Civil Rights

November 28, 2016

New Jersey Appellate Division Considers Employment Discrimination Claim Based on Non-Religious Flu Shot Refusal

Controversies over vaccinations can intersect with employment law when employers require them for their employees. Anti-discrimination statutes like the New Jersey Law Against Discrimination (NJLAD) may offer some protection for employees who decline employer-mandated vaccinations for certain reasons. The New Jersey Appellate Division recently considered whether a plaintiff could claim religious discrimination under the NJLAD based on an employer policy that allowed medical and religious exemptions for the annual flu shot but not secular exemptions. Brown v. Our Lady of Lourdes Medical Ctr., No. A-4594-14T2, slip op. (N.J. App., Oct. 3, 2016). While the court did not accept the claim, it left the door open and offered useful guidance for how NJLAD religious discrimination claims might work in this type of situation.

Some people cannot get vaccinations for medical reasons, such as allergies or immune system disorders, while others decline vaccinations for religious reasons. Still others may have objections to a vaccination requirement that are neither religious nor medical. The NJLAD prohibits discrimination in employment on the basis of numerous factors, including “creed.” N.J. Rev. Stat. § 10:5-12(a). Religious discrimination claims under the NJLAD are possible for disparate treatment related to religious beliefs, but it remains unclear how this might apply to flu shot refusals.

In 2014, the Appellate Division found that an employment policy that only allowed religious exemptions to a flu shot requirement violated the First Amendment. Valent v. Bd. of Review, Dept. of Labor, 91 A.3d 644 (N.J. App. 2014). While the case dealt with an adverse employment action, the decision did not specifically cite the NJLAD. The plaintiff worked in a hospital that allowed religious exemptions to the flu shot requirement, provided the employee wore a surgical mask when interacting with patients. The plaintiff offered to do the same, but the hospital declined her request for an exemption because her objection to the flu shot was not based on a religious belief. It then fired her for violating the flu shot policy. The court found that the policy violated the plaintiff’s “freedom of expression” by “improperly endorsing the employer’s religion-based exemption…and rejecting the secular choice proffered by [the plaintiff].” Id.

October 21, 2016

Servers at Famous New York City Restaurant Vote to Unionize

by Resnick Law Group, P.C.

Employees in the U.S. have the right to organize themselves as a union or to join an existing labor union in order to negotiate with their employers regarding working conditions and various other features of employment. At the federal level, the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., secures these rights and prohibits interference by employers. Laws vary from state to state, however, regarding whether union membership may be made mandatory. “Right-to-work” laws in many states allow employees to elect not to join the union, while other states allow employers and unions to enter into “union security agreements.” Neither New Jersey nor New York has right-to-work laws. A well-known restaurant in Manhattan’s Times Square offers a recent example of how labor organizing can work. Amid multiple complaints and allegations of poor working conditions, 50 restaurant employees recently announced that they had voted to form a union.

The NLRA protects workers’ rights “to self-organization,” to form their own labor organization or to join an existing one, to choose representatives to engage in collective bargaining with their employer, and to “engage in other concerted activities” directed toward these purposes. 29 U.S.C. § 157. Employers are prohibited from interfering with or restraining employees in the exercise of these rights. Id. at § 158(a)(1). The law also prohibits various coercive acts by employers and labor unions, and it protects the rights of workers engaged in strikes or other activities authorized by their union. It leaves certain matters, however, up to the states.

Right-to-work laws state that workers may not be required to join a union. The NLRA allows union security agreements between unions and employers, which may place certain obligations on employees. Federal law does not allow “closed shops,” in which the employer can only hire union members. “Union shops,” in which employees must join the union after being hired, are allowed under the NLRA but are prohibited by right-to-work laws.

September 22, 2016

New York City Mayor Issues Executive Order Regarding Union Organizing

by Resnick Law Group, P.C.

Interactions between employers and labor unions generally fall under the purview of the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., which protects workers’ rights in regard to various labor organizing activities nationwide. In New York City, Mayor Bill de Blasio has imposed additional restrictions on employers and labor unions in certain situations. Executive Order No. 19 (EO19), issued in July 2016 and entitled “Labor Peace for Retail Establishments at City Development Projects,” requires covered employers and employees to enter into “labor peace agreements.” EO19 has come under criticism by various business interests, and it could be subject to court challenge.

The NLRA protects the rights of workers to organize for the purpose of collective bargaining and to engage in “concerted activities” toward that end. 29 U.S.C. § 157. Employers are generally prohibited from interfering with employees’ exercise of these rights or discriminating or retaliating against employees for union-related activity. Id. at § 158(a). The NLRA does not specifically say, however, that an employer cannot state its opposition to a union representing its employees. Employers are generally permitted to state a case for or against union organizing. It is theoretically then left to the employees to decide for themselves.

Before discussing how EO19 affects union organizing activities in New York City, it is important to note the limitations on its coverage. It only applies to “city development projects” that are larger than 100,00 square feet if commercial, or larger than 100 units if residential. “Covered employers” include retail and food-service businesses operating on the premises of a covered city development project, provided that they have at least 10 employees and occupy at least 15,000 square feet. Although EO19 only applies to business establishments physically located in New York City, it could affect New Jersey-based businesses that operate retail or food-service locations there.

August 18, 2016

New Jersey Lawsuit Accuses Employer of Failing to Make Disclosures Related to Credit Checks, as Required by Federal Law

by Resnick Law Group, P.C.

Digital technology has brought all sorts of conveniences into our lives, but these conveniences might come at a significant cost for some people. Our daily activities leave a trail of information behind, which is accessible to credit reporting agencies (CRAs). Employers often ask to conduct credit checks as part of the hiring process. The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., offers some protection to job applicants by making this process reasonably transparent. An employer must provide job applicants with various disclosures, particularly if it decides not to hire an applicant because of information in their credit report. A proposed class action currently pending in New Jersey claims that a transportation network company (TNC), also known as a rideshare company, failed to provide disclosures required by the FCRA to prospective drivers. Cuccinello v. Uber, Inc., No. 2:15-cv-06604, am. complaint (D.N.J., Dec. 7, 2015). The complaint also alleges FCRA violations against a CRA.

A person’s credit report potentially includes their complete financial history for the previous seven years, if not longer, along with other information about their current life and history. This might include criminal convictions and arrests, marriages, divorces, and children. In order to protect people’s privacy, the FCRA places restrictions on the CRAs that collect consumer credit information and issue credit reports, as well as on individuals and businesses that request those reports.

An employer that wants to obtain a job applicant’s credit report must give the applicant “a clear and conspicuous disclosure,” stating that it intends to use the report “for employment purposes.” 15 U.S.C. § 1681b(b)(2)(A). The disclosure must be provided “in a document that consists solely of the disclosure.” Id. The job applicant must consent in writing to the issuance of a credit report for this purpose. CRAs are not permitted to issue a credit report unless the employer certifies that it has complied with these provisions. Id. at § 1681b(b)(1).

July 11, 2016

U.S. Supreme Court Rules for Demoted Employee in First Amendment Claim

by Resnick Law Group, P.C.

The U.S. Supreme Court recently ruled in favor of a New Jersey police officer who claimed that his employer violated his First Amendment rights. Heffernan v. City of Paterson, 578 U.S. ___ (2016). This case is particularly notable because the underlying action by the plaintiff’s employer was based on a mistake. The employer thought the plaintiff was engaging in a “constitutionally protected political activity,” Heffernan, slip op. at 1, by supporting a political candidate opposed by the police chief. The district court and the Third Circuit Court of Appeals ruled against the plaintiff on the grounds that, since he was not actually engaging in constitutionally protected speech, his employer could not have deprived him of any constitutional right. The Supreme Court reversed this ruling based on a 1994 case, which held that an employer’s subjective belief is the controlling factor.

The First Amendment’s guarantee of “freedom of speech” means, in part, that the government cannot punish a person for the content of their speech. In an employment law context, this protects public employees like the plaintiff, a police officer. Government employers are generally prohibited from taking adverse action against an employee for acts that are protected by the Bill of Rights. This restriction does not necessarily apply to private employers, since the First Amendment only restrains government actions. Congress enacted a statute in the 19th century giving individuals the right to file suit against a government official for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” while acting in an official capacity. 42 U.S.C. § 1983.

The plaintiff in Heffernan was a 20-year veteran of the police department in Paterson, New Jersey. He was assigned to work in the police chief’s office in 2005, according to the court’s opinion. The mayor, who had appointed both the chief and the plaintiff’s direct supervisor, was running for reelection at the time. The plaintiff was reportedly “a good friend” of the mayor’s challenger. Heffernan, slip op. at 2.

June 28, 2016

State “Right to Work” Law Ruled Unconstitutional

by Resnick Law Group, P.C.

Laws in New Jersey and many other states protect workers’ right and ability to organize for the purpose of collective bargaining with employers. Some states, however, have passed laws aimed at significantly reducing workers’ ability to unionize, ironically named “right to work” laws. These laws prohibit requiring workers who choose not to join a union to pay any sort of fee to the union, even if they benefit from working conditions only made possible by union efforts. In a bit of good news, a Wisconsin court has ruled that its state’s “right to work” law constitutes a taking of union property by the government without just compensation, in violation of the state constitution. Int’l Assoc. Of Machinists Dist. 10, et al. v. State of Wisconsin, et al., No. 2015CV000628, order (Wis. Cir. Ct., Dane Co., Apr. 8, 2016).

Unions represent employees in collective bargaining negotiations with their employers. These types of negotiations, backed by strikes and other actions, helped make possible many of the features of employment taken for granted today. Workers who do not join a union generally still benefit from the union’s activities, so unions have, in the past, sought contractual terms with employers to address this imbalance. A “closed shop” refers to an employer that, under the terms of a union contract, may only hire union members. A “union shop” is an employer that must require all employees to join the union.

Federal law has banned closed-shop clauses in union-employer contracts. States can prohibit union-shop clauses, but federal law allows unions to require the payment of an “agency fee” by non-union workers. See Communications Workers of America v. Beck, 487 U.S. 735 (1988). “Right to work” laws prohibit union-shop clauses, particularly agency fees. The Wisconsin Legislature passed a “right to work” law in 2015. See WI Stat. §§ 111.04(3)(a)(4), 111.06(1)(c).

June 10, 2016

Deadlocked Supreme Court Affirms Appellate Court Ruling on Public Sector Union Dues

by Resnick Law Group, P.C.

A challenge to a state law mandating the payment of union fees by certain public employees met with an unusual, if not unexpected, end in March. The U.S. Supreme Court heard oral arguments in January 2016 in Friedrichs v. Cal. Teachers Assoc., and observers at the time suggested that the court seemed to be leaning toward striking down the law in question. The death of Supreme Court Justice Antonin Scalia in February, however, left the court evenly divided, politically speaking. The court tied 4-4 and therefore had to allow the lower court ruling to stand. Friedrichs, 578 U.S. ___ (2016).The plaintiffs alleged that a law requiring them to pay union fees even if they were not union members violated their First Amendment rights. This type of arrangement is often known as a “fair share provision,” since employees who are not union members still benefit from a union’s collective bargaining activities. Employers with fair share provisions are known as “agency shops.” When an employer enters into a contract with a union that requires all employees to join the union if they are not already members, and to remain members for the duration of their employment, this is known as a “union shop.”

Some states have enacted laws that prohibit union shops and agency shops. Supporters of these laws call them “right to work” laws, while critics often call them “right to work for less” laws. One argument in favor of requiring union membership or the payment of a fee is that it reduces the problem of “free riders,” an economic term referring to people who benefit from something, such as collective bargaining agreements, without paying for them.

April 29, 2016

New Jersey Police Officer’s Lawsuit Challenges Loss of Pay, Claims Violations of Rights

by Resnick Law Group, P.C.

A lawsuit pending in a New Jersey Superior Court seeks review of a township’s decision to dock the plaintiff’s pay by 60 hours, resulting in a loss of about $3,500. O’Hare v. Township of Morris, et al., No. L-000710-16, complaint (N.J. Super. Ct., Morris Co., Mar. 24, 2016). The plaintiff, a police officer, made negative comments about a township official in an email sent to members of the police officers’ union, and he was brought up on disciplinary charges as a result. The plaintiff’s lawsuit alleges that his comments are protected by the First Amendment and laws protecting union activities.

Federal laws and laws in many states protect the rights of workers to form and join organizations, commonly known as unions, for the purpose of collective bargaining with their employers. New Jersey law guarantees the right of most public employees “to form, join and assist any employee organization.” N.J. Rev. Stat. § 34:13A-5.3. The federal National Labor Relations Act (NLRA) extends these rights to many private-sector employees, along with the right to engage in “concerted activities” related to labor organizing. 29 U.S.C. § 157.

The rights protected by the NLRA and similar statutes generally include discussions and other communications among employees regarding negotiations with employers. The First Amendment to the U.S. Constitution extends much broader protections against restriction or retribution by the government based on the content of speech. See, e.g. Sable Commc’ns of Cal. v. Fed. Commc’n Comm’n, 492 U.S. 115, 131 (1989).

February 19, 2016

New Jersey Lawsuits Allege Discrimination for Flu Shot Refusals

by Resnick Law Group, P.C.

Winter and spring are “flu season” throughout the U.S. and much of the world, and millions of people obtain flu vaccine shots in order to obtain some protection against the disease. Influenza, or the “flu,” can be a very serious disease. The health care industry has required employees to obtain annual flu shots for some time, but other employers have also begun to require flu shots. Some people cannot get flu shots for medical reasons, and others decline them for a variety of personal reasons. Several recent lawsuits have considered whether New Jersey law prohibits employers from taking adverse action against an employee who refuses to get a flu shot, based on various theories of religious discrimination.

For most people, a case of the flu means a few miserable days in bed, but it can mean hospitalization or even death for some. According to the Centers for Disease Control and Protection (CDC), the annual death toll from 1976 to 2007 ranged from a low of around 3,000 to a high of close to 49,000 in a single season. The vast majority of fatalities are people who are 65 years old or older.

Preparing a vaccine against seasonal influenza, the type of the disease that rears its head during the winter and spring months, is difficult, since it requires advance predictions of which strains are most likely to appear. Unlike vaccines for childhood diseases like measles and whooping cough, a flu vaccine obtained one year is not likely to provide protection beyond that year. It is also not guaranteed to prevent the flu. It only bolsters the immune system.

October 27, 2015

New Jersey Appellate Court Rules on Enforceability of Employee Arbitration Agreements

by Resnick Law Group, P.C.

Arbitration clauses, by which the parties to a contract agree to submit disputes to an arbitrator or arbitration panel before filing suit, or in lieu of litigation entirely, are becoming increasingly common in both consumer and employment contracts. Arbitration is a form of alternative dispute resolution (ADR) that has some similarities to the litigation process, but it is conducted almost entirely outside the court system. The New Jersey Appellate Division recently issued a ruling that clarifies the requirements for the validity of an arbitration clause in an employment contract, holding that the clause must state a “clear and unmistakable” waiver of an employee’s right to a jury trial. Milloul v. Knight Capital Group, et al., No. A-1953-13T2, slip op. at 15 (N.J. App., Sep. 1, 2015).

New Jersey courts, as a matter of policy, encourage litigants and prospective litigants to use arbitration and other ADR methods. The New Jersey Arbitration Act, N.J. Rev. Stat. § 2A:23B-1 et seq., sets basic guidelines for arbitration. A neutral third party, known as an arbitrator, reviews both sides’ claims and defenses, and he or she may conduct a proceeding that is similar to a trial before rendering a decision. Arbitrators are often former judges with experience in conducting trials, as well as training and certification through various private arbitration organizations. State and federal laws do not require licensing for arbitrators the way they do for attorneys and other professionals, although courts may set their own criteria.

Some arbitration clauses state that the result of an arbitration is binding on the parties. In that case, a court’s authority over the matter is limited to ratifying the arbitration decision, unless it finds evidence of fraud, bias, or misconduct during the arbitration process. See N.J. Rev. Stat. §§ 2A:23B-22, 23, 24. When an arbitration clause appears in an employment contract, much as when one appears in a consumer contract, the employee is often not in a position to negotiate the details of the clause, due to both a lack of bargaining power and a lack of understanding of what the clause means. Arbitration clauses are the subject of much criticism, partly because of this disadvantage.