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COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

Discrimination on the basis of gender and various other factors violates federal and state employment laws in New Jersey. Employers may not take adverse actions against employees, ranging from shunning or isolating them to terminating them, based primarily on their gender or sex. They also may not retaliate against an employee for reporting concerns about gender discrimination in the workplace. A lawsuit filed in late 2021 alleges that a hospital discriminated against a doctor because of her gender and retaliated against her for opposing such practices. She alleges that the hospital eventually fired her for discriminatory and retaliatory reasons. If you feel you are the victim of retaliation or wrongful termination, contact a New Jersey employment lawyer to discuss your situation.

The New Jersey Law Against Discrimination (NJLAD) protects employees and job seekers from discrimination based on numerous factors, including sex. It prohibits retaliation for opposing or complaining about allegedly unlawful practices. It also allows workers to bring civil claims for aiding and abetting violations. At the federal level, Title VII of the Civil Rights Act of 1964 protects a smaller number of categories against discrimination, but the list includes sex. It also includes provisions barring retaliation.

The plaintiff in the lawsuit described above worked for a hospital affiliated with a major research university. According to her complaint, she entered into a two-year employment arrangement with the hospital as an Instructor in Surgery in December 2017. She describes her performance at the hospital as “stellar,” stating that she received “outstanding patient satisfaction scores” and various honors, including a Junior Faculty Award in 2019. She reportedly received a grant from the National Institutes of Health (NIH) in early 2019 that would have covered half her salary and funded much of her research. She allegedly could not participate in the grant program, however, because of the “relentless sexism” of her supervisor.
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The right of workers to organize and bargain collectively with employers has led to many important reforms in workplace safety and working conditions. Congress enacted the National Labor Relations Act (NLRA) in the 1930s to protect these rights. The law created the National Labor Relations Board (NLRB) to adjudicate complaints about interference with organizing activities and other unlawful acts. In 2020, the NLRB ruled in favor of three former employees of a New Jersey bakery production plant who alleged that their employer wrongfully terminated them because of their union activities, along with other alleged NLRA violations. After an appellate court affirmed the ruling, the NLRB pursued an enforcement action against the employer. This resulted in an award of $2.3 million in damages for the three employees. If you have questions or concerns about organizing or collective bargaining in the workplace, reach out to a New Jersey employment lawyer as soon as possible.

The NLRA protects workers’ rights to organize themselves, either by joining an existing labor union or forming a new one, and to engage in collective bargaining and other “concerted activities” related to organizing or protection. Section 8 of the statute prohibits a variety of actions by both employers and unions. Employers may not interfere with employees’ protected activities, nor may they discriminate or retaliate on the basis of union activities. Once employees have chosen representatives to bargain collectively on their behalf, the employer may not refuse to engage with them.

The three complainants in the NLRB action worked at a plant in Fair Lawn, New Jersey as floor helpers and icing mixers. The plant produces cookies and crackers for a major brand. The complainants had been involved with the union for multiple years. The union, according to the decision from the administrative law judge (ALJ), has been the exclusive representative for plant workers since 1958.
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Federal and state employment laws in New Jersey require equal pay for workers in highly similar jobs in various circumstances. The federal Equal Pay Act (EPA) specifically addresses equal pay in terms of sex discrimination. New Jersey’s Diane B. Allen Equal Pay Act (NJEPA), on the other hand, takes on pay discrimination on the basis of any protected category under the New Jersey Law Against Discrimination (NJLAD), which is a rather long list. Equal pay claims based on sex discrimination are among the most common type of claim. A federal lawsuit filed in early 2022 in New Jersey alleges pay discrimination based on sex under both federal and state law. If you feel you may be the victim of pay discrimination, it is important that you reach out to a New Jersey employment lawyer to discuss your situation.

The EPA, codified at 29 U.S.C. § 206(d), states that employers may not discriminate based on sex when employees of one sex receive higher pay for “equal work” that “requires equal skill, effort, and responsibility…under similar working conditions.” Male and female employees working in the same position, with similar levels of education, training, or skill, should receive the same amount of pay in most circumstances. The EPA allows exceptions for systems based on merit, seniority, “quantity or quality of production,” or other factors that are not based on employees’ sex. Employers may not reduce any employee’s pay in order to comply with the law.

The NJEPA, found at N.J. Rev. Stat. § 10:5-12(t), is similar to the EPA in the protections it offers. It is not limited to pay discrimination on the basis of sex. Other categories protected under the NJLAD include race, religion, sexual orientation, gender identity or expression, pregnancy, and disability. The state law also allows exceptions for merit- or seniority-based systems, but its standard for other factors is arguably stricter than that of the EPA. An employer must show that the pay difference is solely based on factors other than sex, that it does not perpetuate pay discrimination based on any protected category, that the employer applies these factors “reasonably,” and that the factors are both “job-based” and “based on a legitimate business necessity.”
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Proving that an employer in New Jersey has engaged in unlawful employment discrimination is often difficult. The facts of a case might not include overt policies or statements that show an employer’s discriminatory intent. The U.S. Supreme Court identified a framework to use in cases where a plaintiff does not have direct evidence of an employer’s intent to discriminate. If a plaintiff can establish enough facts to support a legal claim for discrimination, the burden of proof will temporarily shift to the defendant to show a nondiscriminatory reason for their actions. This is known as the “McDonnell Douglas framework,” after the Supreme Court’s 1973 ruling in McDonnell Douglas Corp. v. Green.

Multiple federal statutes protect workers against various forms of discrimination, including Title VII of the Civil Rights Act of 1964 (race, sex, color, national origin, and religion), the Age Discrimination in Employment Act (age, for workers who are at least forty years old), and the Americans with Disabilities Act of 1990 (actual or perceived disabilities). Courts most commonly use the McDonnell Douglas framework in Title VII claims, but it may appear in claims under other federal statutes.

Many state courts have also adopted McDonnell Douglas or something similar. For example, the New Jersey Appellate Division cited the decision in a recent case involving a sex discrimination claim under the New Jersey Law Against Discrimination.
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Cryptocurrency has been in the news lately. Its advocates point to features like transparency, decentralization, and a lack of connection to any nation’s laws or banking systems. They tout its potential for replacing national currencies like the dollar or the euro. Critics note that cryptocurrency transactions require tremendous amounts of energy and that it often functions more as a form of investment property than currency. For New Jersey employees, this raises a question that has not received a great deal of attention in the legal world yet. Can employers pay their employees in cryptocurrency? New Jersey’s wage and hour laws seem to suggest that employers cannot, or should not, do this at the present time.

What Is Cryptocurrency?

Cryptocurrency is a type of digital or virtual money. It uses a technology known as “blockchain” to record transactions. A blockchain is an open-source ledger that records every cryptocurrency transaction. It also records the creation of new cryptocurrency, which is a process known as “mining.” These processes are distributed across computers all over the world. The first cryptocurrency, Bitcoin, first appeared in 2008 and remains the largest and most famous example.

In principle, people can use cryptocurrency as a medium of exchange. Few businesses accept cryptocurrency as payment, though. Many people buy and sell cryptocurrency as investments, somewhat similar to the way investors buy and sell stocks and other securities.
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Disability discrimination violates New Jersey employment laws at the state and federal levels. Employers may not take adverse actions against employees or job seekers because of an actual or perceived disability. Employers who violate these rights may be liable for damages. The Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with investigating alleged employment discrimination. It occasionally pursues civil lawsuits against employers on employees’ behalf. It recently announced that it reached a settlement with a New Jersey hospital in a lawsuit alleging disability discrimination.

The Americans with Disabilities Act (ADA) of 1990 uses an expansive definition of disability that includes many conditions, injuries, and illnesses. An impairment may be considered a “disability” if it “substantially limits one or more major life activities” for a person. “Major life activities” may include most daily tasks that people tend to take for granted, as well as most “​​major bodily functions.” Illnesses or conditions that significantly impair the circulatory system, for example, could be considered a disability under the ADA.

Disability discrimination, as defined by the ADA, may include any act, practice, or policy that “adversely affects the opportunities or status” of an employee or job applicant because of their disability. It also includes failing to make reasonable accommodations for an employee or qualified job applicant, when the accommodation would not pose an undue burden on the employer and would enable the individual to perform their job duties more effectively.
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The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to organizing and collective bargaining. The statute prohibits employers from interfering with employees who are exercising their rights, or from coercing them against such activities. New Jersey employment laws provide some protections for labor organizing, but much of the work happens at the federal level. The National Labor Relations Board (NLRB) has the authority to investigate and adjudicate alleged NLRA violations. In April 2022, the General Counsel (GC) of the NLRB issued a memo calling on the NLRB to challenge meetings held by employers to address labor organizing activities, which employees are required to attend. The GC’s position would require the NLRB to reverse a seven-decade-old precedent allowing these types of meetings.

Employees have the right to “self-organization,” to join a union or form their own, and to select representatives to engage in collective bargaining with their employers. They also have the right to refrain from engaging in these types of activities. Employers may not “interfere with, restrain, or coerce employees” with regard to any of these rights. They may not discriminate against employees based on participation in protected activities, nor may they retaliate against workers who engage in acts protected by the NLRA.

In 1948, the NLRB issued a decision regarding an employer that required employees to attend a meeting, held during work hours, at which several managers gave speeches discouraging union organizing or membership. A Trial Examiner had held that the “compulsory” nature of the meeting violated the NLRA’s ban on coercion by employers. The NLRB disagreed. It held that the employer’s actions were not unlawful under the NLRA based on the “totality of the circumstances.” This decision has functioned as a precedent for seventy-four years in cases challenging mandatory employee meetings in which employers address organizing activities.

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Federal and state employment laws in New Jersey protect workers from discrimination on the basis of disability. The Equal Employment Opportunity Commission (EEOC) construes the term “disability” very broadly to include an array of physical and mental conditions. We are still learning about the long-term effects of COVID-19 on some people. The symptoms of “long COVID” can be debilitating. In late 2021, the EEOC updated its guidance regarding COVID-19 to address when the illness may constitute a disability under the Americans with Disabilities Act (ADA). If you are experiencing symptoms associated with a possible disability and are concerned about how you are treated at work, please reach out to a New Jersey employment lawyer to discuss the situation.

The text of the ADA itself contains a rather general definition of “disability.” It covers impairments that “substantially limit[] one or more major life activities.” The statute defines “major life activities” as most daily tasks, such as “sleeping, walking, standing, lifting, bending, speaking, [and] breathing,” to name but a few, along with most “major bodily functions.”

The ADA’s protections apply in three situations:
– People who have a disability, as defined by the statute;
– People who have a “record” of a disability; and
– People who are “regarded as having” a disability.
A worker may experience unlawful discrimination based on a perception that they have a disability, regardless of whether they actually have a disability that impairs a major life activity.
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State and federal laws protect New Jersey employees’ rights to minimum wage and overtime compensation. The term “employees” is important here, because these laws’ protections are not available to independent contractors. The distinction between an employee and an independent contractor has been the subject of much employment litigation, both in New Jersey and around the country. Employers may attempt to classify employees as independent contractors in order to avoid various legal obligations, a practice known as “employee misclassification.” New Jersey has developed a reasonable clear definition of “employee.” Federal law lags behind, with different definitions for different statutes. Recent litigation addressed the definition of “employee” under the Fair Labor Standards Act (FLSA), which sets a national minimum wage and standards for overtime pay. The current White House administration withdrew an employer-friendly definition of “employee” put in place by the previous administration. In March 2022, a federal judge vacated this move, reinstating the earlier rule.

The FLSA defines “employee” in quite general terms as “any individual employed by an employer.” It defines “employ” as “​​to suffer or permit to work.” The FLSA’s definition of “employee” goes into more detail for individuals employed by the government. It excludes most elected officials, political appointees, and volunteers for government agencies. The statute also exempts employees in various roles from its provisions on minimum wage and overtime pay. For workers who are neither excluded from the definition of “employee” nor exempt from the FLSA’s protections, questions often still remain as to whether they are “employees” in the specific context of the FLSA.

New Jersey uses the “ABC test” to determine whether an individual is an employee or an independent contractor. The test is named for the three-part definition of “employee” found in §§ 43:21-19(i)(6)(A) through (C) of the New Jersey Revised Statutes. New Jersey employment law presumes that a worker is an “employee” unless the employer can establish all three of the following:
A. The worker has control over how and when they do their job;
B. The worker performs the services away from the employer’s usual premises, or their services are not part of the employer’s regular business; and
C. The worker has an “independently established” business.
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Workers have long had to juggle their obligations at work and caregiving responsibilities at home. This includes not only parents, but also people caring for elderly relatives, family members with disabilities, and others. The COVID-19 pandemic has made this issue much more pressing. Some jurisdictions have enacted laws that expressly protect people with caregiving responsibilities from employment discrimination. The New Jersey Law Against Discrimination (NJLAD), for example, protects parents and others with caregiving responsibilities for a child. The Equal Employment Opportunity Commission (EEOC) recently issued guidance about caregiver discrimination under federal law. While no federal employment law specifically bars discrimination on the basis of caregiver responsibilities, the EEOC identifies ways that such discrimination might still constitute unlawful discrimination. If you care for someone outside of your duties at work and have concerns that those responsibilities are impacting your status at the workplace, contact a New Jersey employment lawyer to discuss your situation.

The NJLAD prohibits discrimination against employees and job applicants on the basis of “familial status.” It defines this as having a “parent and child relationship” under state law, which includes biological parents, adoptive parents, foster parents, and other types of guardians. It also includes people who are pregnant and people who are working to gain legal custody of a minor child. Employers may not refuse to hire someone because of their familial status, nor may they fire them or subject them to other adverse employment actions on that basis.

New York City has one of the most expansive employment discrimination laws in the country. It goes farther than New Jersey law with regard to caregiver discrimination. A “caregiver,” under New York City law, includes a person with an obligation to care for a minor child. It also includes anyone who cares for a close relative or a person living in their household who depends on them “for medical care or to meet the needs of daily living.” The person must be providing “direct and ongoing care.”
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