New Jersey Employment Lawyer Blog

On December 13, 2010, New York State Governor David A. Paterson signed the Wage Theft Prevention Act ("WTPA") into law. The WTPA is intended to help protect employees working in New York against violations of their wage and hour law rights.

The WTPA requires employers to provide information to employees about how they are being paid. For example, employers must notify employees, in writing, of:

1. Their rate and basis for their pay, such as whether they are paid by the hour, shift, day, week, salary, piece, commission, or otherwise;
2. Any allowances the employer claims as part of the employee's minimum wage, such as tip, meal, or lodging allowances; and
3. Their overtime rate, number of regular hours worked, and number of overtime hours worked for employees who are not exempt from overtime.

Employers must provide this information to employees when they are hired, and no later than February of each year thereafter. The information must be in English and the employee's primary language other than English when applicable. Employers also are required to have employees sign and date an acknowledgment confirming they received this information each time they provide it to them.

In addition, the WTPA requires New York State employers to (1) notify employees in writing about changes to their rate and basis of pay, allowances for overtime, or overtime rate; (2) provide that information with each paycheck or other payment of wages; and (3) keep contemporaneous, true, and accurate payroll records containing all of that information for at least 6 years. It also expands the antiretaliation provisions of New York's wage and hour laws. For example, employers cannot retaliate against employees who object in good faith about activities that they reasonably believe violate the WPTA.

In a press release about the WTPA, Governor Paterson said he is "proud to sign this legislation, which will combat misconduct by unscrupulous employers who fail to pay statutorily-mandated minimum wages and overtime." Similarly, the policy co-director for the National Employment Law Project, Annette Bernhardt, recognized that:

By enacting this critical legislation, New York joins a growing number of states nationwide . . . that are ramping up the fight against wage theft. By stiffening the penalties, protecting workers who come forward, and ensuring that unpaid wages are collected, the new law provides the tools we need to ensure justice for the hundreds of thousands of workers in New York who are impacted each year.

The WTPA will go into effect on April 12, 2011.

Continue reading "New York Passes Wage Theft Protection Act" »

The statute of limitations under the New Jersey Law Against Discrimination ("LAD") is two years. Ordinarily, that means you must file your lawsuit within two years after (1) a "discrete act" of discrimination such as being fired, demoted, or suspended, or (2) the last act of a pattern of harassment. But on December 10, 2010, the New Jersey Supreme Court ruled that an exception called the "discovery rule" can extend the LAD's statute of limitations. The discovery rule applies when an employee is unaware that he suffered an injury, or unaware that someone else is at fault for causing his injury, until after the statute of limitations has expired.

The case, Henry v. New Jersey Department of Human Services, involves an African American employee, Lula Henry, who was hired for an entry-level nursing position with Trenton State Psychiatric Hospital in April 2004. Ms. Henry claims Trenton State did not place her in a more senior position because of her race, in violation of the LAD.

According to Ms. Henry, she first suspected she was the victim of race discrimination in 2004, but did not have any concrete evidence at the time. It was not until 2006 that she learned that (1) another black nurse had filed a race discrimination lawsuit against Trenton State, and (2) Trenton State had hired a Caucasian nurse with the same credentials as her for higher level job classification, which was inconsistent with Trenton State's explanation for why it did not place her in a higher level position.

In July 2007, Ms. Henry filed a race discrimination lawsuit against the New Jersey Department of Human Services, its Acting Commissioner, Trenton State Psychiatric Hospital, and Trenton State's Chief Executive Officer. The trial court dismissed her case based on the statute of limitations since she filed her case more than two years after the alleged discriminatory actions. On appeal, the New Jersey Appellate Division affirmed the dismissal of her case.

But the New Jersey Supreme Court disagreed. It found the fact that Trenton State gave Ms. Henry a non-discriminatory explanation for why it placed her in an entry-level position may have led her not to pursue the issue until she learned new information that caused her to believe Trenton State's explanation was false. It found the circumstances could be enough that the LAD's two year statute of limitations would not begin until Ms. Henry learned the new information that supported her suspicion that Trenton State had discriminated against her because of her race. As a result, it sent her case back to the trial court to conduct a hearing. At that hearing, Ms. Henry will try to prove she did not have a "reasonable suspicion" of race discrimination, and that a reasonable person in her position could not have discovered a basis for a discrimination claim through reasonable diligence. If she is able to prove this, then she will be able to proceed with her discrimination case even though she filed it more than two years after the alleged discrimination occurred.

Continue reading ""Discovery Rule" Can Extend Statute of Limitations Under New Jersey Law Against Discrimination" »

As an employment lawyer, I am often asked whether an employee can take copies of documents from their job to help prove discrimination or retaliation. There is no simple answer to that question. Rather, as the New Jersey Supreme Court recognized last week in Quinlan v. Curtiss-Wright Corporation, the answer involves balancing the employee's right to be free from discrimination and the employer's obligation to protect confidential information.

In Quinlan, the New Jersey Supreme Court established 7 factors courts must consider when deciding whether an employee can sue for retaliation if he is fired for giving copies of confidential company documents to his employment lawyer. Those factors are:

1. How did the employee get the document? Documents obtained in the ordinary course of an employee's job are more likely to be protected than documents obtained by rummaging through files or snooping in someone else's office.

2. What did the employee do with the document? Documents used to evaluate or prove discrimination are more likely to be protected.

3. What is the content of the document? Documents that are privileged or reveal a trade secret or other confidential information are less likely to be protected.

4. Did the employee violate a clear company privacy or confidentiality policy, and does the company consistently enforce those policies?

5. How important is the document is to the employee's discrimination case, compared to how disruptive the disclosure of the document is to the company's business?

6. Why did the employee copy the document, rather than just ask the company for a copy of it during the lawsuit? For example, how likely is it that the company would have lost or destroyed the document if the employee had not kept a copy?

7. What will be the impact of the decision on (1) the Law Against Discrimination's goal to eliminate employment discrimination, and (2) the employer's right to protect confidential information?

Last week, the New Jersey Supreme Court ruled that each day an employee is paid a lower salary based on a past unlawful discriminatory decision is a separate violation of the New Jersey Law Against Discrimination (LAD). As a result, three tenured Seton Hall University professors can proceed with their age and gender discrimination lawsuit, even though (1) the alleged discriminatory decision was made more than two years before they filed the lawsuit, and (2) the LAD has a two-year statute of limitations.

Specifically, in Alexander v. Seton Hall University, three female professors who are over 60 years old sued Seton Hall and certain school officials. They claim they were paid less than their younger male colleagues. They largely based their claims on the University's 2004-2005 annual report, which shows that Seton Hall pays higher salaries to younger male faculty members than older female faculty members.

However, the trial court dismissed the case, ruling that since the allegedly discriminatory decision was made more than two years before the employees sued, their case was barred by the statute of limitations. That decision was affirmed by New Jersey's Appellate Division. Both courts relied on the United States Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which ruled that the statute of limitations for claims of discriminatory wages under federal law begins when the employer makes the discriminatory decision.

The Ledbetter decision was highly criticized because discriminatory decisions about salary impact employees long after the decisions are made, but employees frequently do not know they have been paid less than their coworkers until it is too late to sue. In response, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which makes it a separate violation of federal law each time a company pays an employee wages, benefits, or other compensation based on a previous discriminatory decision.

Fortunately, the New Jersey Supreme Court disagreed with the two lower courts. It noted that although it often looks at federal case law for guidance, it is not required to follow federal law when it interprets the LAD. Instead of following Ledbetter, it ruled that each payment of discriminatory wages is a separate violation of the LAD, and the two-year statute of limitations applies to each such violation.

Alexander makes it clear that it is possible to sue if you are receiving lower wages based on a past discriminatory decision. But it also makes it clear how important it is not to wait too long to assert your claim since you cannot recover damages for discriminatory wages you received more than two years before you file your lawsuit. Accordingly, it is highly recommended that you contact an employment lawyer as soon as you learn you are being paid less than your coworkers due to your age, gender, race, disability, or another unlawful factor.