Last month, Governor Christie signed into law an amendment to the New Jersey Opportunity to Compete Act (“OTCA”).  The OTCA, more commonly known as the “ban-the-box” law, restricts employers from inquiring about a job candidate’s criminal record during the initial job application process.

New Jersey expands ban-the-box protection in employment applicationsThe amendment to the OTCA went into effect on December 20, 2017.  It makes it clear that the OTCA applies to expunged criminal records.   As noted in the Senate’s statement about the amendment, an expungement is the “removal and isolation of all records on file within any court, detention or correctional facility, law enforcement agency, criminal justice agency, or juvenile justice agency” about an individual’s “apprehension, arrest, detention, trial, or disposition of an offense” in the criminal or juvenile justice system.  Ordinarily, once an expungement has been granted, the person’s arrested, conviction, and other related proceedings are considered not to have occurred.

The amendment also makes it clear that the Act prohibits online inquiries about an individual’s criminal history.  The law initially only referred to “written” inquiries, presumably leaving it unclear whether it applies to online inquiries.

Mothers can breastfeed at work in New JerseyLast week, the New Jersey Law Against Discrimination (“LAD”) was expanded to prohibit discrimination and harassment on the basis of breastfeeding and to require employers to provide certain reasonable accommodations for nursing.

The LAD is New Jersey’s anti-discrimination law.  It prohibits discrimination and harassment based on age, color, disability, gender (sex), marital status, national origin, pregnancy, race, religion, sexual orientation, veteran or military status.

On January 8, 2018, Governor Christie signed into law an amendment to the LAD to include breastfeeding as a new legally-protected category.  As a result, now employers, unions, landlords, real estate agents, banks, and places of public accommodations, among others, cannot discriminate against women because they are breastfeeding.

The Third Circuit Court of Appeals recently ruled that the Fair Labor Standards Act (“FLSA”) requires employers to pay employees for breaks during the workday that are no longer than 20 minutes long.

American Future Systems, which does business as Progressive Business Publications, publishes and sells business publications.  Progressive pays its sales representatives by the hour, plus bonuses based on how much they sell, for the time they are logged onto their work computers.  Most of Progressive’s employees are paid minimum wage.

Employees entitled to be paid for short breaksIn the past, Progressive allowed its employees to take two paid fifteen-minute breaks per day.  But in 2009, the company implemented what it called a “flex time” policy.  Under this policy, employees were permitted to log off of their computers whenever they wanted, for as long as they wanted, as long as they worked the agreed-upon total number of hours per week.  But under this new policy, Progressive did not pay employees if they logged off of their computers for more than 90 seconds.  In other words, it stopped paying them for breaks that lasted more than 90 seconds.

New Jersey’s Appellate Division recently ruled that volunteer firefighters are not protected by New Jersey’s whistleblower law, the Conscientious Employee Protection Act (“CEPA”), because they are not “employees.”

NJ Whistleblower Law Does Not Protect Volunteer Firefightersot Protected by Whistleblower LawFor 20 years, Jeffrey Sauter served as a volunteer firefighter for the Township of Colts Neck, Fire Company No. 2.  Although he was not paid any wages for his services, he earned between $400 and $1,500 in deferred compensation benefits per year under the Emergency Services Volunteer Length of Service Award Program (“LOSAP”).

In 2004, Mr. Sauter filed another CEPA lawsuit against his fire company, claiming it suspended him for 18 months in retaliation for complaints he made about the bidding process relating to renovations of the fire hall.  He eventually settled that case for $10,000, including attorney’s fees.  Nonetheless, Mr. Sauter believed the fire company owed him another $8,000 for his legal fees.

A recent Third Circuit opinion, Moody v. Atlantic City Board of Education, reversed a District Court’s order which had dismissed an employee’s sexual harassment and retaliation lawsuit.

Sexual Harassment Complaint FormMichelle Moody worked as a substitute custodian for the Atlantic City Board of Education.  She claims the custodial foreman of the New York Avenue School, Maurice Marshall, sexually harassed her.  For example, she claims he made sexual comments to her, grabbed her breasts and buttocks, and offered to give her more hours of work if she performed sexual favors for him. She also alleges that on one occasion Mr. Marshall called her into his office and tried to take off her shirt, and on another occasion had her to come into his office while he was naked.

Mr. Marshall subsequently sent Ms. Moody a series of text messages implying he would offer her a full time job if she had sex with him.  According to Ms. Moody, Mr. Marshall showed up at her home that evening and told her she would receive an employment contract if she had sex with him. Mr. Marshall then grabbed Ms. Moody and began to kiss her. Ms. Moody claims she gave into Mr. Marshall’s advances because she was afraid she would lose her job.

Rabner Baumgart Ben-Asher & Nirenberg is delighted to announce that Omar A. López has become Of Counsel to our firm.  Prior to joining us, Mr. López had his own firm in downtown Montclair at which he primarily represented employees and individuals in employment and business matters.

Employment Lawyer Omar LopezMr. López, who speaks fluent Spanish, is admitted to practice law in state and federal court in New Jersey and New York, as well as the United States Supreme Court. Mr. López is a former board member of the National Employment Lawyers Association – New Jersey (NELA-NJ), and an active member of both the Hispanic Bar Association of New Jersey (HBA-NJ) and the New Jersey Bar Association’s Labor and Employment Law Section. Having started his career as a labor attorney representing union workers, Mr. López has helped try several employment law matters to verdict, and has achieved many favorable verdicts and results in administrative matters in both employment and non-employment matters. In December 2016, he co-counseled the matter of Melissa Bailey v. Randolph Police Department and achieved a favorable verdict on behalf of Police Officer Bailey regarding her claims of hostile work environment and retaliation under the New Jersey Law Against Discrimination.

Mr. López was selected to the Rising Star list for Plaintiff’s Employment Law for the 2017 Super Lawyers publication, maintained by Thompson Reuters. A description of the selection methodology is available on the Super Lawyers website. The Rising Star distinction is awarded to 2.5% or less of practicing attorneys in the state.

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.

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