In 2018, the New Jersey governor signed the Diane B. Allen Equal Pay Act (NJEPA) into law, thereby modifying the New Jersey Law Against Discrimination by requiring equal pay across all of the protected classes. In part, the NJEPA prohibits gender-based discrimination and retaliatory pay practices. Recently, the United States District Court for the District of New Jersey analyzed whether the NJEPA applies retroactively, ultimately ruling that it does not. If you are the victim of gender-based discrimination or retaliatory pay practices it is vital to consult a skilled knowledgeable New Jersey employment discrimination attorney to discuss your options for seeking compensation.

Facts of the Case

Allegedly, the plaintiff worked as a human resources manager at the defendant’s office from June 2013 until she was terminated on April 5, 2018. The NJEPA was signed into law on April 24, 2018 but was not effective until July 1, 2018. On July 27, 2018, the plaintiff filed a lawsuit against the defendant, alleging gender discrimination and retaliation in violation of the NJEPA. Specifically, the plaintiff alleged that while she was employed by the defendant, she was paid a rate of compensation that was substantially less than the rate that was paid to her male counterparts, solely due to the fact that she was a female. She also alleged that the defendant retaliated against her for engaging in activities protected by the NJEPA. The defendant removed the case to federal court, and filed a motion to dismiss the plaintiff’s complaint, arguing that the NJEPA was not in effect at the time of the alleged discrimination. The court granted the motion, and the plaintiff appealed.

Retroactivity of the NJEPA

On appeal, the plaintiff argued that the NJEPA should be applied retroactively. Upon review, the court noted that the rules of statutory construction generally do not favor the retroactive application of new laws. To overcome the presumption against retroactivity, the party seeking retroactive application of a law must show that the legislature intended the law to be applied retroactively and that said application would not cause manifest injustice or unconstitutionally hinder a party’s rights. Further, a statute should be applied retroactively when a retroactive application is expressly or implicitly intended, when an amendment is curative, or when the parties’ expectations warrant a retroactive application.
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While it is well known that state and federal law prohibits an employer from discriminating against an employee due to the employee’s inclusion in certain protected classes, it is not always clear whether an employer’s inappropriate acts or standards violate the laws against discrimination. Additionally, as shown in a recent New Jersey discrimination case, the same standards and rules may be discriminatory as to some, but not all, of the employees that allege discrimination.  If you believe your employer is engaging in discriminatory practices, you should speak with a knowledgeable New Jersey employment discrimination attorney regarding your case and whether you may be able to recover compensation.

Factual Background

Allegedly, the plaintiffs and several other women were hired to work in the defendant casino as costumed beverage servers. The defendant adopted personal appearance standards to which the plaintiffs were required to adhere. The standards included the requirement that the plaintiffs maintain a certain weight. The plaintiffs filed a lawsuit against the defendant, alleging that the standards violated the New Jersey Law Against Discrimination and subjected them to gender stereotyping, sexual harassment, and disparate treatment, in part due to the requirement that the plaintiffs maintain a certain weight. The trial court dismissed the claims as to all but five of the plaintiffs. The defendant then filed a motion for summary judgment which the court granted. The plaintiffs subsequently appealed.

Discrimination Based on Weight

On appeal, the appellate court reversed the trial court’s ruling. The court noted that while the Law Against Discrimination does not prohibit discrimination based on appearance, sex appeal, or weight, the plaintiffs set forth evidence that the defendant employer’s adverse employment actions due to the plaintiffs’ failure to comply with the personal appearance standards set forth a prima facie case of gender-based discrimination.
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Under both New Jersey and federal law, employees have a right to pursue claims against their employers for discriminatory behavior. Although an employee can contractually waive the right to sue an employer for discrimination in a court of law, the waiver must be clear and unambiguous. Recently, the Appellate Division of the Superior Court of New Jersey analyzed what constitutes a valid waiver of the right to sue, in a case in which the Plaintiff alleged her employer engaged in religious discrimination.  If you work in New Jersey and your employer discriminated against you in the workplace you should meet with a skilled New Jersey employment discrimination attorney to discuss your right to seek compensation.

Factual Background of the Case

Allegedly, the defendant employer required the plaintiff, who worked for the defendant as a flight attendant, to review a “training module” which was a series of slides on computer screens that described the defendant’s mandatory arbitration policy. One of the slides in the presentation asked the plaintiff to “acknowledge” the arbitration policy. The presentation further stated that if the plaintiff did not acknowledge the policy but continued to work for the employer for sixty days or more, she would be deemed to be bound by the arbitration policy. The module did not request the plaintiff’s signature indicating she consented to the agreement or ask her to memorialize that she expressly consented to the agreement.

It is reported that the plaintiff, who is a Buddhist, was subsequently asked by the defendant to obtain a vaccine for yellow fever. The plaintiff declined to obtain a vaccine due to her religious beliefs.  The defendant continued to pressure the plaintiff to obtain the vaccine and ultimately terminated the plaintiff due to her refusal. The plaintiff subsequently filed a discrimination lawsuit against the defendant. In response, the defendant filed a motion to dismiss, asking the court to compel the plaintiff to submit to binding arbitration. The trial court granted the motion, and the plaintiff appealed.
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New Jersey’s Law Against Discrimination (LAD) prohibits employers from discriminating against employees based on their race, gender, age, and other enumerated classes. If an employer takes adverse employment action against an employee based on the employee’s membership in a protected class, the employee can seek damages, including any wages lost due to the adverse action. In some cases, the employee may be entitled to punitive damages as well. The Appellate Division of the Superior Court of New Jersey recently analyzed when punitive damages should be awarded under the LAD, in a case in which the employer was found to have wrongfully violated the LAD. If you are a New Jersey employee who experienced adverse employment actions due to your employer’s discriminatory behavior it is essential to speak with a capable New Jersey employment discrimination attorney regarding what damages you may be able to recover.

Facts Regarding the Discrimination Against the Employee

Reportedly, the plaintiff worked as a part-time night shift dispatch operator for the employer’s taxi service. When she was working one evening, a driver who was an independent contractor sent her messages on social media, touched her shoulder, and whispered in her ear. The following day the plaintiff claimed that the driver called her at work to tell her that he missed her, after which the plaintiff spoke with her supervisor regarding the driver’s behavior. The following day, the plaintiff was terminated.

Allegedly, the extent of the employer company owner’s knowledge of the plaintiff’s complaints about the driver’s behavior is disputed. The plaintiff filed a lawsuit against the employer and the company owner, seeking damages due to her retaliatory discharge in violation of LAD, lost wages, and punitive damages. Following a trial, the jury awarded the plaintiff damages for the violation of LAD and lost wages from the employer but denied the claims against the company owner and the punitive damages claim. The plaintiff subsequently appealed.

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Under both state and federal law, New Jersey employers are required to pay their employees overtime wages for any hours worked in excess of forty hours per week. There are certain exceptions to overtime laws that allow employers to evade the duty to pay overtime wages. For example, an employer can use a “tip credit” to count tipped income towards a tipped employee’s minimum and overtime wages. The United States District Court of New Jersey recently explained what notice an employer must provide to an employee to validly claim a tip credit, in a case in which the employer classified certain employees as tipped employees. If you believe you were not fully paid wages for hours you worked in excess of forty hours per week it is essential to engage a trusted New Jersey overtime rights attorney to help you seek any damages you may be able to recover.

The Plaintiffs’ Employment

Reportedly, the plaintiffs worked for the defendant diner as a busser and a server and earned $3.50 per hour and $2.15 per hour respectively, plus tips. The defendant considered employees who earned wages and tips to be tipped employees. While the defendant did not pay tipped employees the minimum wage required under law, it attempted to use a tip credit to count the tips the tipped employees received as income toward the minimum wage. The defendant provided the tipped employees with a form stating it intended to claim a tip credit. In April 2016, the plaintiffs filed a collective action against the defendants alleging New Jersey and FLSA minimum wage and overtime violations, due to inadequate notice of the tip credit. The defendant filed an answer denying that it failed to provide notice to the tipped employees that it intended to claim a tip credit and pay them less than the minimum wage or overtime wages. The plaintiffs filed a motion for summary judgment, arguing that the defendants did not comply with the requirements for claiming a tip credit.

Requirements for Claiming a Tip Credit

Under the FLSA, an employer can only claim a tip credit if it notifies the tipped employee that his or her wage is being reduced under the tip credit provision of the FLSA. Specifically, the FLSA requires that an employer notify the employee of the amount he or she will be paid and the amount of the tip credit the employer will claim, which cannot exceed the value of the tips the employee actually receives. Further, the employee must be able to retain all of his or her tips unless there is a tip pooling arrangement. If the employer does not notify the employee of these requirements, it cannot legally claim a tip credit. The notice requirement is strictly construed and an employer that did not provide the required notice cannot claim a tip credit. In the subject case, the court found that the language in the notice provided to the plaintiffs by the defendant did not notify the plaintiff that the defendant was not permitted to claim a tip credit in excess of the tips an employee received. Thus, the court granted the plaintiffs’ FLSA minimum and overtime wage claims. The court found there was insufficient information to grant the motion as to the plaintiffs’ New Jersey wage law claims, however.

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New York businesses are required by both state and federal laws to pay their employees for any hours they work, which includes overtime wages for any hours worked over forty hours per week. If an employer fails to pay an employee wages owed, an employee can file a lawsuit to seek compensation. Proving you are entitled to overtime wages is a multi-step process, however, as not all employees who work in New York are entitled to wage and hour protections. This was illustrated in a recent case filed in the Southern District of New York, in which the court dismissed the plaintiffs’ claims because the employer was exempt from the requirement to pay the plaintiffs’ overtime wages, due to plaintiffs’ positions. If you work in New York and you believe your employer owes you wages for hours worked, you should speak with a trusted New York overtime rights attorney as soon as possible regarding your right to seek any compensation you may be owed.

Factual Background

Reportedly, the plaintiffs worked as agents for the defendant employer. The defendant was a subcontractor for a company that was retained by a wireless service provider to solicit customers for a government-subsidized program that provides mobile telephone services to low-income individuals. The plaintiffs stated that they had daily meetings in the morning and then spent the majority of each day soliciting wireless plan applications before returning to the office.

Plaintiffs claimed that the defendant violated the Fair Labor Standards Act (FLSA) and New York Labor laws by allegedly misclassifying the plaintiffs as independent contractors and failing to pay them overtime wages. The defendant filed a motion for summary judgment arguing they were not the plaintiffs’ employer and that the plaintiffs were outside salespeople and therefore, not entitled to wage and hour protections. The court granted the defendant’s motion for summary judgment, after which the plaintiffs appealed.

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In many lawsuits arising out of New Jersey overtime rights violations, the defendant’s failure to pay overtime wages will not only impact the named plaintiff but will extend to an entire class of employees. In such cases, the plaintiff can seek to pursue a collective action, asking the court to award damages on behalf of all employees who are similarly situated. If a plaintiff wishes to pursue a collective action, he or she must undergo a process in which he or she seeks the court’s approval of the purported class. The United States District Court for the District of New Jersey recently explained the process of certifying a class and the level of proof needed to obtain a certification in a New Jersey overtime rights violation case. If your employer failed to pay you and your coworkers wages earned for working overtime you should meet with a seasoned New Jersey overtime rights attorney to discuss what evidence you need to pursue a collective action.

Claimant’s Employment

Reportedly, the claimant was employed as a kitchen worker by the defendant. He worked six days per week, two shifts per day, which totaled approximately sixty hours. He was paid a weekly wage of $800.00 but was never informed of his hourly rate and was never compensated for hours worked over forty hours per week. The claimant filed a complaint alleging violations of the Fair Labor Standards Act (FLSA), in which he stated that it was the defendant’s policy not to pay employees overtime wages, and averred that he had conversations with other employees, including kitchen workers and waiters, in which they stated they worked similar hours as the claimant and were not paid overtime wages. He named five other similarly situated workers in his complaint, identifying them by name, position, and physical characteristics. He subsequently filed a motion requesting that the court certify his collective action.

The Process of Determining if an FLSA Collective Action Should be Certified

The FLSA sets forth overtime guarantees that cannot be waived via a contract and grants the right to pursue a collective action to employees who are similarly situated. A collective action differs from a class action in that under the FLSA, collective members must opt-in via written consent. In the Third Circuit, determining whether a collective action should be certified is a two-step process. First, the court must determine whether the putative collective members are employees who are similarly situated to the claimant. If the court finds that they are, it will grant a conditional certification to allow the plaintiff to provide notice to anyone who may choose to opt-in and to allow the parties to conduct discovery.
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Technological developments and expansions in the global workforce mean that now more than ever companies employ people in a remote capacity. When a remote employee experiences employment discrimination, it can be difficult to determine the proper jurisdiction for pursuing a claim against an employer. Recently, the United States District Court for the District of New Jersey discussed the requirements for a court to exercise specific or general personal jurisdiction over a defendant employer in a case involving a remote employee. If you are a remote employee living in New Jersey and are being discriminated against by your employer, you should seek the assistance of a skillful New Jersey employment discrimination attorney to help you pursue damages from your employer.

Reportedly, the plaintiff was a resident of New Jersey who worked from her home for the defendant employer. The defendant employer is a wholly owned subsidiary of the defendant corporation. Both the defendant employer and the defendant corporation were incorporated in Delaware and have principal places of business in Georgia. It is alleged that the plaintiff was terminated in February 2017, after which she brought a claim against the defendants for wrongful termination. Specifically, the plaintiff alleged her termination was due to a pattern of discrimination based on age and sex and for taking medical leave.

Allegedly, although the plaintiff did not work for the defendant corporation, she attempted to establish personal jurisdiction over the defendant corporation by arguing that the defendant employer was merely an instrumentality for the defendant corporation and that both defendants controlled the manner in which she performed her job duties. The defendant corporation filed a motion to dismiss due to lack of personal jurisdiction.

New Jersey’s Conscientious Employee Protection Act (CEPA) protects employees from adverse action after he or she reports illegal or unethical activity. There are several elements to a CEPA claim, including a reasonable belief that the employer was engaging in unsavory acts. The United States District Court for the District of New Jersey recently analyzed what constitutes sufficient evidence of a reasonable belief an employer is engaging in prohibited activity, in case in which it found sufficient evidence for the case to withstand summary judgment. If you faced adverse employment action, including termination, after you engaged in protected whistleblower activity, you should meet with a seasoned New Jersey whistleblower attorney to discuss your case and what you must show to recover damages.

The Plaintiff’s Employment with the Defendant

The plaintiff accepted a position with the defendant to work as a regional manager. The defendant is a company that sells and designs business solutions and infrastructure functions for hospitals. The defendant also sponsors conferences that provide courses for healthcare providers to learn new strategies for the utilization of the defendant’s products. The defendant alleges it had concerns from the onset of the plaintiff’s employment, regarding the plaintiff’s responsiveness and level of engagement with his team. The plaintiff refutes these allegations.

If a plaintiff wishes to pursue a lawsuit to recover damages for employment discrimination, it is important for the plaintiff to include as much factual information regarding the alleged discrimination in the initial pleading as feasible. In some cases, however, information regarding parties who may be liable for the discrimination and potential causes of action will not become evident until a later date. In such cases, a plaintiff may be able to amend his or her Complaint to add additional information or counts.

In a recent case, the United States District Court for the District of New Jersey discussed when leave to amend a Complaint should be granted in an employment discrimination case. If you are the victim of discrimination in the workplace, you should meet with a trusted New Jersey employment discrimination attorney to discuss whether you may be owed compensation.

Procedural Background

Allegedly, the plaintiff worked as a business development manager for the defendant for over ten years. He was terminated when he was 54 years old, and replaced with a person over twenty years younger. He subsequently filed a lawsuit against the defendant in state court, alleging one claim of age discrimination in violation of the New Jersey Law Against Discrimination. The defendant moved the case to federal court based on diversity jurisdiction. The plaintiff filed an amended Complaint, to which the defendant filed an Answer. Several different scheduling orders were entered, and the case was delayed for various reasons. The deadline for amending the Complaint was never extended, however, and very little discovery was conducted. Subsequently, the plaintiff moved for leave to amend the Complaint to add both new parties and new causes of action.

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