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firemanNumerous New Jersey employment laws at both the state and federal levels prohibit employers from retaliating against employees, including in the forms of termination, suspension, demotion, and other adverse actions, for engaging in various legally protected activities. Proving that a particular adverse action was motivated by an employee’s protected activities can be difficult and often requires documentation of contacts between an employee and the employer’s management. Unlawful retaliation often occurs in connection with other unlawful acts by an employer, such as discrimination or harassment. It can also occur, however, in connection with lawful acts by an employee, of the sort that we want to encourage as a matter of public policy. Several years ago, New Jersey enacted a law aimed at protecting workers who volunteer to serve their communities in times of emergency. The New Jersey Emergency Responders Employment Protection Act (NJEREPA), which took effect in 2010, protects workers from adverse employment actions for missing work due to volunteer emergency service.

Retaliation claims frequently arise along with claims under the New Jersey Law Against Discrimination or Title VII of the Civil Rights Act of 1964, such as when an employer terminates an employee for reporting unlawful discrimination. The purpose of these laws’ anti-retaliation provisions is to encourage workers to come forward with reports of sexual harassment and other discriminatory acts. The National Labor Relations Act prohibits retaliation by employers against workers engaged in labor organizing and related activities, with the goal of helping workers assert their rights through collective bargaining. The Family and Medical Leave Act protects workers’ right to legally authorized leave by prohibiting retaliation for taking leave.

The NJEREPA applies to “volunteer emergency responders,” defined as individuals actively involved in emergency responses with a volunteer fire department, a “first aid, rescue or ambulance squad,” or a local emergency management department. N.J. Rev. Stat. § 40A-14-214(a). The statute prohibits employers from retaliating against an employee who misses work because of service as a volunteer emergency responder, provided that the employee meets two criteria:  (1) the employee notifies the employer at least one hour before a scheduled work shift, and (2) the employee provides the employer with “a copy of the incident report and a certification by the incident commander” when they return to work. Id. at § 40A-14-214(b). The employer is not required to pay the employee for time missed from work.

computerAnti-discrimination laws in New Jersey, at the federal level, and in other states around the country prohibit discrimination in employment based on numerous factors, including sex. These prohibitions on sex discrimination include sexual harassment. The past few months have seen a possibly unprecedented series of allegations and revelations about sexual harassment in the entertainment industry and in Washington, D.C. Even before that, however, people involved in technology startups in California and elsewhere were coming forward with allegations of sex discrimination and sexual harassment. Many of these involved female entrepreneurs and male investors. These cases often present a legal quandary for people claiming sexual harassment, since the types of employer-employee relationships covered by anti-discrimination statutes are not always present in the entrepreneurship model. New Jersey is also home to many startup businesses, making this an important issue for New Jersey sexual harassment claimants as well.

The New Jersey Law Against Discrimination (NJLAD) and Title VII of the Civil Rights Act of 1964 prohibit sexual harassment as a form of sex discrimination. Sexual harassment consists of a range of unwelcome behaviors of a sexual nature, including remarks, jokes, overtures or advances, direct requests for sexual contact, and unwanted touching or assault. This type of conduct constitutes unlawful sex discrimination when an employer makes sexual activity a condition of employment, or when the offensive conduct creates a hostile working environment for an employee. Employers are often held vicariously liable for sexual harassment by a supervisor, manager, executive, or director against someone who works in a subordinate position. If the alleged harasser is a co-worker, the employer may be liable if they are aware of the harassment but fail to take reasonable measures to address it.

Startup companies are, broadly speaking, businesses in the very early stages of development that offer some sort of novel product or service. No distinct definition of “startup” exists, but perhaps a key feature of a startup is that its operating expenses exceed its income—if any income exists—and its business model is at least partly unproven. Many startups therefore rely on investors to fund initial development and growth. Venture capitalists (VCs) are in the business of investing in startups, providing money for the company and, often, mentoring for the entrepreneurs. Many of the recent allegations of sex discrimination and sexual harassment originate in interactions between entrepreneurs and VCs.

New Meadowlands StadiumNew Jersey employment statutes and other laws around the country prohibit employers from taking certain adverse actions against employees. Antitrust laws can provide relief for workers when a direct employer-employee relationship might not exist. Laws like the Sherman Act prohibit companies that ostensibly compete with one another from making agreements that impede competition. This is often known as “collusion.” Agreements among companies not to hire one another’s workers, for example, hurt workers by limiting their job opportunities. Colin Kaepernick, a professional football player who has been a controversial public figure in the past year or so, is making similar allegations in a grievance filed against the National Football League (NFL). He is a free agent, but no team has signed him since the controversy gained prominence. Rather than a lawsuit under a law like the Sherman Act, the player is alleging violations of the collective bargaining agreement (CBA) between the players’ union and the NFL. The case could have a national impact, since NFL teams are located all over the country, including two that play in New Jersey.

The Sherman Act prohibits businesses from making “contract[s]…or conspirac[ies] in restraint of trade or commerce among the several States.” 15 U.S.C. § 1. Agreements among market competitors that deliberately restrict or restrain trade, such as price-fixing, clearly violate the Sherman Act. In situations in which the alleged restraint is less obvious, courts use the “Rule of Reason” to determine whether the restriction is anti-competitive or not. Addyston Pipe & Steel Co. v. United States, 175 U.S. 211 (1899).

Agreements among NFL teams could constitute unlawful collusion under a recent U.S. Supreme Court decision. The court held that the creation of a single business entity to handle product licensing for all 32 NFL teams “constitute[d] concerted action that is not categorically beyond the coverage of §1.” American Needle, Inc. v. National Football League, 560 U.S. 183 (2010). It held that courts should apply the Rule of Reason to determine whether such agreements violate antitrust law. While that case dealt with intellectual property, it established that NFL teams are distinct entities that might have distinct economic interests.

calendarEmployment statutes at the federal and state levels require New Jersey employers to pay a minimum wage to their employees, and to pay overtime to many employees for work performed in excess of 40 hours per week. The federal Fair Labor Standards Act (FLSA) sets a nationwide minimum wage and rules for employees who are entitled to overtime pay. The New Jersey Wage and Hour Law (NJWHL) establishes similar standards within the state. If an employer fails to meet its legal obligations to pay regular and overtime wages, these statutes allow employees to bring lawsuits to recover back pay and other damages. Two recently filed New Jersey overtime lawsuits allege non-payment of wages by a major retail company. Baccicheti v. Urban Outfitters, Inc., No. 2:17-cv-10919, complaint (D.N.J., Nov. 3, 2017); Trapp v. Urban Outfitters, Inc., No. 2:17-cv-11067, complaint (D.N.J., Nov. 3, 2017).

As a general rule, the FLSA requires employers to pay non-exempt employees a rate of one-and-half times their regular wage for any hours worked in a week beyond the usual 40 hours. 29 U.S.C. § 207(a)(1). The statute includes numerous exceptions and exemptions from the overtime requirement, including anyone “employed in a bona fide executive, administrative, or professional capacity,” outside salespeople, certain agricultural employees, newspaper employees, and others. Id. at § 213(a). While it is impossible to generalize, it is probably fair to say that most “non-exempt” employees who are entitled to overtime pay are paid by the hour and work in a position that is subordinate to management.

Employers are prohibited from violating the overtime rules established by the FLSA. Id. at § 215(a)(2). The statute allows for fines of up to $10,000 and up to six months’ imprisonment for wage and hour violations, id. at § 216(a), although employees are often more interested in getting paid by their employers than punishing them. In addition to imposing administrative penalties, the FLSA allows employees to recover unpaid wages, liquidated damages in an equal amount, and equitable relief such as reinstatement or promotion. Id. at § 216(b).

stethoscopeOvertime laws have many exceptions and exemptions, but even when an employee is indisputably entitled to overtime, disputes may also arise over what, precisely, constitutes “work time” for which the employee is owed compensation. A New York appellate court recently ruled on this question with regard to home care attendants who do not reside with their clients but who work 24-hour shifts. Andryeyeva v. New York Health Care, Inc., 2017 NY Slip Op 6421 (N.Y. App., 2d Dept., Sep. 13, 2017). While the industry standard does not require employers to pay home care attendants for time spent sleeping or eating, the plaintiffs alleged that this practice violated a state regulation regarding non-residential employees. The court ruled that non-residential home care attendants are entitled to pay for sleep and meal periods. Another New York appellate court reached similar findings earlier this year in Tokhtaman v. Human Care, LLC, 2017 NY Slip Op 2759 (N.Y. App., 1st Dept., Apr. 11, 2017). These decisions do not directly affect New Jersey wage and overtime disputes, but they could have some impact in the future.

The Fair Labor Standards Act (FLSA), the New Jersey Wage and Hour Law, and other statutes require employers to pay non-exempt employees time-and-a-half for hours worked in excess of 40 hours in a week. Neither statute provides a specific definition of “hours worked.” The FLSA includes “hours worked” in the section providing definitions. Rather than defining the term, however, it merely notes that time spent performing certain tasks “at the beginning or end of each workday” might not count as “hours worked” if excluding this time is part of a collective bargaining agreement. 29 U.S.C. § 203(o). Unpaid time spent changing into or out of a uniform or other required work clothes is a common basis for overtime claims.

The plaintiffs in Andryeyeva and Tokhtaman provide in-home care to elderly individuals and individuals with disabilities. They do not provide “residential” or “live-in” care, meaning that they have their own separate residences. They often work long shifts, however, lasting 24 hours or longer. During that time, they are often able to sleep and eat meals, but they must remain with or near the client. The question presented in both cases was, essentially, whether sleep and meal time counts as “hours worked.”

cannabisIn 2009, the New Jersey Legislature authorized the possession and use of small amounts of marijuana for medical purposes with a doctor’s prescription. Federal law, however, still classifies marijuana as a controlled substance with no recognized medical use. This has led to considerable uncertainty in the area of employment law, such as whether states that allow medical marijuana use also protect workers against discrimination based on drug use that, while legal under state law, still violates federal law. So far, no New Jersey court has found that state antidiscrimination law covers lawful medical marijuana use, but at least one such claim is currently pending in state court. The defendant in that lawsuit is arguing that the federal Controlled Substances Act (CSA) preempts any state laws addressing employment discrimination claims. A federal court in Connecticut recently rejected a similar argument in Noffsinger v. SSC Niantic Operation Company, No. 3:16-cv-01938, ruling (D. Conn., Aug. 8, 2017). While this ruling does not directly affect New Jersey courts, it could have an impact on future cases.

The New Jersey Compassionate Use Medical Marijuana Act (NJCUMMA), N.J. Rev. Stat. § 24:6I-1 et seq., establishes procedures for medical professionals to prescribe marijuana. It also exempts qualifying medical professionals and their patients from liability under the state’s criminal and civil laws dealing with marijuana. Id. at §§ 2C:35-18, 24:6I-6. It does not specifically mention employment. A pair of bills introduced in the New Jersey Legislature, A2482 and S2161, would add specific employment protections for medical marijuana patients, but they have never received hearings.

Under the Supremacy Clause of the U.S. Constitution, federal law generally takes precedence over conflicting state laws. The CSA’s classification of marijuana as a Schedule I controlled substance, 21 U.S.C. § 812(c)(I)(c)(10), has caused much confusion in this regard. Preemption by federal law is a major part of the defendant’s argument in a lawsuit filed by a medical marijuana patient alleging violations of the New Jersey Law Against Discrimination (NJLAD). Wild v. Carriage Services, No. L-000687-17, complaint (N.J. Super. Ct., Bergen Cty., Jan. 30, 2017). In a motion to dismiss filed in February 2017, the defendant in Wild argues that the NJCUMMA directly conflicts with the CSA. Courts have dismissed several similar lawsuits recently on procedural grounds that do not address the merits of the medical marijuana claims. See Barrett v. Robert Half Corp., No. 2:15-cv-06245, order (D.N.J., Feb. 21, 2017); Wiltshire v. Breunig, et al, No. L-000052-16, complaint (N.J. Super. Ct., Cape May Cty., Feb. 5, 2016).

volunteersNew Jersey employment laws protect workers’ rights in multiple areas, including wages and hours of work, discrimination and harassment, and retaliation for reporting suspected wrongdoing by an employer. Many of these laws apply specifically to “employees,” but no single definition of “employee” exists. Some statutes only cover paid employees, while others also apply to independent contractors, unpaid interns, or volunteers. The legal status of unpaid workers, including both interns and volunteers, has been the subject of multiple court battles. The New Jersey Appellate Division recently held that the state’s whistleblower statute, the Conscientious Employee Protection Act (CEPA), does not apply to unpaid volunteers. Sauter v. Colts Neck Volunteer Fire Co. No. 2, No. A-0354-15T1, slip op. (N.J. App., Sep. 13, 2017). In light of this decision, it is worth reviewing how various employment statutes in New Jersey view unpaid volunteers and interns.

“Volunteer” Versus “Intern”

Some laws make a distinction between volunteers and interns. Generally speaking, an internship provides some form of educational benefit to the worker, possibly including course credit at an educational institution, and it may be paid or unpaid. Even when an internship is unpaid, the worker is considered to gain an educational benefit. A volunteer position, on the other hand, is usually undertaken for primarily altruistic reasons, or at least without the expectation of any specific return.

arrowsWhen lawmakers and their staffs draft proposed legislation, they must consider any and all possible interpretations of the language they use. Even then, the legislative process may alter or amend a bill in ways that affect the potential meaning of certain words or phrases. Confusion over ambiguities in some statutes is inevitable. The U.S. Supreme Court recently granted certiorari in a case that involved a dispute over the meaning of the word “whistleblower” in the anti-retaliation provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act, or “Dodd-Frank.” The lower-court decision from the Ninth Circuit deferred to the interpretation of the Securities and Exchange Commission (SEC), which applied a broad definition of the term. This conflicts with a Fifth Circuit decision finding that Dodd-Frank’s whistleblower protection is limited to a narrow definition provided within the statute. Thus, the status of New Jersey whistleblowers remains unclear pending the Supreme Court’s resolution of the issue.

Dodd-Frank creates incentives for “whistleblowers”—employees and other insiders—to report violations and protects them from retaliation. Employers may not terminate or otherwise retaliate against whistleblowers for reporting Dodd-Frank violations to the SEC, or for “making disclosures that are required or protected” by other statutes. 15 U.S.C. § 78u-6(h)(1). Reading this provision in isolation, one might think that it applies to people who report legal violations to the SEC, other government agencies, or company management. An earlier subsection, however, defines “whistleblower” specifically as someone who reports securities law violations to the SEC. Id. at § 78u-6(a)(6). The dispute before the Supreme Court concerns whether Dodd-Frank’s anti-retaliation provision only applies to this narrow definition of “whistleblower,” or whether it uses a broader definition.

The plaintiff worked for the defendant as a Vice President. He made several reports to his superiors “regarding possible securities law violations by the company,” and he was fired shortly afterwards. Somers v. Digital Realty Trust, Inc., 850 F.3d 1045, 1047 (9th Cir. 2017). He sued for retaliation under Dodd-Frank. The district court held that he was a “whistleblower” within the meaning of the statute, even though he did not make a report to the SEC. The Ninth Circuit affirmed this ruling on several grounds.

protestersFederal and state anti-discrimination laws protect workers against discriminatory employment practices based on numerous factors. The New Jersey Law Against Discrimination (NJLAD) identifies more protected categories than the equivalent federal statute, Title VII of the Civil Rights Act of 1964. Several recent news stories have involved employers who terminated workers because of political views that they expressed. In one case, an employee of a tech company lost his job after posting a memorandum criticizing the company’s gender diversity efforts on a company message board. In August 2017, several companies fired employees for participating in a rally in Virginia that prominently displayed symbols associated with explicitly racist organizations. People have also had their employment threatened or terminated for views and activities on the opposite side of the political spectrum. This raises questions about how, or whether, anti-discrimination laws protect workers against adverse actions by their employers because of their political views.

The terms “political views” and “political speech” have no distinct definitions for legal purposes. They broadly refer to individuals’ opinions on matters of public concern, as well as statements they make and activities in which they participate that involve those matters. “Speech” can include more than just spoken statements in this context, such as written statements and participation in advocacy.

The First Amendment to the U.S. Constitution prohibits the government from punishing people based on the content of their speech, or saying things the government does not like. Private employers are not bound by this restriction. Public employees might be able to assert free-speech claims, but private employees cannot. The National Labor Relations Act (NLRA) prohibits private employers from taking adverse action against employees for speech or advocacy related to labor organizing. Whistleblower protection laws, like the Conscientious Employee Protection Act (CEPA), protect employees who speak out about legal violations by their employers.

A person’s job can be one of the most important features of their identity. When two people meet for the first time, for example, one of the first questions asked is very often “What do you do?” One’s job serves other purposes, such as the obvious purpose of providing income to support oneself and one’s family. Finding a job is important, but losing a job can be devastating. New Jersey labor laws protect workers in many aspects of the employer/employee relationship, including limiting the ability of some employers to fire numerous employees all at once. Laws like the Worker Adjustment and Retraining Notification (WARN) Act of 1988 apply to large employers that are planning a mass layoff of employees. The Third Circuit Court of Appeals recently ruled on a claim brought under the WARN Act involving a company that had been sold as part of a bankruptcy case. In re AE Liquidation, Inc., No. 16-2203, slip op. (3rd Cir., Apr. 4, 2017).

After Layoff - EmptyThe WARN Act applies to businesses with at least 100 full-time employees. 29 U.S.C. § 2101(a)(1). Covered employers must provide advance notice to employees prior to a “mass layoff.” The statute defines a “mass layoff” as the termination of a large number of employees within a 30-day period that is not related to a plant closing. For the WARN Act to apply, the layoff must affect either (1) at least 50 full-time workers, who constitute at least one-third of the total full-time workforce; or (2) at least 500 full-time employees. Id. at § 2101(a)(3).

An employer must provide at least 60 days’ notice to “affected employees” before undertaking a plant closing or mass layoff. Id. at § 2102(a). Aggrieved employees may recover damages for violations that include up to 60 days of back pay. Id. at § 2104. New Jersey has a similar law that requires additional disclosures from employers and allows claims for compensatory damages. N.J. Rev. Stat. §§ 34:21-3, 34:21-6.

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