We are OPEN and PREPARED. In response to the COVID-19 pandemic, our Firm is utilizing telephone consultations whenever possible. We are equipped with technology for working remotely, as necessary, and are committed to continuing to serve our clients through this difficult time. Please connect with us on Facebook for the latest employment-related information dealing with COVID-19.

COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

Articles Posted in Employment Discrimination

Since early 2021, New Jersey employment law has protected workers in this state from discrimination or other adverse employment actions based on their use of cannabis outside work, as well as their refusal to engage in cannabis use. Employers may still prohibit the use of cannabis in the workplace, and they may take reasonable measures to prevent employees from working while under the influence of cannabis. State law limits the use of drug testing by employers, but the New Jersey Cannabis Regulatory Commission (NJCRC) still has not issued final guidelines on this part of the law. It issued extensive guidelines in September 2021 that did not address employment issues. One year later, the NJCRC issued interim guidance on employment, which offers some direction on workplace drug testing.

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) became law in February 2021. Section 48 of CREAMMA, codified as § 24:6I-52 of the New Jersey Revised Statutes, addresses cannabis in the workplace. It prohibits discrimination based on an employee’s or job applicant’s cannabis use, or lack thereof. If an employee tests positive for cannabinoid metabolites because of cannabis use that is legal under CREAMMA, their employer may not take adverse action against them solely on that basis.

The statute allows employers “to maintain a drug- and alcohol-free workplace,” such as by not allowing employees to be under the influence of cannabis during work hours. Employers may require their employees to submit to drug tests under certain circumstances:

Continue reading

Age discrimination can affect almost any New Jersey employee, although it occurs most often among older workers who find themselves passed over in favor of younger individuals. Both federal and state employment laws prohibit discrimination on the basis of age to varying degrees. The Equal Employment Opportunity Commission (EEOC) filed suit earlier this year against a New Jersey employer on behalf of a 62-year-old woman. The complainant alleges that her employer passed her over for a lateral transfer in violation of the federal Age Discrimination in Employment Act (ADEA). The lawsuit, which is pending in the U.S. District Court for the District of New Jersey, seeks back pay and other damages for the complainant, as well as policy changes and other injunctive relief. If you feel you are the victim of age discrimination in the workplace, please reach out to a New Jersey employment lawyer to discuss your options.

The New Jersey Law Against Discrimination (NJLAD) provides extensive protection against workplace age discrimination. It applies to almost all employers, regardless of the number of employees. It does not limit its protections to workers of any particular age, as long as they are adults. A qualified 20-year-old who lost out on an opportunity because of the perception of being “too young” could assert a claim under the NJLAD, as could a qualified 70-year-old who was passed over for being “too old.”

Federal law’s protections against age discrimination are not as broad as those provided by the NJLAD. The ADEA applies to employers with at least twenty employees and workers who are forty years old or older. Its protections are essentially limited to discrimination based on someone being perceived as “too old.” The 70-year-old described above could assert a claim under the ADEA if they work for a large enough employer. The 20-year-old could not, though.
Continue reading

The COVID-19 pandemic has presented numerous employment law challenges. Employers, employees, government regulators, and others have had to balance financial needs, public health, and workplace safety. The Centers for Disease Control and Prevention (CDC) has issued various guidelines related to testing and isolation. The Equal Employment Opportunity Commission (EEOC) has addressed questions about what employers may require of their employees under laws like the Americans with Disabilities Act (ADA). These agencies have modified their guidelines as our knowledge about the coronavirus has increased, and as pandemic conditions have changed. Recent updates present relaxed standards for workplace safety, mandatory COVID testing, and other matters. New Jersey employees should be aware of their rights under both federal and state laws. If you have questions about COVID-19 guidelines at your workplace, please contact a New Jersey employment lawyer to discuss.

EEOC guidance on testing

On July 12, 2022, the EEOC updated the guidance document entitled “​​What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” One of the main issues the document addresses is whether the ADA allows employers to require COVID-19 testing among employees. Generally speaking, the ADA requires any medical examinations or inquiries by employers to be “job-related and consistent with business necessity.” A medical condition that presents a “direct threat” to others in the workplace usually meets this requirement.

In the early days of the pandemic — particularly before a vaccine became widely available — the EEOC concluded that mandatory testing was acceptable because of the broad risk posed by exposure to the coronavirus. Much has changed since 2020. The agency has modified its interpretation of “business necessity” in light of improved public health measures, while also considering the ongoing mutation of the virus.
Continue reading

New Jersey’s employment laws offer a wide range of protections for workers, including the right to paid or unpaid family leave in certain circumstances, and the right to recover remedies from employers who engage in unlawful discrimination or retaliation. In order for workers to benefit from these laws, they need to know about their rights. New Jersey employment attorneys can provide employees with everything they need to know about their legal rights, but the state wants people to know before anyone feels the need to contact a lawyer. The New Jersey Division on Civil Rights (DCR) recently adopted new regulations that require employers to provide their employees with a poster advising them of their rights under two state statutes, the New Jersey Law Against Discrimination (NJLAD) and the Family Leave Act (FLA).

The NJLAD is one of the most comprehensive anti-discrimination statutes in the country. It prohibits discrimination in hiring, firing, promotions, job duties, benefits, and other features of employment on the basis of a long list of factors. Protected categories include race, religion, age, disability, national origin, sex, sexual or affectional orientation, gender identity or gender expression, pregnancy, breastfeeding, and military service, to name a few. The statute requires employers to make reasonable accommodations for certain conditions, including many types of disability, pregnancy, and breastfeeding. It also prohibits employers from retaliating against employees who object to allegedly unlawful practices or report their concerns.

New Jersey is also one of only a few U.S. states to provide paid family leave for some employees. The FLA provides up to twelve weeks of protected leave during a 24-month period to care for a sick or injured family member or to bond with a newborn or newly-adopted child. The leave may be unpaid or partially paid. The employee may take twelve weeks of leave all at once, or they may break it up over time. Employees may be eligible for leave if their employers employ at least thirty people worldwide. An employee must have worked for the employer for at least a year, and they must have worked at least 1,000 hours in the preceding twelve-month period.
Continue reading

The New Jersey Law Against Discrimination (NJLAD) prohibits discrimination in numerous areas of life, including employment and education. Claims involving discrimination in educational environments are often quite similar to New Jersey workplace discrimination claims. While they might involve alleged acts by teachers, professors, coaches, or administrators rather than supervisors or managers, the standards of evidence are the same or very similar. New Jersey courts have recognized claims that allege hostile educational environments using the same test applied to hostile work environment claims. The New Jersey Appellate Division recently affirmed a lower court order denying a university’s motion for summary judgment in a lawsuit by former students alleging a hostile educational environment under the NJLAD. Notably, the claim alleges harassment of a group rather than individuals.

The NJLAD identifies race, sex, and sexual orientation as protected categories in the workplace. Employers may not discriminate on the basis of these and other factors, which may include subjecting one or more employees to harassment or a hostile work environment. The New Jersey Supreme Court described a four-part test for identifying a hostile work environment in a 1993 decision: The alleged conduct (1) only occurred because of the employee’s sex or membership in another protected category, and (2) it was so “severe or pervasive” that (3) a reasonable person belonging to the same protected category would conclude that (4) the conduct has changed the “conditions of employment” and rendered the “working environment…hostile or abusive.” The decision specifically involved sexual harassment, but New Jersey courts have since applied this test to claims involving alleged hostile work and educational environments based on other factors as well.

When assessing claims alleging hostile work environments or hostile educational environments, courts must consider how multiple acts of harassment or hostility may affect someone over time. In a 2003 decision, the New Jersey Supreme Court addressed the need to look at the “cumulative [e]ffect of individual acts,” rather than each alleged act in isolation.

Continue reading

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.
Continue reading

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.”
Continue reading

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.
Continue reading

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.
Continue reading

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.
Continue reading

Contact Information