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Articles Posted in Age Discrimination

New Jersey employment laws provide safeguards against policies and practices that may create unfair roadblocks in job searches. The New Jersey Law Against Discrimination (NJLAD), for example, prohibits employers from discriminating in hiring and other areas of employment on the basis of race, sex, religion, sexual orientation, disability, age, and other factors. An area of employment discrimination that might not receive as much attention as others is discrimination in hiring against unemployed workers. The longer an individual has been out of work, the more difficult it can be for them to find a job. New Jersey law provides some protection against this kind of discrimination, although it does not go as far as other anti-discrimination laws. If you believe you have experienced discrimination because you are currently unemployed, a New Jersey employment lawyer can look at all of the circumstances surrounding the incident to see if they could support a legal claim.

A study conducted by the Federal Reserve Bank of New York and published in 2016 examined how the length of time a person is without a job can affect their chances of finding a new job. It found that the longer the gap in employment history on a person’s resume, the lower their chances of getting calls from potential employers. Even when controlling for factors like level of education, the probability of finding a job still decreases as one’s length of time without a job increases.

The Fed study took looked at data from the years after the 2007-09 recession, which resulted in unemployment rates of up to ten percent. The COVID-19 pandemic has affected employment rates in ways that we still do not fully understand. Many people lost their jobs during the pandemic and are still trying to return to the careers they had before 2020. Unemployment discrimination can be a significant hurdle.
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Federal and state laws in New Jersey protect workers from discrimination on the basis of age, with some important limitations. The federal Age Discrimination in Employment Act (ADEA) sets a minimum age for workers, as well as a minimum number of employees before the statute covers an employer. Until recently, the New Jersey Law Against Discrimination (NJLAD) set a maximum age for protection from certain discriminatory acts based on age. A bill passed in late 2021 amends the NJLAD and other provisions of state law to expand the scope of age discrimination protection. It removed the maximum age and added new a new cause of action for employees. If you feel you have been discriminated against on the basis of your age, it would be worth your while to consult with a New Jersey employment discrimination lawyer at your earliest convenience.

Prior to late 2021, both the ADEA and the NJLAD set age limits for their provisions regarding age discrimination. The ADEA prohibits discrimination on the basis of age against people who are at least forty years old. A thirty-year-old individual fired because of their age, whether the employer considered them too young or too old, would therefore not be able to assert a cause of action. The statute also only applies to employers with twenty or more employees, so a fifty-year-old employee of a business with ten employees would also not have a claim under the ADEA.

The NJLAD, before its recent amendment, prohibited discrimination on the basis of age without regard to the total number of employees. It set no minimum age, so the hypothetical thirty-year-old worker would be able to make a claim. It set a maximum age, however, of seventy years. Specifically, it stated that the prohibition on age discrimination did not prevent employers “from refusing to accept for employment or to promote” a person over the age of seventy. This provided employers with a safe harbor for certain forms of age discrimination against older workers.
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While Title VII of the Civil Rights Act of 1964 is considered to be the primary federal antidiscrimination law, the Age Discrimination in Employment Act (ADEA) of 1967 also provides important protections for workers nationwide. Both the ADEA and New Jersey’s antidiscrimination statute prohibit employers from advertising job openings in ways that restrict eligibility on the basis of age. A pending federal class action against several major companies addresses a relatively new method of advertising. The lawsuit alleges that the defendants restricted the visibility of job advertisements on social media to users in certain age ranges. Several recent decisions by the Equal Employment Opportunity Commission (EEOC) support the plaintiffs’ position that this violates the ADEA’s advertising restrictions.

The ADEA’s protections against age discrimination apply to workers who are at least forty years old. 29 U.S.C. § 631(a). The New Jersey Law Against Discrimination (NJLAD), on the other hand, does not set a minimum age but states that employers may “refus[e] to accept for employment or to promote” a person who is more than seventy years old. N.J. Rev. Stat. § 10-5:12(a). Both statutes prohibit the publication of job advertisements that demonstrate “any limitation, specification or discrimination” based on age. 29 U.S.C. § 623(e), N.J. Rev. Stat. § 10:5-12(c). Job listings that only purport to limit the eligibility of minors typically do not violate these statutes, since minors are subject to separate work restrictions. A job advertisement stating that a job is only open to applicants between the ages of eighteen and forty would violate both the ADE and the NJLAD.

In July 2019, the EEOC issued determination letters to seven companies based on charges filed under the ADEA. All of the charges alleged unlawful posting of job advertisements on the social media platform Facebook, which allows companies to target advertisements to certain audiences. The EEOC reported that it found evidence that the companies “used language to limit the age of individuals who were able to view the advertisement.” It notified the companies that it had found “reasonable cause to believe that [they] violated the ADEA.”

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The New Jersey Law Against Discrimination (NJLAD) bars employers from discriminating against their employees on the basis of factors like age, race, sex, and disability. This includes terminating an employee, refusing to hire a job applicant, demoting or declining to promote an employee, and many other decisions involving employment benefits and conditions. The New Jersey Appellate Division recently ruled (the “Opinion”) that a woman’s claims for age and disability discrimination can move forward, finding that she had raised sufficient questions of fact about the defendant’s claimed reasons for terminating her employment.

The NJLAD prohibits discrimination on the basis of numerous factors, including age and disability. In the Opinion, the court reviewed the process for a claim under the NJLAD. A plaintiff must establish four elements: (1) they are part of a protected class and (2) are qualified for the position they held; and (3) the employer took an adverse employment action and (4) replaced the plaintiff with someone who is not part of the protected class. The burden of proof then shifts to the defendant to “articulate a legitimate, nondiscriminatory reason” for the adverse action. Finally, the plaintiff must demonstrate that the defendant’s alleged reason was pretextual, meaning that it was merely cover for a discriminatory purpose.

Reportedly, the defendant terminated the plaintiff shortly after she underwent gallbladder surgery. She was fifty years old at the time and had recently received “a ‘strong performance’ evaluation” from the defendant. She alleged that the defendant replaced her with “a person nearly half her age.” The reason given by the defendant for the termination involved a claim that she “attempted to defraud [the defendant] by failing to take steps to remove her ex-husband from the company’s health insurance plan.”
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New Jersey employment laws prohibit discrimination in the workplace on the basis of numerous factors. The New Jersey Law Against Discrimination (NJLAD) offers protection to more categories than its federal counterpart, Title VII of the Civil Rights Act of 1964, although other federal statutes cover areas that are omitted from Title VII. The Age Discrimination in Employment Act (ADEA) of 1967, for example, protects older employees from various adverse employment actions based on their age. New Jersey law tends to offer broader protection in this area as well, without the lower age limit found in the ADEA. A putative class action currently pending in a New York City federal court asserts claims for age discrimination under the ADEA and several state statutes. Rusis, et al v. Int’l Business Machines Corp., No. 1:18-cv-08434, complaint (S.D.N.Y., Sep. 17, 2018).

The term “age discrimination” principally refers to adverse employment actions against older individuals, and in favor of younger individuals. The ADEA expressly limits its protections to people who are forty years old or older. 29 U.S.C. § 631(a). The statute prohibits various discriminatory acts and disparate treatment against protected individuals because of their age. As long as a person meets the ADEA’s age criterion, however, it is possible for them to bring a claim for discrimination against younger employees in favor of older ones. The statute allows exceptions in situations “where age is a bona fide occupational qualification.” Id. at § 623(f)(1). The NJLAD does not set a minimum age for protection against age discrimination. See N.J. Rev. Stat. § 10:5-12. An individual must, however, be at least eighteen years old—i.e. not subject to child labor laws—to assert a claim.

The allegations in the Rusis lawsuit follow the familiar scenario of discrimination against older workers in favor of younger ones. This scenario seems to be particularly common in the tech industry, which is often alleged to favor youth among job applicants, and to believe that older workers are less likely to be familiar with newer technologies. According to the plaintiffs’ complaint, the defendant began laying off employees in 2012 in an effort to recruit younger workers. It has allegedly laid off as many as twenty thousand people over the age of forty since then. The plaintiffs claim that the defendant has actively recruited among the age group commonly known as “Millennials,” which they say the company defines as people born after 1980, in an effort “to make the face of [the defendant] younger.” Rusis, complaint at 4.
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Many New Jersey employers include provisions for arbitration of disputes in written contracts with new employees. In order for an arbitration agreement to be legally enforceable, it must, among other criteria, contain enough information to demonstrate a “meeting of the minds” between the parties. The New Jersey Appellate Division recently ruled that an arbitration agreement, signed decades after the plaintiff began working for the defendant, was not enforceable because there was no “meeting of the minds” in evidence. Flanzman V. Jenny Craig, Inc., No. A-2580-17T1, slip op. (N.J. App., Nov. 13, 2018).

The plaintiff in Flanzman is alleging age discrimination under the New Jersey Law Against Discrimination (NJLAD). This statute prohibits employers from discriminating against employees on the basis of numerous factors, including age. Whereas the federal statute addressing age discrimination expressly states that it only applies to individuals who are forty years of age or older, 29 U.S.C. § 631(a), the NJLAD does not set a minimum age. It does, however, state that an employer does not automatically violate the law if they “refus[e] to accept for employment or to promote any person over 70 years of age.” N.J. Rev. Stat. § 10:5-12(a). This exception only covers two specific discriminatory acts: refusal to hire and refusal to promote. It does not mention other acts, such as termination or unequal pay.

In order for a contract to be enforceable, the party seeking enforcement must demonstrate that the other party knowingly assented to the agreement. Courts are particularly strict about this requirement when the contractual term at issue involves a waiver of legal rights. An arbitration agreement waives the right to seek redress in court. If the agreement provides for binding arbitration, the parties may have no recourse in the court system at all. New Jersey courts therefore require evidence that an employee “clearly and unambiguously agree[d] to waive his or her statutory rights.” Flanzman, slip op. at 8, quoting Leodori v. Cigna Corp., 175 N.J. 293, 302 (2003).
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A group of former male employees of a high-end Manhattan department store have filed a lawsuit alleging race and age discrimination against the store and its corporate parent. They claim that they were subjected to a hostile work environment because of their age or race, or both in some cases, and that the defendant unlawfully terminated their employment. Although the lawsuit is pending in a New York court, federal and New Jersey antidiscrimination laws provide a helpful comparison of varying levels of protection against age discrimination. New Jersey’s antidiscrimination statute provides broader protections than its federal counterpart.

Federal and state law provide a similar range of protections against race discrimination. Title VII of the Civil Rights Act of 1964, a federal statute, prohibits employment discrimination on the basis of race and color, as well as religion, national origin, and sex. 42 U.S.C. § 2000e-2(a). The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of numerous factors, including race, color, national origin, and ancestry. N.J. Rev. Stat. § 10:5-12(a).

New Jersey law and federal law differ in the extent to which they address age discrimination. The Age Discrimination in Employment Act (ADEA), a federal statute, only applies to individuals who are forty years old or older. 29 U.S.C. § 631(a). It prohibits discrimination by employers based on age, using language similar to that found in Title VII. Id. at § 623(a). The statute allows exceptions, such as in cases of people who work in “a bona fide executive or a high policymaking position,” are at least sixty-five years old, and meet other criteria related to employment benefits. Id. at § 631(c).
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Under federal and New Jersey state law, age discrimination is an unlawful employment practice. If you have questions related to this area of law, contact a New Jersey employment discrimination attorney. The federal Age Discrimination in Employment Act (ADEA) of 1967 prohibits discrimination based on age involving employees who are at least forty years old. Workers cannot waive their rights under the ADEA unless employers to make specific written disclosures under the Older Workers Benefit Protection Act (OWBPA) of 1989. A lawsuit currently pending in New Jersey alleges that the defendant presented the plaintiff with a proposed severance agreement that violated the OWBPA. The defendant argued that the severance agreement was moot because the plaintiff never signed it. The court rejected this argument. It found that the severance agreement could serve as evidence of a broader pattern of age discrimination in violation of the ADEA. Fowler v. AT&T, Inc., et al, No. 3:18-cv-00667, mem. op. (D.N.J., Oct. 31, 2018).

The ADEA prohibits age discrimination against workers who are forty years of age or older. 29 U.S.C. §§ 623(a), 631(a). The statute allows exceptions, such as “compulsory retirement” of an employee who is at least sixty-five years old, has worked for at least two years “in a bona fide executive or a high policymaking position,” and meets certain criteria related to retirement benefits. Id. at § 631(c).

The primary purpose of the OWBPA is to prevent discrimination against older workers with regard to fringe benefits like health insurance and retirement plans. For example, the statute requires employers to incur the same costs for benefits provide to workers age forty or older as are provided to younger workers, and prohibits refusal to hire an older worker solely in order to avoid the requirement to provide benefits. Id. at § 623(f)(2). It also states that employees cannot waive their rights under the ADEA unless the waiver is “knowing and voluntary,” based on specific disclosures. Id. at § 626(f).
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A federal jury recently found in favor of a former employee claiming national origin and age discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and state law. Middlebrooks v. Teva Pharmaceuticals USA, Inc., et al, No. 2:17-cv-00412, 2nd am. complaint (E.D. Pa., Apr. 25, 2017). The case is notable in part because the plaintiff alleged that the defendants, an Israeli pharmaceutical company and its American subsidiary, discriminated against him because of his “American origin.” Id. at 1. If you have questions of this nature, contact a New Jersey employment discrimination attorney.

In early 2018, the court allowed the plaintiff’s claims against the Israeli parent company to proceed under a theory of joint-employer liability. The case went to trial against both defendants in November 2018. The jury awarded the plaintiff over $6 million in damages.

Title VII prohibits discrimination on the basis of national origin, among other factors, and retaliation for reporting alleged unlawful acts. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). The ADEA prohibits discrimination on the basis of age against individuals who are at least forty years old. 29 U.S.C. §§ 623(a)(1), 631(a). Unlawful discrimination may include harassment on the basis of a protected category, particularly when it creates a hostile work environment that prevents an individual from performing their job duties effectively.

Several bills currently pending in the New Jersey Legislature could make substantial changes to state laws dealing with employees’ rights in the workplace. Two bills address various forms of employment discrimination, and another two would raise the state’s minimum wage. Each bill was introduced in early 2016 and referred to a committee. Three bills are still awaiting committee hearings, while one of the minimum wage bills passed both chambers and is now waiting for the governor’s signature or veto. Whether any of these bills pass or not, they bring needed attention to issues that employees face throughout New Jersey.

Minimum Wage

The minimum wage in New Jersey is currently $8.38 per hour. N.J. Rev. Stat. § 34:11-56a4, N.J.A.C. § 12:56-3.1. A bill that would gradually raise the state’s minimum wage to $15 per hour has passed both houses of the Legislature. A15 would raise the minimum wage to $10.10 per hour on January 1, 2017. On the first day of each subsequent year, the minimum wage would increase by the greater of either $1.25 per hour or $1.00 plus that year’s increase in the consumer price index.

The goal of the bill is for the minimum wage to reach or exceed $15 per hour by 2021. The bill was introduced in the New Jersey Assembly on February 8, 2016. The Assembly passed it on May 26, followed by the Senate on June 23. The governor has reportedly threatened to veto the bill but has not yet done so. He also has not signed it into law.

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