Yesterday, Governor Frank Murphy signed into law a very important amendment to the New Jersey Law Against Discrimination (“LAD”).

Employees Cannot Waive Anti-Discrimination Rights in Advance

Waivers of discrimination rights in employment contracts are void.Under the amendment, any provision in an employment contract that requires employees to waive in advance any “substantive or procedural right or remedy relating to a claim of employment discrimination, retaliation, or harassment” violates New Jersey’s public policy and is unenforceable.  Similarly, employers no longer can require employees to prospectively waive any of their rights or remedies under the LAD, “or any other statute or case law.”  However, this provision does not apply to the terms of union collective bargaining agreements.

Sexual harassment at workA recent unpublished opinion from the New Jersey Appellate Division holds that employees cannot waive in advance their right to recover punitive damages under the New Jersey Law Against Discrimination (“LAD”).

Milagros Roman worked for Bergen Logistics LLC as a human resources generalist. She claims that her immediate boss, Human Resources Director Gregg Oliver, made sexual advances toward her.  She further alleges that Mr. Oliver retaliated against her by firing her because she complained about the sexual harassment.

Ms. Roman filed a lawsuit against Bergen and Mr. Oliver, claiming they harassed and retaliated against her in violation of the LAD.  The defendants filed a motion to dismiss her case and refer it to arbitration.  They relied on the fact that when Bergen hired Ms. Roman, she signed an arbitration agreement that required her to resolve any disputes relating to her employment relationship in binding arbitration rather than in court.  That agreement includes a provision which states that: “BY SIGNING THIS AGREEMENT YOU AND COMPANY ARE WAIVING ANY RIGHT, STATUTORY OR OTHERWISE, TO A TRIAL BY JURY AND TO PUNITIVE AND EXEMPLARY DAMAGES.”

In a recent opinion, a federal judge ruled that nine retired Jersey City Police Sergeants who prevailed in their employment discrimination and retaliation lawsuits should have their economic damages awards increased to offset the negative tax consequences of receiving a lump sum payment rather than receiving higher salaries and pensions over time.

Discrimination Lawsuit Against Jersey CityThe opinion stems from two lawsuits that were consolidated for purposes of trial.  Between the two cases, nine retired Police Sergeants sued Jersey City, its former Mayor, Jerramiah Healy, and its former Police Chief, Robert Troy, for failing to make any promotions to Lieutenant from a 2003-2006 promotional list.  They alleged Jersey City’s decision to do so constituted discrimination based on political affiliation and expression discrimination, in violation of the First Amendment, and was retaliation because one of the Sergeants, Valerie Montone, objected about gender discrimination, in violation of the New Jersey Law Against Discrimination (“LAD”).

The case went to trial and the jury found that Jersey City had discriminated and retaliated against all nine of the plaintiffs.  It awarded economic damages totaling more than $2.2 million, or an average of more than $240,000 per person.

In a recent opinion, the Third Circuit Court of Appeals ruled that an employer’s failure to promote an employee was not legally actionable discrimination where the employer promoted the same individual to the same job approximately one month later.

Evon Grossberg worked for the Hudson County Department of Social Services as a Human Resources Specialist.  Ms. Grossberg is African American.  In July 2013, she applied for a promotion to the position of Training Technician.  At the time, Ms. Grossberg was 58 years old.

Employee passed up for promition brings discrimination claimIn early August 2013, Hudson County promoted another employee who was in her low to mid-twenties and Egyptian, rather than African American, to the position of Training Technician.  When Ms. Grossberg asked her supervisor why she had not received the promotion, her supervisor told her to speak to her union representative. Ms. Grossberg then filed a complaint with her union representative.  She also submitted an online intake form to the United States Equal Opportunity Commission (“EEOC”) as part of the process to file a Charge of Discrimination.

Workplace bullying can violate employee handbookUnder New Jersey law it is unlawful for an employer to harass an employee because she belongs to a legally-protected category, such as because of her gender, age, race or disability.  But the law does not necessarily prohibit a boss from bullying or indiscriminately harassing other employees.

Nonetheless, earlier this year, in Maselli v. Valley National Bankcorp., New Jersey’s Appellate Division recognized that under certain circumstances an employee can sue her employer for bullying in violation of a company’s anti-harassment policy.

By way of background, almost 25 years ago the New Jersey Supreme Court established that employee handbooks and other similar policies are presumed to be binding contracts.  However, the Court created an exception for policies that include prominent disclaimers that make it clear they document is not an enforceable contract.  As a result, most employee handbooks now include bold disclaimers stating that they are not contracts.

Arbitration is widely considered to be less favorable to employees and more favorable to businesses than jury trials.  As a result, many employers require their employees to sign arbitration agreements as a condition of getting hired or keeping their jobs.  In other words, employers try to force employees to give up their right to sue in court and have their cases decided by a jury.

Court finds forced arbitration argeement violates anti-discrimination lawBut a recent trial court opinion concludes that firing an employee because she refused to sign an arbitration agreement since she did not want to give up her right to a jury trial in any future discrimination lawsuit against her employer was an act of retaliation in violation of the New Jersey Law Against Discrimination (“LAD”).  The LAD prohibits employers from retaliating against an employee because she has “opposed any practice” protected by the LAD, or from coercing, intimidating or threatening anyone’s right pursuant to the LAD.

Jorvia Cator, an African American woman, began working for WRDC Corp. as a hotel reservation agent in March 2016.  Approximately one month later, WRDH implemented a new policy which required all employees to sign arbitration agreements that forced them to bring virtually any claim against the company in arbitration rather than in court.  Those agreements expressly stated that the employee is waiving her right to a jury trial.

New Jersey’s Appellate Division recently recognized that a transfer to a less desirable job can be actionable retaliation in violation of the state’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”).

Jeffrey Scozzafava worked as a detective in the Somerset County Prosecutor’s Office as an instructor and trainer in the Crime Scene Investigation Unit.  He objected about members of the unit improperly collecting evidence. After he made those objections, Somerset County transferred him to its fugitive squad.  Det. Scozzafava filed a lawsuit, claiming the County’s decision to transfer him was an act of retaliation in violation of CEPA.

Crime LabThe trial court dismissed Det. Scozzafava’s case, finding the transfer was not an “adverse employment action” because it did not result in any reduction in his position, rank, pay or benefits.  Accordingly, it found the transfer was not legally actionable under CEPA, and dismissed the case.  Det. Scozzafava appealed.

The New Jersey Law Against Discrimination (“LAD”) prohibits discrimination in the workplace.  But does it protect employees who work for New Jersey companies remotely, such as telecommuters?  A recent ruling by New Jersey’s Appellate Division makes it clear that an employee does not have to physically live or work in New Jersey to be protected by the LAD.

Susan Trevejo worked for Legal Cost Control (“LCC”) for 12 years.  After LCC fired her, Ms. Trevejo sued for age discrimination in violation of the LAD.  LCC is a New Jersey company which has its headquarters in Haddonfield, New Jersey.  However, Ms. Trevejo is a resident of Massachusetts who has never lived in New Jersey or worked in LCC’s office in New Jersey aside from a few meetings she attended earlier in her tenure with the company. Rather, she worked remotely from her home.

Early into the case, LCC filed a motion for summary judgment, claiming that the LAD does not apply to Ms. Trevejo because she is not an “inhabitant” of New Jersey.  The trial court denied LCC’s motion, and instead permitted the parties to engage in some limited discovery (the process of exchanging information in a lawsuit) about Ms. Trevejo’s right to bring a claim under the LAD.

New Sick Leave Requirements

Earlier this month, Governor Phil Murphy signed an important new employment law that requires employers to provide paid sick leave to their employees.  Specifically, New Jersey’s new paid sick leave law requires employers to provide most employees one hour of paid sick leave for every 30 hours they work.  Employers must permit employees to use this earned sick leave for:

  1. New Jersey Enacts Strong Paid Sick Leave LawThe employee’s diagnosis, care, treatment, or recovery from a mental or physical illness or injury, or preventive medical care;

Governor Murphy signed into law on April 24, 2018 a law known as the Diane B. Allen Equal Pay Act.  It amends the New Jersey Law Against Discrimination (“LAD”) to expand and strengthen the rights of employees to be paid equally for their work without regard to their gender, pregnancy, race, age, national origin, ancestry, age, disability, marital status, civil union and domestic partnership status, and sexual orientation—which are known as protected classes.  As a result, New Jersey may have the strongest state law in the country which prohibits discrimination in pay.

New Jersey passes strong equal pay lawThe new law, which goes into effect on July 1, 2018, makes it unlawful for an employer to pay an employee lower compensation than it pays employees for substantially similar work because of the employee’s membership in a protected class.  The judgment whether work is substantial similar is based on looking at the skill, effort and responsibility which the jobs involve.  The comparison of wage rates will be based on rates in all of the employer’s operations and facilities.

Employers are prohibited from correcting unequal compensation by reducing the pay rate of any employee. Instead, the employer must increase the pay of the lower paid employee to the level of the higher paid employees who performs substantially similar work.

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