The New Jersey Employment Law Firm Blog

February 7, 2013

NLRB Rules that Facebook Posts Regarding Coworkers Were Protected Concerted Activity

The National Labor Relations Board (NLRB) ruled that an employer’s termination of five employees over posts to the social media service Facebook violated the National Labor Relations Act (NLRA). In re Hispanics United of Buffalo and Ortiz, Case No. 03-CA-027872, decision and order (NLRB, Dec. 14, 2012). It rejected the employer’s argument that the employees’ posts violated its zero-tolerance policy regarding harassment of other employees. The ruling affirmed an earlier finding by an Administrative Law Judge (ALJ) that the employees’ posts were concerted activity protected by the NLRA.

Marianna Cole-Rivera and Lydia Cruz-Moore were employees of Hispanics United of Buffalo, Inc. (HUB), a nonprofit organization providing assistance to domestic violence victims and others. The two communicated frequently via telephone and text message, and Cruz-Rivera reportedly criticized other coworkers on a regular basis. Cole-Rivera reportedly received a text message from Cruz-Moore on Saturday, October 9, 2010, when neither person was at work, saying that Cruz-Moore intended to report her concerns about other employees’ performance to HUB’s executive director.

After replying to Cruz-Moore via text, Cole-Rivera posted a message to her Facebook page saying that Cruz-Moore felt that other employees “don’t help [their] clients enough,” id. at 2, and asking for other employees’ thoughts. Four HUB employees, all off-duty, responded with comments on the Facebook post. Cruz-Moore complained to the executive director and provided a printout of the post and its comments. The following Monday, the executive director fired Cole-Rivera and the other four employees for violating HUB’s “zero tolerance” policy towards “bullying and harassment.” Id.
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February 5, 2013

Lawsuit Alleges Gender Discrimination After Plaintiff Revealed Transgender Status

by Resnick Law Group, P.C.

A former Ph.D. candidate at a San Francisco university is suing the school for gender discrimination, alleging that faculty and staff began to mistreat him once he revealed that he had undergone sex-reassignment surgery. The cause of action is a rare one, as only a handful of states, including New Jersey and California, allow claims for employment discrimination based on gender identity. New York state law currently does not allow such a claim, but New York City does. A lawsuit filed in New Jersey in 2011 was the first to test this state’s transgender discrimination law. Federal authorities allowed a claim to proceed in 2012.

Kellen Bennett was a candidate for a Ph.D. in clinical psychology at Alliant International University’s California School of Professional Psychology in San Francisco. He says that he received good grades and good recommendations from August 2006, when he started the program, until October 2011, when he revealed his transgender status to a faculty member and several students. Bennett underwent sex-reassignment surgery thirteen years ago, and he has lived as a man ever since. He claims that his reviews suddenly all turned bad, and that a postdoctoral internship he had been promised was no longer available to him. At least one supervisor frequently used anti-transgender slurs in his presence. Bennett also alleges that someone altered his academic records in a way that affected his job search. He completed his degree, but was unable to continue in the program as he had planned. Bennett filed suit against the university for gender discrimination and retaliation last year.
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January 29, 2013

Former Manager Sues Hotel for Firing her After She Gave Birth in Guest Room

by Resnick Law Group, P.C.

A former manager at a “swanky” New York City hotel has filed a lawsuit accusing hotel management of discriminating against her because of her pregnancy. She alleges that her superiors told her repeatedly that she, possibly because of her age and race, was not a good fit in the hotel’s environment. She nevertheless worked eighty- to one-hundred-hour weeks, even well into her pregnancy. She was working when she went into labor, and ended up giving birth in a guest room at the hotel. After that, she alleges that management began eliminating her job duties, and then fired her on what she claims was a pretext.

Tara Tan claims that she helped build the Standard Hotel’s business in the four years that she worked there. Despite putting in long hours, even while pregnant, she alleges that her superiors told her she did not “fit the culture” of the hotel, a prominent nightlife spot in Manhattan’s Meatpacking District. Tan took this as a criticism of her Chinese heritage and her age, as compared to the young, mostly white, “model-like…beautiful people” she says the management preferred to have around. She had reportedly gained weight during an earlier difficult pregnancy, and endured harassment regarding her appearance before the pregnancy that immediately preceded her termination.

Tan was working a late shift on April 30, 2011 when she went into labor at around midnight. She claims that her superiors did not offer any assistance, allegedly because they did not want to disturb the hotel’s party scene. She was sent into a guest room on the fifteenth floor and waited for her husband, who came two hours later from their home in New Jersey. Tan also alleges that when she called the front desk to ask for help, the person on the phone asked if she was joking. The child was born soon after her husband arrived, at around 2:30 a.m. Tan’s husband assisted in the delivery, with Tan’s doctor offering guidance over the phone. They called for an ambulance, and hotel staff made them leave through a side exit so they would not disrupt hotel guests.
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January 22, 2013

New York Pharmacy Law Unlawfully Discriminates Based on National Origin and Alienage, According to Second Circuit

by Resnick Law Group, P.C.

A group of pharmacists with nonimmigrant visas sued a number of New York state officials over a law limiting pharmacy licenses to U.S. citizens and legal permanent residents. The plaintiffs in Dandamundi, et al v. Tisch, et al, 686 F.3d 6 (2nd Cir. 2012) alleged that the law violated the U.S. Constitution’s Equal Protection and Supremacy Clauses by discriminating based on “alienage.” The Second Circuit affirmed the trial court’s ruling in the plaintiffs’ favor, finding that immigration status, other than a lack of documented status, is a “suspect class” and that the law failed strict scrutiny review. While this case did not directly involve allegations of discrimination by an employer, it may have an important benefit for nonimmigrant employees who face discrimination based on their immigration status or national origin.

The plaintiffs have H-1B worker visas or TN temporary worker status, giving them the right to work in the United States for a limited time in a specified job. Each plaintiff had legally worked in the United States for six or more years. The court stated that twenty-two of the thirty-two plaintiffs had applied to obtain green cards. The six-year maximum H-1B period had expired for sixteen of the plaintiffs, so they had obtained Employment Authorization Documents from immigration officials to allow them to remain in the U.S. and continue working during review of their applications.

All of the plaintiffs had New York pharmacy licenses issued through a waiver program in New York Education Law § 6805(1)(6). The law states that pharmacy licenses are only available to citizens and permanent residents, but the waiver extended the availability of licenses to people with certain nonimmigrant visas. The plaintiffs’ pharmacy licenses became void when the waiver expired in 2009.
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January 15, 2013

Former Game Show Model Receives $8 Million Verdict in Pregnancy Discrimination Suit

by Resnick Law Group, P.C.

A former model on the long-running daytime game show “The Price is Right” received a verdict totalling over $8 million in a suit against the show’s producers. The plaintiff alleged that the producers unlawfully discriminated against her because of her pregnancy by firing her after she took leave to give birth. Federal law prohibits discrimination in employment based on a worker’s gender, and includes pregnancy discrimination as a form of gender bias. Laws in most states, including New Jersey, include similar prohibitions.

Brandi Cochran worked as a model on the show for several years before becoming pregnant. She alleged in her complaint that she witnessed discrimination by the show’s producers against other models who became pregnant, and so decided not to reveal her pregnancy for some time in order, she believed, to protect her job. When Cochran informed one of the producers, the producer told her she knew, citing Cochran’s weight gain. Cochran alleged that another producer, upon learning of the pregnancy, began to avoid interacting with her and suggested that he would have fired her had he known of the pregnancy.

Cochran claimed that the producers made her announce that she was pregnant with twins on the air. After the announcement, she alleged, the producers reduced her work load. She also allegedly received ridicule regarding her weight gain from co-workers. Cochran miscarried one of the twins, and she gave birth to the other three months premature. The child had severe health problems, and Cochran said she had to balance caring for the child and attempting to lose weight so she could return to the show. She claimed that the producers would not commit to a return date, and she eventually learned that she had been fired after she was removed from the show’s website.
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January 7, 2013

Firing Employee Due to Concerns of Employer’s Wife is Not Unlawful Gender Discrimination, According to Iowa Supreme Court

by Resnick Law Group, P.C.

In a decision that has already created a firestorm of controversy, the Iowa Supreme Court ruled that a dentist did not unlawfully discriminate against an employee based on her gender when he fired her because of his attraction to her. The court acknowledged in Nelson v. James H. Knight, DDS, P.C., No. 11-1857 (Iowa, Dec. 21, 2012), that the employer’s actions were unfair, but concluded that they were not motivated by the employee’s gender. Concerns over the employer’s marriage, the court found, was the primary reason for the firing. The court held that this was lawful even though the employee had done nothing wrong, but it also noted the potential for this decision to enable future employers to make similar claims in an attempt to justify otherwise unlawful firings.

The plaintiff, Melissa Nelson, began working for Dr. James Knight’s dental practice in 1999, when she was twenty years old and just out of school. She worked for him for ten-and-a-half years as a dental assistant. Both were married and had children by 2009, and Nelson testified that she viewed Knight as a “friend and father figure.” Slip op. at 3. Knight reportedly began to complain to Nelson during the last year and a half of her employment that her attire was inappropriate for the workplace, although Nelson denied wearing clothing that was too tight or otherwise inappropriate.

During the last six months of her employment, the two began communicating via text message. Some of the texts discussed matters of a sexual nature, but none indicated a sexual relationship between the two. Nelson said that she was not uncomfortable with the correspondence, although some of Knight’s texts could be described as explicit, such as a reference to bulging pants caused by her revealing clothing. Knight’s wife, who also worked for his practice, discovered their text correspondence in late 2009, and complained to him about it, calling it a “big threat to [their] marriage.” Id. at 4. In consultation with the couple’s pastor, Knight decided it was best to fire Nelson. He informed her of her termination on January 4, 2010, by reading a prepared statement with another pastor present. Knight acknowledged that Nelson had done nothing wrong, and that she was his best dental assistant. He later hired another woman to replace Nelson, and has always employed female dental assistants.
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January 4, 2013

Holiday Party Results in Sexual Harassment Lawsuit

by Resnick Law Group, P.C.

The holidays should be a time to enjoy one another’s company and have fun. Many employers allow their workers an opportunity to unwind at least once a year at office holiday parties. The office holiday party has become, in some part of the public consciousness, synonymous with debauchery and excess. Unfortunately, some people actually do take the festive atmosphere of a holiday party too far, often with the assistance of alcohol, and inappropriate remarks, behavior, or contact may result. Employees should remember that an office holiday party is a work function, and that the same laws prohibiting harassment in the workplace apply at the party. A recent New York lawsuit demonstrates that employees who are the recipients of a supervisor’s inappropriate conduct have legal remedies.

Lesley Shiner, the plaintiff in Shiner v. State University of New York, University at Buffalo, et al, worked as a clerk for the University at Buffalo Dental School. At office holiday parties in 2008 and 2009, she claims that she witnessed two administrators, an assistant dean and the director of clinical operations, make a series of sexually explicit and inappropriate comments. Upon receiving an invitation to the 2010 holiday party, she informed her direct supervisor that she was not comfortable attending because of the administrators’ past behavior. Shiner attended the December 21, 2010 party despite her concerns. She alleges that, while at the party, the two administrators sexually assaulted her. One administrator, the associate dean, allegedly committed multiple acts of assault, while the other “encouraged and cheered” his behavior. She states that this occurred in the presence of other employees, including Shiner’s direct supervisor.
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January 3, 2013

Federal Immigration Laws Protect Employees from Discrimination Based on National Origin

by Resnick Law Group, P.C.

Federal statutes like the Civil Rights Act of 1964 are widely-known and frequently invoked in cases of allegedly unlawful discrimination or harassment. The Civil Rights Act prohibits discrimination based on a wide range of factors, including race, gender, and religion. Other statutes also protect workers from specific types of discrimination. The federal Immigration and Nationality Act (INA), for example, prohibits employment discrimination based on national origin or, in some cases, citizenship status. While the principal purpose of this statute is to protect United States citizens, it can also protect immigrants with employment authorization in many situations.

Section 274B of the INA, codified at 8 U.S.C. § 1324b, prohibits employers from discriminating in hiring or firing individuals, as well as other features or benefits of employment, based on national origin. For United States citizens and legally-admitted immigrants, the statute prohibits discrimination based on citizenship status. This includes anyone admitted as a legal permanent resident, also known as a green card, and anyone authorized by immigration authorities to work in the United States. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) handles alleged discrimination in violation of the INA.

The law differs from other federal anti-discrimination laws in two important respects. First, it does not protect undocumented immigrants or immigrants without employment authorization. It also does not prohibit employers from giving U.S. citizens preference over non-citizens, provided the applicants are otherwise equally qualified. The statute specifically prohibits filing overlapping claims with the OSC and the Equal Employment Opportunity Commission (EEOC), which investigates alleged violations of the Civil Rights Act.
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January 2, 2013

NLRB Upholds Termination of Employee Over Facebook Posts, but Strikes Down Policy that Allowed the Firing

by Resnick Law Group, P.C.

The relationship between social media and employees’ rights is still a developing field of law, with few definitive rules in place yet. In a recent case demonstrating that uncertainty, the National Labor Relations Board (NLRB) considered the complaint of a person who lost his job due to comments he allegedly posted to the social media website Facebook. The complainant in Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker alleged that his employer’s social media policies unlawfully prevented him from engaging in concerted activities protected by federal labor laws. While the NLRB ultimately concluded that the firing was justified, it also ruled that the employer’s social media policy was unlawful.

The petitioner, Robert Becker, worked for Karl Knauz Motors, Inc. as a salesperson at its BMW dealership in Lake Bluff, Illinois. Becker’s difficulties with his employer began with an “Ultimate Driving Event” held on June 9, 2010. According to the NLRB’s decision, Becker and other sales representatives met with the general sales manager several days before the event to discuss the sales representatives’ duties. The manager informed them that the company would be providing a hot dog cart, along with cookies and chips, for customers attending the event. Becker and others reportedly expressed concern that this was not appropriate for this type of event, or this type of vehicle. Becker would later testify that the food choice was important because people’s perception of the event would influence sales, which would in turn influence his compensation.

In a separate incident, an accident occurred on June 14, 2010 involving a vehicle at a Land Rover dealership also owned by Knauz. During a test drive, a customer’s son was allowed to sit in the driver’s seat, where he reportedly stepped on a vehicle’s gas pedal by accident. This caused the vehicle to roll over the customer’s foot, then down an embankment and into a pond. Aside from the customer’s foot, no injuries were reported.
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December 21, 2012

Employee Social Media Rights Addressed by New Jersey Lawmakers

by Resnick Law Group, P.C.

Employment law attorneys in
New York and New Jersey note a bill passed in the New Jersey Senate recently (A2878), which would forbid companies from requesting access to employees’ or applicants’ online social media accounts, including Facebook and Twitter. In addition, the legislation goes further by preventing employers from even asking if an employee or applicant has an account or profile on a particular social media site.

Companies could face the prospect of a $1,000 or $2,500 fine depending on if it is a first or second offense, and employees or prospective employees could sue for damages in the event they are denied employment or promotion because of an employer’s prying into social media content. Law enforcement agencies would be exempt from these regulations.Employers are also prohibited from asking candidates to waive protection under the bill as a condition of an offer of employment, and retaliation is prohibited for refusing to provide passwords, reporting a violation of the bill, or participating in an investigation of a violation.

The bill had bipartisan support, and Republican sponsor Senator Kevin O’Toole explained his support, saying, “Social networking users have the right and freedom to use their accounts to share private messages with family and friends, express their religions and sexual preferences, and post images and videos with family and friends.” O’Toole went on to say that employers have many tools during the job application process to evaluate potential employees for their qualifications for employment.

Another sponsor, Republican Senator Diane Allen, made an analogy to the right to privacy people have in their homes and with physical mail. Many privacy and employee rights advocates have also questioned why employers would have greater access to personal information about an employee or applicant simply because it is posted on an online social media network.

While labor attorneys who represent large businesses are saying that the practice of asking for social media passwords is not widespread and the bill is unnecessary, legislation such as this has become increasingly common to protect employee rights. Maryland and Illinois have passed similar laws.

Granting employers and potential employers access to social media accounts can lead to a host of information being discovered that can be used to discriminate against an employee or candidate for employment, from discovering that an employee or candidate is pregnant, learning of health conditions, to simply learning the employee or candidate’s age or marital status.

The proposal banning employers from requiring that New Jersey employees or applicants disclose social media log-in information is in the Assembly for concurrence and would then need to go to Governor Chris Christie for his signature.
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