New Jersey Employment Lawyer Blog

Last week I discussed Colicchio v. Merck & Co., Inc., a case involving an employee who claims her employer Justified Eliminating Her Job by Reducing Her Job Duties After Her Maternity Leave. The employee in that case, Kerri Colicchio, also claims her employer failed to promote her because of her gender and pregnancy, and retaliated against her for objecting to violations of the New Jersey Law Against Discrimination (LAD).

The judge allowed Ms. Colicchio to proceed with her claim that the company failed to promote her to the position of Vice President of Global OE. Ms. Colicchio testified that her supervisor told her she was not being considered for that position on an interim basis expressly because she was about to go out on a maternity leave. The judge found this was not "smoking gun" evidence since the comment involved the interim position, and Ms. Colicchio was suing Merck for failing to offer her the job on a permanent basis. However, he found the comment showed the company used Ms. Colicchio's pregnancy as an important negative factor in making employment decisions about her. In other words, it was evidence of pregnancy discrimination.

The judge also found Merck's justification for its decision not to promote Ms. Colicchio was not a legitimate, non-discriminatory reason. Specifically, Merck claims it decided to consider only external job candidates for the position. The judge called this explanation "barely more than no reason at all," since the company did not indicate why it decided not to consider internal candidates. This is noteworthy, since it potentially means Merck does not have a valid defense to Ms. Colicchio's claim that it failed to promote her because of her gender and pregnancy.

However, the court dismissed Ms. Colicchio's retaliation claim. It explained that to be protected by the LAD, an objection has to either expressly or implicitly indicate that the company treated an employee differently based on a legally protected category. For example, an employee who objects to race, age, or gender discrimination would be legally protected from retaliation under the LAD. However, when Ms. Colicchio made her internal complaints, she only indicated she was being treated unfairly, without stating or implying she believe the unfair treatment was due to her gender or pregnancy. As a result, the Judge ruled that Ms. Colicchio does not have a valid retaliation claim.

Continue reading "Decision to Seek Outside Job Candidate Isn't Legitimate Reason Not to Promote Employee" »

Yesterday, the United States Equal Employment Opportunity Commission (EEOC) issued a Press Release regarding pregnancy discrimination in the workplace. The EEOC is a federal agency that helps enforce laws prohibiting employment discrimination claims based on race, color, religion, sex, pregnancy, national origin, age, and disability, as well as related retaliation claims.

The EEOC's Press Release recognizes that "employers should not make decisions based on stereotypes and presumptions about the competence" of pregnant employees. But even though the federal Pregnancy Discrimination Act was passed more than 30 years ago, and "most pregnant women want and need to work," pregnancy discrimination continues to be a major problem in the workplace.

The EEOC indicates that women make up 47% of today's workforce, and are either the primary or co-primary breadwinners in almost two out of every three families. As a result, in the words of the Senior Advisor for the National Partnership for Women & Families, Judith Lichtman, "women cannot afford to lose their jobs or income due to pregnancy or childbirth."

The Press Release notes that in addition to pregnancy discrimination, both male and female caregivers experience significant discrimination in the workplace. It recognizes that these forms of employment discrimination are becoming bigger problems, and that parents are struggling to balance their obligations at work with their obligations to their families. As I discussed in a previous article, in 2009 the EEOC issued guidelines regarding Discrimination Against Caregivers. The EEOC's Press Release promises to "vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers."

Continue reading "EEOC Recognizes Pregnancy Discrimination Remains Widespread" »

Yesterday, a federal Judge in Manhattan dismissed a class action claim from a gender and pregnancy discrimination lawsuit that the United States Equal Employment Opportunity Commission had filed against Bloomberg L.P. In the case, the EEOC alleged that Bloomberg had engaged in a pattern and practice of discrimination against pregnant employees and female employees upon their return from maternity leaves. Judge Loretta A. Preska, the Chief Justice of the United States District Court for the Southern District of New York, dismissed the class action claim because she found the EEOC had not presented enough evidence to prove a pattern and practice of gender or pregnancy discrimination.

A pattern and practice case is when a group of employees claim a company has a broad practice or systemic pattern of unlawful discrimination. In this instance, the EEOC filed the lawsuit on behalf of female employees who claimed Bloomberg had demoted them, lowered their salaries, reduced the number of employees reporting to them, took away some of their job responsibilities, excluded them from meetings, and/or otherwise subjected them to stereotypes about female caregivers. In addition to the three plaintiffs named in the original lawsuit, 78 other women had joined the case, for a total of 81 class members.

In her 64-page opinion in EEOC v. Bloomberg L.P., Judge Preska explained that ordinarily employees have to prove a pattern and practice of discrimination with a combination of statistical and anecdotal evidence of discrimination, to show the discrimination was part of a company-wide pattern or practice. She indicated that it is unusual that anecdotal evidence alone can prove a pattern or practice of discrimination, especially at a large company like Bloomberg, which employs more than 10,000 employees.

However, the EEOC apparently did not have any statistical evidence to support its claim. It also did not have any direct evidence of discrimination, or any evidence of an explicitly discriminatory policy. Instead, it tried to rely only on anecdotal evidence of discrimination. This evidence included the fact that nearly every one of the class members claimed that Bloomberg had decreased her compensation, job responsibilities and/or number of direct reports, either after she became pregnant or after she returned from her maternity leave.

In contrast, Bloomberg had at least two expert witnesses who concluded that there was no pattern or practice of discrimination at the company. Specifically, one of Bloomberg's expert witnesses, Dr. Michael Ward, used statistics to conclude that class members actually received higher average compensation than non-class members. He also found no significant differences between the raises class members received versus non-class members. Another expert for Bloomberg, Dr. John Johnson, concluded that the class members actually received nearly better raises after maternity leaves than employees who took time off for other reasons.

Ultimately, the Court concluded that while there might be some individual cases of pregnancy and gender discrimination at Bloomberg, the EEOC did not have enough evidence to prove a pattern or practice of discrimination. Accordingly, Judge Preska dismissed the class action from the case. However, the EEOC has indicated that it intends to continue to pursue the individual claims on behalf of the named plaintiffs.

Continue reading "New York Judge Dismisses Pregnancy Discrimination Class Action Against Bloomberg L.P." »

In an important employment law decision, on June 8, 2011, New Jersey's Appellate Division ruled that an employee can enforce her employer's promise that she would have a job when she returned from her maternity leave. The Court reached that conclusion even though the company, Telcordia Technologies, Inc., included a clear disclaimer in both its Code of Business Ethics and the employee's job application which stated that she is an employee-at-will who can be fired "at any time, with or without grounds, just cause or reason and without giving prior notice."

In Lapidoth v. Telcordia Technologies, Inc., employee Sara Lapidoth asked her employer for a six-month maternity leave from her position as a manager on a product called ARIS, for the birth of her tenth child. The letter Telcordia sent her granting her leave also guaranteed that the company would reinstate her to the same job or a comparable one if she returned to work within 12 months. Ms. Lapidoth later asked Telcordia to extend her leave by 6 months, for a total of a one-year maternity leave. Telcordia granted her request through another letter that promised to reinstate her at the end of her leave.

However, before Ms. Lapidoth was ready to return from her maternity leave, Telcordia decided to eliminate one of its two ARIS manager positions. The company decided to lay off Ms. Lapidoth because the only other ARIS manager had slightly better performance ratings. Since the company did not have any appropriate job openings, it fired Ms. Lapidoth.

The Appellate Division ruled that Ms. Lapidoth's maternity leave was not protected by the Family and Medical Leave Act (FMLA) or the New Jersey Family Leave Act (NJFLA) because she took off more than 12 weeks. Both the FMLA and the NJFLA require employers to give qualified employees up to 12 weeks off for the birth of a child.

However, the Court ruled that the letters Telcordia sent to Ms. Lapidoth could be enforceable employment contracts that guaranteed her a job when she was ready to return from her maternity leave. It found that, even though the company's Code of Business Ethics and Ms. Lapidoth's employment application said she was an employee-at-will, and indicated that nothing else could create any contractual rights between her and the company, the letters granting her maternity leave seemed to contradict those statements. The Court also stated that, although the letters said the company did not have to reinstate Ms. Lapidoth if it had to eliminate her job, that was not necessarily a defense because the company decided it had to eliminate one of two ARIS manager positions, but not necessarily Ms. Lapidoth's position. The Court also noted that Telcordia reinstated Ms. Lapidoth after each of her nine previous maternity leaves. Based on the circumstances, the Appellate Division concluded that a jury could find the letters guaranteeing Ms. Ladipodth a job at the end of her maternity leave created an enforceable employment contract.

Continue reading "New Jersey Employees Can Enforce Employer's Promise of Reinstatement After Maternity Leave" »

Earlier this year, President Obama signed a law which requires employers to provide reasonable break time for nursing mothers. This new employment law right is part of the Patient Protection and Affordable Care Act. It amends the Fair Labor Standards Act of 1938 (FLSA), a federal law which requires employers to pay minimum wage to most employees, and overtime pay to most employees who work more than 40 hours per week.

The new law requires companies to give nursing mothers breaks each time the employee needs to express milk. It applies for up to one year after the birth of a child. However, employers are not required to pay employees during these breaks.

Employers also must give nursing mothers a place that is hidden from view and free from intrusion from other employees or the public. The law specifically says that the place cannot be a bathroom.

The law applies to all employers, but companies with fewer than 50 employees are not subject to the requirement if it would be an undue hardship. This means that the break time causes the company significant difficulty or expense, compared to the size, financial resources, nature, or structure of the company's business.

Earlier this month, the United States Equal Employment Opportunity Commission (EEOC) published suggested best practices for companies to minimize the chance of violating the rights of employees who are also caregivers. Those suggested practices supplement the guidelines the EEOC issued in 2007 regarding when it is unlawful for an employer to discriminate against an employee who is a caregiver.

Although there is no law in New York or New Jersey which expressly prohibits discrimination against employees because they are caregivers, many state and federal laws provide protection to caregivers under certain circumstances. For example, the New Jersey Law Against Discrimination, the New York Human Right Law, the Family & Medical Leave Act (FMLA), the New Jersey Family Leave Act, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA) all provide some protection to caregivers.

The EEOC's 2007 guidelines regarding employees with caregiving responsibilities recognize that, in part due to anti-discrimination laws, women now make up nearly half of the workforce in the United States. In addition, while the role of men as caregivers has substantially increased over the past 50 years, women still disproportionately have the primarily responsibility for caring for children and elderly parents, in-laws, and spouses. As a result, employment practices that disfavor caregivers disproportionately harm women.

The EEOC guidelines also recognize that many women in the work force face a "maternal wall" or "glass ceiling," largely as a result of their dual roles as employees and caregivers, but also due to other gender stereotyping and discrimination. For example, women are drastically underrepresented in corporate management. Gender discrimination, such as discrimination based on the assumption that women are less dedicated to their jobs because they are more likely to be primary caregivers, violates New York, New Jersey federal anti-discrimination laws.

The EEOC's guidelines provide many examples of evidence of discrimination against women based on the gender stereotype that they are more likely to be caregivers, including whether the employer (1) only asks female applicants if they are married or have young children (2) makes stereotypical or derogatory comments about pregnant women or working mothers, (3) treats women less favorable soon after it becomes aware they are pregnant, (4) assigns women with caregiving responsibilities to less prestigious or lower-paid jobs, or (5) treats men with caregiving responsibilities less favorably than female caregiving employees.

The guidelines further recognize that it violates the law to make employment decisions based on assumptions and stereotypes about women as caregivers. The EEOC mentions many common negative assumptions and stereotypes about women in the workplace, including the assumption that (1) women are less reliable because of childcare responsibilities, (2) female employees with children do not work long hours and are less committed to their jobs, (3) working mothers do not want to relocate to another city, (4) mothers do not want to work full time, and (5) pregnant women are less committed to their job or are unable to perform certain physical tasks. While employers are not permitted to make employment decisions based on discriminatory assumptions about women, it is generally not unlawful to make decisions based on an employee's actual job performance or limitations, even if the job performance is unsatisfactory or the limitations are due to the employee's caregiving responsibilities.

Employers can also violate the law by treating male caregivers worse than female caregivers. For example, it can be unlawful for a company to provide job flexibility to women to accommodate their caregiving responsibilities, but not to offer the same flexibility to similarly situated men.

The EEOC guidelines also discuss unlawful harassment of caregivers, and unlawful retaliation against individuals who oppose discrimination, including the fact that it is impermissible to retaliate against a woman who objects to gender stereotyping. In addition, they discuss the fact that the ADA protects many caregivers since it is unlawful to discriminate against employees due to their relationship or association with a disabled individual, including employees who care for a disabled child, spouse, or parent.

In contrast to the EEOC's 2007 guidelines, its May 2009 suggested best practices go beyond what is legally required, and instead suggest proactive and progressive corporate policies and practices. According to the EEOC, implementing its suggested policies is likely to enhance productivity, reduce absenteeism, reduce costs, improve employee retention, and otherwise increase profits. The EEOC's suggest numerous best practices, including:

• Training managers about the legal obligations regarding employees with caregiving responsibilities;
• Developing, disseminating, and enforcing a strong Equal Employment Opportunity (EEO) policy;
• Responding to complaints of discrimination efficiently and effectively;
• Protecting against retaliation;
• Seeking out job candidates with caregiving responsibilities;
• Removing barriers to individuals who are returning to work from leaves of absence;
• Encouraging employees to request flexible work arrangements;
• Making overtime as family-friendly as possible; and
• Reassign job duties employees are unable to perform due to pregnancy or caregiving responsibilities.

Earlier this year, New Jersey became the third state in the country to pass a law entitling employees to be paid during family leaves. New Jersey's Family Leave Insurance law is set to go into effect in just a few weeks. Since the law is brand new, many employees and employers do not fully understand what the law means or what it requires. This article will answer many of the most frequently asked questions about the New Jersey Family Leave Insurance law.

Q. When Does the Family Leave Insurance Law Go Into Effect?

A. On January 1, 2009, New Jersey companies will begin withholding taxes from employee salaries to fund family leave insurance benefits. Starting on July 1, 2009, qualified employees will be entitled to receive state insurance benefits during covered family leaves.

Q. Who is Qualified to Receive Family Leave Insurance Benefits?

A. The New Jersey Family Leave Insurance law applies to all employees who are covered by the New Jersey Unemployment Compensation law. To be qualified for benefits, an employee needs to have worked for at least 20 calendar weeks in New Jersey and either earned at least $143 per week or a total of $7,200 during the 12 months immediately before he or she made a claim for family leave insurance benefits.

Q. For How Many Weeks Can an Employee Receive Family Leave Insurance Benefits?

A. An employee can receive up to six weeks of family leave insurance benefits during a 12 month period. The 12 month period begins on the first day after the employee's initial claim for family leave insurance benefits.

Q. How Much Money Will I Receive If I Qualify For Family Leave Insurance Benefits?

A. An employee's weekly benefits are normally two-thirds of the employee's average weekly income over the eight weeks before the family leave, up to a maximum of $546 per week.

Q. How Much is Family Leave Insurance Going to Cost Me?

A. The cost of Family Leave Insurance is minimal, especially when compared to other taxes. The total withholding for each employee is less than a tenth of a percent of their wages. There is also a maximum annual contribution per person, which will be $26.01 in 2009.

Q. What Types of Leaves Qualify for Family Leave Insurance Benefits?

A. Leaves to bond with a child and leaves to care for a family member with a serious health condition.

Q. What Types of Leaves to Bond With a Child Are Covered by the Paid Family Leave Act?

A. A qualified employee can receive family leave insurance benefits during a leave to bond with a child during the first 12 months after a child is born if the employee is the child's biological parent or the domestic partner or civil union partner of the child's biological parent. Likewise, a qualified employee who adopts a child can use his or her six weeks of family leave insurance benefits to bond with a child during the first 12 months after the adoption.

An employee can use family leave insurance benefits during an intermittent leave to bond with a newborn or newly adopted child, but to qualify for benefits the employee must take the leave in periods of at least seven days at a time, and the employer must agree to the employee's intermittent leave schedule.

Q. What Kinds of Leaves to Care for Family Members with Serious Health Conditions Are Covered by the Paid Family Leave Act?

A. A qualified employee is entitled to use family leave insurance benefits during a leave to care for his or her immediate family member, meaning a parent, child, spouse, domestic partner, or civil union partner who has a serious health condition. Those benefits can be used for six consecutive weeks, six intermittent weeks, or for 42 intermittent days during the 12 months after the claim.

Q. What Notice Must I Give Before I Can Receive Family Leave Insurance Benefits?

A. An employee who plans to seek family leave insurance benefits must give his or her employer reasonable advanced notice of the leave. Exactly how much notice is required varies based on the circumstances. For example, an employee who intends to seek benefits during an intermittent family leave must give a minimum of 15 days notice before the leave, and an employee who plans to seek benefits during a leave to bond with a newborn or newly adopted child must give his or her employer thirty days notice before the leave.

Q. Does the Family Leave Insurance Law Entitle Me to Take a Family Leave

A. No. The New Jersey Family Leave Insurance law only provides monetary benefits. It does not entitle employees to take family leaves. However, many employees are already legally entitled to those rights under the New Jersey Family Leave Act (NJFLA) or the Family and Medical Leave Act (FMLA).

Q. Does the Family Leave Insurance Law Entitle Employees to Return to Their Job?

A. No. However, some employees are guaranteed to be returned to their job or an equivalent one under the New Jersey Family Leave Act (NJFLA) or the Family and Medical Leave Act (FMLA).

Q. Are There Any Other Limits on an Employee's Right to Receive Family Leave Insurance Benefits?

A. Yes. There are many other limits to an employee's rights to receive family leave insurance benefits. For example, employees ordinarily do not receive family leave insurance benefits during the first seven days of a family leave. In addition, among other limitations, an employee cannot receive family leave insurance benefits:

• While receiving disability benefits or paid sick leave;
• While the employee is receiving unemployment insurance benefits;
• While the employee is receiving full salary or paid time off;
• When the employee is working;
• During the first 14 days after the employee's last day of work, unless the family leave started while the employee was still employed.
• While the family member for whom the employee is caring is not under the care or supervision of a health care provider;
• While the employee is out of work due to a labor work stoppage, such as a union strike; or
• After the employee is fired for gross misconduct related to a crime under New Jersey law.

A. Yes. Employers can require employees to use up to two weeks of paid sick leave, vacation time, or other paid leave time toward their annual family leave insurance benefits entitlement.

The employment lawyers at The Nirenberg Law Firm are dedicated to enforcing the employment law and civil rights of employees in New York and New Jersey.

Title VII makes it illegal for employers with 15 or more employees to discriminate against an employee because of his or her race, color, religion, sex, or national origin. The Pregnancy Discrimination Act of 2000 amended Title VII to clarify that the prohibition of discrimination because of sex includes discrimination because of "pregnancy, childbirth, or related medical conditions." In C.A.R.S., the Court concluded that since an abortion is a pregnancy-related medical condition, it is illegal to fire or otherwise discriminate against an employee because she has had an abortion. This was the first time an appellate court covering the state of New Jersey had considered whether it is illegal to fire an employee because she had an abortion.

In reaching the conclusion that the Pregnancy Discrimination Act prohibits employers from discriminating against individuals who have had an abortion, the Third Circuit relied on the 1996 decision of the Sixth Circuit Court of Appeals, Turic v. Holland Hospitality, Inc., which reached the same conclusion. The Court also gave significant consideration to a regulation of the Equal Employment Opportunity Commission ("EEOC") which specifically states that a woman is protected from being fired because she is pregnant or has had an abortion. It also considered the legislative history of the Pregnancy Discrimination Act, which expressly recognizes that no employer may, for example, "fire or refuse to hire a woman simply because she has exercised her right to have an abortion."

In C.A.R.S., the employee's lawyer also argued that, since the Pregnancy Discrimination Act makes it illegal to retaliate against an employee who opposes a practice the Pregnancy Discrimination Act prohibits, it also prohibits discrimination an employee who "contemplates having an abortion, or who supports the rights of women who do so." However, the Court did not find it necessary to decide whether the law actually extends that far, leaving that issue to be decided in a future case.

Jonathan I. Nirenberg is an employment lawyer and a civil rights attorney who represents employees in New York and New Jersey.