The New Jersey Employment Law Firm Blog

July 7, 2014

Former Post-Doctoral Student Files Lawsuit Against University, Supervisor, and Fellow, Alleging Sabotage of Experiment and Hostile Work Environment

A former postdoctoral researcher at Yale University in New Haven, Connecticut has filed a lawsuit alleging breach of contract against the university and her former supervisor, along with several tort claims. Koziol v. Yale University, et al, No. NNH-CV14-6045144-S, complaint (Conn. Sup. Ct., New Haven, Feb. 24, 2014). The plaintiff alleges that a postdoctoral fellow, also named as a defendant, tampered with her experiments, and that her supervisor and the university retaliated against her after she reported the misconduct and the fellow was disciplined.

The plaintiff was a postdoctoral researcher at the Yale School of Medicine when the acts described in her complaint occurred. She received a three-year research grant in 2010, and was offered a postdoctoral fellowship position by Antonio Giraldez, an associate professor of genetics at Yale, in April 2011. The one-year fellowship was renewable annually up to four years. The plaintiff alleges that her acceptance of this position created a contract between her, Giraldez, and Yale. She began working at Yale on June 1, 2011.

Giraldez’s lab provided her with zebrafish for use in her experiments. Beginning in July 2011, her experiments began failing because her fish kept dying for unknown reasons. She obtained approval fto install a hidden camera in the lab in January 2012. Camra footage reportedly showed that another postdoctoral fellow, Polloneal Jymmiel Ocbina, had been poisoning her fish. Ocbina reportedly admitted to the sabotage, and either resigned or was fired in March 2012.
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May 21, 2014

Investigating Employees’ Work Eligibility May Violate Anti-Discrimination Laws, Warns Justice Department

by Resnick Law Group, P.C.

Federal immigration law requires employers to verify the employment eligibility of their workers. It also, however, prohibits them from discriminating on the basis of national origin or citizenship status, provided that the employee is not an undocumented immigrant. The Department of Justice (DOJ), through its Office of the Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, recently offered guidance for employers regarding internal audits or other inquiries into employees’ work eligibility beyond that required by law. Any sort of employment eligibility verification policies applied unevenly or inconsistently could lead to liability under federal immigration law.

Employers are prohibited from employing unauthorized workers, and are required to verify that all employees and new hires are authorized to work in the United States. 8 U.S.C. § 1324a. Knowingly hiring or employing an unauthorized worker, which could be an undocumented immigrant or someone with a visa that does not allow employment, could result in civil or criminal penalties. Immigration authorities have created Form I-9, the Employment Eligibility Verification form, to enable employers to verify work authorization. An employee or new hire must present certain documents establishing their identity and their employment authorization. The employer is only required to examine the employee’s document and attest that it “reasonably appears on its face to be genuine.” Id. at § 1324a(b)(1)(A).

Federal immigration law also prohibits most employers from discriminating based on national origin or citizenship status. 8 U.S.C. § 1324b. It is not considered unlawful discrimination under this statute for an employer to prefer equally-qualified U.S. citizens over noncitizens with regard to hiring or recruiting. It is, however, considered unlawful discrimination for an employer to require a noncitizen to provide more or different documents than a citizen to complete Form I-9, or to refuse to accept certain documents that reasonably appear valid solely because the person is not a U.S. citizen. Id. at § 1324b(a)(6).
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May 15, 2014

Federal Judge Holds that Employment Discrimination Based on Sexual Orientation Is Already Prohibited by Title VII

by Resnick Law Group, P.C.

A U.S. district court judge has ruled that Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on certain protected classes, may also apply to discrimination on the basis of sexual orientation. Terveer v. Billington, No. 1:12-cv-01290, mem. op. (D.D.C., Mar. 31, 2014). While many state anti-discrimination statutes expressly include sexual orientation as a protected class, the federal Title VII does not. The judge allowed the case to proceed on the basis of sex discrimination, religious discrimination, and retaliation under Title VII.

The plaintiff was hired in February 2008 to work for the Office of the Inspector General of the Library of Congress. His direct supervisor was, according to the court, “a religious man who was accustomed to making his faith known in the workplace.” Id. at 2. The plaintiff became friends with the supervisor and his family. The supervisor’s daughter learned that the plaintiff is homosexual in August 2009, after which the supervisor’s treatment of the plaintiff changed considerably.

The supervisor allegedly began to give the plaintiff ambiguous instructions for work assignments, assigned him as the sole employee on projects that needed multiple people, and lectured him on the sinful nature of homosexuality. The plaintiff reported his concerns to the next-level supervisor, who allegedly told him the employees have no rights in his opinion. No remedial action was taken. In June 2011, the plaintiff was denied his within-grade pay increase, and the supervisor allegedly subjected him to “hostile and abusive interrogation” when he learned of his intent to appeal the denial. Id. at 6. After taking medical leave twice, the plaintiff alleges that he was constructively discharged in April 2012 because of ongoing discrimination by the two supervisors.
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May 13, 2014

Question of Whether Employers Can Fire Employees for Lawful Marijuana Use to Go Before Colorado Supreme Court

by Resnick Law Group, P.C.

An employee who relied on medical marijuana for debilitating pain lost his job after failing a drug test, and his case has raised the difficult question of whether moves towards marijuana decriminalization have changed the legal standards in cases of termination for marijuana use. The employee alleged that the employer violated a statute prohibiting termination for “lawful activity” outside of work, but the Colorado Court of Appeals disagreed in Coats v. DISH Network, L.L.C., 303 P.3d 147 (Col. App. 2013). The state supreme court has agreed to hear the employee’s appeal. The question involves both state and federal law, especially now that marijuana is at least partly legal in many states, but still illegal under federal law.

The plaintiff worked as a telephone operator for the satellite television service provider DISH Network. A spinal injury left him quadriplegic, and he obtained a prescription for medical marijuana to treat severe muscle spasms. Despite a good employment record, he was terminated in 2010 after failing a random drug test. He sued DISH, citing a Colorado statute that prohibits termination for “lawful activity off the premises of the employer during nonwork hours.” C.R.S. § 24-34-402.5 (PDF file).

Both the trial court and the appellate court ruled that marijuana use outside of work, even with a legal prescription, was not “lawful activity” within the meaning of the state statute. Marijuana use of any kind is still prohibited by federal law. The U.S. Supreme Court held in Gonzales v. Raich, 545 U.S. 1 (2005) that state laws allowing marijuana use do not supersede federal laws prohibiting it. For an activity to be “lawful” in a wrongful termination case, the Colorado court held, “it must be permitted by, and not contrary to, both state and federal law.” Coates, 303 P.3d at 151.
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May 13, 2014

Lawsuit Alleges Employer Failed to Provide Adequate Restroom Breaks

by Resnick Law Group, P.C.

A factory worker’s lawsuit alleges that her employer violated state labor laws by failing to allow her adequate restroom breaks, then firing her for improvising her own solution. A U.S. district court denied the defendant’s motion to dismiss in Prince v. Electrolux Home Products, Inc., No. 13-cv-02316, mem. op. (D. Minn., Feb. 14, 2014), finding that the plaintiff had met the pleading requirements for wrongful termination or retaliation. The plaintiff in this case can take advantage of a state law requiring reasonable restroom breaks. The federal Fair Labor Standards Act (FLSA) does not expressly require employers to allow restroom breaks, although the Occupational Safety and Health Administration (OSHA), has interpreted its regulations to mean that employers may not unreasonably deny access to restroom facilities.

The plaintiff was an assembly-line worker at a plant in St. Cloud, Minnesota. She suffers from a medical condition that causes her to need to use the restroom frequently. She alleges that she asked her supervisor for permission to take a restroom break several times over the course of thirty to forty minutes, but was repeatedly ignored or denied. Eventually, the 51 year-old plaintiff was no longer able to wait, so she lined an empty box with a plastic bag, concealed herself as best she could near her workstation, and urinated in the box. The following day, she was terminated for violating a company health and safety policy.

The supervisor allegedly refused permission for restroom breaks on a regular basis, and the plaintiff claims that he had instructed her to use a box or a bucket in the past. The plaintiff was out of work for about nine months until an arbitrator reversed her termination in April 2013, finding that it violated the union collective bargaining agreement. Even though she got her job back, the plaintiff filed suit against her employer in federal court in August 2013, asserting causes of action for violations of the Minnesota Occupational Safety Act (MOSHA) and a state statute requiring adequate restroom breaks for employees.
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April 25, 2014

NLRB Proposes New Procedures for Union Representation Votes, Rules that College Football Players May Vote on Unionizing

by Resnick Law Group, P.C.

The National Labor Relations Board (NLRB) took two recent actions affecting union representation. In early February, it issued proposed rule changes for representation cases, when employees or unions seek a vote to determine whether employees want to form or join a union for collective bargaining. Existing rules have faced criticism for allowing excessive delay and other inefficiencies. In late March, the NLRB issued a ruling in a dispute between an organization representing college football players and Northwestern University. It found that scholarship players are “employees” within the meaning of the National Labor Relations Act (NLRA), and that they are entitled to vote on union representation.

On February 6, 2014, the NLRB published proposed changes to representation-case procedures. 79 F.R. 7317. The new rules, according to the NLRB, would “remove unnecessary barriers to the fair and expeditious resolution” of petitions for union representation. This would include simplifying and standardizing case procedures, and improving the transparency of the process. The current rules, found at 29 C.F.R. Parts 101-103, have been criticized for allowing a substantial amount of time to pass between a petition by non-union workers and a vote on union representation, allowing employers to pressure employees to vote against the union. The new rules are similar to a proposal first made in June 2011. A district court struck down the rules that resulted from that proposal, finding that the NLRB enacted them without the required quorum. Chamber of Commerce v. NLRB, 879 F.Supp.2d 18 (D.D.C. 2012).

The College Athletes Players Association (CAPA), a labor organization, petitioned the NLRB on behalf of football players receiving grant-in-aid scholarships from Northwestern University, seeking a ruling that the players are “employees” within the meaning of the NLRA. Northwestern argued that the players are not employees, comparing them instead to graduate student assistants who were ruled not to be employees in Brown University, 342 NLRB 483 (2004). The NLRB’s Region 13 Director ruled that the players are employees, and directed that an election take place. Northwestern University, No. 13-RC-131359, decision (NLRB, Mar. 26, 2014).
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April 18, 2014

New Ordinance Closes Loophole Preventing New York City Unpaid Interns from Asserting Rights Against Workplace Harassment

by Resnick Law Group, P.C.

The New York City Council unanimously passed a bill in late March 2014 amending the New York City Human Rights Law (NYCHRL) to extend the anti-discrimination provisions of the law to unpaid interns. A 2013 federal court case, in which an unpaid intern filed suit for sexual harassment and hostile work environment, inspired the bill. The court dismissed the intern’s claims because city and state law, it found, do not apply to interns. Wang v. Phoenix Satellite Television US, No. 1:13-cv-00218, mem. order (S.D.N.Y., Oct. 3, 2013).

The plaintiff in Wang was a graduate student in journalism at Syracuse University in December 2009 when she began working as an unpaid intern for the American subsidiary of Phoenix Media Group, a television news company based in Hong Kong. She viewed the internship as a training opportunity, with the possibility of a full-time job after she graduated. She reported to the Washington DC bureau chief, who also oversaw operations in New York.

While the bureau chief was in New York one night in January 2010, she and several employees met him at a restaurant. She alleged in her lawsuit that he asked her to stay after the meal to discuss job prospects, then invited her back to his hotel. He allegedly made sexual comments that made her uncomfortable, but she felt that she could not refuse his invitation to go to his room because he was her boss. Once they were alone, he allegedly threw his arms around her, groped her, and attempted to kiss her. She broke free of him and left the hotel. After that, she claims, he ceased to express any interest in hiring her.
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April 18, 2014

McDonald’s Faces Multiple Lawsuits in New York for Alleged Wage Violations

by Resnick Law Group, P.C.

Workers and state regulators have filed multiple lawsuits against McDonald’s, the national fast-food chain, and its franchisees for alleged violations of state and federal wage and hour laws. The company has faced widespread protests from employees, who allege that they have been denied overtime pay. A federal lawsuit filed in mid-March 2014 in New York claims that the company regularly failed to pay employees for time they were required to be at work, failed to pay overtime as required by law, and did not reimburse employees for certain work-related expenses. The New York Attorney General’s office announced around the same time that it has settled a claim against a McDonald’s franchisee regarding violations of state wage and hour laws.

Six McDonald’s employees filed a putative class action lawsuit against McDonald’s for violations of the federal Fair Labor Standards Act (FLSA) and New York laws regulating minimum wage and the cost of maintaining work uniforms. Beard, et al v. McDonald’s Corp., et al, No. 1:14-cv-01664, complaint (E.D.N.Y., Mar. 13, 2014). McDonald’s has annual gross revenues of more than $27 billion, according to the complaint, and it directly operates thirty-four restaurants in New York out of more than 33,000 around the world. The plaintiffs work at McDonald’s restaurants in the Queens, New York area. Their job duties include working the cash registers and drive-through windows, food preparation, restocking, and cleaning.

The plaintiffs state that they are paid a “nominal hourly rate only at or slightly above the minimum wage.” Id. at 2. The company requires them to maintain their own work uniforms, but does not reimburse them for maintenance expenses. It also does not pay them for time spent on uniform maintenance. Because of this additional, uncompensated work time, the plaintiffs claim that their wages are below the minimum set by the FLSA and state law. The lawsuit claims violations of the New York Hospitality Industry Wage Order, 12 N.Y.C.R.R. Part 146, which requires employers to reimburse employees for certain expenses related to uniform maintenance, as well as minimum wage violations under FLSA and state law.
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March 31, 2014

New Jersey Law Against Discrimination Now Protects Workers from “Salary Secrecy” by Prohibiting Retaliation for Inquiring About Wage Discrimination

by Resnick Law Group, P.C.

An amendment to the New Jersey Law Against Discrimination (NJLAD) that took effect in January 2014 protects employees from retaliation by employers for asking about co-workers’ salaries as part of an investigation into wage discrimination. Prior to this amendment, New Jersey labor law already protected workers, commonly known as whistleblowers, who investigated or reported various unlawful practices by their employers, but did not protect workers who investigated certain practices. Many companies employment have “salary secrecy” policies that prevent employees from inquiring about other employees’ wages, making wage discrimination claims difficult.

Despite laws at the state and federal level prohibiting overt wage discrimination based on gender, the gap in wages between men and women is alive and well in New Jersey and around the country. Salary secrecy is among the biggest reasons for this continued disparity. Companies discourage employees from discussing pay with one another, and in some cases, even terminate employees for asking about other employees’ wages. A 2012 Forbes article found that companies with salary secrecy policies often had little justification for the policies aside from management’s unwillingness to explain their salary decisions to others. Such policies may also increase employee dissatisfaction and reduce overall efficiency, while more transparent policies have had positive results. The new amendment to the NJLAD effectively bans salary secrecy in New Jersey.

New Jersey law prohibits sex discrimination “in the rate or method of payment of wages.” N.J. Rev. Stat. § 34:11-56.2. It also prohibits employers from retaliating against employees who complain to the employer or the New Jersey Civil Rights Commission about alleged wage discrimination. N.J. Rev. Stat. § 34:11-56.6. The statute does not specifically mention investigations of possible wage discrimination, and this is where salary secrecy policies can prevent employees from asserting their rights.
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March 28, 2014

Lawsuit Claims Employer Fired Plaintiff for Reporting Racial Discrimination, Sexual Harassment Within Company

by Resnick Law Group, P.C.

A federal lawsuit accuses a New York business of firing the plaintiff in retaliation for his report of unlawful employment practices. Giraldo v. The Change Group New York, Inc., et al, No. 1:14-cv-00375, complaint (S.D.N.Y., Jan. 21, 2014). The plaintiff, who is a gay man, also alleges that he was subjected to ongoing sexual harassment, discrimination, and a hostile work environment based on sexual orientation. The lawsuit asserts causes of action for retaliation, discrimination, and harassment in violation of federal, state, and city law.

The plaintiff was employed as a sales consultant by a currency exchange group in Manhattan from December 2012 until November 2013. He alleges multiple instances of harassment by two managers in the office, including inappropriate comments about his sexual orientation. One of the managers allegedly displayed similar behavior towards female employees and customers on a regular basis. The plaintiff claimed that he also frequently made “ethnically and racially discriminatory comments towards African American employees,” Muslim employees, and the plaintiff, who is Hispanic of Colombian descent.

In a seemingly-anonymous email sent to company executives just after midnight on October 8, 2013, the plaintiff complained about the two managers’ allegedly widespread discrimination and harassment. He identified multiple specific instances of inappropriate sexual and racial comments directed to the plaintiff, and inappropriate comments and behavior directed at others. He also noted his concern that speaking out publicly would cost him his job, as people who expressed dissenting opinions were often “squashed or treated as heretics” by the managers. He specifically stated that if he attached his name to the email, he believed he would be fired.
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