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Articles Posted in Retaliation

Government regulators enforce a wide variety of laws, from statutes prohibiting employment discrimination to those that deal with securities fraud and other fraudulent activities. They rely on information provided by business insiders, but many employees might hesitate to report potential legal violations by their employers for fear of losing their jobs. New Jersey’s Conscientious Employee Protection Act (CEPA) is one of many whistleblower protection statutes that prohibit retaliation by employers against employees who report their concerns. Proving that an adverse employment action constituted unlawful retaliation can be tricky, and different statutes have different requirements. A federal appellate court recently ruled on a whistleblower claim under the Sarbanes-Oxley Act (SOX). It found that this statute has a more difficult standard of proof than CEPA. If you fear retaliation or discrimination for reporting legal violations in the workplace, reach out to a New Jersey employment lawyer to review your options.

CEPA provides rather broad protection for whistleblowers in New Jersey. It applies to employees who:
– Report alleged violations of a statute or regulation, either internally or to a regulatory agency;
– Provide information or testimony as part of an ongoing investigation into a possible violation of the law; or
– Object to or decline to participate in an activity that they reasonably believe would violate the law or go against public policy.
The statute’s definition of a “retaliatory action” includes termination, suspension, demotion, and other adverse actions.

An employee claiming unlawful retaliation under CEPA must show a causal connection between their whistleblowing activities and the adverse action against them. New Jersey court rulings have held that a plaintiff can establish this element by producing enough evidence to allow a judge or jury “to infer that discrimination was more likely than not a motivating or determinative cause” of the employer’s adverse action. The recent appellate court decision regarding SOX found a much stricter burden of proof for plaintiffs.
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Employers may include provisions in employment contracts or settlement agreements that limit employees’ ability to discuss issues like sexual harassment with others. When a settlement agreement contains this kind of provision, it may mean that the public cannot learn about the employee’s experience in the workplace. Other employees could be at risk of the same kind of experience if the employer took no action against the individual — or individuals — whose conduct led to the complaint and settlement. The New Jersey Legislature passed a law in 2019 that prohibits the use of non-disclosure agreements (NDAs) in connection with claims involving employment discrimination, harassment, or retaliation. A bill now pending in the New Jersey Senate would also prohibit non-disparagement clauses or agreements in those situations. If you have concerns about non-disclosure agreements involving a workplace matter, reach out to a New Jersey employment lawyer to get legal advice.

Businesses often use NDAs as a way to protect trade secrets and other proprietary information. An employment contract might include an NDA that protects information that could be of great interest or value to the employer’s competitors. Employers have also used NDAs to protect other kinds of information besides trade secrets, such as information that could be embarrassing.

News reports have identified numerous cases in which sexual harassment settlements included NDAs. Under this kind of NDA, one of the conditions for receiving a settlement payment is a promise by the complainant never to disclose the circumstances of the sexual harassment claims. The effect of this kind of NDA has been to keep important safety information away from the public. New Jersey passed a law in 2019 barring NDAs in employment contracts and settlement agreements as they might pertain to any “claim of discrimination, retaliation, or harassment.”
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The New Jersey Law Against Discrimination (NJLAD) provides a wide range of protections for employees and job seekers. It prohibits employers from discriminating on the basis of factors like race, sex, religion, disability, and more. It also addresses retaliation against employees who report alleged discrimination or harassment, either within the company or to a government agency like the Equal Employment Opportunity Commission (EEOC). A lawsuit filed in a New Jersey court in the fall of 2021 alleges, in part, that the plaintiff’s employer unlawfully retaliated against her because she reported an incident of alleged sexual harassment. If you are facing retaliation for reporting harassment, please reach out to a New Jersey employment lawyer at your earliest convenience.

The NJLAD and other employment laws view sexual harassment as a type of sex discrimination. When one or more people in the workplace engage in harassment based on sex, such as by making bawdy jokes or inappropriate sexual comments, their conduct could violate the law. Harassment creates an unlawful hostile work environment, according to the EEOC, when it is “severe or pervasive enough…that a reasonable person would consider [it] intimidating, hostile, or abusive.” In order for an employer to be liable for sexual harassment, they must have been aware of the problem and failed to address it.

The EEOC notes that “petty slights, annoyances, and isolated incidents” might not “rise to the level of illegality.” A single incident can support a hostile work environment claim, but it must be quite severe. Many small incidents, on the other hand, can create a hostile work environment over time. Reporting concerns about workplace harassment is therefore very important and protected by the NJLAD.
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New Jersey employment laws protect employees from discrimination on the basis of numerous factors, including pregnancy and related medical conditions. Despite some progress in recent decades, discrimination against workers who become pregnant remains a problem in New Jersey and around the country. Pregnancy discrimination violates the New Jersey Law Against Discrimination (NJLAD) and its federal counterpart, Title VII of the Civil Rights Act of 1964. Both federal and state laws also protect workers’ right to family and medical leave and prohibit employers from discriminating or retaliating against employees who use leave time that they have accrued. A lawsuit filed in state court in August alleges that an employer discriminated against the plaintiff on the basis of pregnancy and retaliated against her for using family leave. The defendant removed the case to federal court in early October.

Both the NJLAD and Title VII prohibit employers from taking adverse actions against employees on the basis of pregnancy. The NJLAD goes further by requiring employers to provide pregnant employees with reasonable accommodations for conditions related to their pregnancies. This may include additional breaks for water or to use the restroom, as well as leave from work as long as this does not pose an “undue burden” for the employer.

The Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (NJFLA) both require covered employers to allow qualifying employees to take leave for certain reasons without any risk to their jobs. Both laws provide up to twelve weeks of leave during a twelve-month period. Reasons for leave may include caring for a newborn child. Employers may not interfere with an employee’s use of accrued leave time, nor may they retaliate against an employee for using leave.
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New Jersey’s employment laws protect workers from a wide range of concerns. They guarantee payment of a minimum wage and compensation for overtime work. They prohibit discrimination on the basis of factors like race, religion, gender, disability, military service, sexual orientation, gender identity, and more. They require reasonable accommodations for pregnant employees and employees who are nursing newborns. These protections apply to job applicants as well as employees, with the goal of ensuring a fair hiring process with opportunities for as many people as possible. Enforcing these rights may require the assistance of an employment lawyer with experience in New Jersey’s legal system. The following is the first installment in an overview of New Jersey laws protecting job seekers, to help you understand your rights.

Employment Discrimination

Employers may not subject employees or job applicants to discriminatory treatment based solely or primarily on certain factors or characteristics. This includes refusing to hire someone because they are part of a protected group. For a job applicant turned down for a job, it can be difficult to prove what motivated an employer’s decision. An employment discrimination lawyer can help build a case under state law.

Protected Categories

The New Jersey Law Against Discrimination (NJLAD) prohibits employment discrimination on the basis of the following factors:
– Race;
– Religion;
– Gender;
– Age;
– Disability;
– Pregnancy or breastfeeding;
– Marital, civil union, or domestic partnership status;
– Sexual orientation;
– Gender identity and gender expression;
– Military service obligations;
– Nationality or national origin; and
– Genetic information, including refusal to take a genetic test.
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Workers are often best able to negotiate with their employers for better pay, safer or improved working conditions, and other features of employment when they can do so as a group. Many employers prefer, however, that their employees not do this. Federal and New Jersey labor laws protect workers’ right to organize for various purposes, including advocacy on co-workers’ behalf. The National Labor Relations Board (NLRB) investigates and adjudicates alleged violations of workers’ rights under federal law. A recent investigation by the NLRB found that a major online retailer violated the rights of two workers who advocated for better working conditions during the COVID-19 pandemic in 2020. While it is not a formal decision by the Board, it could offer guidance to workers advocating for change at employers in New Jersey and around the country. If you have concerns regarding wage or labor practices at your place of employment, consider reaching out to a New Jersey employment lawyer to discuss your situation.

Section 7 of the National Labor Relations Act (NLRA), found at 29 U.S.C. § 157, guarantees the right of employees to “self-organization.” They can join an existing labor union or form their own. They can use collective bargaining procedures in negotiations with their employers. Finally, they can “engage in other concerted activities” related to “collective bargaining or other mutual aid or protection.” The term “concerted activities” can cover a broad range of acts.

Under § 8(a)(1) of the NLRA, id. at § 158(a)(1), an employer commits an “unfair labor practice” if they restrain or interfere with any activities that are protected by § 7. Section 8(a)(3) bars employers from discriminating against employees because of “membership in any labor organization.” New Jersey has even more extensive protections for employee organizing. See, e.g. N.J. Rev. Stat. § 34:13A-5.3, 34:13B-2.
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New Jersey employment laws protect whistleblowers who report alleged wrongdoing by their employers or who cooperate in investigations by providing evidence or testimony. Information provided by employees and others with knowledge of the inner workings of a business or organization is invaluable in helping law enforcement investigations of suspected unlawful activity. Many would-be whistleblowers hesitate to come forward, however, for fear of losing their jobs or facing other consequences in the workplace. Laws like New Jersey’s Conscientious Employee Protection Act (CEPA) prohibit employers from retaliating against employees who engage in certain protected activities. A lawsuit filed in late 2020 alleges that a New Jersey labor union retaliated against the plaintiffs for their support of a corruption investigation, along with other whistleblowing activities.

CEPA prohibits employers from taking “retaliatory action” against employees who engage in certain activities. The statute defines “retaliatory action” as an “adverse employment action taken against an employee,” including termination. N.J. Rev. Stat. § 34:19-2(e). Activities protected by CEPA include:
– Reporting, or threatening to report, activity that an employee reasonably believes is in violation of civil, administrative, or criminal law to a supervisor or government agency;
– Providing evidence or testimony to a government agency as part of an investigation of alleged unlawful activity; and
– Refusing to participate in an activity that the employee reasonably believes violates a civil or criminal statute or administrative rule, is otherwise fraudulent, or constitutes a threat to public safety or the environment. Id. at § 34:19-3.

The New Jersey Law Against Discrimination (NJLAD) prohibits retaliation against employees who report or oppose unlawful acts by their employers. It also prohibits derivative retaliation against employees who have “aided or encouraged any other person” asserting their rights under the law. Id. at § 10:5-12(d).

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The coronavirus pandemic has hit New Jersey harder than most U.S. states, and the economy will surely take some time to recover. The New Jersey Legislature has passed multiple bills in recent months intended to help workers affected by the pandemic. Notable bills include one that modifies the state’s temporary disability insurance system and one that addresses retaliation by employers against quarantined workers. If you feel you may need or have had to take leave from work due to the coronavirus pandemic and have concerns regarding your employment status or benefits, please contact a New Jersey employment attorney as soon as possible.

State of Emergency

Several new laws make changes that only apply during a public health emergency. The governor first declared an emergency in relation to the coronavirus on March 9, 2020. A declaration of emergency expires after thirty days unless extended by the governor. He has extended the March 9 declaration twice so far, on April 7 and May 6.

Temporary Disability Insurance

The New Jersey Temporary Disability Benefits Law (TDBL) provides disability coverage for workers who are unable to work because of “an accident or sickness” that is not due to an on-the-job incident, and which is not otherwise covered by the state’s workers’ compensation law. N.J. Rev. Stat. § 43:21-29. It also allows “family temporary disability leave” for a worker who must care for a family member with a “serious health condition,” defined to include conditions requiring inpatient care or other ongoing medical care. Id. at §§ 43:21-27(o)(1), (s). Under ordinary circumstances, no benefits provided by the TDBL are payable for the first seven days of a disability period. Id. at § 43:21-39(a).
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American society often takes an odd view of sick leave. A common way for someone to demonstrate their dedication to their job is to say that they have “never taken a sick day.” The implication behind this claim is not necessarily that they never got sick, but rather that they continued showing up to work even if they were sick. Everyone gets sick at some point, though, whether it is a minor cold, a major flu, or something even worse. Some people might never take sick leave because they feel like they should not, while other people might not have the option of missing work. From an employee’s point of view, New Jersey employment laws are more generous than those of many states in this regard.

Showing up to work regardless of illness might seem like an admirable display of determination, but it could put one’s co-workers at risk of getting sick. This is especially true in early 2020, when COVID-19, also commonly known as the coronavirus, has led public health officials to advise people displaying certain symptoms to stay home or seek immediate medical attention. Unfortunately, not everyone can do this.

Many workers in the U.S. have little to no available sick leave, paid or unpaid. Even if they have the means to see a doctor, they might believe that they have no choice but to go to work. Workers in New Jersey need to know their rights under state and federal sick and medical leave laws, so that they can better understand their options if they need to isolate themselves.

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Workplace harassment on the basis of a protected category is considered unlawful employment discrimination under New Jersey law and throughout the country. Most people are familiar with how sexual harassment violates New Jersey employment discrimination laws, but it also applies to harassment based on race, religion, and other factors. The New Jersey Law Against Discrimination (NJLAD), N.J. Rev. Stat. § 10:5-1 et seq., prohibits discrimination and harassment on numerous bases, as well as retaliation for opposing or reporting alleged unlawful practices. The Conscientious Employee Protection Act (CEPA), id. at § 34:19-1 et seq., protects the rights of whistleblowers who report suspected unlawful activity by their employers. A state employee filed suit in 2013 for race harassment and retaliation under the NJLAD and CEPA. In April 2019, a jury in Mercer County, New Jersey awarded him over $987,000 in damages.

The NJLAD prohibits employment discrimination on the basis of race and multiple other factors. See id. at § 10:5-12(a). This includes a wide range of adverse employment actions. Firing or refusing to hire a person because of their race is perhaps the most obvious sort of discriminatory act in violation of the NJLAD, but workplace discrimination takes far more forms than that. Pervasive and unwelcome actions that create a hostile work environment based on race also support an NJLAD claim.

Employers who “take reprisals against any person” who either opposes or reports alleged violations of the NJLAD commit a separate violation of the NJLAD, commonly known as retaliation. Id. at § 10:5-12(d). CEPA provides similar protections for employees who “[d]isclose[], or threaten[] to disclose” alleged legal violations by an employer, either to a supervisor or a government body. Id. at § 34:19-3(a). This may include reporting NJLAD violations.

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