In a recent ruling, the Third Circuit Court of Appeals concluded that an arbitration agreement did not prohibit an exotic dancer from pursuing her overtime and minimum wage claims in court.

Exotic Dancer Can Bring Wage and Hour Claim in CourtAlissa Moon worked at the Breathless Men’s Club, which is in Rahway, New Jersey.  The Club treated her as an independent contractor, rather than an employee.  In fact, she had to agree to rent space from the Club where she could perform, and signed an “Independent Dancer Rental Agreement” which expressly states that she is an independent contractor.

That agreement also includes the following arbitration provision:

A recent published decision from the New Jersey’s Appellate Division recognizes that an employee can be entitled to receive unemployment insurance benefits if she resigns from a job to accept a new job but her new employer rescinds her job offer before she begins the new position.

Generally, New Jersey’s Unemployment Insurance law does not apply to an individual who voluntarily quits her job unless she can prove she resigned with “good cause attributable to the work.”  Until recently, this disqualification applied whenever an employee quit a job to accept a new job somewhere else, even if the employee lost her new job through no fault of her own.

Two years ago, the law was amended to make it clear that this disqualification does not apply under limited circumstances in which an employee quits one job to start another job, only to lose the second job through no fault of her own.  Specifically, effective May 4, 2015, the New Jersey’s unemployment insurance law was amended to add an exemption for someone who “voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves employment with the first employer.”  That exemption applies only if the new job is for at least as many hours per week, and at least the rate of same pay, as the previous job.

I was quoted in New Jersey Business Magazine’s September 2017 edition in an article about mass layoffs.  You can read the article, Handling Business Closings and Layoffs, online.

In the article, I discuss the fact that employers often use mass layoffs to hide discrimination or retaliation.  Specifically, it is common for companies to wait until they are having a reduction in force or layoff before they fire individuals who may have legal claims.  They do this in an effort to disguise the real reasons they chose to terminate the employment of those workers.

But while including an employee in a reduction in force might disguise the company’s real motive for firing them, it remains unlawful for an employer to select an employee due to his or her age, gender, race, disability, pregnancy, or another unlawful factor.

On August 8, 2017, Governor Chris Christie signed into law an amendment to the New Jersey law Against Discrimination (“LAD”) that provides additional protection to members of the United States military.  The amendment went into effect immediately.

New Jersey Law Against Discrimination Protects Members of US MilitaryPrior to the amendment, the LAD included “liability for service in the Armed Forces of the United States” as a legally protected category, but only in the context of employment and entering into contracts.  The LAD defines “liability for service in the Armed Forces” to mean being subject to being: (1) ordered into “active service in the Armed Forces of the United States by reason of membership in the National Guard, naval militia or a reserve component of the Armed Forces of the United States,” or (2) “inducted into such armed forces through a system of national selective service.”

Among other changes, under the new amendment the LAD now prohibits discrimination to this category of members of the Armed Services in the context of housing, making loans and providing access to places of public accommodation.  Places of public accommodations are places that are generally accessible to members of the public such as restaurants, hotels, stores, parks, hospitals, theaters, colleges and universities.

On August 3, 2017, New Jersey’s Appellate Division reversed a trial court’s opinion that had dismissed an employee’s pregnancy discrimination case, finding enough evidence from which a jury could conclude that the company’s claim it fired her for insubordination was a pretext for (excuse to cover up) discrimination.

Employee wins appeal in pregnancy discrimination caseSandra Roopchand worked as a medical technician for Complete Care, a medical office, from January 2013 through July 2014. The business was run by two brothers-in-law, Richard Schaller, M.D. and Robert Fallon, D.C.  Ms. Roopchand’s job duties included patient care, administrative responsibilities and cleaning and restocking the exam rooms. Up until the day she was fired, Complete Care had never disciplined Ms. Roopchand or criticized her about her job performance.

In early July 2014, Ms. Roopchand learned she was pregnant.  Since she suffers from hypothyroidism, her pregnancy was considered high-risk.

On July 25, 2017, the United States Court of Appeals for the Third Circuit recognized that New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), prohibits an employer form retaliating against a lawyer because he refused to engage in an activity he reasonably believes violates attorney ethics.

Employer Cannot Retaliate Against Lawyer who Objected to Patent QuotaSteven Trzaska worked as a patent lawyer for L’Oréal USA, Inc.  The company’s French parent company, L’Oréal, S.A., instituted a quota for the number of patents applications each patent team had to reach, and warned employees that if they did not meet their quota “there would be consequences which would negatively impact their careers and/or continued employment.”  In 2014, L’Oréal set a quota of 40 patents for Mr. Trzaska’s team.  However, Mr. Trzaska and his team did not believe there were 40 patentable products for which they could file patent applications in good faith.

Like all lawyers, Mr. Trzaska is bound by Rules of Professional Conduct (“RPCs”).  For example, one such rule established by the United States Patent and Trademark Office (“USPTO”) prohibits patent lawyers from making frivolous or bad-faith patent applications.  Likewise, an applicable Pennsylvania RPC prohibits lawyers from making false statements to a court or tribunal such as the United States Patent Office.

The Third Circuit Court of Appeals recently recognized that a supervisor’s single use of a racial epithet can be enough, on its own, to create a hostile work environment under federal law.  This is consistent with longstanding president under both the New Jersey Law Against Discrimination and the New York State Human Rights Law.

Racial Harassment Based on Single Discriminatory RemarkThe case was brought by Atron Castleberry and John Brown, both of whom worked as laborers for Chesapeake Energy Corporation through a staffing-placement agency, STI Group.  Mr. Castleberry and Mr. Brown are African American.

Mr. Castleberry and Mr. Brown allege they were exposed to racist behavior at their job.  For example, they claim that someone wrote “don’t be black on the right of way” on the sign-in sheet several different times. They also indicate that, despite having more experience working on pipelines, Chesapeake did not permit them to work on pipelines other than to clean them.

Earlier this week, the New Jersey Supreme Court clarified how to determine whether an employer fired an employee because of a disability in violation of the New Jersey Law Against Discrimination (“LAD”).

Nurse wins appeal in disability discrimination caseMaryanne Grande, RN, worked for Saint Clare’s Health System for approximately 10 years.  During that time she suffered four separate work-related injuries that required her to take significant time off and led to additional periods during which she only could work light duty.

In February 2010, while moving an obese patient from a stretcher to a bed, Ms. Grande had to grab the patient to prevent him from falling.  She injured her cervical spine and needed surgery which required over four months of recovery and rehabilitation.  When she finally returned to work she had to work light duty for several weeks.

Four at Rabner Baumbart Named to 2017 Super Lawyers ListRabner Baumgart Ben-Asher & Nirenberg, P.C. is pleased to announce that four of our employment lawyers once again have been selected to be included on the New Jersey Super Lawyers list in 2017.

Specifically, Elliot M. Baumgart (Alternative Dispute Resolution), David H. Ben-Asher (Employment & Labor Attorney), Jonathan I. Nirenberg (Employment Litigation Attorney) and Teresa Boyle-Vellucci (Employment & Labor Attorney) have received this honor.

Thomson Reuters selects individuals to be included on each of these lists based on peer nominations, evaluation of candidates and independent research.  No more than 5% of attorneys practicing in New Jersey are selected to the Super Lawyers list each year.  Information about the selection process is available on the Super Lawyers website.

A recent employment discrimination case makes it clear that the primary factor to determine who is an “employer” under the New York State Human Rights Law (“NYSHRL”) law is whether the party has the power to control how the worker conducts his or her job.

The case was decided in the context of the NYSHRL’s prohibition against employers discriminating against individuals who have been criminally convicted in the past.  Specifically, with limited exceptions, the NYSHRL makes it unlawful for an employer to discriminate against an employee or job candidate because he previously was convicted of committing a crime.  The statute also prohibits any person or entity, whether or not an employer, from aiding or abetting a violation of the NYSHRL.

Delivery Workers Allege Employment DiscriminationTrathony Griffin and Michael Godwin worked for Astro Moving and Storage Co.  Astro has a contract with Allied Van Lines, Inc. pursuant to which Astro provides moving and storage services to Allied.  That contract prohibits Astro from using any workers who have been convicted of a crime on any assignment for Allied.

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