The New Jersey Employment Law Firm Blog

January 2, 2013

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

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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November 15, 2012

New Jersey Court Backs Alcoholic Employee’s Disability Discrimination Claim

by Resnick Law Group, P.C.

The New Jersey Superior Court recently overturned a lower court’s summary decision dismissing the plaintiff’s claims of disability discrimination on the basis of her voluntary admission of alcoholism.Our New Jersey employment lawyers know it is a little-known fact that alcoholism is considered a disability, both under the Americans With Disabilities Act of 1990 and the New Jersey Law Against Discrimination. What this means is that you cannot be discriminated or retaliated against by your employer for seeking substance abuse treatment or for simply admitting you are an alcoholic or a drug addict.

This may not summarily protect your position if you show up for work intoxicated, if your job performance is poor or if you are putting others at risk. But in this case, the long-term employee was performing well and had no disciplinary issues. What’s more, the company’s internal policy on which her termination was based was found by the state’s Superior Court to be “facially discriminatory,” though the company vehemently defended it.

The case, A.D.P. v. Exxonmobil Research and Engineering Company, originated with a voluntary admission from the employee to her employer that she was an alcoholic and was in an inpatient rehabilitation center receiving treatment. This admission was not the result of an inquiry or pressure from the employer based on poor job performance. In fact, she was performing quite well. Regardless, the company, by its own policy, subsequently required the employee to undergo regular alcohol testing in the form of breathalyzer tests and mandated that she sign an agreement pledging to abstain from alcohol.

When the employee in turn failed a random breathalyzer test, she was fired.

The Superior Court found that because the employee’s required breathalyzer test was based not on job performance or imposed on every employee regardless of disability, the employer in fact was engaging in discrimination.

The court underscored the fact that the employer had not made her sign this agreement as part of a “last chance agreement,” which might have been extended to an employee on shaky ground stemming from poor performance due to alcoholism. The employee was not the subject of any pending disciplinary action or internal investigation. In fact, managers for the defendant testified that the employee’s work was exemplary, and that the tests were mandated on factors other than her job performance.

Therefore, the court ruled, it was discriminatory.

N.J.S.A. 10:5-1 outlines that employers may not terminate a defendant on the basis of a disability. As alcoholism is a disability, employers are required to make reasonable accommodations for alcoholics.

Because substance abuse is not widely accepted as a legitimate illness, many employers may not understand their responsibilities under the reasonable accommodations requirement. It doesn’t mean, for example, that an employer has to tolerate it if you come in late to work on a Monday or leave early on a Friday in order to binge. It does, however, mean the employer can’t target you for discipline because you sought substance abuse treatment or you had to leave a little early to attend an Alcoholics Anonymous meeting. Reasonable accommodation means an employer has to be willing to work with you on these matters, so long as it does not create an undue hardship.
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November 9, 2012

NLRB Finds Costco’s Social Media Policy Violates Rights of Union Workers

by Resnick Law Group, P.C.

The National Labor Relations Board recently invalidated several sections of Costco’s employee manual, including its social media policy. The United Food and Commercial Workers union filed an unfair labor practices charge, contending the rules violated Section 8(a)(1) of the NLRA because they prohibited protected activities under Section 7 of the NLRA.

The decision is seen as a victory for unions and workers’ rights in the face of an increasing number of these corporate social media policies.

Section 7 gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”The case is Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371 (Case 34-CA-012421). At issue was a section in Costco’s employee handbook that said message board comments or social media posts that violated company policy would be subject to discipline up to and including termination.

The three-member panel of the National Labor Relations Board noted any social media rule that violates Section 7 rights would be unlawful. Otherwise, a violation depends on one of the following: The employee could reasonably construe that the language violates Section 7 activity; the rule was formed in response to union activity; or that the rule’s aim is to restrict Section 7 rights.

The panel found that wording prohibiting employees from posting comments detrimental to the company or to a person’s reputation “clearly encompasses concerted communications protesting … treatment of its employees.” However, the panel found a rule prohibiting employees from leave company property during a work shift without the permission of management was not in violation.

New Jersey employment attorneys understand technology plays a critical communications role for a union and its members. Consequently, social media use is increasingly becoming an issue addressed in employee handbooks. In this case, the ruling by the Administrative Law Judge invalidates several sections of Costco’s employee handbook that are likely found in the employment policies of many companies. These include prohibitions against sharing personal health information, personal employee contact information, and information protected by the Family and Medical Leave Act and the Americans with Disabilities Act.

In the last year, the Acting General Counsel for the NLRB has issued three advisory reports regarding corporate social media policies. However, this is the first case decided by the board.

In this case, the National Labor Relations Board ordered Costco to cease and desist from:

-Maintaining social-media provisions that could be interpreted as prohibiting employees from discussing working conditions, wage or other employment issues.

-Maintaining provisions prohibiting employees from posting statements damaging to a person’s reputation.

-Maintaining a social media policy that is overly broad or could be construed as negatively impacting an employee’s collective-bargaining rights.

-Maintaining policies that prohibit an employee from posting negative information about the company.

Our New Jersey employment attorneys continue to see employers run afoul of state of federal laws by developing social media policies aimed at protecting the best interests of the company, without regards to the rights of the workforce.
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November 2, 2012

New Jersey Passes Law Against Gender Discrimination

by Resnick Law Group, P.C.

By signing into law new posting requirements aimed at combating pay and gender discrimination, Gov. Chris Christie advanced the fight for equal pay in the workforce.

Under the new law, companies that employ more than 50 people must post gender equality information in the workplace. This information must also be provided to employees at the time of hire, annually thereafter, and upon an employee’s request.The law is scheduled to take effect Nov. 21 and employers will have 30 days to comply once the New Jersey Department of Labor issues notice.

However, our NJ employment lawyers understand there is much work left to be done. Employees, particularly women, must remain vigilant in making sure they are fairly compensated, particularly in relation to men holding similar positions within the company.

Christie vetoed a measure that would have increased the reporting requirements for public contractors in an effort to better determine and enforce compliance. Those doing business within New Jersey would have been required to report gender, job title, occupational category, race and total compensation to the New Jersey Department of Labor.

“When Gov. Chris Christie had a chance to sign legislation I authored to prevent gender wage discrimination in public contracts, he vetoed the bill, calling it ‘senseless bureaucracy,'” wrote Assemblywoman Pamela Lampitt (D-Camden/Burlington), in the Star-Ledger. Lampitt is also chairwoman of the Assembly’s Women and Children Committee.

Christie said it would have been burdensome and would have ultimately driven up the cost of public contracts paid for by tax dollars.

However, fact remain that women continue to fight for the equal pay owed them for equal work; this remains particularly true for jobs traditionally held by men. Lampitt notes a nationwide annual gender wage gap of $15.8 billion. In New Jersey, women earn just 79 cents for every dollar a man earns in the workforce.

Christie returned two New Jersey employment discrimination bills to the legislature for significant amendments.

The first would have eliminated the statute of limitations for bringing compensation discrimination claims. The Christie Administration contends that asserting into the bill limitations on the amount of backpay that can be recover would bring it into better agreement with the holdings of the New Jersey Supreme Court and the Lilly Ledbetter Fair Pay Act of 2009. The governor proposed a two-year limit.

The next measure would have prohibited retaliation against employees requesting pay information. The governor recommended the provisions be included in the New Jersey Law Against Discrimination rather than being made part of NJ’s whistleblower law.

Establishing whistleblower protections is a key component that must be part of any real solution. The secrecy around pay in the workforce is one one the primary reasons why this form of silent discrimination is allowed to continue. Until employees who have reason to believe they are being paid unfairly are given access to compensation information, such discrepancies in pay will remain commonplace.
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October 23, 2012

New Jersey Employment Discrimination: State Police Refuse to Answer Questions about Promotional Policies

by Resnick Law Group, P.C.

The American Civil Liberties Union has filed a discrimination lawsuit in New Jersey against State Police on behalf of the Latino Leadership Alliance. The group is seeking access and information regarding promotion policies, The Inquirer reported.

The chairman of the group, which describes itself as a coalition of community organizations, says he is a former police officer looking to ensure that there is no “disparate treatment of minorities,” according to the lawsuit.State police denied a state Open Public Records Request last month, saying the request was “improper and overbroad.” The ACLU asserts police are permitted to keep individual employment records private but not general employment policies.

The ACLU is accusing state police of a culture of secrecy, saying it’s the third public records request the agency has denied in recent months. For their part, state police are pointing to a recently adopted rule by the New Jersey Attorney General’s Office, which permits police to withhold “standard operating procedures” from public view. The new regulation was first adopted in December 2011; the Attorney General’s Office had previously said the rules would not be used to exempt general polices and procedures.

Yet it’s been used to deny this request by the Latino Leadership Alliance, which wanted to know if promotion policies favored one ethnic or racial group over another.

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate in employment matters on the basis of race, color, religion, sex or national orientation. U.S. Equal Employment Opportunity Commission statistics from 1997 to 2011 show charges filed under Title VII alleging race discrimination in the workplace have risen from 762 in 1997 to nearly 3,000 last year. Race-based charges have increased from 29,199 in 1997 to more than 35,000 last year.

New Jersey’s Law Against Discrimination (LAD) prohibits employment discrimination in any job-related action — including hiring and promotion — on the basis of any of the law’s protected categories. Protected categories are: race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses.

Such discrimination is also forbidden in setting salary and benefits, making job assignments, in disciplinary actions and when reducing the workforce or otherwise conducting layoffs or terminations.

The law also protects employees from retaliation in the wake of making a good faith complaint about discrimination or harassment. Avenues for remedy include filing a complaint with the New Jersey Division of Civil Rights (which must be done with 180 days of the alleged act of discrimination) or pursuing a case through New Jersey Superior Court, typically with the assistance of an experienced New Jersey employment lawyer.
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October 18, 2012

National Boss Day Gift – A Look at 25 Largest Employment Lawsuit Settlements

by Resnick Law Group, P.C.

They say knowledge is power. We, as experienced NJ employment attorneys, certainly agree.

To that end, eBossWatch, an organization that allows employees to monitor bosses, used Boss’ Day this year to release a study on workplace harassment and discrimination, and the common charges that are costing employers millions. During the last 12 months, such suits have resulted in more than $356 million in payouts and judgments, according to the Insurance Journal.The most common violation leading to sizable settlement or jury award: Sexual Harassment. Passaic County, New Jersey had the 12th largest payout: $3.7 million in an age discrimination judgment. A $25 million race discrimination lawsuit in Buffalo placed second on the list.

Mercy Hospital took the dubious honors of paying the highest award: $168 million in Sacramento for a sexual harassment lawsuit judgment. Companies in Chicago reported 3 of the 7 highest payouts. The New Jersey Law Against Discrimination (LAD) prevents discrimination based on the protected statuses of race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses.

But the vast majority of employment lawsuits in New Jersey involve sexual harassment or discrimination based on age, sex or race. The same holds true when looking at statistics nationwide: The U.S. Equal Employment Opportunity Commission reported 1,841 cases in New Jersey last year.

-624 sex-based employment lawsuits in New Jersey
-457 race-based cases
-306 national origin
-89 religion
Of course, as the law states above, there are many other protections that may result in an unemployment lawsuit. Last year, New Jersey passed a law banning discrimination against the unemployed. However, sexual harassment remains the most commonly filed.

As we reported recently, New Jersey has paid millions to settle sexual harassment claims against state employers, including many supervisors who remain on the job. In fact, nearly $4 million has been paid to settle 27 sexual-harassment lawsuits in recent years.

New Jersey also just passed the Equal Pay Act, which is meant to address some of the gender inequality remaining in the workplace. Signed Sept. 21, the law requires employers to provide workers with a written copy of such rights. Simply posting those rights will no longer be considered sufficient.

What this means, for women in the workforce in particular, is that vigilance can ensure that you are being paid and treated fairly in the workforce. While we’ve come a long way in promoting equal pay for equal work, there is much work yet to be done. And those who are treated unfairly in the workforce based on gender should seek an experienced employment law attorney in Roseland or elsewhere to help protect their rights.
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October 17, 2012

New Jersey Gender Discrimination Target of New Pay Parity Law

by Resnick Law Group, P.C.

As New Jersey employment attorneys, we were pleased to learn that late last month, New Jersey Gov. Chris Christie signed a gender pay parity bill into law, which aims to address gender inequality in pay, benefits and other conditions of employment.

Gender discrimination in New Jersey is illegal under the New Jersey Law Against Discrimination, the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. The new law requires employers of more than 50 to provide employees written notice of their workplace rights.Written notice must be provided within 30 days of the issuance of the forms by the New Jersey Department of Labor and Workforce Development (expected after the law’s effective date November 21, 2012); upon hiring; annually each year; and upon an employee’s first request. Employees must also sign acknowledgement of receipt within 30 days.

The number of gender discrimination complaints filed has remained fairly constant over the last 15 years, according to the Equal Employment Opportunity Commission. A total of 24,728 federal complaints were filed in 1997, compared to 28,534 complaints filed last year. Still, gender complaints are second only to race discrimination complaints in the numbers filed annually. The EEOC reports 457 gender complaints were filed with the State of New Jersey last year.

While women’s rights in the workplace have come a long way in a generation, there is still much work left to be done. With the hiring of former Google executive Marissa Mayer as the CEO of Yahoo! this summer, women now hold 20 CEO positions among Fortune 500 companies.

IBM, Pepsi-Co, Campbell Soup, Kraft Food and Xerox are other major U.S. corporations headed by women, according to Forbes Magazine.

In 1947, women accounted for just over 31 percent of the workforce. By 1979, it was just over half and has stayed there ever since. However, the pay gap has not reached parity nearly as quickly. In fact, an article in The Washington Post estimates it will take another half century to close at its current pace.

Today, white men make $2.09 an hour more than white women, on average. Black men make about $1 more an hour than their female counterparts. In New Jersey, the National Partnership for Women & Families found women make 11 to 44 percent less than men – or an average of about $12,000 a year less.

“Women and their families are losing critical income for food, gas, rent, health insurance and more due to a punishing gender-based wage gap that has plagued this country for decades,” said Debra Ness, president of the National Partnership.

As Businessweek reports, gender pay inequality is particularly troubling because it’s a silent offense. Women know when they are being subjected to harassment or abuse, and it’s often possible to determine whether discrimination is occurring in hiring and promotions.

But the confidential nature of most company’s compensation policies often forbids employees from talking about pay. As a result, pay inequality more frequently goes unchecked. Professions in which such inequality is most likely to occur include financial advisers, physicians, lawyers and police officers.
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October 10, 2012

Sexual Harassment Costs New Jersey Millions – Many Offenders Remain on the Job

by Resnick Law Group, P.C.

Sexual harassment lawsuits, filed by NJ sexual harassment lawyers on behalf of state workers, against state agencies is costing New Jersey millions, yet many of the offenders remain on the job or have retired with lucrative pensions, according to an investigation by the Asbury Park Press.

A cadet at the state’s corrections officer academy said she was subjected to offensive obscenities, inappropriate touching my male instructors, sex and gender discrimination and on-the-job retaliation in the wake of complaints to superiors. Fed up, she sued in 2005 and agreed to settle the case last year for $415,000. She now works as a senior corrections officer at New Jersey State Prison in Trenton.Despite millions in settlements, most agencies refuse to discuss the issue — citing either ongoing litigation or private personnel issues not subject to disclosure. However, the newspaper’s investigation found many state employees or supervisors who have been named in the lawsuits either continue to work for the state or have retired with generous pensions. Many of the employee complaints allege the harassment has been occurring for years, according to the Park Press.

Whether in the private or public sector, failure to adequately deal with employees who violate sexual harassment policy ensures that the company remains exposed to such lawsuits and that employees remain exposed to unlawful conduct in the workplace.

The New Jersey Civil Service Commission reports nearly 1,000 state employees have filed sexual harassment lawsuits in the last 5 years. In recent years, 27 lawsuits have been settled for a total of $3.9 million. The average settlement is $145,000. In fact, the number of sexual harassment complaints in New Jersey has increased by 10 percent since 2006, even as the number of complaints nationwide has dropped by 5.5 percent.

The State of New Jersey has had a sexual harassment policy on the books since 1993 and all of the state’s 74,000 employees are required to take training courses aimed at preventing sexual harassment in the workplace.

Sexual harassment which creates a hostile work environment is when an employee endures sexually abusive or offensive behavior and does not have to include physical contact. Quid pro quo sexual harassment is when an employer demands sexual favors as a condition of continued employment or advancement.

A total of 78 complaints involving state workers have been filed this year through Sept. 12.

Ironically, most of the settlements involved state agencies entrusted with enforcing the law. The State Department of Law and Public Safety was responsible for more than $1 million in settlements — the highest dollar amount of any agency. Other agencies included state courts, the Juvenile Intensive Supervision Program and the Department of Corrections.

A spokesman for the state Attorney General said state agencies thoroughly investigate complaints and that disciplinary action can include reprimand, demotion, suspension or termination.
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October 4, 2012

New Jersey Overtime Pay: Know Your Workplace Rights

by Resnick Law Group, P.C.

Many of us have learned to do more with less as we climb out of the worst economic recession since the Great Depression. However, when such sacrifice is the result of wage and hour violations, an employee is protected under state and federal law.

Typically, however, it’s up to the employee to assert their legal rights to overtime. Joining co-workers in seeking advice from a NJ overtime lawyer can help you recover wages owed to you and your colleagues at work.A new survey conducted by Harris Interactive found half of U.S. workers believe that their employer violates overtime laws. Most employees feel the weak economy has also forced them to do more work for less pay. In Great Britain, France, Australia, China, Mexico, India and Brazil, about two-thirds of hourly workers report that their employer violates overtime laws at least some of the time.

Most hourly workers who were surveyed indicated an eagerness to work extra hours, presumably for additional pay. In the U.S., some 43 percent of workers said they wish more hours were available.

In the U.S., there has been an increase of nearly 50 percent in the number of employee claims alleging wage-and-hour violations – from about 5,000 complaints annually a decade ago to the current rate of more than 7,000 claims a year alleging violations of the Fair Labor Standards Act (FLSA).

The United States Department of Labor’s Wage and Hour Division is responsible for overseeing compliance with the FLSA. Under federal law, the minimum wage is $7.25. The New Jersey Assembly is debating whether to increase the state minimum wage to $8.50. Nonexempt hourly employees must be paid at least 1.5 times their regular wage for hours worked over 40 hours in a week.

Exempt Employees may include:
-Professional employees, including school teachers.
-Seasonal employees.
-Farm workers.
-Certain commission and sales positions.
-Certain salaried supervisory positions.

Tipped employees must be paid at least $2.13 an hour. However, tips must amount to at least the minimum wage or the employer must make up the difference. There can also be legal issues when employees are forced to share tips — particularly with supervisors or other non-tipped employees.

In other cases, an employee may be misclassified as a salaried employee, or wrongfully paid a salary for more than 40 hours worked. Another issue that has become commonplace is misclassifying employees as independent contractors. These violations can be particularly egregious and may also leave an employee uncovered by workers’ compensation insurance in the event of an on-the-job accident.

Unpaid or withheld wages may also constitute a wage-and-hour violation under the New Jersey State Wage Payment Law (N.J.S.A. 34:11-4.1).

Throughout the downturn, employers laid off workers and made existing staff pick up the slack. And many have been slow to increase hiring through what has been a sluggish recovery. Too often, employees do not report violations for fear of losing their job. While state and federal laws prohibit retaliation, it remains a valid concern.

But when such circumstances are permitted to become commonplace, basic employee rights become a casualty. When coworkers seek the advice of an experienced law firm, their rights are better protected.
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