The New Jersey Employment Law Firm Blog

September 4, 2018

New Jersey Continues to Reject “Right to Work” Laws

Organized labor, usually in the form of labor unions, is responsible for countless improvements in working conditions in New Jersey and throughout the country. The first half of the twentieth century saw the most improvements, as unions and their members fought—often literally—for reasonable hours, workplace safety, and better pay and benefits. Union membership has declined significantly in the past fifty years, however. One reason is a well-organized campaign that advocates for laws limiting the influence of unions in the workplace. These laws often go by the rather Orwellian name “right-to-work.” Voters in Missouri recently rejected a right-to-work law enacted by the state legislature and signed by the governor. Still, at least twenty-seven states have enacted right-to-work laws. New Jersey remains very favorable towards unions, with both laws and court decisions that affirm unions’ importance to the modern workplace.

Unions are able to negotiate on behalf of workers through collective bargaining agreements (CBAs) between a union and an employer. In order to understand how right-to-work laws affect unions’ ability to negotiate effectively, it is important to understand how unions have sought to ensure that they are able to speak for as many workers as possible. Some CBAs have, in the past, created “closed shops,” which means that employers could only hire union members. A “union shop” refers to an employer that, under the terms of a CBA, must require employees to join the union as a condition of employment.

One of the main objections to these types of arrangements involves the obligation of workers to join a union and pay dues, even if they do not agree with the union’s positions on various issues. The counter-argument to this is that all employees of a particular employer are likely to benefit from a union’s work, including those who are not members of the union. This is known as the “free rider problem.” Some union-shop CBAs, rather than requiring all employees to join the union, require workers who do not want to join to pay an “agency fee.”
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August 24, 2018

New York Court Rules on Employee Misclassification Claim, Applying Different Standard than New Jersey Courts

by Resnick Law Group, P.C.

New Jersey employment laws provide numerous protections for employees, including minimum wage, overtime, and prohibitions on discrimination, harassment, and retaliation. In order to qualify for the protections offered by New Jersey’s employment statutes, however, an individual must meet the legal definition of an “employee.” New Jersey uses an expansive definition of the term based on unemployment law. See Hargrove v. Sleepy’s, LLC, 106 A.3d 449 (N.J. 2015). A recent decision from a New York appellate court uses a narrower definition of “employee” in an unemployment claim brought by a “gig economy” worker. Matter of Vega, 2018 NY Slip Op. 4610 (App. Div., 3d Dept.).Incorrectly or falsely designating a worker as an independent contractor is commonly known as “employee misclassification.” The various employment statutes at the state and federal levels contribute to the problem by lacking a consistent and distinct definition of “employee.” One statute’s definition of the term might differ from another statute, or a statute may lack any useful definition. Courts often step in to provide definitions that could apply to certain types of claims, or all claims in which employee classification is an issue.

The ruling in Hargrove involved alleged violations of state wage laws by a company that employed the plaintiff and others as delivery drivers. The New Jersey Supreme Court ruled that courts should apply a three-part definition found in New Jersey’s unemployment laws. This definition states that an individual is an employee unless: (1) they are “free from control or direction over the performance of” their job; (2) the job they perform is “either outside the usual course of the [employer’s] business, or it “is performed outside of all the [employer’s] places of business”; and (3) the individual works “in an independently established trade, occupation, profession or business.” N.J. Rev. Stat. § 43:21-19(i)(6).

The plaintiff in Vega worked as a delivery driver for a “gig economy” company. The job involves picking up food orders at restaurants, which have been placed by customers through a smartphone app, and delivering the orders to the customers. After the company terminated the plaintiff, he filed for unemployment benefits from the state. He did not allege any specific wrongdoing by the company but instead appealed a decision by an Administrative Law Judge (ALJ) finding that he had not been an “employee” for the purpose of state unemployment law. The state Unemployment Insurance Appeal Board (UIAB) reversed this decision, and the state appealed.

August 20, 2018

Third Circuit Rules on Extent of Whistleblower Protection Under Sarbanes-Oxley

by Resnick Law Group, P.C.

The Sarbanes–Oxley Act of 2002 (SOX) regulates a wide range of activities by publicly traded companies. Section 806 of SOX, 18 U.S.C. § 1514A, protects whistleblowers against retaliation for reporting suspected legal violations. It allows employees to file a complaint with the U.S. Department of Labor (DOL), potentially followed by a lawsuit in federal district court. The DOL’s Administrative Review Board (ARB) has held that a whistleblower need only have a “reasonable belief” that a legal violation has occurred to engage in “protected activity” under § 806 of SOX. Sylvester v. Parexel Int’l, ARB Case No. 07-123 (ARB, May 25, 2011). The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled on the question of “reasonable belief” in an SOX whistleblower claim, which could have an impact on New Jersey whistleblowers. Westawski v. Merck & Co. Inc., No. 16-4075, slip op. (3d Cir., Jun. 27, 2018).The whistleblower protection provisions of § 806 apply to companies that have securities registered under the Securities Exchange Act of 1934, or that are required to file reports under that statute. Employees who report suspected fraud, wire fraud, bank fraud, or securities fraud, or who cooperate in an investigation of one of these alleged offenses, are entitled to protection. 18 U.S.C. § 1514A(a), citing 18 U.S.C. §§ 1341, 1343, 1344, and 1348. An employee must file a complaint with the DOL. If the DOL has not issued a ruling within 180 days, the employee can usually file a complaint in federal court. Available damages include reinstatement, back pay, court costs, and attorney’s fees.

The statute requires that the whistleblower “reasonably believes” that their employer has violated one or more of the enumerated federal fraud statutes. Id. at § 1514A(a)(1). The ARB has interpreted this requirement as having two parts: (1) the employee has “a subjective belief that the complained-of conduct constitutes a violation of relevant law”; and (2) “the belief is objectively reasonable.” Sylvester at 14. As long as the employee’s belief is both subjectively and objectively reasonable, the ARB held, their actions are protected even if no legal violations actually occurred.
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August 16, 2018

Sick Leave Law Will Go Into Effect for All New Jersey Employees in October 2018

by Resnick Law Group, P.C.

Paid sick leave is a controversial subject throughout the country. Only a handful of states require it in some form. Federal law only mandates unpaid leave. Employers tend to oppose paid sick leave laws, since these laws require them to pay their employees for time they are not at work. Advocates of paid sick leave laws point out the reality that people get sick, that they need to be able to take time to rest and recover, and that many people will come to work sick if they know that the alternative is losing needed income. Sick people who come to work instead of staying home are rarely as effective at their jobs during that time, and they risk making even more people sick. New Jersey joined the small number of states that mandate paid sick leave earlier this year, when the Legislature passed the New Jersey Paid Sick Leave Act (NJPSLA). When it takes effect on October 29, 2018, this law will apply to all employers in the state, regardless of number of employees.According to the National Conference of State Legislatures (NCSL), only 10 states, including New Jersey, and the District of Columbia had mandatory paid sick leave as of May 2018. Federal law contains no provisions for mandatory paid leave for any purpose, including sick leave and parental leave. Internationally, the United States is an outlier among developed nations. A 2009 study by the Center for Economic and Policy Research (CEPR) compared paid sick leave policies in 22 countries. With the exceptions of Japan, Australia, and New Zealand, all of the countries are located in Europe or North America. The CEPR found that the U.S. is one of only three countries, along with Canada and Japan, with no paid sick leave whatsoever at the national level. At the opposite end of the spectrum, Luxembourg and Norway provide paid sick leave for up to 50 days for serious medical conditions like cancer.

The NJPSLA differs from most state paid sick leave laws in the breadth of its coverage. It defines an “employer” as “any…entity that employs employees in the State,” with no exception for small businesses. By contrast, the federal Family and Medical Leave Act (FMLA) only applies to employers with 50 or more employees, and to employees who have worked a minimum of 1,250 hours for their employer in the last 12 months. The FMLA also differs in the sense that it only requires unpaid leave.

Workers claiming sick leave under the NJPSLA are entitled to their regular rate of pay. For every 30 hours worked, workers accrue one hour of paid sick leave. Workers can carry a maximum of 40 unused hours of earned sick leave to subsequent years. The NJPSLA identifies five acceptable reasons for use of accrued sick leave:

August 10, 2018

FLSA Collective Action Alleges Failure to Pay Overtime by New Jersey Hospital

by Resnick Law Group, P.C.

Federal and state employment laws in New Jersey protect workers’ right to overtime compensation. Employers can violate employees’ rights under these statutes in a variety of ways, the most obvious of which involves a requirement to work extra, unpaid hours. Violations can occur whenever an employee’s total compensation for a pay period does not include the overtime rate of time-and-a-half. Some employees work at multiple locations, which might be owned and operated by different companies. If the two companies have sufficient ties to one another, they could be deemed “joint employers,” who must collectively provide overtime compensation to that employee. A collective action currently pending against a New Jersey hospital and other defendants includes this allegation. Layer v. Trinity Health Corp. et al, No. 2:18-cv-02358, complaint (E.D. Pa., Jun. 6, 2018).

The federal Fair Labor Standards Act (FLSA) requires employers to pay overtime compensation to non-exempt employees, at a rate of one-and-a-half times their regular wage for any hours in a week over forty. 29 U.S.C. § 207(a)(1). The statute identifies numerous exemptions, including people who work “in a bona fide executive, administrative, or professional capacity.” Id. at § 213(a)(1). Non-exempt employees are, very broadly speaking, hourly workers who do not hold a managerial position. Employees may file suit against their employers for alleged violations of overtime rules on their own behalf, or on behalf of “themselves and other employees similarly situated.” Id. at § 216(b). A claim brought on behalf of other employees is known as a “collective action,” and is similar in many ways to a class action.

Employees can work for more than one employer. For many people, holding down more than one job is an unfortunate necessity. In most cases, the two employers are legally separate from one another, and are only obligated to pay an employee overtime if their total time working for that employer exceeds forty hours. Two or more employers may, however, be deemed “joint employers,” meaning that they are jointly liable for overtime compensation when an employee’s total work time at any of their locations exceeds forty hours in a week. The determination of whether employers are “joint” or not “depends upon all the facts in the particular case.” 29 C.F.R. § 791.2(a). If an employee’s work for one employer “is not completely disassociated” from their work for another employer, all of their work for the two employers could be “considered as one employment for purposes of the [FLSA].” Id.
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August 3, 2018

Third Circuit Reinstates Sexual Harassment Lawsuit, Reversing Dismissal Due to Plaintiff’s Delay in Reporting

by Resnick Law Group, P.C.

In New Jersey, sexual harassment in the workplace is considered a form of unlawful sex discrimination. The elements that a plaintiff must prove can vary depending on the circumstances of the case, and several defenses are available to defendants. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, recently ruled on a defendant’s use of the Faragher-Ellerth affirmative defense. A defendant can overcome liability under federal law if they can prove, in part, that a plaintiff unreasonably failed to report alleged sexual harassment. The plaintiff did not report alleged sexual harassment by her supervisor for four years. The court rejected the defendant’s claim that this was per se unreasonable under Faragher-Ellerth, citing the recent revelations of the #MeToo movement. Minarsky v. Susquehanna Cty., No. 17-2646, slip op. (3d Cir., Jul. 3, 2018).

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other factors. Numerous court decisions have applied this to sexual harassment. When an alleged harasser is a coworker of the complainant, or is otherwise not part of the company’s management, the employer is only liable if it was aware of the alleged harassment and failed to make reasonable efforts to remedy the situation.

The Faragher-Ellerth affirmative defense is partially based on this obligation to notify the employer and seek internal remedies. Since it is an affirmative defense, the burden of proof shifts to the defendant to prove two elements:
1. “[T]he employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998); and
2. The complainant “failed to [use] reasonable care to take advantage of the employer’s safeguards and…to prevent harm that could have been avoided.” Faragher v. Boca Raton, 524 U.S. 775, 805 (1998).
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August 1, 2018

New Jersey, Other States Investigate “No-Poach” Agreements Among Fast Food Franchisees

by Resnick Law Group, P.C.

Antitrust laws protect both consumers and employees from anti-competitive practices. These laws are an essential part of any free market system. Monopolies and other accumulations of wealth or influence almost invariably lead to restraints on trade that harm both businesses and individuals. A single company that holds a monopoly over a particular product or geographic area has little to no incentive to set prices based on the conditions of the market. Companies that agree to fix prices do similar harm to competitors and consumers. Employees rely on a competitive job market, which enables them to seek out better opportunities with other employers. Some employers may attempt to restrain the mobility of their employees by entering into agreements with other companies to refrain from recruiting or hiring one another’s employees. These are commonly known as “no-poach” agreements, and they can have a major impact on employees. New Jersey’s Attorney General recently announced that, along with several other states, it is investigating alleged no-poach agreements among fast-food franchisees.

When employers enter into no-poach agreements, employees may find themselves unable to advance in their chosen careers. Workers cannot seek to move to a higher position, often with higher pay, at another company if that company has agreed ahead of time not to hire them. They are therefore at the mercy of their current employers. A press release from the New Jersey Attorney General quotes the state’s Labor Commissioner, who stated that no-poach agreements can keep workers from looking for jobs with better pay, better opportunities, or a better location. These agreements therefore “exploit low-wage workers who are most in need of job protections.”

The Antitrust Division of the U.S. Department of Justice (DOJ) has conducted its own series of investigations into alleged no-poach agreements over the past few years. In an April 2018 update, it noted that competitive markets for employees and jobs are subject to “the same rules” as consumer-oriented markets for goods and services. This applies both to no-poach agreements and wage-fixing agreements, in which employers agree to set a range or upper limit for employee compensation. The DOJ announced a plan in late 2016 to pursue criminal antitrust charges against companies that use “naked” no-poach and wage-fixing agreements, i.e. agreements that “are not reasonably necessary to any separate, legitimate business collaboration.”
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July 16, 2018

Court Rules on Liability of Individual Corporate Officers in New Jersey Wage Lawsuit

by Resnick Law Group, P.C.

Business laws in New Jersey and around the country protect corporate directors and officers from personal liability for most actions undertaken by the business. Courts will only “pierce the corporate veil” and allow suits against individual directors or officers in limited situations, such as illegal conduct by those individuals. In the context of employment, some statutes allow claims against individuals, while others do not. A putative class action alleging violations of a New Jersey wage law sought to hold individual directors liable along with the employers. A federal court, while allowing the lawsuit to proceed against the business entity defendants, ruled that New Jersey’s Prevailing Wage Act (PWA) “does not impute personal liability.” Palmisano, et al v. Crowdergulf, LLC, et al, No. 3:17-cv-09371, mem. order at 1 (D.N.J., May 29, 2018).

The PWA “establish[es] a prevailing wage level for workmen engaged in public works.” N.J. Rev. Stat. § 34:11-56.25. “Public works,” as defined by the statute, includes most construction and maintenance work performed under government contract, or performed on government-owned property. Id. at § 34:11-56.26(5). The “prevailing wage” is the rate paid in accordance with collective bargaining agreements in force in the geographic area of the public work. Id. at § 34:11-56.26(9). Workers must be paid, at minimum, the current prevailing wage, which may vary based on location, type of work, and other factors. If an employer pays a worker less than the prevailing wage rate, the worker may file a private cause of action to recover amounts owed to them. Id. at § 34:11-56.40.

The defendants in the Palmisano case include corporations and limited liability companies that entered into contracts with the State of New Jersey for cleanup work after Hurricane Sandy. The hurricane caused extensive damage to the mid-Atlantic region in late October 2012. It made landfall in New Jersey on October 29, killing thirty-seven people, damaging or destroying nearly 350,000 homes, and causing an estimated $30 billion in damage. The state entered into contracts with companies from all over the country to repair the damage.

July 10, 2018

Supreme Court Ruling Affects Collective and Class Employment Actions in New Jersey

by Resnick Law Group, P.C.

Class 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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July 6, 2018

New Jersey Court Denies Two Motions to Compel Arbitration by Employer in Wrongful Termination Lawsuit

by Resnick Law Group, P.C.

The 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.