative value.”  *9.   As the appellate court viewed it: