Recently in New Jersey Category

April 4, 2014

3d Cir. on FLSA successor-in-interest liability. Or, as I like to put it, "No Blog Hits" Day

I was on such a roll this week. 

You guys were digging the heck out of my peeing in the breakroom post, David Crosby the alcoholic, and the one about a supervisor offering cash to sleep with an employee's wife.

You know who even read that last one? Scan down to the blog comments. Yep, that's a comment from the plaintiff himself. OMG!!!

But, can you hear the crickets now? I mean, cue the tumbleweed, because if there's anything that grinds momentum to a halt here at The Employer Handbook, it's a post about the Fair Labor Standards Act.

But, since the Third Circuit Court of Appeals, which is in my hood and surely knows what a jawn is without me having to hyperlink that jawn, issued this precedential opinion on FLSA successor-in-interest liability yesterday. So, it's the least I could do.

Well, the least I could do is cut right to the chase. So, here's the money shot:

"The imposition of successor liability will often be necessary to achieve the statutory goals [of the National Labor Relations Act and Title VII] because the workers will often be unable to head off a corporate sale by their employer aimed at extinguishing the employer's liability to them. This logic extends to suits to enforce the Fair Labor Standards Act....In the absence of successor liability, a violator of the [FLSA] could escape liability, or at least make relief much more difficult to obtain, by selling its assets without an assumption of liabilities by the buyer (for such an assumption would reduce the purchase price by imposing a cost on the buyer) and then dissolving."

So, buyer beware and either pay less for the acquired company or ---

Hey, is anyone still here? Bueller?

February 26, 2014

Mohawks in the workplace aren't gay. Stupid, but not gay.

Three years at this blog without discussing mohawk hairstyles in the workplace. Now, two posts in one week. Which reminds me of the time I dressed up as BA Baracus for Halloween in law school

Ah, yes. That mohawk....and BA's fear of flying. Ties right into today's post.

(I love it when a plan comes together)

You see, recently, I read this opinion about a flight attendant who donned a mohawk and claimed sexual-orientation discrimination under NJ state law. 

Guh?

Yes, he claimed that the crap he took from his supervisors for his mohawk was because he was gay and, consequently, they had created a hostile work environment for him. And to attempt to prove his case, the plaintiff proffered pictures of other employees with "extreme hairstyles," whom he claimed received more favorable treatment than he.

This argument did not persuade the Court:

"Plaintiff must ultimately show by a preponderance of the evidence that he suffered discrimination because of his sexual orientation....Indeed, nothing in the record suggests that these employees whose extreme hairstyles Continental allegedly has never questioned are heterosexual...Based on the record before it, this Court cannot conclude that these photographs are probative of any discriminatory animus on the part of Plaintiffs supervisors, as they fail to suggest that Continental applied its grooming policy to Plaintiff in a discriminatory fashion because of his sexual orientation."

So, go ahead. Tease the heck out of the guy in the mohawk. Fire him if you want. And don't pity the fool.

January 24, 2014

NJ now bans discrimination based on pregnancy, childbirth or related medical conditions

Thumbnail image for nj.jpgI blogged about it here back in October. My epic Lil' Za Halloween costume. Both the NJ House and Senate had proposed legislation whereby a female employee affected by pregnancy could not be treated worse than other non-pregnant co-workers, but similar in their ability or inability to work.

Well, now, it's the law, son! Under the new law, which Governor Chris Christie (R) signed on Tuesday, employers must provide reasonable accommodation to pregnant employees that will allow them to maintain a healthy pregnancy, or who need a reasonable accommodation while recovering from childbirth. Examples include bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work. An employer can avoid accommodation if it can establish that doing so would cause it undue hardship.

The new law takes effect immediately.

BTW - How awesome is this kids' cover of Tool's Forty Six and 2? Amazing, right?

November 7, 2013

NJ votes to increase minimum wage to $8.25

Thumbnail image for nj1.jpgOn Election Day, NJ voters approved a constitutional amendment increasing the state's minimum wage by $1, from $7.25 to $8.25. The new wage rate will take effect on January 1, and future increases will be tied to inflation.

Governor Chris Christie, who was re-elected on Tuesday had opposed the increase, claiming that the state's economy would have a difficult time withstanding the increase.

New Jersey becomes the 20th state to establish a minimum wage higher than the federal minimum of $7.25.

Estimates suggest that the increase will affect about 400,000 NJ families. Hopefully, the wage hike does not affect hiring, especially in small businesses.

NJ business will want to be sure that, come January 1, they are not only paying out the proper minimum wage, but also accurately calculating overtime when minimum-wage employees work more than 40 hours in a workweek, lest they wish to find themselves in hot water with the NJ Department of Labor and Workforce Development.

October 23, 2013

New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers

If only I had a hot tub time machine, I would have gone back a day and a half and scooped Phil Miles at Lawffice Space and posted "New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers" before he did.

Except I didn't.

So read his post entitled "New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers." It's really good.

Lesson learned. Now, I'm on my game! So, tonight, my marching band and I are going to do an original tribute to Michael Jackson at halftime of a local high school football game. So, I'll post that here tomorrow.

Wait, WTH!

October 22, 2013

New NJ bill targets pregnancy and childbirth discrimination

New Jersey is the home of deep fried hot dogs and the Law Against Discrimination, one of the most employee-friendly anti-discrimination statutes in the country. Here, pregnant employees can order a ripper with relish at Rutt's Hut, but, somehow, are not entitled to preferential leave treatment in the workplace.

However, a new bill pending in the NJ Senate would change all that.

Not the hot dogs, silly. They rule. You know what doesn't rule? Leaving a quart of Rutt's Hut relish in the backseat of your buddy's car overnight during a high-90s Summer heat wave. Sorry, dude.

But about that bill. Christina M. Michelson at BusinessLawNews.com has the scoop:

Under the proposed legislation, a woman affected by pregnancy cannot be treated, for employment-related purposes, in a manner less favorable than other persons not affected by pregnancy but similar in their ability or inability to work. The proposed amendment to the LAD specifically requires employers to make available reasonable accommodation for pregnancy-related needs when requested by the employee with the advice of her physician. It also prohibits the employer from penalizing the employee in terms, conditions or privileges of employment for using the accommodations or, when accommodations are not feasible, for taking time away from work required by the pregnancy, as certified by a physician of the employee taking into account the condition of the employee and the job requirements.

You can view a copy of the proposed legislation here.

September 23, 2013

Does the ADA mandate transfer preferences for disabled employees?

njjug.jpg

Last Friday, I had the pleasure of speaking at the National Employment Lawyers Association - New Jersey Annual Conference.

I must admit that I was a bit leery. While it sounded legitimate enough -- they asked me to speak on a panel addressing accommodation issues under the Americans with Disabilities Act -- being the guy with The Employer Handbook blog, I half expected to be chloroformed upon arrival, and buried under a jughandle, left to be constantly trampled by folks making left turns from the right lane.

But, instead, I spoke to a sharp, engaged audience and met some wonderful people. (NJ management-side lawyers: there's a reason we get paid the big bucks. These employee-side folks don't make it easy!)

Our panel addressed a variety of different reasonable accommodations for disabled employees needing a little extra help to perform the essential functions of their jobs. While the bulk of the session focused on leave as a reasonable accommodation; specifically, how much is reasonable, we also touched upon job transfers. Here, the law is quite clear that a transfer to a vacant position for which the disabled employee is qualified is a reasonable accommodation.

However, what happens of the only open position available is one for which the disabled employee is barely qualified and you have another candidate for the same position, but with impeccable credentials? Must you accommodate the less-qualified disabled employee with the transfer, if no other reasonable accommodation is available?

*** makes sure lawyers hat is snug on head ***

The answer depends on where you operate your business.

In the Eighth Circuit (AR, IA, MN, MO, NE, ND, SD), the company may fill the position with the more qualified candidate. The same used to be true in the Seventh Circuit (IL, IN, WI), but not anymore. ADA also trumps in the Tenth Circuit (OK, KS, NM, CO, WY, UT, parts of MT and ID), and the DC Circuit.

For companies in the remaining states, your guess is as good as mine. And since I went with the Minnesota Vikings this week in my NFL survivor pool, I'm not feeling too lucky today. However, I can offer this: when discussing accommodations with employees, be respectful. It's not easy for someone with a disability to open up about their disability to anyone -- let alone their employer. And have an open-minded conversation with that employee. Work together to explore various options available. Maybe, that way, you won't find yourself in the position of having to make the difficult call on a transfer, but instead, arrive at a solution that works for everyone.

September 4, 2013

New NJ law bans retaliation against employees asked to give pay information

discrimred.jpgCash, Rules, Everything, Around, Me
C.R.E.A.M.
Get the money
Dollar, dollar bill y'all

[Did you know that your favorite blogger has been to not one, but two Wu-Tang concerts? 36 chambers of death, son. I lyrically perform armed robbery; way harder than Justin Bieber. Now, to the 3/4 of you I just lost there, let's get back on topic...]

On August 29, the same day that he signed the State's new workplace social-media-privacy law into effect, Governor Chris Christie signed legislation strengthening was is already a very strong law: New Jersey's Law Against Discrimination (LAD).

The LAD amendment forbids employers from retaliating against employees who are asked to disclose information regarding pay and benefits, where the information sought could assist in a discrimination action against the employer.

However, as Pamela Wolf at Wolters Kluwer notes, "nothing in the new law requires an employee to disclose such requested information about the employee herself to any other employee or former employee, or to any authorized representative of the other employee or former employee."

The new law takes effect immediately. So, protect ya neck!


September 3, 2013

NJ passes a business-friendly workplace social media privacy law

It takes two to make a thing go right.
It takes two to make it out of sight, palatable enough for bipartisan support.

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It took some doing, but the State of New Jersey finally has itself a workplace social media privacy law, becoming the 12th state to restrict company access to prospective and current employee social media.

Back in the Spring, I reported here that the NJ legislature sent a version of the bill to Governor Christie. However, to protect NJ businesses, Mr. Christie conditionally vetoed the proposed legislation and sent is back to both the NJ House and Senate with some proposed changes.

Both the House and Senate accepted these changes and sent the amended legislation back to Mr. Christie, which he formally signed on August 29.

Like similar laws in other states, this new law prohibits employers from requiring prospective and current employees from disclosing online usernames and passwords. And while I do not advocate social-media-credential requests from employers, it's worth noting that there are severable notable differences in the new NJ law, which loosen the restraints on local companies:

  • Many public employers which deal in public safety are exempted;

  • Any employer may require that the login/password of any account maintained for business purposes of the employer -- even if created by a current or prospective employee -- be disclosed;

  • Employers can also demand login/password as part of several categories of workplace investigations;

  • Employers can ask a current or prospective employee if he/she has a social media account; and

  • Any aggrieved current or prospective employee may report an alleged violation to the Commissioner of Labor and Workforce Development, but cannot bring a private action against the employer.

The new law goes into effect on December 1.

August 22, 2013

Four easy ways to break the law by viewing an employee's Facebook posts

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There are 11 states with social media workplace privacy laws making it illegal for an employer to require that an employee or applicant fork over a social media login and password.

But, if a company in the other 39 states assumes that it has the green light to engage in these shenanigans, then chiggity check yo self before you wreck yo self, according to this recent NJ federal court decision.

The legal risks of accessing an employee's Facebook account

The case involved a situation where the plaintiff, a former employee of the defendant, alleged that a member of upper management required that another employee access the plaintiff's Facebook account. While these allegations didn't bear fruit, the court warned that certain employer behavior could amount to "invasion of privacy."

Specifically, the court indicated that had the employer directly logged into the plaintiff's Facebook account, logged into another employee's account to view the plaintiff's Facebook page, or asked another employee to log into Facebook in order to access the plaintiff's Facebook page, then the employer would have violated the law.

Additionally, the court noted that non-public Facebook wall posts are covered by the Stored Communications Act. (However, in this particular case, the employer avoid SCA liability because it never solicited one of its employee to access the plaintiff's Facebook page. Rather, one of the plaintiff's Facebook friends, an employee of the defendant, provided content from the plaintiff's Facebook page to the employer all on his own).

A major lesson for both employers and lawyers.

Employers: Beware of nosing around on any portions of an employee's Facebook page that aren't otherwise publicly accessible. This would seem to include doing any of the no-no's described above -- even if part of a workplace investigation.

Lawyers: Have you ever tried doing a little Facebook due diligence on a plaintiff/defendant only to be stymied by his/her privacy restrictions? Have you then ever considered asking a Facebook friend of the party to access that information for you? Yeah, about that...

August 5, 2013

Judge dismisses "Borgata Babes'" claims of weight discrimination

borgata!

Sex sells. So, when 22 female cocktail servers at an Atlantic City casino pursued claims of discrimination based on their appearance, it came as little shock to me that the judge wasn't buying.

Last month, a New Jersey state court dismissed a lawsuit against the Borgata Hotel Casino & Spa, brought by cocktail waitresses known as the "Borgata Babes," who claimed that they were victims of gender and weight discrimination.

Jennifer Bogdan, writing here for the Press of Atlantic City, notes that, upon hire, Borgata told its servers that they must appear "physically fit" with their weight proportionate to their height and, ultimately, banned the servers from gaining more than 7 percent of their body weight. Supposedly, the women were subject to periodic weight checks and suspension for failing to meet the weight requirements, with exceptions made for medical conditions and pregnancy.

Ms. Bogdan reports that the judge held out little sympathy for the 22 "Borgata Babes," who knew what they signed up for:

"Johnson focused on the hiring process the women endured, which he said made it clear the positions were meant to be part entertainer and part cocktail server. All of the women involved in the case later signed statements agreeing to the weight policy, which the judge described as lawful and reasonable."
. . .
"The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to 'sex objects' to the Borgata's patrons. Nevertheless, for the individual labeled a babe to become a sex object requires that person's participation. Plaintiffs cannot shed the label babe; they embraced it when they went to work for the Borgata."

Without having seen a copy of the judge's 24-page summary judgment opinion, I'm reluctant to offer any sort of in-depth analysis. But I'll note that while some jurisdiction may recognize weight discrimination as a standalone cause of action, nothing under federal law (or NJ state law) expressly prohibits an employer from discriminating against employees based on weight. So, as noted above, the ultimate result here is no shock to me.

UPDATE: Thank you to my colleague, Jennifer Snyder, who provided me with a copy of the summary judgment opinion. As a "did you know," Jennifer informs me that Judge Nelson Johnson also wrote Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City.

July 19, 2013

NJ victims of domestic violence, sexual assault can now get leave from work

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Yesterday, the "New Jersey Security and Financial Empowerment Act," also known as the "NJ SAFE Act" was passed. I had a long day yesterday. So, rather than summarize the NJ SAFE Act myself, I'm going to lean on Trish Graber of PolitickerNJ to do it for me here:

"NJ SAFE Act" would provide 20 days of unpaid leave time to an employee who is the victim of domestic violence or sexual assault or whose parent, child, spouse, or civil partner was the victim. The leave could be taken within one year of the incident, and used intermittently in intervals of no less than one day. Provided that the employee has not exhausted the allotted 20 days for the 12-month period, each violent incident would constitute a separate incident for which a victim is entitled to unpaid leave.

Only business that employ 25 or more employees need comply with NJ SAFE Act. Those employees who have worked for the same employer for at least one year and have logged 1,000 base hours during the immediately preceding 12-month period are eligible.

You can view the new law here.

Hey, before you leave, do me a solid, folks. The ABA Journal recently opened nominations for the ABA Blawg 100 Amici, its annual list of the 100 best legal blogs. Since I've been serving up this brilliant prose to you every weekday for like the past two years, how 'bout you pay me back by nominating the ole Handbook, which you can do here. Or, you can literally pay me back with a generous Paypal donation, which is fine too. 

It's all the same to me.

May 16, 2013

3d Cir: Obama NLRB recess appointments (Becker too) were unconstitutional

nlrb.jpgIn a 2-1 decision issued today (copy here), the Third Circuit Court of Appeals ruled that the National Labor Relations Board lacked the authority to act as early as March 2010, when President Obama appointed Craig Becker to the Board. The Third Circuit held that Member Becker's appointment to the Board while the Senate was on an intrasession recess (a break within a session of the Senate) was unconstitutional. Implicit in the court's decision is that the appointments of Members Block, Griffin, Flynn in 2013, while the Senate held pro-forma sessions, were also invalid.

The Third Circuit ruled that recess appointments are only valid if made during intersession breaks (i.e., between sessions of the Senate).

This decision is crazy-long (102 pages plus a 55 page dissent). Thankfully, my Dilworth Paxson colleagues, Erin Galbally and Marjorie Obod prepared an e-alert summarizing the decision.

If you do business in Pennsylvania, New Jersey, Delaware, or the US Virgin Islands, the net effect of this decision may be that, until the Supreme Court rules in this pending case, you can basically ignore just about anything* that the Board has done this decade (well, since March 2010). 

* From June 22, 2010 through August 27, 2011, the Senate had confirmed enough Board members for quorum. So don't ignore that stuff.

(h/t The Volokh Conspiracy)

May 8, 2013

NJ Gov. Christie vetoes proposed workplace social media law

Thumbnail image for nj1.jpgYou see, employment-law dorks like me use tools like these to monitor the status of pending employment-law-related bills. And, yesterday, I got a hit informing me that, on Monday, Governor Christie conditionally vetoed this proposed NJ bill, which would prohibit employers from requiring employees and candidates for disclosing online usernames and passwords.

Savador Rizzo at The Star-Ledger summarized Gov. Christie's reasons for vetoing the bill here:

Christie said that he supports safeguarding "the privacy of job candidates and employees from overly aggressive invasions by employers" but that he wants to see stronger protections for businesses. For example, the governor said aggrieved workers should go to the state labor commissioner with their complaints instead of being able to file lawsuits in state court.
...
"Unfortunately, this bill paints with too broad a brush," Christie wrote in his conditional veto today. "For example, under this bill, an employer interviewing a candidate for a marketing job would be prohibited from asking about the candidate's use of social networking so as to gauge the candidate's technological skills and media savvy. Such a relevant and innocuous inquiry would, under this bill, subject an employer to protracted litigation."

Here are Gov. Christie's suggested changes to the bill.

You know my position on bills like these: not a fan. So, it is refreshing to see a decisionmaker forego the rubber stamp and actually consider the practical impact of a hasty bill, which, although well intentioned, seeks to solve what is essentially a non-existent problem.

April 15, 2013

Four ways to successfully defend an Equal Pay Act claim

This blog is nearly 2 1/2 years old and we have our first Equal Pay Act post. The Equal Pay Act requires equal pay for equal work on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. Any wage discrimination on the basis of sex violates the Act.

The EEOC celebrated "Equal Pay Day" last week. So, now is as good a time as any to address the Act through this recent case from the Third Circuit Court of Appeals.

In Puchakjian v. Township of Winslow, Deborah Puchakjian filled a Municipal Clerk vacancy within the Township of Winslow which came about a result of the retirement of the male incumbent. His salary at retirement was $85,515; Ms. Puchakijan's salary to replace him was $55,000.

She sued.

She lost.

You see, there are four exceptions to the Act's general rule of equal pay for equal work:

  1. a bona fide seniority system,
  2. a merit system,
  3. a system which measures earnings by quantity or quality of production, or
  4. any factor other than gender

The Third Circuit agreed with the lower court that the retired Municipal Clerk's yearly salary increases over his 29-year tenure in the position "both explained and motivated the wage disparity." Consequently, the wage disparity was based on a factor other than gender.

Given these four Equal Pay Act exceptions, claims under the Act are tough to prove. That said, a priority in the EEOC's Strategic Enforcement Plan (FY 2013-2016), is the enforcement of equal pay laws. Indeed, in 2012, the EEOC received over 4,100 charges of gender-based wage discrimination, and obtained over $24 million in relief for victims of gender-based wage discrimination through administrative enforcement efforts and litigation.

So, now is as good a time as any to conduct a wage audit and make sure that any disparity in pay for equal work is attributable to one of the Act's exceptions.