Leveling the playing field for employees.
Protecting employee rights.
Delivering justice to employees.
A Custom Team Approach.
Experience. Knowledge. Results.
Dedication. Energy. Integrity.
Reliable & results-driven support.
Diligence. Client Service.

Summer Intern SessionInternships often allow students to gain “real world” experience before entering the job market, but they have been a subject of controversy in the area of employment law. New Jersey labor law provides a statutory test for determining when an individual may be considered an intern, who is not necessarily protected by state wage and hour laws, and when they are an employee who should receive a paycheck. N.J.A.C. § 12:56-2.1. The federal Fair Labor Standards Act (FLSA) does not expressly define the difference between an intern and an employee, so the job of interpreting the statute goes to the Wage and Hour Division (WHD) of the U.S. Department of Labor. In January 2018, the WHD issued Field Assistance Bulletin No. 2018-2, which sets forth a new test for determining, in claims involving federal law, when an intern is actually an employee.

The FLSA governs the payment of wages to employees and the hours they may be expected to work, including provisions for minimum wage and overtime compensation. It defines an “employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). The statute’s equally unhelpful definition of “employ” is “to suffer or permit to work.” Id. at § 203(g). It does not provide a definition for “intern” or “internship.” The commonly accepted definition of an internship is a temporary position that allows a student to gain experience in a particular field. The actual job description of an internship varies widely from one industry and one company to another. Interns in one company might spend much of their days getting coffee and running other errands, while interns in another company might gain hands-on experience in the profession of their dreams. Internships are often unpaid, based on the rationale that interns gain experience and connections that will help them start their careers.

The WHD established a six-part test for determining whether an individual is an employee under the FLSA in 2010 in a document entitled Fact Sheet No. 71. While the WHD has since updated that sheet on its website to reflect the new test, some court decisions evaluating the old test include its original text. The test considered whether the internship (1) was similar to instruction the intern would receive at school, (2) primarily benefited the intern rather than the employer, (3) did not displace existing workers, (4) provided “no immediate advantage” to the employer from the intern’s activities, (5) included no promise of a permanent job, and (6) involved an understanding between both parties that no wages were to be paid. Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 534-35 (2d Cir. 2016). An intern is not an employee if all six questions are answered in the affirmative.

airportThe National Labor Relations Act (NLRA) enables workers to organize themselves for the purpose of collective bargaining with their employers. A current dispute between a major telecommunications company and its employees’ union alleges that the company is planning mass layoffs, in violation of the collective bargaining agreement (CBA) between the parties, and with the alleged intent of “diminish[ing] the Union’s bargaining strength.” Commc’ns Workers of Am. (CWA) v. AT&T Southwest, No. 1:17-cv-01221, complaint at 6 (W.D. Tex., Dec. 30, 2017). The union also filed a charge with the National Labor Relations Board (NLRB). AT&T Southwest, No. 16-CA-212398, charge (NLRB, Dec. 29, 2017). The case grew out of assertions made by prominent telecommunications companies regarding recent political issues, including recent tax cuts and changes to federal “net neutrality” rules. While the defendant employer claims the layoffs are due to a lack of work, the plaintiff asserts that the telecommunications business is booming. The issues raised by the lawsuit are likely to affect New Jersey labor rights as well.

Under the NLRA, employers may not interfere with workers’ efforts to organize, nor may they discriminate or retaliate against employees who engage in protected activity. The law also requires employers to collectively bargain with representatives chosen by the employees in accordance with its provisions. Once an employer and the employees’ representatives have entered into a CBA, it is binding on both parties. The NLRA allows claims to enforce CBA provisions and to collect damages for breaches. It also allows recovery of damages for various unfair labor practices described in § 8 of the statute, 29 U.S.C. § 158.

The plaintiff in CWA describes itself in its complaint as a labor union authorized to bring suit on behalf of the defendant’s employees under § 301 of the Labor-Management Relations Act of 1947. 29 U.S.C. § 185. The parties entered into the current CBA in April 2017. According to the complaint, a representative of the defendant’s labor relations department informed the plaintiff in December 2017 of the defendant’s intention to lay off 152 individuals employed as “Premises Technicians” (PTs) in at least four states. CWA, complaint at 4. The defendant’s representative cited “a reduction in workload” as the reason. Id.

NLRB BuildingThe National Labor Relations Board (NLRB) is the federal government agency responsible for enforcing the statute dealing with labor organizing and unfair labor practices. It consists of a five-member board and a General Counsel (GC), all of whom are appointed by the President and confirmed by the Senate. Complaints of labor law violations are first heard by an administrative law judge (ALJ). The board hears appeals of ALJ decisions, with the GC acting as prosecutor. The Senate recently confirmed two new NLRB appointees, giving Republicans a 3-2 majority for the first time in years. A decision issued by the NLRB in December 2017 seems to support claims that the new board will take a much more “pro-business” approach. The decision in UPMC, 365 NLRB No. 153 (2017), reverses a 2016 ruling that dealt with the NLRB’s authority to impose an employer’s settlement offer over the objections of both the charging party and the GC.

The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to organizing for the purpose of collective bargaining. Workers alleging unfair labor practices and other violations of the NLRA may file a complaint with the NLRB. As with many administrative proceedings, the case first goes before an ALJ, who may conduct a trial and issue a ruling. A party can then appeal the ALJ’s ruling to the board. Prior to 2016, ALJs had considerable discretion regarding the disposition of cases. This was a key issue in the UPMC case.

A 2016 decision from the NLRB, U.S. Postal Service, 364 NLRB No. 116, effectively ended an earlier practice that allowed ALJs to impose a settlement offered by a respondent, without the charging party’s or GC’s agreement, if the ALJ determined that the settlement offer was reasonable. The NLRB first allowed this in Electronic Workers IUE Local 201 (General Electric Co.), 188 NLRB 855 (1971), when an ALJ approved a settlement offer as though it were a consent order. The ALJ found that “further hearing herein…could not result in any changes in the proposed Consent Order and Notice,” and the proposed settlement “would be more favorable to the General Counsel and Charging Party” despite their lack of consent. Id. at 857.

LGBT flag mapThe New Jersey Law Against Discrimination (NJLAD) is among the most expansive anti-discrimination statutes in the country, protecting employees from discrimination on the basis of multiple factors, including sexual orientation. Title VII of the federal Civil Rights Act of 1964 has far fewer expressly protected categories. Some federal courts have ruled in favor of plaintiffs claiming sexual orientation discrimination under Title VII, finding that the statute’s prohibition on sex discrimination encompasses sexual orientation as well. Other courts have ruled that sexual orientation discrimination is not discrimination on the basis of sex within Title VII’s meaning. The U.S. Supreme Court rejected a petition for certiorari in late 2017 that raised this question, Evans v. Georgia Regional Hospital. Since a conflict exists among lower court rulings on this issue, it is likely that the Supreme Court will accept a case at some point in the future.

The NJLAD states that an employer commits an unlawful employment practice by discriminating on the basis of “affectional or sexual orientation.” N.J. Rev. Stat. § 10:5-12(a). Title VII only mentions five factors:  “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The U.S. Supreme Court has clarified the legal meaning of “sex” under Title VII in several rulings. This includes recognition of sexual harassment and “sex stereotyping” as forms of unlawful sex discrimination.

Many Title VII lawsuits alleging sexual orientation discrimination have cited the “sex stereotyping” ruling, which held that “assuming or insisting that [employees] matched the stereotype associated with their [sex]” could be evidence of sex discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). Another commonly cited decision ruled in favor of a male plaintiff alleging sexual harassment by male co-workers, reportedly based on their negative perceptions of the plaintiff’s sexual orientation. The court held that harassment does not need to “be motivated by sexual desire” to constitute sexual harassment, and therefore sex discrimination, under Title VII. Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80 (1998).

metal ammunitionNew Jersey prohibits employers from discriminating against employees and job applicants on the basis of multiple factors established by federal and state laws, and by municipal laws in some places. The New Jersey Law Against Discrimination (NJLAD) offers a broader range of protections than its federal counterpart, Title VII of the Civil Rights Act of 1964. Across the Hudson River, the New York City Human Rights Law (NYCHRL) offers even greater protections, but New Jersey is catching up in many ways. A law that recently took effect in New York City prohibits employers from asking job applicants about their salary history, and from making certain employment decisions on the basis of such information. Similar laws have recently taken effect in California, Massachusetts, and Oregon. The New Jersey Legislature also passed a similar law in 2017, but the governor vetoed it. Despite this setback, the circumstances of the New Jersey discrimination bill’s passage offer hope for a future legislative session.

The purpose of employment anti-discrimination law is to protect groups of people who might be vulnerable to unfair practices by employers because of historical patterns of inequality or current negative and inaccurate stereotypes. Both state and federal laws in New Jersey prohibit discrimination in employment on the basis of race, religion, color, national origin, or sex. N.J. Rev. Stat. § 10:5-12(a), 42 U.S.C. § 2000e-2(a)(1). The NJLAD includes additional protected categories like age and disability that may be found in other federal statutes. See, e.g. 29 U.S.C. § 623, 42 U.S.C. § 12112. In other areas, such as marital or civil union status, sexual orientation, and gender identity, the NJLAD goes beyond any protection expressly provided under federal law.

Laws at the state and federal levels generally require employers to pay employees the same wage for performing the same job, although much litigation has occurred over the question of determining the similarity of people’s jobs. The new law in New York City addresses discrimination based on a person’s salary history. An employer that asks an applicant about salary history may decide to hire a person solely because they have the lowest prior salary of all of the applicants, and then they might try to pay that person less than their coworkers. The recent amendment to the NYCHRL, which took effect on October 31, 2017, makes it an unlawful employment practice to inquire about salary history during the job application process, or to base a new hire’s salary and other terms of employment on their past wages. See N.Y.C. Admin. Code § 8-107(25).

New Jersey MapIn New Jersey, employment laws at the federal and state levels protect a variety of employee rights. When federal and state laws conflict with each other, the preemption doctrine holds that federal law usually supersedes state or local laws. The New Jersey Supreme Court ruled last year on an appeal of of a ruling that a New Jersey whistleblower claim was preempted by federal law. The court reversed the lower court rulings, finding that the plaintiff’s claims were not preempted. Puglia v. Elk Pipeline, Inc., 141 A.3d 1187 (N.J. 2016).

The New Jersey Conscientious Employee Protection Act (CEPA) prohibits retaliation against employees who report suspected violations of law by their employers. N.J. Rev. Stat. § 34:19-3. The plaintiff in Puglia had complained of alleged violations of New Jersey’s Prevailing Wage Act (PWA), which governs wages paid by companies involved in public works contracts and which allows employees to protest alleged violations. Id. at § 34:11-56.34.

The federal National Labor Relations Act (NLRA) and Labor Management Relations Act (LMRA) govern collective bargaining agreements (CBAs) between management and labor unions. Section 301 of the LMRA gives federal courts jurisdiction over disputes between employers and labor organizations. 29 U.S.C. § 185(a). The U.S. Supreme Court has “given broad substantive effect” to this provision. Puglia, 141 A.3d at 1192. It therefore preempts almost any case that involves “what the parties to a labor agreement agreed.” Id. at 1193, quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985).

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).

Contact Information