NEW JERSEY EMPLOYMENT LAWYER BLOG
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We are pleased to report that the Appellate Division, in Morgan v. Raymours Furniture Company, Inc., rejected Defendant’s motion to compel mandatory arbitration.  In this case, the employer, Raymour, sought to compel arbitration based upon an arbitration policy contained in its employee handbook that was circulated electronically.  The handbook contained several disclaimers advising that nothing in the handbook could be enforced as a contract, and that none of the terms of the handbook could be enforced against the employer.

The Court emphatically rejected the Defendants’ claim that there was an enforceable arbitration agreement, and held that the same disclaimers that prevent a contract from forming against the Defendant also prevent a contract from forming against the Plaintiff.  Even more important, the Appellant Division ruled that a motion to compel arbitration is actually akin to a motion for an injunction, and that therefore the motion could be denied on purely equitable grounds.  This will permit Plaintiff employees to argue that motions to compel mandatory arbitration can be rejected based on grounds of fundamental unfairness.

Hopefully this decision will be upheld on appeal and Plaintiff employees will not be denied access to courts and juries on account of obscure arbitration clauses.

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We have negotiated many settlement agreements for claims brought under the New Jersey Law Against Discrimination (“LAD”), the Conscientious Employee Protection Act (“CEPA”), and various other New Jersey laws that have included a provision barring the settling employee from seeking future employment with the defendant employer.  Employers argue in favor of including these clauses in order to prevent future claims of retaliation in the event the employer does not agree to re-hire the employee.  Truth be told, most employees have no desire to work again for the offending employer, but these no re-hire provisions can become complicated when companies are sold and/or merged and the employee seeks future employment with the re-constituted employer.

A federal court in New York (see, Reyes v. Hip at Murray Street) recently refused to approve a proposed settlement for a lawsuit brought under the Fair Labor Standards Act because it contained such a no re-hire provision.  It will be interesting to see if there is more push back on these clauses in settlement agreements for a wider range of employment law claims.  Stay tuned!

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The New York Times reported today about a study recently undertaken by Rutgers and Syracuse universities.  Researchers sent resumes and cover letters on behalf of fictitious applicants for thousands of accounting jobs.  Disappointingly, they found that employers expressed interest in candidates who disclosed a disability about 26 percent less frequently than in candidates who did not.  This could explain the low national employment rate for persons with disabilities.

The researchers created two separate resumes: one for a highly qualified candidate with six years of experience, and one for a novice candidate about one year out of college.  For each resume, they composed three different cover letters: one for a candidate with no disability, one for a candidate who disclosed a spinal cord injury in the letter, and one for a candidate who disclosed having Asperger’s syndrome, a disorder that can make social interactions difficult.

Interestingly, employers had less interest in interviewing the experienced candidate that was disabled than the disabled candidate just out of school. Employers were about 34 percent less likely to show interest in an experienced disabled candidate, but only about 15 percent less likely to express interest in a disabled novice candidate.  The researchers speculated that the steeper drop-off in interested for experienced disabled candidates arose because more experienced workers represent a larger investment for employers, who must typically pay such workers higher salaries and assume the employment relationship will last longer.  Also, experienced workers are also more likely to interact with clients on a regular basis so employers may believe that hiring these workers are riskier.

Also surprising to me, the researchers found that the decline in interest in disabled workers was roughly the same whether the disability was a spinal cord injury or Asperger’s.  This points to a general bias against people with disabilities.

I found it encouraging that the study showed that the enactment of the American’s with Disabilities Act (the 1990 federal law banning discrimination against persons with disabilities) appeared to reduce bias.  Businesses covered by the act, those with 15 or more workers, were not as likely to reject the disabled candidates out of hand as smaller businesses. Although this shows progress, our work does not appear to be done. Should you experience discrimination in the workplace on account of a disability or even a perceived disability, please consult a qualified employment attorney.

 

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On September 15, 2015, Rina Traub, Esq. was featured on “Know Your Rights NJ” in a program discussing unemployment insurance.  This program, which is available for viewing here, is produced by Princeton Community Television.  Ms. Traub described New Jersey’s unemployment insurance program in detail, including the basics of qualifying for benefits and appealing adverse determinations from the Department of Labor.

If you have questions regarding your entitlement to unemployment insurance benefits, or have been denied benefits, contact a knowledgeable employment attorney to discuss your options.

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According to the U.S. Department of Labor (as reported in North Jersey.com), there is over $7,000,000 in back pay sitting unclaimed in their Philadelphia.  This money is being held on behalf of approximately 10,000 New Jersey workers.  The unclaimed money was collected over the past three years from employers who were investigated or prosecuted for wage and hour violations.  If you believe you are owed back pay from a U.S. DOL investigation or complaint, you can check the agency’s “Wages Owed Workers” site and type in your employer’s name and location, followed by your own last name and first initial.  Since the website’s launch in June, approximately $800,000 has been claimed.  But act fast.  If you don’t claim your money within three years, it will go the U.S. Treasury.

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The New Jersey Supreme Court issued an important decision this week which is being hailed as a great victory by plaintiff’s employment lawyers.  The issue before the Court was whether so-called “watchdog” employees were entitled to protection under the Conscientious Employee Protection Act, New Jersey’s whistleblower protection statute.  “Watchdog employees” are those whose regular job duties include blowing the whistle, such as an internal auditor, a quality assurance professional, or a retail store manager.  Under a previous decision of the Court, some employers successfully argued that such employees are not entitled to whistleblower protection — they were merely doing their job.  However, in the recent case of Lippmann v. Ethicon, the Court rejected that argument, reasoning that the nature of an employee’s position and job duties does not take away their whistleblower rights.

The Court’s decision upholds the legislative intent behind the whistleblower statute, which is to encourage as many employees as possible to report actions of their employer which are unsafe or illegal.  If your employer is engaging in conduct which you reasonably believe to be reportable or objectionable under the whistleblower law, you should consult with a knowledgeable employment attorney before taking action.

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According to a press release issued today, the N.J. Department of Justice has filed suit against an employer for failing to re-employ an Army National Guard sergeant following her military deployment.  The lawsuit, filed in the U.S. District Court in Camden, alleged that Healthcare Commons Inc., of Carneys Point, New Jersey, violated the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA).  This statute protects the rights of uniformed service members who are absent from their jobs due to military service obligations.  In this case, the employee was a sergeant with the U.S. Army National Guard, who returned from military deployment in May 2014.  When she returned, the lawsuit alleges, her employer failed to re-employ her or offer her a comparable job position.

Said Acting Associate General Stuary F. Delery:  “No person should lose their job for serving our country, but according to our complaint that’s exactly what happened to a National Guard member here.”  U.S. Attorney Paul Fishman added, “[t]he men and women who serve in our armed forces here and abroad do so at great personal sacrifice. . . . because of that sacrifice, federal law guarantees that they have the opportunity to resume their careers when they’ve completed their service.  When companies seek to skirt their obligations to re-employ our returning veterans, we will hold them accountable.”

If you are an active member of the military who has lost his or her job due to military obligations, you have rights protected by statute.  Contact a knowledgeable employment attorney to discuss your options.

 

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According to Bloomberg Business, fast food workers across the nation are rallying for higher pay and the right to unionize without retaliation.  Rallies organized by the Fight for $15 campaign were held in 236 U.S. cities last week.  The campaign seeks McDonald’s Corp. and other fast food chains to raise their minimum wages to $15 and to permit employees to unionize.  Campaign organizers said that the rallies drew tens of thousands of workers and were the largest action to date for its movement, which began in November 2012.  Prior to these rallies, McDonald’s stated that it would raise wages and offer paid vacations for its full-time employees at its U.S. company-owned stores, which amount to approximately 1,400 stores out of 14,000.  Recently, Wal-Mart, Target, and other retailers have begun boosting pay for its minimum wage workers as well.

The Fight for $15 campaign, and the businesses that are paying attention to it, are ahead of the federal government on this issue.  Legislative attempts to increase the minimum wage nationwide do not have the support of the House of Representatives or a majority of the Senate.  In our view, it is good economic policy for lower wage workers to have more disposable income to spend.  A rising tide of wages for lower income workers will lift everyone’s boats.

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A New York court has ruled that a Papa John’s pizza franchise owner has to pay approximately $2,000,000 for underpaying hundreds of its delivery workers.  The court found that New Majority Holdings and its owner, Ronald Johnson, violated wage and hour law by rounding workers’ hours down to the nearest whole hour (thereby not paying them for fractions of an hour), paying them the lower “tipped” minimum wage although they had many non-tipped job duties, not paying them overtime pay, and not reimbursing them for buying and maintaining their bicycles.

It seems to me that fast food workers have a hard enough time making a living without their employers taking further advantage of them by violating wage and hour laws.  Kudos to New York Attorney General Eric Schneiderman and his team for prosecuting this case and highlighting the plight of fast food workers in New York City.

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In a recent case, Hargrove v. Sleepy’s LLC No. A-70-12 (072742)(N.J. Jan. 14, 2015), the Supreme Court of New Jersey held that the proper test to apply when determining an individual’s status for purposes of the New Jersey Wage Payment Law is the “ABC test”.

The case involved three plaintiffs, delivery truck drivers, suing Sleepy’s individually and on behalf of a putative class.  Sleepy’s had contracted with individuals and delivery companies to provide delivery services to its customers.  The plaintiffs claimed that Sleepy’s had misclassified them as independent contractors rather than employees and, in doing so, denied them the benefits and protections that they otherwise would have been entitled to under New Jersey’s wage and hour laws.

The lower federal court applied the federal common law test that focuses primarily on the employer’s ability to control the contractor’s work performance, and awarded summary judgment to Sleepy’s.  The plaintiffs appealed and the Third Circuit asked the NJ Supreme Court to consider the specific question of which test should be applied to determine independent contractor status.  At least four different tests had been used in New Jersey to determine employee vs. independent contractor status for purposes of unemployment, whistleblowing, discrimination and tort claims so the Court in this case was asked to decide which test to use for purposes of the wage and hour laws.

The Supreme Court determined that the “ABC test” governs, a test that is more worker-friendly.  Employers will now have the burden of showing that an individual providing services:

  1. is free from the company’s control in performing services;
  2. performs work outside the usual course of the company’s business or outside the company’s place of business, and
  3. is engaged in an independently established business.

The Court further specified that the failure to satisfy any one of the three criteria means that the worker should be classified as an employee, not an independent contractor for purposes of the wage and hour laws. The Court noted that New Jersey’s wage and hour laws are remedial statutes that should be liberally construed.

Workers and companies alike should consult with employment counsel to determine the proper employment classification under this ABC test.