Disability Discrimination Lawsuit Claims Defendant Refused to Hire Plaintiff Because of Plaintiff's Disabled Son

October 9, 2015

Shelter_Island_The_Woods_the_Sound_and_the_Distance.jpgA federal lawsuit brought by a job applicant against a hotel and its owner claims unlawful discrimination on the basis of disability. Anderson v. HotelsAB, LLC, et al., No. 1:15-cv-00712, complaint (S.D.N.Y., Jan. 30, 2015). The plaintiff alleges that the hotel owner stated during her job interview that he would not hire her because she has a disabled son. Her complaint alleges a single cause of action for employment discrimination under the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq. It names the two limited liability companies (LLCs) that own and operate the hotel, as well as the individual owner of the LLCs, as defendants. In late August 2015, a judge denied a motion by the defendants to dismiss the case.

The plaintiff applied for a job as controller for the defendants, which own and operate a hotel located on Shelter Island, near the eastern end of Long Island. According to the plaintiff's complaint, the job would involve working from the defendants' Manhattan office from October through April, and at the hotel on Shelter Island from May through September. The plaintiff lived in Connecticut at the time she applied for the job.

After several telephone interviews, the plaintiff visited the hotel in August 2014 for an in-person interview with several hotel officers. The hotel owner arrived to meet her and allegedly began "posing extremely personal questions" about her marriage and living arrangement and repeatedly calling her a "crazy person." Anderson, complaint at 5. When asked about her "ideal job," the plaintiff states that she mentioned running a nursing home because of her disabled son, who lives in Maine. She alleges that the owner "abruptly ended the interview" at this point, telling her that she could not "devote adequate time to her professional responsibilities." Id.

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Unpaid Intern Sues Celebrity Twins Under State Wage and Hour Laws

September 25, 2015

Olsen_twins_hollywood_star.jpgA former intern for the company founded by Mary-Kate and Ashley Olsen, commonly known as the Olsen Twins, has filed a putative class action against the company in a Manhattan state court. Lalani v. Dualstar Entm't Group, LLC, No. 158205/2015, complaint (N.Y. Sup. Ct., N.Y. Co., Aug. 7, 2015). The lawsuit alleges that the company unlawfully classified workers as interns and therefore did not pay them any wages. It asserts causes of action under state minimum wage law. People employed as interns often forego wages in favor of academic credit or specific job training. Courts are beginning to enforce the right of interns to be treated as paid employees if they are not receiving an educational benefit from the job. See, e.g. Glatt v. Fox Searchlight Pictures, No. 1:11-cv-06784, mem. order (S.D.N.Y., Jun. 11, 2013) (finding that production interns on the film Black Swan were entitled to compensation).

The Olsen Twins first became famous by jointly playing the character Michelle Tanner on the ABC sitcom Full House from 1987, when they were barely one year old, until 1995. They reportedly founded Dualstar, the defendant in the present case, at age six in 1993. Since then, they have built a massive business that includes films, clothing, and other products, and that is valued at around $1 billion.

According to her complaint, the lead plaintiff worked for the defendant from May through September 2012. Her job duties included office administrative tasks and support of paid employees. She claims that she worked five days a week for approximately 50 hours each week and received no compensation for the work she performed. She also received no "academic or vocational training" through her work for the defendant. Lalani, complaint at 5.

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The Americans with Disabilities Act, Which Protects New Jersey Workers Against Employment Discrimination, Turns 25

September 18, 2015

Drano_Lake_accessible_fishing_platform_signage.jpgThe Equal Employment Opportunity Commission (EEOC) recently celebrated the 25th anniversary of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq. The ADA helps ensure that people with disabilities have access to public buildings, public transportation, and private businesses considered "public accommodations." It also protects disabled workers against discrimination and requires employers to provide them with reasonable accommodations. The difficulty tends to come in the applicability of the ADA's definition of "disabled" to a particular worker, or the reasonableness of a requested accommodation under its specific circumstances. It is worth taking a moment to review the ADA and the ways it has been interpreted and adapted over the years.

In numerous ways, the ADA has literally changed the landscape of the country. Title II of the ADA requires government buildings and public transportation to allow access by disabled individuals. This might include wheelchair ramps, elevators, or assistance for people with impaired vision or hearing. Title III establishes similar requirements for "public accommodations"--private businesses that offer products or services to the general public, such as hotels, restaurants, theaters, grocery stores, gas stations, bus depots, libraries, parks, schools, day care centers, and golf courses. 42 U.S.C. § 12181(7). Title IV requires telecommunications service providers to make services available to people with hearing and speech impairments. 47 U.S.C. § 225.

Title I of the ADA prohibits employment discrimination based on disability. It also requires employers to make reasonable accommodations for disabled workers. Title V includes a prohibition on retaliation for asserting rights under any of the ADA's provisions. Congress has added to the ADA's protections with subsequent laws, such as the Americans with Disabilities Amendments Act (ADAAA) and the Genetic Information Nondiscrimination Act (GINA), which both became law in 2008.

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More than $7 Million in Back Pay Owed to New Jersey Workers from Federal Wage and Hour Law Enforcement Remains Unclaimed

September 11, 2015

156362685_a2b3a1fe7a_z.jpgWorkers in New Jersey have several methods of asserting their rights under federal, state, and local employment laws. While retaining the services of an employment law attorney offers an individual the best opportunity to work with an experienced professional through all of the steps of the legal process, certain government agencies sometimes pursue civil claims against employers on employees' behalf. The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) recently announced that it is holding a substantial sum of money obtained in enforcement actions against employers around the country, including more than $7 million owed to nearly 10,000 New Jersey workers that remains unclaimed.

The DOL's regional office in Philadelphia announced in mid-August 2015 that the WHD is holding $7,157,792 obtained from New Jersey private-sector employers, mostly through settlement agreements. This money constitutes back pay owed to 9,953 employees. The WHD and other agencies are often able to notify workers of the availability of money obtained through an enforcement action. If an individual has moved out of state, changed their name through marriage, or even just switched jobs, however, the agency may not be able to locate them.

A website maintained by the DOL entitled "Workers Owed Wages," or simply "WOW," includes a search function that allows workers to see if the DOL has collected money from their employer. They may then search their own name to see if they are entitled to payment. The site has reportedly helped people around the country claim over $800,000--a small amount in comparison to the amount that remains unclaimed in New Jersey alone. If money remains unclaimed for three years after collection, the U.S. Treasury can keep it.

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New Jersey Judge Awards Attorney's Fees and Costs to Plaintiff in Medical Leave Lawsuit

September 4, 2015

emergency-doctor-147857_640.pngA federal judge in New Jersey recently awarded $274,000 in attorney's fees and costs to the plaintiff in a lawsuit related to an employee's request for medical leave. Boles v. Wal-Mart Stores, Inc., No. 2:12-cv-01762, opinion (D.N.J., Aug. 6, 2015). A jury found for the plaintiff in March 2015 on his claim of retaliation in violation of the New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-12. It awarded him compensatory and punitive damages totaling $200,000. When the court entered the order for attorney's fees and costs, it also denied the defendant's motion for judgment notwithstanding the verdict (JNOV).

The plaintiff began working at a retail store owned and operated by the defendant in Linden, New Jersey in 2001. He received various promotions over the years, eventually becoming an overnight assistant manager in early 2011. The plaintiff sought medical attention for a blister on his leg in May 2011. This became an ulceration, which can be dangerous because of the risk of infection. His doctor recommended that he take medical leave until November, but the defendant reportedly only approved leave through late September. The plaintiff was not able to return to work by then and requested an extension of his leave. He tried to return to work in late October 2011, but the defendant would not allow him to do so. It terminated him shortly afterwards for abandoning his job.

In March 2012, the plaintiff filed suit under the NJLAD and the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. He asserted four causes of action: retaliation for requesting medical leave, disability discrimination, and failure to accommodate, all in violation of the NJLAD; and interference with his rights under the FMLA. In March 2014, the court partially granted the defendant's motion for summary judgment and dismissed the disability discrimination claim and part of the failure to accommodate claim. It denied the motion as to the claims for retaliation and FMLA interference, and partly as to the failure to accommodate claim. The case went to jury trial in March 2015.

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New Federal Regulation Requires Businesses to Disclose CEO-to-Employee Pay Ratios

August 27, 2015

staircase-298707_640.jpgThe wage gap has become a matter of serious concern for many in this country. Various reports show income rising for many business executives, while wages stagnate, or even decline, for most working people. Employment statutes at the federal, state, and local levels protect workers against a wide range of untenable employment situations and unjust acts by employers, but this does not include a wide disparity in pay between a company's low-level employees and its chief executive officer (CEO). The Securities and Exchange Commission (SEC) issued a final rule in early August 2015 requiring publicly traded companies to disclose the ratio between CEO salary and median employee compensation. This rule implements a provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), Pub. L. 111-203, but it has been the subject of substantial criticism from the business sector. It might not have an immediate impact on improving employees' workplace rights, but it could be an important step in that direction.

Employees in New Jersey are generally protected from workplace discrimination and harassment, based on factors such as race, sex, religion, and national origin, by the New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq., and Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The NJLAD includes additional categories of protection, such as sexual orientation and gender identity. The New Jersey Wage and Hour Law (NJWHL), N.J. Rev. Stat. § 34:11-56a et seq., sets a statewide minimum wage and establishes rules for overtime compensation. At the federal level, the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., performs a similar function, albeit with a lower minimum wage.

These laws could work together to protect employees in a situation where certain employees receive lower pay than other employees with the same or similar qualifications, performing the same or a similar job, if the disparity is related to one or more of the categories protected from discrimination. Nothing in state or federal law says that a CEO's pay cannot be higher than an employee's pay, and despite some particularly heated political rhetoric, no one is suggesting a rule like that. The issue is that many workers put in 40 or more hours of work per week, and yet they struggle to make ends meet, even frugally. The SEC's regulation does not directly address this issue, nor issues of employee wage complaints, but it helps put these issues closer to the front burner, so to speak.

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Plaintiffs in Genetic Information Discrimination Case Obtain $2.2 Million Verdict Against Employer

August 24, 2015

dna-163466_640.jpgThe Genetic Information Nondiscrimination Act (GINA) of 2008, 42 U.S.C. § 2000ff et seq., protects employees from privacy violations and discrimination in employment based on information obtained through DNA tests and other procedures. It also prohibits employers from requiring employees to submit DNA samples, with narrowly defined exceptions. Some states have similar laws, such as New Jersey's Genetic Privacy Act of 1996, N.J.S.A. § 10:5-43 et seq., which amended the New Jersey Law Against Discrimination to prohibit employment discrimination based on "genetic information," N.J.S.A. § 10:5-12(a). Few court decisions have considered the scope of these laws' protections, however. A recent court decision and jury verdict, however, in Lowe, et al v. Atlas Logistics Group Retail Svcs. (Atlanta), LLC, No. 1:13-v-02425, complaint (N.D. Ga., Jul. 22, 2013), suggests that these laws could provide an very effective defense against discrimination and employer intrusions into employee privacy.

Congress enacted GINA in 2008, so the statute has not amassed much of a track record in the court system. The Equal Employment Opportunity Commission (EEOC) has brought suit under GINA in several cases around the country for a wide range of practices:

- In EEOC v. Fabricut, Inc., the EEOC alleged that an employer violated GINA by allegedly refusing to hire a job applicant it thought had carpal tunnel syndrome, and by asking for her medical history. The employer settled the suit for $50,000.
- A class discrimination suit against a New York nursing home, EEOC v. Founders Pavilion, Inc., claimed that the employer unlawfully requested genetic information from job applicants. The defendant settled for $370,000. A lawsuit against another New York nursing home with similar allegations, EEOC v. BNV Home Care Agency, is still pending.
- A lawsuit against several seed and fertilizer companies for alleged medical and genetic information inquiries during the hiring process, EEOC v. All Star Seed, Inc., et al., resulted in a $187,500 settlement.

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EEOC Rules that Title VII Already Prohibits Employment Discrimination Based on Sexual Orientation, at Least in Some Cases

August 14, 2015

LGBT_employment_discrimination_law_in_the_United_States.svg.pngLegal protections for lesbian, gay, bisexual, and transgender (LGBT) individuals remain uncertain in many parts of the country, despite recent court victories. Fewer than half of U.S. states prohibit employment discrimination based on sexual orientation (the "LGB" part of the acronym) or gender identity (the "T" part). The New Jersey Law Against Discrimination (NJLAD) expressly prohibits both types of discrimination, but Title VII of the Civil Rights Act of 1964 only protects people from discrimination based on sex, race, color, religion, and national origin. A recent decision by the Equal Employment Opportunity Commission (EEOC), however, held that Title VII's prohibition on sex discrimination already covers sexual orientation discrimination. Baldwin v. Dept. of Transportation, EEOC Appeal No. 0120133080 (Jul. 15, 2015) (PDF file). A 2012 decision, Macy v. Dept. of Transportation, EEOC Appeal No. 0120120821 (Apr. 20, 2012), held that this part of Title VII covers gender identity. These decisions only apply to federal employees, but they are still an important step forward. Most employment discrimination claims still require a careful analysis of federal, state, and city laws.

The complainant in the recent EEOC decision claimed that the Federal Aviation Administration (FAA) discriminated against him on the basis of his status as a gay man when it denied him a particular promotion, citing negative remarks allegedly made by his supervisor. The FAA dismissed his complaint as untimely, and he appealed to the EEOC. After finding that the complaint was timely, the EEOC ruled that the important question in a sexual orientation discrimination claim is not "whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions," but "whether the agency has 'relied on sex-based considerations' or 'take[n] gender into account' when taking the challenged employment action." Baldwin at 5-6, quoting Macy at 6. See also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

The EEOC's decisions in both Baldwin and Macy, interestingly, relied rather heavily on a Supreme Court decision written by Justice Scalia, who is not known for his support of expanded legal protections for LGBT individuals. The Supreme Court ruled in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), that a male oil-rig worker could sue for sexual harassment by male co-workers. Writing for a unanimous court, Justice Scalia stated that "statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils." Baldwin at 13, quoting Oncale, 523 U.S. at 79.

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New Laws Require Employers in Some New Jersey Cities to Provide Paid Sick Leave to Employees

August 6, 2015

fever-310721_640.pngThe United States generally lags behind many other nations when it comes to various employment benefits, particularly paid leave. Allowing employees to take time off when they are sick, without having to worry about losing pay, seems like a sensible policy, but sick leave is entirely voluntary for most employers around the country. Workers without paid sick leave can put other workers' health at risk by coming in when they should be recuperating at home. Only a handful of states and cities have laws requiring employers to provide paid sick leave, but the situation may be improving. At least eight New Jersey cities have enacted paid sick leave ordinances, and a pending New Jersey bill would require paid sick leave and would allow employees to file civil claims for violations.

Laws like the federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., require covered employers to allow qualifying employees to take up to 12 weeks of leave during a 12-month period for personal or family medical reasons. Many employees do not qualify for FMLA coverage, however, such as when they have not accrued enough work history with their employer, or the employer is too small to be covered. The FMLA and many state laws also do not require the leave to be paid.

Currently, only four states require paid sick leave: California, Connecticut, Massachusetts, and Oregon. Eligibility requirements for coverage vary from state to state, with the minimum number of employees ranging from a high of 50 in Connecticut to coverage of nearly all employers in Oregon. Employees may bring private lawsuits against their employers for violations of these laws in Massachusetts and Oregon, and the California Attorney General can enforce the law on employees' behalf.

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Supreme Court Sides with Job Applicant in Religious Discrimination Claim

July 31, 2015

New_Abercrombie_&_Fitch_Store_(869376027).jpgThe U.S. Supreme Court ruled in favor of a woman who claimed that a clothing retailer violated Title VII of the Civil Rights Act of 1964 when it turned down her job application. She specifically alleged that the retailer discriminated against her because she wore a headscarf as part of her religious practice as a Muslim, which the retailer claimed violated a policy on employee attire. The retailer claimed that she never requested a religious accommodation--such as an exception to the policy prohibiting headwear--and argued that it was not liable for any violation of her rights because it had no "actual knowledge" that she needed an accommodation. The Supreme Court disagreed, holding that the complainant only needed to prove that her need for a religious accommodation motivated the decision not to hire her. Equal Emp't Opportunity Comm'n (EEOC) v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (2015).

The complainant was a teenager when she applied for a job at an Abercrombie & Fitch store in 2008. She wore a headscarf to her interview with an assistant manager at the store. The assistant manager determined that the complainant was qualified for the position. She was reportedly concerned, however, that the complainant's headscarf violated the store's "Look Policy," which regulated how employees dress at work in an effort to maintain a consistent style across the retailer's nationwide locations. The assistant manager took her concerns to the store manager, who stated that the headscarf violated the Look Policy and instructed the assistant manager not to hire the complainant.

The EEOC filed suit against the retailer in 2009 on the complainant's behalf, alleging that the decision not to hire her was motivated by her religion, as signified by her headscarf, in violation of Title VII. A district court granted summary judgment for the EEOC on the question of liability. 798 F.Supp.2d 1272 (N.D. Ok. 2011). It awarded the complainant $20,000 in damages after a trial. The Tenth Circuit Court of Appeals, however, reversed these rulings and entered summary judgment for the defendant. It held that the defendant lacked "actual knowledge" of the complainant's need for a religious accommodation because she failed to request it, and the defendant therefore could not be liable for religious discrimination under Title VII. 731 F.3d 1106 (10th Cir. 2013).

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SEC Awards Maximum Damages to Whistleblower Under Dodd-Frank Act

July 23, 2015

The_Office_of_the_Whistleblower(SEC)_Symbol.jpgThe U.S. Securities and Exchange Commission (SEC) recently awarded $600,000 to a former hedge fund trader who reported possible misconduct by his employer. In the Matter of Paradigm Capital Management, Inc. and Weir, File No. 3-15930, order (PDF file) (SEC, Apr. 28, 2015). The award is the maximum amount allowable under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank"). This case is notable because it was reportedly the first enforcement action brought by the SEC under the authority conferred by Dodd-Frank. While the case involves an employer located in Albany, New York, the protections offered by Dodd-Frank apply in New Jersey and nationwide.

The complainant was the head trader for Paradigm Capital Management ("Paradigm"), an investment adviser for various hedge funds. Paradigm's president and founder was also the president and founder of a broker-dealer called C.L. King & Associates ("C.L. King"). Both entities are incorporated in New York and headquartered in Albany.

In March 2012, the complainant reported alleged misconduct to the SEC based on potential conflicts of interest. He claimed that Paradigm was using C.L. King to execute trades of securities for certain hedge fund clients without disclosing the president's interest in both companies to those clients. Additional conflicts of interest, according to the SEC, included having the same person serve as chief financial officer of both Paradigm and C.L. King, while also serving on Paradigm's Conflicts Committee.

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Age Discrimination Alleged in New Jersey Lawsuits

July 16, 2015

4978362207_200921acb8_z.jpgEmployment discrimination on the basis of age, especially against workers who are into or past what is often considered "middle age," and who are looking for a job, does not always receive as much media attention as other forms of discrimination. The federal and state laws regarding this type of discrimination are also not as well known or understood. It is becoming more and more of a problem, however, as the American population ages. A few recent cases illustrate how an age discrimination claim in New Jersey might work.

Research regarding the issues faced by older workers indicates that people in their 50s or older tend to have a much harder time finding a job than younger workers. The discrimination is rarely overt, instead taking the form of certain reasons given not to hire someone, such as "You're overqualified." This can make discrimination difficult to prove, but the New Jersey Law Against Discrimination (NJLAD) allows claims for age discrimination in employment. N.J. Rev. Stat. § 10:5-12(a). The federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., also allows civil claims, but it only applies to workers above a certain age in certain situations.

The NJLAD provides relatively strong protection for workers asserting age discrimination claims. New Jersey courts have held that the statute preempts common law claims, such as breach of contract or breach of the covenant of good faith and fair dealing, if they are primarily based on alleged age discrimination. See Broad v. Home Depot USA, 16 F.Supp.3d 413, 419 (D.N.J. 2014). The ADEA protects workers who are 40 years of age or older against discrimination that is not based on a "reasonable factor other than age." See 29 C.F.R. § 1625.7, 77 Fed. Reg. 19080 (Mar. 30, 2012). It also prohibits workplace harassment based on age. The statute does not, however, prohibit an employer from favoring an older employee over a younger one.

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New York City Prohibits Most Uses of Consumer Credit Reports in Hiring and Other Employment Decisions

July 10, 2015

6812484625_32b8378cd9_z.jpgThe New York City Council passed legislation in April 2015 amending the city's anti-discrimination law to prohibit employment discrimination based on information found in an employee's or job applicant's consumer credit history. This is part of a broader trend of laws at the city and state levels around the country that limit the use of background checks when making employment decisions. Similar laws have been introduced in the New Jersey Legislature, but they have not passed either chamber. New Jersey law offers some protection for consumers with regard to their credit information, including restrictions on when and how employers may access credit reports.

The federal Fair Credit Reporting Act (FCRA), the New Jersey Fair Credit Reporting Act (NJFRCA), and other statutes regulate the collection, distribution, and use of information by credit reporting agencies. These statutes define "consumer reports" in part as financial and personal information about a consumer, communicated in writing or verbally, that is intended for use "in establishing the consumer's eligibility for...employment purposes." 15 U.S.C. § 1681a(d)(1)(B), N.J. Rev. Stat. § 56:11-30(1)(b), N.Y. Gen. Bus. L. § 380-A(c)(1)(ii). Under New Jersey law, an employer may not obtain a person's credit report unless they provide notice in a particular form to the person and obtain the person's consent. N.J. Rev. Stat. § 56:11-31c.

The New Jersey statute does not prohibit an employer from taking adverse action against an employee or job applicant based, in whole or in part, on information contained in a consumer report. If the employer does take adverse action against a person, however, it must first provide the person with a copy of their consumer report and a notice of their rights under the NJFCRA and the FCRA. N.J. Rev. Stat. § 56:11-31e.

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Airlines Operating in New York and New Jersey Face Criticism for Alleged Sex Discrimination and Other Labor Practices

July 3, 2015

Boeing_777-2DZ-LR,_Qatar_Airways_AN1940838.jpgThree airlines are facing allegations of unfair labor practices and sex discrimination in several proceedings. A coalition of U.S.-based airlines and labor unions issued a report earlier this year claiming that the three airlines, which are based in the Persian Gulf region and fly out of airports in New York and New Jersey, engage in unfair competition and unlawful employment practices. The federal government is investigating similar claims. An agency of the United Nations (UN) recently ruled that one of the airlines engaged in ongoing sex discrimination against female employees. While these proceedings generally involve international law and treaties, they could still have an impact on workers who deal with these airlines in New Jersey and New York.

The U.S. began entering into agreements with other countries known as "Open Skies Partnerships" (OSPs) in 1992. It currently has agreements with more than 100 countries. These agreements, according to the U.S. Department of State, allow airlines to expand international service by "eliminating government interference" in various air transportation matters. Since different countries provide different levels of protection for business and labor interests, however, OSPs can result in unfair advantages for some airlines.

A coalition of three U.S. airlines and labor unions, known as the Partnership for Open & Fair Skies (POFS), issued a report in early 2015 criticizing three airlines: Qatar Airways, based in Doha, Qatar; Etihad Airways, based in Abu Dhabi, United Arab Emirates; and Emirates Airlines, based in Dubai, UAE. All three airlines fly out of JFK International Airport in New York City, and Etihad Airways reportedly sometimes flies out of New Jersey's Newark Liberty International Airport.

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New Jersey Discrimination Lawsuit Tests Effect of Medical Marijuana Law on Employment Statutes

June 24, 2015

marijuana-24001_640.pngLaws regarding medical--or even recreational--marijuana use are undergoing significant changes. Nearly half of the states in the U.S., including New Jersey, now allow marijuana use for at least some purposes. How this affects employees' rights in New Jersey, however, remains unclear. The issue, which is far from resolved, pits individuals' right to use marijuana against employers' right to enforce anti-drug policies. A lawsuit filed last year in New Jersey, Davis v. New Jersey Transit Corp., No. L-001778-14, complaint (N.J. Super. Ct., Essex Co., Mar. 14, 2014), claims disability discrimination against a railroad employee with a valid medical marijuana prescription.

Marijuana remains a Schedule I controlled substance under federal law, 21 U.S.C. § 812(b)(1), and it is still generally illegal under New Jersey law, N.J. Rev. Stat. §§ 2C:35-10a(3)-(4). The New Jersey Compassionate Use Medical Marijuana Act, N.J. Rev. Stat. § 6I-1 et seq., which took effect in 2010, allows the medical use of marijuana under very strict limits. Rather than "legalizing" marijuana, the law creates an exception to state criminal law. N.J. Rev. Stat. § 2C:35-18. It provides that the lawful use of marijuana may not result in "civil or administrative penalt[ies]," N.J. Rev. Stat. § 24:6I-6b, but it does not specifically mention employment or disability protections.

The plaintiff in Davis worked as a procurement clerk for NJ Transit. His doctor gave him a prescription for medical marijuana to alleviate some of the symptoms of end-stage renal failure. He states that he notified his employer of the prescription, but was told that he had to submit to a drug test in December 2013. When the test was positive for marijuana, he was sent to a drug treatment program and lost his job. He filed suit for disability discrimination under the New Jersey Law Against Discrimination. N.J. Rev. Stat. § 10:5-12a. In August 2014, the court denied a motion to dismiss filed by the defendant. The case is still pending.

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