Articles Posted in Discrimination

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.

New Jersey’s Appellate Division recently ruled that federal labor law does not preempt an employee’s disability discrimination claim under the New Jersey Law Against Discrimination (“LAD”) or retaliation claim under the Workers’ Compensation Law (“WCL”).  Federal labor law preempts state law claims that require an interpretation of a collective bargaining agreement (“CBA”) between an employer and a union, meaning any such state law claims cannot proceed.

Truck driver alleges disability discriminationBrian Hejda, a union member, worked as a commercial truck driver for Bell Container Corporation.  In August 2012, he suffered a knee injury at work.  Mr. Hejda’s doctor placed him on restrictions and required him to work “light duty.”  Bell did not return him to work because it did not have a light duty position for him.  An orthopedist subsequently cleared Mr. Hejda to return to work in late September, but indicated he needed the same restrictions and could not drive a commercial truck.

In February 2013, another orthopedist cleared Mr. Hejda to return to work without any restrictions.  Several weeks later, Bell sent a letter to the union indicating that under a Department of Transportation (“DOT”) Federal Motor Carrier Safety Regulation, Mr. Hejda could not return to driving a commercial truck until a Certified Medical Examiner medically examined and certified him “physically qualified to operate a commercial motor vehicle.”

On May 4, 2017, New York City Mayor Bill DeBlasio signed into law an amendment to the New York City Human Rights Law (“NYCHRL”).  Under this new law, which is intended to reduce pay discrimination, New York City employers cannot ask or say anything to job applicants or the applicant’s current or former employers to try to learn about the applicant’s salary history.  However, they are permitted to tell job applicants about the anticipated salary or salary range for the position.

Candidate offered job at end of interviewThe new law also prohibits New York City employers and employment agencies from relying on a job applicant’s salary history when they make decisions about salary, benefits or other compensation during the hiring process.  That expressly includes prohibiting using such information when negotiation an employment contract with a new employee.  However, the prohibition does not apply to: (1) job transfers and promotions within the same employer; (2) instances where there is another federal, state or local law that specifically permits or requires salary history to be disclosed or verified to determine an employee’s compensation; or (3) public employees whose salary, benefits or compensation is determined by a collective bargaining.

In addition, this amendment to the NYCHRL prohibits employers and employment agencies from searching public records to try to find out about a job applicant’s salary history.  But they can obtain background checks on job candidates, even if the background check includes salary history information, as long as they do not use that information when making decisions about salary, benefits or compensation during the hiring process.

Unemployment Insurance BenefitsEarlier this month, in a precedent-setting opinion, New Jersey’s Appellate Division ruled that the unemployment insurance benefits a former employee receives after being fired do not reduce the amount of lost wages the employee can recover in an employment discrimination lawsuit.

Rex Fornaro worked as a flight instructor for Flightsafety International, Inc.  After Flightsafety fired him, he brought a disability discrimination and retaliation lawsuit against it under the New Jersey Law Against Discrimination (“LAD”).

After a trial, a jury concluded that Flightsafety had discriminated against Mr. Fornaro because he is disabled and because he requested a reasonable accommodation for his disability.  The jury awarded him $83,000 in past economic damages (“back pay”), but did not award him anything for his alleged emotional distress.  A judge subsequently awarded Mr. Fornaro’s lawyers a total of approximately $380,000 in attorneys’ fees and costs.

Earlier this month, the United States District Court for the District of New Jersey permitted an employee to continue with his claim that his employer harassed him because he is disabled, but dismissed his other disability discrimination claims.

Francis Gavin worked for Haworth, Inc. in various sales roles.  Mr. Gavin has a back disability which required him to undergo several surgeries and time off from work.  Most recently, he took off two weeks after lumbar spinal fusion surgery in August 2012.  He returned to work gradually, with medical restrictions for approximately 4 ½ months.

Employee with back disability can pursue harassment claim.After he returned to work, Mr. Gavin’s supervisor, Henry Pizoli, frequently made disparaging comments about his back condition.  For example, he commented about the fact that Mr. Gavin had to wear a duragesic patch and a back brace, saying it “doesn’t look good in front of customers” and asked him in front of a customer if he would be “able to work normally without this [back condition] being the center of attention.”  Mr. Pizoli also told Mr. Gavin he “should have never come back to work” after his surgery, and repeatedly suggested he should “leave.”

EEOC Issues New National Origin Discrimination Enforcement GuidanceLast month, the United States Equal Employment Opportunity Commission (“EEOC”) issued a new Enforcement Guidance regarding national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).

While the Guidance is not legally binding, it explains the position of the Commissioner of the EEOC.  Below is a brief overview of some of the most noteworthy topics it addresses:

Definition of National Origin

Earlier this month, New Jersey’s Appellate Division reversed a trial court’s decision that had dismissed Robert Benning’s disability discrimination lawsuit because the trial court improperly ignored evidence which supported his claim.

Custodian claims disability discrminationMr. Benning is disabled.  Specifically, he has cognitive impairment from an episode of cardiac arrest in 1984, which causes him difficulty with his short-term memory and processing new information.

In September 2006, Mr. Benning began working for the Middlesex Regional Education Services Commission (“Middlesex”).  Although he initially served as a teacher’s aide, he quickly began to work as custodian.  Between 2006 through 2009, he consistently received positive performance ratings.

Earlier this month, New Jersey’s Appellate Division recognized that New Jersey Law Against Discrimination (“LAD”)’s prohibition against ancestry discrimination does not prevent employers from discriminating against an individual because he is related to another employee.

In 2011, John Walsifer applied for one of two vacant positions as a police officer with the Borough of Belmar. Of the job applicants, Mr. Walsifer had the second highest score on the Civil Service test.  Erik Lieb, a military veteran, was at the top of the Civil Service list.  Michael Yee, who already worked for Belmar as a special police officer, was third on the list.

Belmar chose to hire Mr. Lieb and Mr. Yee and did not offer a job to Mr. Walsifer.  It was required to give a preference to Mr. Lieb in the hiring process because of his veteran status.  The Borough claimed it offered the position to Mr. Yee because of his experience as a special police officer, the related police training he had received, and the fact the he already was authorized to carry a service weapon.

A potential amendment to the New Jersey Law Against Discrimination (“LAD”) would make it illegal for employers to ask prospective employees about their wage and salary history before hiring them.  The LAD is an anti-discrimination law that protects New Jersey employees from discrimination, harassment and related retaliation.

Employee providing copy of paycheck to potential employerIntroduced last month by Senators Nia H. Gill (Dem. Essex/Passaic) and Loretta Weinberg (Dem. Bergen), the bill would make it unlawful for an employer to reject or screen a job applicant based on his or her past salary or wages.  More specifically, it would prohibit employers from having a minimum or maximum requirement for job applicants in terms of past salary, wages or benefits.  It also would prohibit employers from relying on a job applicant’s previous compensation at any time during the hiring process, up to and including finalizing an employment contract or job offer.

In addition, the proposed amendment to the LAD would make it unlawful for an employer to inquire about a job candidate’s compensation and benefits history, either in writing or otherwise unless the candidate voluntarily provided the employer a written authorization to obtain his or her compensation or benefits history.

Disabled employee firedA New Jersey court recently ruled that a jury must determine whether an employer committed disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”) by firing an employee for making a mistake on a day on which he had asked to be on a medical leave.

Matthew Cook worked for Gregory Press, Inc. as a printing machine operator.  In 2011, he began to experience neck pain, numbness and tingling in face, and tingling in his hands.  He saw a doctor who recommended an MRI.

In the meantime, Mr. Cook’s home was flooded and severely damaged by Hurricane Irene.  He took almost a week off from work to repair his home.

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