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Legal News GavelClass actions and collective actions allow numerous individuals with similar claims to bring a single lawsuit against a common defendant, rather than hundreds or thousands of individual lawsuits. A New Jersey employee, for example, could file a collective action on behalf of themselves “or other employees similarly situated” for violations of state minimum wage law. See N.J. Rev. Stat. § 34:11-56a25. This offers many benefits for plaintiffs, particularly in situations where the cost of filing suit individually, when compared to the potential recovery, would make it too expensive to assert one’s legal rights. One could also argue that class actions help defendants by consolidating all claims against them into a single lawsuit, rather than hundreds or thousands of lawsuits. That is not how employers and other defendants usually see class actions, however, and they frequently argue against allowing employees to pool their claims in a single lawsuit. The U.S. Supreme Court recently sided with employers regarding collective arbitration, similar to collective or class actions. Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018).

The ruling in Epic Systems arose from a conflict between two federal statutes: the Federal Arbitration Act (FAA) of 1925, 9 U.S.C. § 1 et seq.; and the National Labor Relations Act (NLRA) of 1935, 29 U.S.C. § 151 et seq. The FAA generally states that arbitration clauses in written contracts “involving commerce” are “valid, irrevocable, and enforceable.” 9 U.S.C. § 2. Courts have authority to order parties to such a contract to participate in arbitration, and to enforce the recommendations of the arbitrators. A court may only vacate or modify an arbitration award on grounds specified by the statute. See id. at §§ 10, 11. The Supreme Court held that the FAA applies to contracts executed under both state and federal law in Southland Corp. v. Keating, 465 U.S. 1 (1984).

The NLRA protects the rights of workers to organize for the purpose of collective bargaining—i.e. to form or join labor unions—and “to engage in other concerted activities for” those purposes. 29 U.S.C. § 157. It is an “unfair labor practice” for employers to “interfere with” or “restrain” employers engaged in these protected activities. Id. at § 158(a)(1). Courts have given rather broad interpretation to the meaning of “concerted activities.” The question in Epic Systems concerned whether collective arbitration was a “concerted activity” protected by the NLRA, or whether the FAA required enforcement of arbitration clauses in individual employment contracts.
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Legal News GavelThe court system in the U.S. is often described as “overburdened.” Courts therefore encourage litigants to pursue a variety of alternative dispute resolution (ADR) methods. Many employers in New Jersey and around the country often include clauses in employment contracts requiring a form of ADR known as arbitration in disputes with their employees. Both federal and New Jersey employment laws establish a preference in favor of enforcing arbitration clauses but require that an employee receive adequate notice. A federal district court in New Jersey ruled on two separate motions to compel arbitration by an employer in a wrongful termination case. First, the court ruled that a genuine issue of fact existed as to whether the plaintiff received adequate notice of an arbitration agreement. Schmell v. Morgan Stanley & Co., Inc. (“Schmell I”), No. 3:17-cv-13080, op. (D.N.J., Mar. 1, 2018). It later denied a motion “to compel arbitration…to resolve disputed issues of fact related to arbitration.” Schmell v. Morgan Stanley & Co., Inc. (“Schmell II”), No. 3:17-cv-13080, op. at 2 (D.N.J., May 30, 2018).

The arbitration process involves presenting a dispute to one or more trained ADR professionals, often former judges, who conduct a proceeding similar to a trial and render a decision. If the parties have agreed in advance, this decision is binding. Arbitration offers some advantages over litigation, but it is often perceived as favoring employers, who typically have more resources to pay arbitration fees. New Jersey law holds that an employee is not bound by an arbitration clause if the employee “does not sign or otherwise explicitly indicate his or her agreement to it.” Schmell I, op. at 4, quoting Leodori v. CIGNA Corp., 814 A.2d 1098, 1106 (N.J. 2003).

The plaintiff in Schmell began working for the defendant in 2006. During his employment, he wrote “a self-help book that referenced his history with drug and alcohol abuse and ultimate recovery.” Schmell I at 1. In June 2017, according to the plaintiff, he presented the defendant with a draft of the book. The defendant allegedly threatened termination if he did not make certain edits. The plaintiff claims that he made the requested edits, but the defendant still terminated him on October 31, 2017. The book was published on November 14. The plaintiff filed suit one month later, alleging discrimination on the basis of disability because of his history of addiction.

Legal News GavelThe U.S. Constitution limits the government’s ability to infringe on a range of rights, including the First Amendment right to free speech. In the context of New Jersey employment matters, this usually places far more limits on public employers than private employers. As a general rule, a private employer does not infringe on an employee’s freedom of speech if they discipline or fire that employee because of statements they have made. Since public employers are part of the government, they have less leeway with regard to employee speech. A lawsuit filed earlier this year, however, alleges that a private employer violated the plaintiff’s constitutional rights by firing her because of her speech. Briskman v. Akima, LLC, No. 2018-5335, complaint (Va. Cir. Ct., Fairfax Cty., Apr. 4, 2018). The plaintiff claims that the defendant fired her “out of fear of unlawful retaliation by the government for constitutionally protected speech,” id. at 8, and that this makes her termination a violation of her First Amendment rights.

Caselaw has largely established broad protections for the free speech rights of public employees with regard to their employment. According to the U.S. Supreme Court, a public employee who speaks out about “issues of public importance” cannot be subject to termination by their employer, unless their statements were “knowingly or recklessly” false. Pickering v. Board of Education, 391 U.S. 563, 574 (1968). This does not apply, however, when the employee is speaking in their official capacity as a government employee. Garcetti v. Ceballos, 547 U.S. 410 (2006).

Private employers have fewer restrictions with regard to disciplining employees, including terminating them, for statements they have made. This often applies even when the statement or statements at issue involved matters of public concern that were unrelated to the employee’s position with the employer. Some exceptions apply, such as when the speech involves activities protected by the National Labor Relations Act, 29 U.S.C. § 157, or when a state or local anti-discrimination law includes protections for “political activities,” N.Y. Lab. L. § 201-D. The Third Circuit Court of Appeals has ruled that termination for an employee’s political activities, or their refusal to participate in political activities, could violate public policy. Novosel v. Nationwide Ins. Co., 721 F. 2d 894 (3rd Cir. 1983).

Legal News GavelBusinesses have an obligation to protect their assets and interests, but not in ways that damage their employees. New Jersey employers can protect their interests with covenants not to compete, also known as noncompete clauses, which limit employees’ ability to work for, or become, a competitor after their employment ends. A bill pending in the New Jersey Legislature would significantly restrict the enforceability of noncompete clauses. An Assembly committee reported favorably on A1769 in May 2018, while the Senate counterpart, S635, is still awaiting a committee hearing.

In order for a noncompete clause to be enforceable under current New Jersey employment law, it must be reasonably limited in both time and geographic scope. A noncompete clause that purported to prohibit a former employee from ever working for a competing company anywhere in New Jersey would be unenforceable on its face because it is not even close to being reasonably limited to the protection of the employer’s interests at the moment the employee ceases to be employed. If the noncompete clause only restricted employment with a competitor within, for example, five miles of the employer’s location for six months, it would probably be enforceable. Even then, however, noncompete clauses often require workers to relocate or change fields solely to avoid liability to their former employer.

A1769 and S635 state that noncompete clauses “driv[e] skilled workers to other jurisdictions” and “requir[e] businesses to solicit skilled workers from out-of-State.” The Assembly Labor Committee made some changes to the bill, but most provisions remain the same as in S635. The bill establishes a 10-part test that a noncompete clause would have to meet in order to be enforceable:
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Businesses entrust a considerable amount of information, along with the value represented by that information, to their employees. Employers have an interest in protecting their intellectual property, trade secrets, and other proprietary information. Employment laws in New Jersey and New York allow restrictive covenants in employment contracts that reasonably limit certain activities by former employees. From an employee’s point of view, the overzealous enforcement of restrictive covenants imposes an undue burden on their ability to make a living in their chosen field. Courts often give close scrutiny to employers’ efforts to enforce restrictive covenants. Last summer, a Manhattan federal court refused to enforce several non-compete clauses against a group of former employees in a New York employment dispute. In re Document Technologies Litigation (“DTL”), No. 17-cv-2405, op. (S.D.N.Y., Jul. 6, 2017).

Legal News GavelOne common type of restrictive covenant used in employment agreements is the “covenant not to compete,” also known as a non-compete clause. An employer may worry that, when an employee leaves their job, they will take the knowledge and contacts they have gained and either go to work for a competitor or start their own competing business. In order to be enforceable, a non-compete clause must have a reasonable duration and a limited geographic scope. A non-compete clause stating that a former employee cannot work for any competing business anywhere in the state of New Jersey for a period of 10 years is unlikely to be enforceable, but one that restricts competition within 10 miles of the employer’s location for six months might be considered reasonable. Other common restrictive covenants include agreements not to solicit the employer’s clients or customers (non-solicitation), and agreements not to disclose certain information learned during an individual’s period of employment (non-disclosure).

The plaintiff in DTL “is a global provider of electronic discovery (‘e-discovery’) services for law firms and corporate legal departments,” with about 7,000 employees. DTL, op. at 2. The defendants include four former employees and the competing company that hired them after they quit their jobs with the plaintiff. The individual defendants signed employment agreements with the plaintiff that included one-year non-compete and non-solicitation clauses and a non-disclosure clause. According to the court’s opinion, the individual defendants had become “dissatisfied with their employment” with the plaintiff as early as 2014. Id. at 3. They resigned from the plaintiff and signed employment agreements with the competing company in January 2017, with the understanding that they would not begin work until the following year, after the non-compete had expired.

Legal News GavelA group of baggage handlers employed by a major airline at Newark Liberty International Airport enjoyed a victory in their wage lawsuit recently, when a federal judge granted their request for class certification. Ferreras, et al. v. American Airlines, Inc., No. 2:16-cv-02427, opinion (D.N.J., Mar. 5, 2018). The plaintiffs allege that the defendant violated the New Jersey Wage and Hour Law (NJWHL) by requiring them to work during times when they were “off the clock.” The lawsuit originally asserted causes of action under both the NJWHL and the federal Fair Labor Standards Act (FLSA). Airline employees are specifically exempted from the FLSA’s minimum wage provisions, but they are covered by the NJWHL.

Both federal and state laws require employers to pay overtime compensation to non-exempt employees for work performed in excess of 40 hours in a week, at one-and-a-half times the regular hourly rate. See 29 U.S.C. § 207(a)(1), N.J. Rev. Stat. § 34:11-56a4. Ideally, employees submit time sheets showing the total amount of time worked, and for any time worked over 40 hours per week, the employer pays them time-and-a-half. In reality, however, some employers require “off the clock” work, meaning employees must perform job-related services during time that is not included on their time sheets. If the total compensation received does not reflect the total amount of time actually worked, the employer could be liable under the FLSA or the NJWHL.

A wide range of jobs are exempt from the FLSA’s minimum wage and overtime provisions. Perhaps the best-known of these exemptions is for those who work “in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). Some jobs are only exempt from the overtime requirement. This includes “any employee of a carrier by air subject to” federal legislation. Id. at § 213(b)(3). The NJWHL only exempts “employee[s] of a common carrier of passengers by motor bus.” N.J. Rev. Stat. § 34:11-56a4. While the statute does not define “motor bus,” it has been construed not to include airplanes.

Legal News GavelNew Jersey is among the majority of the states in the U.S. in allowing, under the supervision of a doctor, the possession and use of marijuana for medical purposes. The New Jersey Compassionate Use Medical Marijuana Act (CUMA), N.J. Rev. Stat. § 24:6I-1 et seq., enacted in 2009, defines permissible uses for the drug, establishes prescription guidelines for doctors, and creates a registry for patients. Federal law, however, still classifies marijuana as a Schedule I controlled substance, meaning that as far as the federal government is concerned, marijuana has “no currently accepted medical use in treatment.” 21 U.S.C. §§ 812 (b)(1)(B), (c)(I)(c)(10). Possession of marijuana with a valid prescription could therefore still be illegal under federal law. In an employment context, medical marijuana use that is entirely legal in New Jersey could lead to problems. Neither federal nor New Jersey employment discrimination laws prohibit adverse employment actions based on lawful medical marijuana use, but a bill currently pending in the New Jersey Assembly intends to change that.

The New Jersey Legislature, in enacting CUMA, found that “[m]odern medical research has discovered a beneficial use for marijuana in treating…certain debilitating medical conditions,” regardless of what federal law says. N.J. Rev. Stat. § 24:6I-2(a). It also found that state law enforcement officials are not responsible for enforcing federal laws and that “[c]ompassion dictates that “medical marijuana patients should be “protect[ed] from arrest, prosecution, property forfeiture, and criminal and other penalties.” Id. at § 24:6I-2(e). The provisions of CUMA mainly deal with registration of patients and certification of doctors.

The statute currently places no obligations or restrictions on employers. Section 16 of CUMA specifically states that employers are not required “to accommodate the medical use of marijuana in any workplace.” Id. at § 24:6I-14. The New Jersey Law Against Discrimination (NJLAD) does not include medical marijuana use as a protected category. See N.J. Rev. Stat. § 10:5-12(a). While it does include disability as a category, this is not likely to offer much protection for medical marijuana users. Not all conditions for which medical marijuana may be prescribed would qualify as disabilities under the NJLAD. Even if the underlying condition did qualify as a disability, it is conceivable that an employer could justify taking an adverse action because the employee’s conduct violates federal law, instead of because of the disability. This is where the proposed bill comes in.

Legal News GavelProfessional football presents multiple legal issues related to employment. New Jersey officially has no team in the National Football League. That said, both of the New York-based NFL teams, the Giants and the Jets, have used stadiums in Northern New Jersey as their home fields since the early 1980s. Issues affecting players in the NFL, particularly the lasting effects of concussions and other injuries, have received media attention in recent years. NFL cheerleaders have also made a variety of complaints regarding wages, working conditions, and sexual harassment. In 2016, the New York Jets settled a New Jersey wage and hour lawsuit filed on behalf of a class of NFL cheerleaders. In 2018, a former cheerleader, who had recently been fired by another team, filed a sex discrimination complaint with the Equal Employment Opportunity Commission (EEOC).

While NFL players usually receive generous salaries under contracts with their teams, cheerleaders are often paid far less and do not have the protection of a defined term of employment. NFL cheerleaders have recently made several successful wage claims. A lawsuit filed in New Jersey in 2014, Krystal C. v. New York Jets LLC, alleged that the compensation received by members of the Jets’ cheerleading squad, when compared to the number of hours they were required to work, was often substantially less than minimum wage. Cheerleaders were paid $150 per game and $100 for appearances at team-sponsored events, but not for other required activities like practices and rehearsals. The parties entered into a settlement agreement in 2016, in which the team agreed to pay $325,000 to the class of plaintiffs.

Claims of sex discrimination involving NFL cheerleaders have not received as much attention in the court system as wage claims. Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination prohibit discrimination on the basis of sex. Cheerleading, as an occupation, presents some challenges in this area. Technical skill, including proficiency in dance, is not the only requirement for the job of cheerleader. To put it bluntly, cheerleaders are expected to meet a particular standard of physical attractiveness.

Legal News GavelNew Jersey gender discrimination statutes protect workers from discrimination on the basis of sex or gender. An important feature of many types of sex discrimination is “sex stereotyping,” meaning the use of stereotypes commonly associated with one gender to assess an employee’s performance or a job applicant’s suitability for a job. Many cases deal with sex stereotyping as a way of penalizing an employee who fails to embody outward stereotypes, such as a female employee who an employer thinks appears too masculine, or a male employee who appears feminine. A recent study addresses another aspect of sex stereotyping that could lead to workplace discrimination:  the association of traits like confidence and intelligence with men, leading to more negative impressions of women possessing those same traits.

The U.S. Supreme Court first recognized sex stereotyping as a form of sex discrimination in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The plaintiff in that case alleged that the defendant passed her over for partnership because she did not conform to various feminine stereotypes. While partners at the firm praised the plaintiff’s ability to do her job, they also stated that her “aggressiveness apparently spilled over into abrasiveness.” Id. at 234. These traits, however, were not necessarily viewed as negatives in male employees. The court held that employers may not “evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Id. at 251.

The Third Circuit addressed sex stereotyping of male employees in a case involving a self-described “effeminate man” who did not “fit in” with his “rough around the edges” male coworkers. Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 287 (3rd Cir. 2009). He alleged a lengthy pattern of workplace harassment, including the use of nicknames like “Princess,” “Rosebud,” and others best not repeated. The defendant sought to dismiss the case on the ground that the plaintiff, who is gay, was actually making “an artfully pleaded claim of sexual orientation discrimination,” which the Third Circuit has found not to be covered under federal law. Id. at 291. See also Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3rd Cir. 2001). The court found, however, that the plaintiff’s claim centered on discrimination “because he did not conform to [the defendant’s] vision of how a man should look, speak, and act,” rather than his sexual orientation itself. Prowel at 292.

Employees who report or object to practices that they believe to be illegal or contrary to public policy are commonly known as “whistleblowers.” Some of the biggest cases of fraud and corruption in recent history—both in government and in the private sector—have resulted from whistleblower reports. Employees and other insiders are often in the best position to provide evidence of wrongdoing, but doing so can pose great risk to their own jobs. Numerous laws therefore protect whistleblowers from retaliation, including New Jersey’s Conscientious Employee Protection Act (CEPA). A lawsuit filed in New Jersey alleges that an automobile manufacturer retaliated against the plaintiff, in violation of CEPA, after he reported concerns to several supervisors and managers about possibly deceptive practices. Williams v. Tesla, Inc. et al., No. BUR-L-000194-18, complaint (N.J. Super. Ct., Burlington Cty., Jan. 26, 2018); removed to No. 1:18-cv-04120 (D.N.J., Mar. 23, 2018).

Legal News GavelUnder CEPA, employers may not retaliate against an employee who reports suspected illegal, fraudulent, or otherwise wrongful conduct to a supervisor or a public body, including law enforcement, regulatory agencies, and legislative bodies. Retaliation is also prohibited if an employee participates in a public investigation of allegedly fraudulent or illegal activity, such as by testifying or providing other information; or if an employee “objects to, or refuses to participate in” acts that the employee believes to be illegal or in violation of public policy. N.J. Rev. Stat. 34:19-3. Aggrieved employees can file suit, and remedies may include reinstatement, lost wages, attorney’s fees and costs, and injunctive relief. Id. at § 34:19-5.

The defendant in Williams manufactures electric-powered automobiles and sells them to the general public. The plaintiff states in his complaint that he began working for the defendant in 2011. He claims that he became aware that the defendant “fail[ed] to disclose to consumers high-dollar, pre-delivery damage repairs prior to any transaction with consumers.” Williams, complaint at 2. The plaintiff “believed this practice to be illegal and/or fraudulent.” Id. He also allegedly learned that the defendant would “receiv[e] vehicles designated as ‘lemons,’” a term referring to a car with irreparable defects. Id. The plaintiff claims that the defendant would sell these vehicles to consumers without disclosing their “lemon” status, as required by state law. See N.J. Rev. Stat. § 56:12-35.

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