The New Jersey Employment Law Firm Blog

January 13, 2014

OSHA Award Demonstrates that Employers in New Jersey and Elsewhere May Not Retaliate Against Workers Who Refuse to Violate the Law

The owner of an Ohio-based trucking company recently agreed to pay two former truckers more than $300,000 after it fired them in violation of the Surface Transportation Assistance Act’s (STAA) whistleblower provisions. The two men were allegedly fired for refusing to operate a commercial vehicle in violation of federal law after one of the men was cited by West Virginia State Police for carrying an excessive load and operating a tractor-trailer without a log book, commercial driver’s license, or required vehicle information displayed. Both men were reportedly terminated from Star Air Inc. for refusing to continue driving company vehicles until the issues were resolved.

After the two men filed a discrimination and retaliation complaint with the United States Department of Labor’s Occupational Health and Safety Administration (OSHA), an administrative law judge ordered the company to reinstate the workers with back pay. The judge’s order was later upheld by the agency’s Administrative Review Board. As part of a consent agreement, the trucking company will pay the men $302,000 over the course of three years. If the payments are not made, the company and its owner will be liable for the entire award of nearly $700,000 issued by the U.S. District Court for the Northern District of Ohio, Eastern Division, in Civil Action Number 5:12-cv-02833.

OSHA is responsible for enforcing the whistleblower protections enumerated in the STAA and multiple other Acts. In general, employers may not retaliate against workers who raise specific concerns that are protected by federal law or notify the federal government regarding their concerns. Additionally, employees who are terminated or suffer other retaliation for voicing their concerns may file a complaint with OSHA.
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January 10, 2014

Liquidated Damages Award in FLSA Case Reminds Employers in New Jersey and Across the U.S. to Comply With Wage Laws

by Resnick Law Group, P.C.

A federal court has ordered a restaurant company to pay a group of employees liquidated damages under the Fair Labor Standards Act (FLSA). In Dobson, et al, v. Timeless Restaurants, Inc. d/b/a Denny’s, a number of diner servers sued their employer for failure to pay unpaid minimum wages and overtime. According to the restaurants workers, they were required to participate in a tip pool that redistributed a portion of their earnings to other employees whose wages were not tip-based.

After a jury found Timeless Restaurants violated the FLSA, the court considered whether to award the workers liquidated damages. The employees argued that such an award was merited under the FLSA because the jury determined that Timeless acted willfully when it failed to pay wait staff minimum and overtime wages. Timeless, on the other hand argued that the jury’s determination was not determinative and the company “had reasonable grounds to believe that its acts or omissions did not violate the FLSA.”

According to the court, liquidated damages are not required under the FLSA if an employer who failed to pay a worker the appropriate wages acted in good faith. Still, the statute places the burden for demonstrating such a good faith belief on the employer. According to the district court, Fifth Circuit precedent states that an employer may not demonstrate it acted in good faith after a jury has determined the employer willfully violated the FLSA. As a result, Timeless was ordered to pay liquidated damages for its willful FLSA violations.
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January 10, 2014

Lawsuit Demonstrates that Workers in New Jersey and Elsewhere May Not be Sexually Harassed for Failing to Conform to Gender Stereotypes

by Resnick Law Group, P.C.

A federal appeals court has ruled in favor of a construction worker in a sexual harassment lawsuit. In EEOC v. Boh Bros. Construction Co., the nation’s Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of a Louisiana man who claims he was subjected to verbal and physical harassment by a male work supervisor because he does not conform to the man’s gender stereotypes.

The employee was initially hired by Boh Bros. Construction Co. to perform welding and iron repair work on a Louisiana bridge following Hurricane Katrina. He was later transferred to a bridge maintenance crew consisting of about six men and one supervisor. According to the record presented at trial, the supervisor regularly used vulgar language at work. A few months after his transfer, the supervisor began calling the employee names, questioning his masculinity, and performing harassing acts that “embarrassed and humiliated” him.

After the employee complained about the supervisor’s behavior, he was transferred to another work crew. Later, the supervisor learned that the employee violated a company policy and told him to meet with the general supervisor. The employee again complained about the harassment and was sent home without pay. The employee claims there was no discussion of the policy violation. The general supervisor apparently performed a perfunctory investigation of the harassment allegations and determined they were without merit. Two days later, the employee was told to report to work. A few months after he filed a discrimination complaint with the EEOC, he was laid off for lack of work.
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December 6, 2013

New York Attorney General Announces Settlement Reached in Pregnancy Discrimination and Harassment Lawsuit Against Syracuse Mortuary School

by Resnick Law Group, P.C.

New York Attorney General Eric T. Schneiderman recently announced that his office has settled a sexual harassment and pregnancy discrimination lawsuit filed against a Syracuse mortuary school and its president in 2011. As part of the settlement, the Simmons Institute of Funeral Services and Maurice Wightman agreed to pay restitution to a number of former instructors and students who filed complaints against the school and to implement reforms designed to ensure future harassment and discrimination do not occur. Additionally, both the school and Wightman agreed to refrain from engaging in any sort of retaliation against the women who filed complaints against the institution and to immediately report any future harassment or discrimination allegations to the Office of the Attorney General.

According to the lawsuit, Wightman made sexual comments and inappropriately touched female students. He also allegedly refused to allow both pregnant students and faculty to engage in certain activities despite doctor approval. Ironically, Wightman is reportedly the private for-profit school’s designated contact for all discrimination and harassment complaints.

In New York, discrimination on the basis of a woman’s pregnancy constitutes unlawful sex discrimination. Title IX of the federal Civil Rights Act of 1964 prohibits any educational institution that receives federal funds from engaging in sex discrimination in education. Additionally, both New York and federal law require employers and educators to refrain from engaging in pregnancy discrimination.
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December 5, 2013

New Jersey Law Protects Workers from Discrimination Prohibited by Proposed Federal Employment Non-Discrimination Act

by Resnick Law Group, P.C.

The United States Senate has passed a bill designed to protect gay, lesbian, bisexual, and transgender workers across the country from discrimination. The Employment Non-Discrimination Act would prohibit employers with at least 15 workers from engaging in discrimination against an employee based upon his or her sexual orientation or gender identity. The bill also provides an exemption for religious institutions and the military. The measure was passed after two Independent, 10 Republican, and 52 Democratic Senators voted in favor of the bill. The proposed law will now move on to the House of Representatives for consideration.

Despite the bill’s bipartisan success in the Senate, House Speaker John Boehner reportedly opposes the workplace rights bill. A spokesperson for House Majority Leader Eric Cantor, Rory Cooper, stated the proposed measure is not currently on the legislative schedule. President Obama stated it is his hope that the bill will be considered, passed, and sent to his desk for signature quickly. It is unclear, however, whether the measure will be ever considered by the House.

Although a number of state anti-discrimination laws are in place, there is currently no federal law that protects gay, lesbian, bisexual, and transgender workers in the U.S. from discrimination. The landmark Employment Non-Discrimination Act was first introduced to the Congress in 1994. Since then, the measure was re-introduced each year with varied success. In 1996, the proposed law failed in the Senate by only one vote. In 2007, the measure was passed by the House of Representatives but not the Senate.
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December 3, 2013

New York Lawmakers Propose Bill That Would Protect Interns From Harassment and Discrimination

by Resnick Law Group, P.C.

A bill that was recently introduced in the New York Legislature would provide unpaid interns with many of the same statutory protections that employees across the state currently enjoy. S05951 would make it unlawful for an employer to discriminate against interns who are members of a protected class. If the proposed measure is approved, interns would be legally protected from discrimination based upon race, creed, age, national origin, color, sexual orientation, disability, marital status, and other factors. It would also provide unpaid employees with both sexual harassment and whistleblower protections.

The bill was introduced by democratic lawmaker Liz Krueger of Manhattan. She stated a recent New York federal court ruling in which an intern’s sexual harassment lawsuit was dismissed for lack of standing under the New York Human Rights Law demonstrates the need for the proposed legislation. In the past, some courts have also held that interns are not afforded the same protections as employees under federal civil rights laws. If the proposed measure is passed, New York will become the second state to provide unpaid interns with substantially similar legal protections as paid employees. Oregon enacted a so-called intern rights law in June.

Employers in New York, New Jersey, and throughout the nation are not legally required to treat each worker fairly. For example, in some situations an employer may engage in nepotism, favoritism, or simple “office politics.” An employee who is treated poorly may only seek legal action where the discrimination was based on a legally protected status. Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against a worker based on race, religion, color, sex, or national origin. Both the New York State Human Rights Law and the New York City Human Rights Law prohibit employment discrimination based on gender and other factors. New Jersey’s Law Against Discrimination also makes it unlawful for an employer to discriminate in any job-related action on the basis of one or more of the statute’s protected categories.
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December 3, 2013

Exxon to Begin Offering Same-Sex Spousal Benefits in New Jersey and Across the U.S. Amid Allegations of Sexual Orientation Discrimination

by Resnick Law Group, P.C.

In September, Exxon Mobil Corporation announced that the company would begin offering benefits to the legally married same-sex spouses of employees in the United States. According to a spokesperson for the company, Alan Jeffers, the change was made in response to official guidance that was issued by the nation’s Department of Labor after the Supreme Court struck down the federal Defense of Marriage Act in June. Jeffers stated that Exxon has not changed its criteria for benefits eligibility. He added that the oil and gas company offers same-sex spousal benefits in at least 30 nations consistent with local legal requirements.

Despite the change, Exxon has been accused of failing to adequately protect gay workers and applicants in the past. This year, the Human Rights Campaign ranked the company dead last when compared with other corporate gay, lesbian, and transgender employee anti-discrimination policies. In addition, a lawsuit alleging sexual orientation discrimination against a gay job applicant was recently filed against Exxon in the State of Illinois.

All current or potential employees in New Jersey who are members of a protected class are protected from workplace discrimination. Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating based on race, religion, color, sex, or national origin. Additionally, New Jersey’s Law Against Discrimination (LAD) makes it unlawful for an employer to discriminate in any job-related action on the basis of any of the statute’s protected categories. LAD protected categories include sexual orientation, gender identity or expression, race, sex, pregnancy status, creed, color, national origin, nationality, ancestry, age, marital status, mental or physical disability, and others.
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December 3, 2013

Jury Verdict Sends Message to Employers that Disability Discrimination is Unacceptable in New Jersey and Across U.S.

by Resnick Law Group, P.C.

A federal jury has ruled in favor of a 25-year-old mentally disabled man who was discriminated against by his employer in Texas. According to a lawsuit filed against the Kroger chain of grocery stores, the mentally challenged former employee worked at one of the company’s stores without incident for four years before he was transferred to a grocery store in Plano. The man claims a store manager began verbally abusing him and calling him names about one-week after the transfer. The 25-year-old also alleges that he was regularly asked to perform duties by himself that normally required at least two people. Approximately one year after he was transferred, the disabled man filed a discrimination and harassment lawsuit against the company. The young man also claims he was fired as a direct result of filing the legal complaint.

After four days of testimony regarding the alleged harassment endured by the mentally challenged 25-year-old, a jury issued an award of $450,000 in damages. His father stated he was happy with the verdict because it sends a message to employers that discrimination against the disabled will not be tolerated. A representative for Dallas-based Kroger said the company is currently considering whether to appeal the jury’s verdict.

Unfortunately, not all disability discrimination is immediately so obvious. Sadly, many employers in New Jersey and elsewhere choose to unlawfully discriminate against or harass workers who suffer from a disability due to biased thinking. Disabled persons in New York and New Jersey have a right to expect that their employers will provide them with reasonable accommodations that allow them to perform their essential job duties. If a disability does not physically prevent a worker from performing his or her job requirements, an employer has no legal basis on which to discriminate. If your request for reasonable accommodations at work due to a disability was denied, your rights may have been violated.
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November 5, 2013

Strippers Win Employee Misclassification Case in New York

by Resnick Law Group, P.C.

A federal judge in New York has ruled that dancers at Rick’s Cabaret are hourly workers who must be paid minimum wage. According to a class-action lawsuit filed on behalf of nearly 2,000 dancers in 2009, the company improperly classified strippers as independent contractors. By categorizing dancers in this way, Rick’s Cabaret avoided paying employment taxes, benefits, and hourly wages to strippers at the company’s 23 clubs located across the nation. Additionally, independent contractors are not entitled to the same legal protections under state and federal labor laws that employees receive. In effect, dancers at the New York club were being paid solely in tips and subject to fees and fines imposed by management without legal protections.

Judge Paul Engelmayer determined the dancers were employees after analyzing the degree of control company management exerted over the women. According to the judge, the long list of entertainer guidelines and fees demonstrated that the company “exerted significant control over its dancers’ behavior.” At this time, no award for back pay has been determined. Rick’s Cabaret CEO Eric Langan stated the company plans to appeal the judge’s decision.

Although classifying strippers as independent contractors has apparently become an industry-wide practice, a number of dancers have won judgments against strip clubs in a variety of states across the country in recent years. Unfortunately, many dancers continue to work despite an erroneous employee status because they are simply unaware of their rights.
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November 4, 2013

New Jersey Law Allows Victims of Domestic Violence and Sexual Crimes to Take Unpaid Work Leave

by Resnick Law Group, P.C.

A New Jersey law that is scheduled to take effect on October 1 will require public and private employers with 25 or more employees to grant job-protected leave to the victims and certain family members of sexually violent and domestic violence offenses. The New Jersey Security and Financial Empowerment Act (SAFE Act) provides workers with up to 20 days of unpaid leave in any 12-month period. Leave may be taken in order to seek medical treatment, obtain assistance from a victim services organization, seek psychological counseling, speak with an attorney, attend or prepare for court proceedings, and take specified safety actions such as relocating.

In order to utilize the provisions of the Act, an employee must have worked at least 1,000 hours during the preceding year and all leave must be used in the 12 months immediately following the reported act of violence. Where possible, workers who take leave pursuant to the SAFE Act are required to provide their employer with advance written notice. All SAFE Act leave must be taken in increments of one day and any leave must be taken concurrently with leave requested under the New Jersey Family Leave Act and the federal Family and Medical Leave Act where applicable. Additionally, a New Jersey employer may request documentation related to the act of violence. Such documentation must be maintained in a confidential manner and may not be disseminated without the express written permission of the employee.

The provisions of the SAFE Act prohibit an employer from harassing, terminating, discriminating against, or engaging in retaliation against a worker who takes leave under the new law. If an employer violates this requirement, a worker may file a civil lawsuit against the company within one year of the alleged incident. An employee who suffered discrimination or retaliation for taking leave pursuant to the SAFE Act may be eligible to receive compensation for lost wages and benefits, emotional distress, attorney’s fees, and other damages. In addition, an employer who violates the Act may be subject to a significant civil fine.
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