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clockA controversial proposed ordinance, Ordinance 16.081, in Jersey City, New Jersey would mandate a minimum workweek of 30 hours for certain employees engaged in “business services.” The ordinance’s stated purpose is “to prevent full-time building service jobs from being unnecessarily broken into part-time jobs.” Employers have rather wide discretion under state and federal laws to define “full-time” and “part-time” for their own employees. Federal law has recently begun to define “full-time” in certain contexts, however, allegedly resulting in employers cutting hours. The Jersey City ordinance has met with substantial opposition from business leaders, resulting in the postponement of a final vote in mid-May 2016.

The Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., does not distinctly define “full-time” and “part-time” employment. A 40-hour workweek is traditionally considered “full-time,” at least in part because of overtime provisions in the FLSA and many state laws. These laws require payment of time-and-a-half to non-exempt workers for hours worked in excess of 40 hours. The principal regulation placed on employers with regard to full-time and part-time employment is consistency. If their employment policies define full-time and part-time employment, provide benefits for full-time or part-time employees, or provide certain rights to full- or -part-time employees, they must apply those policies consistently.

The Affordable Care Act (ACA), also known as “Obamacare,” defines “full-time” employment in the context of providing health insurance as an employment benefit. It states that a “large employer,” defined as one having 50 or more employees, must offer “the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” to all employees working at least 30 hours per week. 29 U.S.C. § 4980H. This has allegedly resulted in some employers reducing hours from 40 or more hours per week to 29 or fewer, in order to avoid the health insurance mandate. In the absence of any other means to deliver access to health care, Jersey City is attempting to prevent certain employers from cutting hours.

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A challenge to a state law mandating the payment of union fees by certain public employees met with an unusual, if not unexpected, end in March. The U.S. Supreme Court heard oral arguments in January 2016 in Friedrichs v. Cal. Teachers Assoc., and observers at the time suggested that the court seemed to be leaning toward striking down the law in question. The death of Supreme Court Justice Antonin Scalia in February, however, left the court evenly divided, politically speaking. The court tied 4-4 and therefore had to allow the lower court ruling to stand. Friedrichs, 578 U.S. ___ (2016).

railway strikeThe plaintiffs alleged that a law requiring them to pay union fees even if they were not union members violated their First Amendment rights. This type of arrangement is often known as a “fair share provision,” since employees who are not union members still benefit from a union’s collective bargaining activities. Employers with fair share provisions are known as “agency shops.” When an employer enters into a contract with a union that requires all employees to join the union if they are not already members, and to remain members for the duration of their employment, this is known as a “union shop.”

Some states have enacted laws that prohibit union shops and agency shops. Supporters of these laws call them “right to work” laws, while critics often call them “right to work for less” laws. One argument in favor of requiring union membership or the payment of a fee is that it reduces the problem of “free riders,” an economic term referring to people who benefit from something, such as collective bargaining agreements, without paying for them.

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Statue of LibertyPeople who are not United States citizens or lawful permanent residents, and who lack official authorization to be in the U.S., are often referred to as undocumented immigrants—as well as a variety of less polite terms. Although undocumented immigrants are not officially allowed to live or work in the U.S., they may still be able to avail themselves of the protections of certain federal, state, and local laws. New Jersey courts have held that undocumented immigrants have standing to sue an employer under some laws, but not others. A recent federal appellate court ruling could affect these precedents. A court ruled that the Equal Employment Opportunity Commission (EEOC) has the authority to subpoena employment records in connection with an undocumented immigrant’s discrimination complaint under Title VII of the Civil Rights Act of 1964. EEOC v. Maritime Autowash, Inc., No. 15-1947, slip op. (4th Cir., Apr. 25, 2016).

The Constitution gives the federal government exclusive authority over immigration law and policy, including official determinations of an immigrant’s status and work authorization for immigrants. Employers are prohibited from recruiting, hiring, or employing anyone who lacks work authorization. 8 U.S.C. § 1324a. They must verify every employee’s work eligibility by collecting documentary proof that they are a U.S. citizen, a lawful permanent resident, or an authorized visa holder.

Federal immigration law includes employment discrimination provisions, but they specifically exclude people who lack work authorization. 8 U.S.C. § 1324b(a)(3). In determining whether a particular employment statute applies to undocumented immigrants, courts often look at whether the statute expressly limits its coverage to individuals with work authorization, or otherwise excludes undocumented immigrants.

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confidential documentIn order to remain competitive in the marketplace, most businesses rely on keeping certain types of information confidential. These might include client lists, sales leads, or computer algorithms, to name but a few. Employees often have access to information that an employer considers proprietary or otherwise secret. State laws protecting trade secrets may affect employees during and after their employment relationship. New federal legislation, the Defend Trade Secrets Act (DTSA) of 2016, Pub. L. 114-153 (May 11, 2016), expands federal courts’ jurisdiction over trade secret matters, and it could have an impact on employees in New Jersey and around the country.

Until the DTSA came along, no uniform standard for trade secret protection applied across the country. New Jersey law defines a “trade secret” as information that has value specifically because it is secret and that has been “the subject of efforts…to maintain its secrecy.” N.J. Rev. Stat. § 56:15-2. This definition is consistent with most state statutes and existing federal law. See 18 U.S.C. § 1839(3).

New Jersey’s trade secrets law prohibits the “misappropriation” of a trade secret, defined to include the acquisition of secret information by a party who knows of its confidential nature, and the disclosure of such information without permission and with knowledge of its secrecy. N.J. Rev. Stat. § 56:15-2. It allows state courts to grant injunctions to prevent “actual or threatened misappropriation.” Id. at § 56:15-3. It also allows the recovery of damages for actual losses and unjust enrichment resulting from misappropriation. Id. at § 56:15-4.

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Young_digital_nativeAge discrimination in the technology industry has received considerable media coverage in recent years, as several high-profile technology executives have made quite blatant statements of bias against older workers. Employment discrimination takes many forms, however, and frequently involves subtle actions, or patterns of action, rather than anything overtly and unmistakably discriminatory. The use of certain terms or phrases in job postings may serve as evidence of bias against certain protected groups. Claims against tech companies have alleged age discrimination based on employment advertisements stating preferences like “new grads.” Over the past year, the term “digital native” has emerged as the latest in a long line of possible indicators of age bias by technology companies and other employers around the country.

The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., prohibits discrimination on the basis of age against workers who are at least 40 years old. Exceptions include a “bona fide occupational qualification” involving age, or “reasonable factors other than age.” 29 U.S.C. § 623(f)(1), 29 C.F.R. §§ 1625.6, 1625.7. The statute does not prevent an employer from favoring someone age 40 or older over someone younger than 40, based solely on age. It is only intended to protect older workers from discriminatory practices favoring younger workers. The number of age discrimination complaints received annually by the Equal Opportunity Commission (EEOC) has increased from 15,785 in 1997 to 20,144 in 2015

Statements indicating bias against older workers seem to be common in the tech industry, if the news media are any indication. In 2007, Facebook CEO Mark Zuckerberg, who was 22 years old at the time, stood on stage at a conference and declared that “young people are just smarter.” His company settled an age discrimination claim with state regulators six years later, after the company advertised a job opening with the caveat that it preferred applicants from the “Class of 2007 or 2008.” It is not entirely clear why so many in the tech industry seem to favor younger workers. Youth is by no means an indicator of superior aptitude with computer technology, but that is apparently the perception of many. This is where the term “digital native” comes into play.

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tire-treads_640The Equal Employment Opportunity Commission (EEOC), the federal agency charged with investigating and prosecuting employment discrimination claims under Title VII of the Civil Rights Act of 1964, recently settled a lawsuit against a company that operates a chain of retail stores in the New York metropolitan area. The lawsuit, filed as a class action, alleged a pattern or practice of sex discrimination in which the company refused to hire women for various positions. EEOC v. Mavis Discount Tire, Inc., et al., No. 1:12-cv-00741, complaint (S.D.N.Y., Jan. 31, 2012). The parties reached a settlement agreement in early 2016, in which the defendant agreed to pay $2.1 million and take various remedial actions.

Laws at the federal and state levels in New Jersey, New York, and elsewhere prohibit employment discrimination on the basis of sex or gender. This includes overt acts of discrimination against an individual employee or job applicant, and it may also include less obvious forms of discrimination. Systemic discrimination, commonly known as “pattern or practice” discrimination, occurs when an employer enacts policies or engages in practices that have a disparate impact on certain people based on a protected category, such as sex, race, or religion.

An employer may undertake a pattern or practice with the intent of discriminating against a protected group, but intent to discriminate is not a required element for a claim under Title VII. Even if a pattern or practice is “neutral on its face,” it is unlawful if it “operate[s] to ‘freeze’ the status quo of prior discriminatory employment practices.” Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971). A plaintiff in a Title VII claim must establish that a pattern or practice has a disparate impact, and then the burden shifts to the employer to demonstrate its “business necessity,” which must be specifically “related to job performance.” Id. at 431. Congress codified the prohibition on systemic discrimination with the Civil Rights Act of 1991. See 42 U.S.C. § 2000e-2(k).

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Kuha455405 (Own work (本人撮影)) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsA lawsuit recently filed against the owner of several convenience stores in the Princeton, New Jersey area claims violations of state and federal minimum wage and overtime laws. Lopez et al. v. 7-Eleven Inc. et al., No. L-000418-16, complaint (N.J. Super. Ct., Mercer Co., Feb. 26, 2016). The three plaintiffs, who are suing on behalf of a putative class of employees and former employees, allege that their now-former employer required them to work exceedingly long hours and unlawfully withheld their pay, which was less than both the state and federal minimum wage. The former employer is a franchisee of a national chain of convenience stores. The lawsuit names both the owners and operators of the franchisee and the national franchise owner as defendants.

This lawsuit demonstrates a common problem in employment law claims when the employer is part of a franchise. Many well-known businesses with multiple locations, such as McDonald’s restaurants, do not actually share common ownership or management. The owner of the brand—which includes the logo, menu, business model, and so forth—enters into franchise agreements as the franchisor with other companies, the franchisees, to operate one or more facilities. A typical franchise agreement contains numerous requirements regarding the operation of the worksite, in the interest of maintaining consistency among all franchised locations. This is where the tricky part for employment claims comes in.

An employee or former employee can only assert a claim for violations of minimum wage and overtime laws, anti-discrimination laws, and other employment statutes against their employer. It is often relatively easy to determine who is a person’s employer, based on an employment contract or the issuance of paychecks. In the case of a person who works at a franchised location, the franchisee is probably their employer, at least on paper. The franchisee is not, however, in full control of their own business, since they have to run their operation in accordance with the franchise agreement. How much control must a franchisor exercise over a franchisee before the franchisor begins, in a legal sense, to look like the actual employer?

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ClkerFreeVectorImages [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayA lawsuit pending in a New Jersey Superior Court seeks review of a township’s decision to dock the plaintiff’s pay by 60 hours, resulting in a loss of about $3,500. O’Hare v. Township of Morris, et al., No. L-000710-16, complaint (N.J. Super. Ct., Morris Co., Mar. 24, 2016). The plaintiff, a police officer, made negative comments about a township official in an email sent to members of the police officers’ union, and he was brought up on disciplinary charges as a result. The plaintiff’s lawsuit alleges that his comments are protected by the First Amendment and laws protecting union activities.

Federal laws and laws in many states protect the rights of workers to form and join organizations, commonly known as unions, for the purpose of collective bargaining with their employers. New Jersey law guarantees the right of most public employees “to form, join and assist any employee organization.” N.J. Rev. Stat. § 34:13A-5.3. The federal National Labor Relations Act (NLRA) extends these rights to many private-sector employees, along with the right to engage in “concerted activities” related to labor organizing. 29 U.S.C. § 157.

The rights protected by the NLRA and similar statutes generally include discussions and other communications among employees regarding negotiations with employers. The First Amendment to the U.S. Constitution extends much broader protections against restriction or retribution by the government based on the content of speech. See, e.g. Sable Commc’ns of Cal. v. Fed. Commc’n Comm’n, 492 U.S. 115, 131 (1989).

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Matt Boulton (Carli Lloyd vs Japan) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia CommonsFive members of the U.S. women’s national soccer team (USWNT) have filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging unlawful wage discrimination by the U.S. Soccer Federation (USSF). They allege that they are paid substantially less than members of the U.S. men’s national soccer team (USMNT), despite generating significantly more revenue in recent years than the men’s team. They are asserting their claim on behalf of all members of the USWNT. The EEOC will investigate the claim, and it may decide to pursue the claim on the players’ behalf. Otherwise, it will issue a “right to sue” letter, allowing the players to file a private cause of action.

Under the Equal Pay Act (EPA), employers are generally prohibited from paying employees of one gender less than employees of another gender for the same work. The statute allows exceptions to this rule if the difference in wages is based on a system of seniority, merit, or “quantity or quality of production,” or on the vaguely worded “any other factor other than sex.” 29 U.S.C. § 206(d)(1). The USWNT players’ complaint essentially argues that they have produced a superior “quality of production” yet are paid significantly less than their male colleagues.

The USWNT, which was formed in 1985, is one of the world’s most successful soccer teams. It has won three World Cup titles, most recently in Canada in 2015, and four Olympic gold medals, most recently in London in 2012. The final game of the 2015 World Cup, in which the USWNT beat the Japanese team 5-2, drew more than 53,000 spectators and around 23 million television viewers.

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OpenClipartVectors [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayA former daycare center worker in New Jersey has filed suit against her former employer, alleging violations of the state’s whistleblower protection and anti-discrimination statutes. Pierce v. Woodbury Child Dev. Ctr., Inc., No. L-000216-16, complaint (N.J. Super. Ct., Gloucester Co., Feb. 19, 2016). According to media coverage of the case, the plaintiff claims that she was wrongfully terminated from her job after reporting alleged misappropriation of state funds. The Conscientious Employee Protection Act (CEPA), N.J. Rev. Stat. § 34:19-1 et seq., prohibits retaliation against employees who report suspected illegal acts by their employers. The New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq., prohibits retaliation in situations in which an employee complains of workplace discrimination and other unlawful acts.

New Jersey enacted CEPA in 1986 in order to protect employees from various types of “retaliatory action” by employers, defined to include “discharge, suspension or demotion…or other adverse employment action.” N.J. Rev. Stat. § 34:19-2(d). Employers may not retaliate against employees who engage in certain types of activity commonly known as “whistleblowing,” such as reporting, or threatening to report, activities, practices, or policies that the employee reasonably believes violate the law.

Based on the language of the statute, CEPA’s focus seems to be on illegal and fraudulent acts that adversely affect the government, shareholders, investors, customers, employees, and others to whom an employer might owe a duty of care. See N.J. Rev. Stat. § 34:19-3. The report may be internal, such as to a supervisor, or external, such as to a law enforcement agency or other public organization. A whistleblower may also be an employee who participates in an investigation of an employer, or who refuses to participate in an action that they reasonably believe is illegal or fraudulent.

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