The New Jersey Employment Law Firm Blog

June 6, 2022

How the Burden of Proof Can Shift in New Jersey Employment Discrimination Claims

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.
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May 27, 2022

Can New Jersey Employers Pay Wages in Cryptocurrency?

by Resnick Law Group, P.C.

Cryptocurrency has been in the news lately. Its advocates point to features like transparency, decentralization, and a lack of connection to any nation’s laws or banking systems. They tout its potential for replacing national currencies like the dollar or the euro. Critics note that cryptocurrency transactions require tremendous amounts of energy and that it often functions more as a form of investment property than currency. For New Jersey employees, this raises a question that has not received a great deal of attention in the legal world yet. Can employers pay their employees in cryptocurrency? New Jersey’s wage and hour laws seem to suggest that employers cannot, or should not, do this at the present time.

What Is Cryptocurrency?

Cryptocurrency is a type of digital or virtual money. It uses a technology known as “blockchain” to record transactions. A blockchain is an open-source ledger that records every cryptocurrency transaction. It also records the creation of new cryptocurrency, which is a process known as “mining.” These processes are distributed across computers all over the world. The first cryptocurrency, Bitcoin, first appeared in 2008 and remains the largest and most famous example.

In principle, people can use cryptocurrency as a medium of exchange. Few businesses accept cryptocurrency as payment, though. Many people buy and sell cryptocurrency as investments, somewhat similar to the way investors buy and sell stocks and other securities.
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May 20, 2022

EEOC Settles Disability Discrimination Lawsuit with New Jersey Hospital

by Resnick Law Group, P.C.

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.
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May 18, 2022

NLRB General Counsel Takes on Mandatory Meetings by Employers About Unionization in New Jersey

by Resnick Law Group, P.C.

The National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to organizing and collective bargaining. The statute prohibits employers from interfering with employees who are exercising their rights, or from coercing them against such activities. New Jersey employment laws provide some protections for labor organizing, but much of the work happens at the federal level. The National Labor Relations Board (NLRB) has the authority to investigate and adjudicate alleged NLRA violations. In April 2022, the General Counsel (GC) of the NLRB issued a memo calling on the NLRB to challenge meetings held by employers to address labor organizing activities, which employees are required to attend. The GC’s position would require the NLRB to reverse a seven-decade-old precedent allowing these types of meetings.

Employees have the right to “self-organization,” to join a union or form their own, and to select representatives to engage in collective bargaining with their employers. They also have the right to refrain from engaging in these types of activities. Employers may not “interfere with, restrain, or coerce employees” with regard to any of these rights. They may not discriminate against employees based on participation in protected activities, nor may they retaliate against workers who engage in acts protected by the NLRA.

In 1948, the NLRB issued a decision regarding an employer that required employees to attend a meeting, held during work hours, at which several managers gave speeches discouraging union organizing or membership. A Trial Examiner had held that the “compulsory” nature of the meeting violated the NLRA’s ban on coercion by employers. The NLRB disagreed. It held that the employer’s actions were not unlawful under the NLRA based on the “totality of the circumstances.” This decision has functioned as a precedent for seventy-four years in cases challenging mandatory employee meetings in which employers address organizing activities.

May 13, 2022

EEOC Adds Guidance on When COVID-19 May Be a Disability Under the ADA for New Jersey Employees

by Resnick Law Group, P.C.

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.
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May 6, 2022

Federal Judge Reinstates Earlier Independent Contractor Rule for New Jersey Workers’ Claims Under the FLSA

by Resnick Law Group, P.C.

State and federal laws protect New Jersey employees’ rights to minimum wage and overtime compensation. The term “employees” is important here, because these laws’ protections are not available to independent contractors. The distinction between an employee and an independent contractor has been the subject of much employment litigation, both in New Jersey and around the country. Employers may attempt to classify employees as independent contractors in order to avoid various legal obligations, a practice known as “employee misclassification.” New Jersey has developed a reasonable clear definition of “employee.” Federal law lags behind, with different definitions for different statutes. Recent litigation addressed the definition of “employee” under the Fair Labor Standards Act (FLSA), which sets a national minimum wage and standards for overtime pay. The current White House administration withdrew an employer-friendly definition of “employee” put in place by the previous administration. In March 2022, a federal judge vacated this move, reinstating the earlier rule.

The FLSA defines “employee” in quite general terms as “any individual employed by an employer.” It defines “employ” as “to suffer or permit to work.” The FLSA’s definition of “employee” goes into more detail for individuals employed by the government. It excludes most elected officials, political appointees, and volunteers for government agencies. The statute also exempts employees in various roles from its provisions on minimum wage and overtime pay. For workers who are neither excluded from the definition of “employee” nor exempt from the FLSA’s protections, questions often still remain as to whether they are “employees” in the specific context of the FLSA.

New Jersey uses the “ABC test” to determine whether an individual is an employee or an independent contractor. The test is named for the three-part definition of “employee” found in §§ 43:21-19(i)(6)(A) through (C) of the New Jersey Revised Statutes. New Jersey employment law presumes that a worker is an “employee” unless the employer can establish all three of the following:
A. The worker has control over how and when they do their job;
B. The worker performs the services away from the employer’s usual premises, or their services are not part of the employer’s regular business; and
C. The worker has an “independently established” business.
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May 2, 2022

EEOC Issues Guidance on Employment Discrimination Based on Caregiver Responsibilities in New Jersey and Nationwide

by Resnick Law Group, P.C.

Workers have long had to juggle their obligations at work and caregiving responsibilities at home. This includes not only parents, but also people caring for elderly relatives, family members with disabilities, and others. The COVID-19 pandemic has made this issue much more pressing. Some jurisdictions have enacted laws that expressly protect people with caregiving responsibilities from employment discrimination. The New Jersey Law Against Discrimination (NJLAD), for example, protects parents and others with caregiving responsibilities for a child. The Equal Employment Opportunity Commission (EEOC) recently issued guidance about caregiver discrimination under federal law. While no federal employment law specifically bars discrimination on the basis of caregiver responsibilities, the EEOC identifies ways that such discrimination might still constitute unlawful discrimination. If you care for someone outside of your duties at work and have concerns that those responsibilities are impacting your status at the workplace, contact a New Jersey employment lawyer to discuss your situation.

The NJLAD prohibits discrimination against employees and job applicants on the basis of “familial status.” It defines this as having a “parent and child relationship” under state law, which includes biological parents, adoptive parents, foster parents, and other types of guardians. It also includes people who are pregnant and people who are working to gain legal custody of a minor child. Employers may not refuse to hire someone because of their familial status, nor may they fire them or subject them to other adverse employment actions on that basis.

New York City has one of the most expansive employment discrimination laws in the country. It goes farther than New Jersey law with regard to caregiver discrimination. A “caregiver,” under New York City law, includes a person with an obligation to care for a minor child. It also includes anyone who cares for a close relative or a person living in their household who depends on them “for medical care or to meet the needs of daily living.” The person must be providing “direct and ongoing care.”
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April 29, 2022

Employees of Major Retailer Vote to Unionize, Which Could Influence New Jersey Workers

by Resnick Law Group, P.C.

Labor unions have helped workers achieve significant improvements in pay and working conditions in New Jersey and across the county by enabling them to bargain collectively with their employers. Instead of each individual employee negotiating with their employer, employees can pool their resources and present a united front. Union membership has fallen over the past few decades for a variety of reasons, but this might be changing. As people return to the workforce after the economic slowdown caused by the COVID-19 pandemic, workers are asserting their rights to fair pay, safe work environments, and more. Employees of a major online retailer on Staten Island, for example, voted to unionize in early April 2022. While their employer is contesting the vote, the impact is already spreading to other workplaces, including many workers in New Jersey who have said they plan on holding votes to unionize. If you feel you have been subjected to unlawful practices in the workplace in violation of state or federal law, please contact a New Jersey employment lawyer today.

Section 7 of the National Labor Relations Act (NLRA) protects workers’ rights to engage in activities related to union organizing and collective bargaining. It also protects the rights of workers who do not want to join a union to refrain from these types of activities. Section 8(a) of the statute states that employers may not interfere with union organizing activities. In § 8(b), the statute prohibits unions from “restrain[ing] or coerc[ing]” employees with regard to organizing or membership. Section 9 establishes procedures for employees to vote on forming a union or joining an existing union, and for a union to become the employees’ official representative.

Collective bargaining agreements (CBAs) that require employers to hire union members, known as “closed shop” agreements, are invalid under the NLRA. Some states, known as “right-to-work” states, also prohibit “union shop” agreements, which require employees to join the union once they have been hired. At least twenty-eight states have some form of right-to-work laws as of early 2022. New Jersey is not among them. A CBA between a union and an employer in New Jersey may require union membership. This type of CBA addresses the “free rider” problem, in which employees who are not union members still benefit from the union’s work.
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April 22, 2022

What Does New Jersey Law Say About Discrimination Against Unemployed Job Applicants?

by Resnick Law Group, P.C.

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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April 22, 2022

Causes of Action for Criminal History Discrimination in New Jersey

by Resnick Law Group, P.C.

Criminal history can be one of the biggest stumbling blocks in the search for a job. Steady employment is a critically important factor in returning to normal life after a criminal conviction. Many employers, however, do not want to hire anyone with a criminal record, even if the specific details of a job applicant’s history would not affect the job they want to do. New Jersey’s Opportunity to Compete Act (OTCA) states that employers may not ask about criminal history until later in the hiring process. It does not offer as much protection for job applicants as similar laws in other states and cities. At the federal level, discrimination based on criminal history could be unlawful in certain circumstances. A New Jersey employment attorney can help you explore your options if you have experienced this kind of discrimination.

The OTCA only offers limited protection for job applicants with criminal records. It does not restrict how employers may act upon criminal history information once an applicant has made it past the initial stages of the hiring process. If an employer violates the statute, it does not expressly state that a job applicant may file a lawsuit for damage. Instead, it states that the only remedy for a violation is a civil penalty paid to the state.

The Third Circuit Court of Appeals considered a criminal history discrimination claim brought under the OTCA in a 2020 decision. The decision is one of the few to address criminal history discrimination in New Jersey, but it sheds little light on whether the OTCA allows private causes of action.
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