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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.”

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:

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:

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 …”

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.

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.]