Phillips & Associates
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It is said sometimes that the “devil is in the details.” Sometimes, though, those devilish details can be your friend in your employment law case. In one long-time employee’s lawsuit, the details of what was – and what was not – in a proposed release agreement proved to be potentially very helpful in her age discrimination case. The alleged flaws in that agreement allowed the worker to pursue, in addition to her Age Discrimination in Employment Act claim, a second claim for violating an addition federal statute. In sum, small details can make big differences, so you should be sure you have a skilled and knowledgeable New Jersey employment attorney handling your case.

According to the U.S. Bureau of Labor Statistics, the average person has been with their current employer for between 4.5 and 5 years. K.F. was well ahead of that curve, having worked for her employer for more than 30 years when the employer let her go. According to the employer, it was eliminating K.F.’s position. At that point, it placed her on something called “surplus status,” which gave her 60 days to find a new job within the company. Two months later, the employer terminated K.F.’s employment.

The employer offered the worker severance, but only if she signed a release document that said that she forever released the employer from legal claims and waived any assertion of liability against the company. K.F., who was 60 years old, did not sign the agreement. Instead, she filed an age discrimination lawsuit. According to her complaint, the three-step process that included placing workers on surplus status and then terminating them was “infected with age bias.”

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Recent events in the news have triggered a great deal of re-examination when it comes to sexual harassment. One area where that is true is the use of confidentiality or non-disclosure agreements against employees who have alleged being victims of sexual harassment. The state Senate recently contemplated, and passed, a bill that would greatly enhance the protection of harassed workers in this type of circumstance. While New Jersey has not yet banned the use of confidentiality agreements in the resolution of sexual harassment cases, you may have certain options available to you if you’ve signed an agreement in your case but desire not to remain silent. As always, be sure to retain an experienced New Jersey discrimination attorney to assess your options.

Recently these issues of sexual harassment and confidentiality were at the center of a lawsuit. A state government employee allegedly was sexually harassed by a supervisor. After the harassment took place, the employee complained. An investigation was launched but the employer’s investigator allegedly did not complete a full and proper investigation into the employee’s claims. (If true in this situation, this is something that, unfortunately, is an all-too-common occurrence.) What the employer did do, however, was to demand that the allegedly harassed employee sign a confidentiality document that prohibited her from discussion the allegations she had made.

Sometime later, the worker told her husband certain details of her case. After she did that, the employer allegedly constructively terminated her. As part of the case, the employee’s counsel took a very important step. The attorney filed a motion asking the judge to issue an order that would block the employer from enforcing any non-disclosure agreements that bar plaintiffs (or would-be plaintiffs) from divulging details of their cases publicly.

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When it comes to negative comments and harsh behavior targeted against you because you are LGBTQ, it is important understand exactly what the breadth of legal protection is in New Jersey when it comes to discrimination law. New Jersey law is clear that LGBTQ people are a protected class and that employment discrimination based upon gender identity or sexual orientation is a violation of the law. What’s more, while it is true that (as New Jersey courts have stated in the past) the Law Against Discrimination isn’t a code for policing general civility or politeness in the workplace, comments made by co-workers or supervisors can very definitely form the foundation of a successful LAD lawsuit when those comments go beyond just being rude and instead display a clear prejudice against you based upon your sexual orientation or gender identity. When that happens and it impacts your ability to do your job to the best of your capabilities, you may be entitled to compensation. In that situation, you should contact a New Jersey discrimination attorney to discover more about your options.

A recently filed lawsuit, as reported by nj.com, provides an example. J.L. was a social worker for a southwestern New Jersey school district. J.L., who was a gay man, reported to the director of special services in the fall of 2016 that he was taking classes to become a foster parent. Allegedly, the director made multiple disparaging comments about J.L.’s participation in the classes and his efforts to become a foster parent.

The numerous comments included things like, “You don’t need foster kids, you need to find a woman and have kids with a woman,” and, “You don’t need kids, just get another pet,” according to the social worker. The social worker was also allegedly told that he did not need children, that he was not a “real parent” and that he did not deserve to be allowed to use family personal days to take his foster kids to their medical appointments, nj.com reported.

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The New York City Council made headlines recently as a result of two new bills it passed. Those new bills related to a very important, although still emerging, area when it comes to protecting employees from impermissible sex discrimination. That area is discrimination against lactating mothers. The new bills require employers in the city, who have 15 or more employees, to create an appropriate place to nurse or express breast milk. The other bill requires those same employers to craft a written lactation policy and to provide that policy to all new hires. Lactating employees in New Jersey already have many of these protections. If you think that you’ve suffered discrimination at work due to your breastfeeding, or your employer has failed to accommodate your breastfeeding properly, reach out to a New Jersey employment attorney to discover more about what options you may have.

The New York City bill regarding a lactation space set out some very specific requirements designed to protect lactating employees’ privacy and to allow them to express breast milk in a reasonably safe and comfortable space. The bill says that the space for lactation must be someplace other than a bathroom, that it must be sanitary and that it must be “shielded from view and free from intrusion.”

The bill requires the space to have certain minimum accessories, such as an electrical outlet, a chair, a sink and a surface that can accommodate a breast pump. The bill doesn’t require employers to dedicate a space exclusively for lactation, but if a lactating employee is using the room, it cannot be used for other things while that employee is nursing or “pumping.”

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Recent events and recent reporting by some major media outlets have placed a New Jersey lawsuit and a New Jersey-based major corporation in the news. It has also put the issue of workplace pregnancy discrimination in New Jersey in the spotlight. Pregnancy discrimination on the job can take many different forms. Whatever the form, it is damaging (whether professionally, personally or both), inappropriate for a professional setting and should not be tolerated. Whether the discrimination you suffer is the result of malevolence or a misguided sense of “looking out for you” as a pregnant woman, it is wrong. If you’ve suffered pregnancy discrimination at work, contact a knowledgeable New Jersey discrimination attorney right away to find what legal options exist for you.

A few months ago, the New York Times reported on the prevalence of pregnancy discrimination among even the country’s largest employers. One of the workers interviewed within the article was a woman who worked as a sales representative for a major New Jersey-based pharmaceutical company. According to the rep, she was a highly successful and awarding winning member of the sales team when she became pregnant in 2010. Just weeks before the representative was scheduled to delivery her baby, the employer laid her off, allegedly as part of a “downsizing.” “On paper, I was the same professional that I was nine months earlier,” the woman told the Times. Her pregnancy “was the only thing that was different” she said.

After the lay-off, the rep eventually got a new job with the employer, but at lower pay and less potential for bonuses, according to the report. Based upon this adverse employment action, she decided to take legal action against the employer. She joined the lawsuit of another female sales rep who was already pursuing the pharmaceutical company in court. That representative, K.S., asserted in her complaint that a male co-worker informed her that she was “not going anywhere” with the company once she became pregnant. Allegedly, K.S., who had won multiple awards within the company, was demoted to the lowest sales rep tier after she returned from maternity leave.

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In this blog (as well as in other spaces discussing discrimination and sexual harassment in the workplace), one issue that recurs frequently is the arbitration agreements that employers request or demand that their employees sign. The topic comes up with frequency because they are so important — these agreements can dramatically alter an employee’s rights and greatly affect the outcome of a harassment or discrimination dispute.

These arbitration agreements often disproportionately benefit the employer because the employer will (or believes it will) achieve a more favorable overall outcome resolving the case in arbitration than in court. With that mind, it may benefit an employee to seek to get the agreement thrown out, which would allow the employee to go forward in the litigation process that she/he preferred. If you need to pursue a harassment or discrimination claim, and are seeking to get an arbitration agreement thrown out, you need to have the knowledge and skill of an experienced New Jersey discrimination attorney on your side.

There can possibly be many different ways under New Jersey law to get around an arbitration agreement. M.F.’s case was an example of one. M.F. had worked for a weight-loss and nutrition business for more than a quarter-century. 20 years into her employment, in 2011, the employer submitted to the employee an arbitration agreement, which she was required to sign to maintain her employment.

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An employer might have many reasons for desiring to resolve a discrimination or sexual harassment case through arbitration instead of litigation in court. Generally, however, the employer does this because the employer believes that the employee will obtain a more favorable outcome through litigation than arbitration. To that end, many employers request or require their employees to sign an agreement consenting to arbitrate disputes that arise related to the employment relationship, including harm resulting from employment discrimination or sexual harassment. Even if you signed such an agreement, you may still have an opportunity to pursue your case in court instead of arbitration, if you can prove that part or all of your arbitration agreement was invalid or unenforceable. To learn more about your options, be sure to reach out to a knowledgeable New Jersey employment attorney.

D.M.’s case was a recent example of this type of dispute. D.M. accepted a job as a driver for a delivery service in June 2017. The driver signed several documents electronically, including one entitled “Arbitration Agreement.” Ten weeks after D.M.’s employment began, the employer fired her. A month later, the driver filed a Law Against Discrimination action against the employer. She alleged that one of the company’s managers made “sexually provocative comments about” her body and that she was subjected to a hostile work environment based on sex and her sexual orientation.

Unsurprisingly, the employer asked the court to enter an order compelling both sides to arbitrate the dispute. When your employer does that, you may still be able to go to court. To do that, you have to persuade the court that the agreement you signed was not enforceable for one or more reasons. You can assert that there were certain types of fraud or duress, or you can argue that the agreement was unclear and ambiguous. In D.M.’s case, both the trial court and the Appellate Division declared the arbitration agreement to be valid and the employer entitled to demand arbitration, despite the employee’s arguments of a lack of clarity and presence of ambiguity.

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Even though the problem of sexual harassment in the workplace has been brought out of the shadows and into the light in recent years, many studies still show that a substantial percentage of victims don’t report their harassers to their employers. Some say they fear they won’t be believed. Others fear they will be believed and will suffer retaliation for speaking up, up to and including losing their jobs.

Regardless of the exact reasons, a failure to report harassment to an employer should not always be an automatic ticket to dismissal of your sexual harassment case and, in New Jersey, it’s not. Under New Jersey law, an employer’s declaration of “We knew nothing and she told us nothing” is not an absolute defense in a sexual harassment lawsuit. If you’ve suffered harassment at work, don’t let your lack of reporting deter you from taking legal action. Contact a skilled New Jersey sexual harassment attorney to learn more about your options.

The case of a North Jersey police lieutenant serves as one recent example of this principle. D.U. had worked for the police department since 1992. The employment was without incident for a long time but, starting in 2013 or 2014, the lieutenant’s direct supervisor, the city’s Director of Police, allegedly started making undesired sexual advances toward D.U. The lieutenant rejected those advances and, according to her complaint, suffered negative workplace consequences. The director allegedly began treating her differently than male peers, began assigning her less desirable duties (patrol work) and began an internal affairs investigation against her.

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Many religions have various requirements when it comes to how followers dress and/or groom themselves. Some people wear dreadlocks because they observe the Rastafarian religion, some people wear a burqa because of their Islamic faith, some wear peyos in observance of their orthodox Jewish religion and still others wear beards because they are Sikhs. So, what happens when your employer tells you that, because of some business necessity, you cannot observe that clothing/grooming requirement that is an important part of the practice of your religion? Depending on the specific facts of your religious observance and your workplace, your employer’s rule may constitute illegal religious discrimination, in violation of the Law Against Discrimination. If your employer has told you that you cannot dress or groom yourself in a manner consistent with your religious faith, be sure to contact an experienced New Jersey discrimination attorney right away to find out if your employer’s actions are a violation of the law, and what that might mean for you.

To see an example of how this process can play out for an employee, look at a recent case that originated in Union County. M.R. was a man who practiced the Jewish religion. M.R.’s branch of his religion taught that men were prohibited from shaving their heads or their faces. This was not a problem until the summer of 2016, when M.R. became interested in becoming a state corrections officer. The corrections officers’ training program required all trainees to shave their faces and their heads. M.R.s sought a religious accommodation, and attached a statement from an elder in his church explaining the “no shaving” rule.

A week later, M.R. showed up at the training academy. He was told that his request for an accommodation had been denied, and was subsequently dismissed from the training because he was not properly shaven.

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Arbitration agreements can be a common part of workplace life. As with any potentially legally binding contractual agreement, it is extremely important to understand the exact legal ramifications of what you’re signing before you do anything. It is also important to understand exactly when your employer can claim that you’ve assented to the arbitration agreement by doing nothing. When it comes to these and other legal issues that can impact you as a worker, you should be sure you have a skilled New Jersey employment attorney to provide you the advice and advocacy you need.

One case originating in Union County provided some useful information on arbitration agreements, as well as on what does (or doesn’t) qualify as a valid passive assent to an agreement. The case followed a fact pattern that is probably similar to what occurs at many workplaces. The employer decides to establish an optional arbitration agreement. The employer sends the affected employees an email containing the policy. The email explains that the policy is not mandatory and includes instructions for opting out of the arbitration agreement. The email also includes a requirement that the employee acknowledge having reviewed the agreement.

In the summer of 2017, the assistant store manager at a wireless employer’s Union store filed a lawsuit alleging that the employer had engaged in racial and gender discrimination. The employer then asked the trial court to order the case to arbitration. The employer asserted that it was entitled to an order compelling arbitration because the manager had never completed the “opt out” requirements. According to the employer, it had asked the manager to acknowledge reviewing the agreement. Allegedly, the manager initially did nothing, but eventually acknowledged reviewing the agreement. She allegedly took no further action.

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