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NJ State HouseMost people in the country have, over the last several weeks, become familiar with the Harvey Weinstein story. Multiple accusers have alleged that the Hollywood producer sexually assaulted or harassed them. Some were actresses, while others were assistants who worked for the producer. Several of these allegations date back to the early to mid-1990s. Some have asked why the producer’s alleged victims waited years, and even decades, to speak out. While there are numerous reasons why a victim might delay in speaking out publicly, for some, there was a very black-and-white one:  they reached a settlement of their legal claims against the producer, and one of the terms of those agreements was their silence. If you are a victim of New Jersey sexual harassment or sex discrimination, potential settlements are one area in which an experienced attorney can be invaluable. Your experienced counsel can help you assess whether a settlement is in your best interest and, if you were to sign, exactly what your contractual obligations would be under that agreement.

A non-disclosure term is a common clause in almost any settlement agreement that resolves the potential legal claims one party might have against another party. The potential defendant pays the potential plaintiff a sum of money, the plaintiff forever gives up her right to sue, and both sides agree never to discuss the confidential details of the agreement. If a bill currently under consideration in the New Jersey legislature becomes law, that process may change in this state when it comes to sexual harassment and discrimination cases. State Sen. Loretta Weinberg proposed SB 3581, a bill that would prohibit employers from using non-disclosure provisions to keep victims of workplace sexual harassment from speaking up, according to an report.

The bill, as proposed, would not only bar employers from setting up such non-disclosure agreements when the victim was one of sexual harassment, but also apply to any situation in which the employee was a victim of a violation of the New Jersey Law Against Discrimination. The bill would clarify the law to establish explicitly that a non-disclosure agreement in this type of scenario is against New Jersey public policy and, as a result, is unenforceable.

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lgbt flagOne of the more frequently discussed issues within federal employment discrimination litigation is that of sexual orientation discrimination. Following two federal appeals court rulings from 2017 that reached opposite conclusions, some hoped that the U.S. Supreme Court would step in and resolve the disagreement with finality. The high court recently decided, however, not to take a case that would have done so, leaving the question up to the various lower federal courts. Employees in New Jersey, however, have greater protections thanks to the Law Against Discrimination. If you suffered from discrimination at work because you are gay, lesbian, transgender, or bisexual, you should contact a New Jersey LGBT discrimination attorney to discuss your case and find out more about your rights.

The two federal cases were from Indiana and Georgia. Kimberly was a part-time college professor in South Bend, Indiana. The college rejected her six times for full-time positions and eventually terminated her part-time contract. Believing that the college made those decisions because she was openly lesbian, Kimberly sued the college for a violation of federal employment discrimination law (Title VII). The trial court threw out the professor’s case, but the Seventh Circuit Court of Appeals revived it, ruling, for the first time, that sexual orientation discrimination  was a type of sex discrimination and therefore illegal under Title VII.

Jameka, a security officer at a hospital in Savannah, Ga., faced a different problem. Jameka, although a lesbian, “did not broadcast her sexuality.” What was apparent, however, was her appearance:  her hairstyle, her uniform, her shoes, her walk, and her speech all were more stereotypically male than female. Jameka sued for discrimination. In her case, both the trial court and the 11th Circuit Court of Appeals ruled against her, concluding that her case essentially boiled down to a sexual orientation discrimination case, and Title VII did not prohibit sexual orientation discrimination.

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brainA few weeks ago, this blog covered the story of an NFL linebacker who filed a lawsuit in New Jersey against his former team, the New York Jets, accusing the organization of engaging in disability discrimination in violation of the New Jersey Law Against Discrimination (LAD). While some observers have theorized that the linebacker’s lawsuit “could wind up testing the way the NFL treats players with mental health problems,” the lawsuit clearly serves as a reminder of the protections provided to New Jersey workers by the LAD. Anyone who has been subjected to discrimination based upon bipolar disorder or another major psychological condition should consult a New Jersey disability discrimination attorney right away.

As a preliminary matter, it is important to note that there is more than one type of bipolar disorder. There is both “bipolar I” and “bipolar II.” The popular website distinguishes between the types by explaining that bipolar II “is similar to bipolar I disorder, with moods cycling between high and low over time. However, in bipolar II disorder, the “up” moods never reach full-blown mania.” (Full-blown mania may involve things like auditory hallucinations and delusions of grandeur.) Both types of bipolar disorder qualify as disabilities under New Jersey law.

The law requires your employer to reasonably accommodate your disability. Sometimes, the reasonable accommodations the law says that your employer must make may relate to the symptoms of your bipolar disorder. In other circumstances, the reasonable accommodation you may require may relate to the medical regimen used to treat your bipolar disorder. For several drugs, including antidepressants like Zoloft or antipsychotic drugs like Seroquel, one of the common major side effects is pronounced drowsiness. Certainly, being very sleepy may affect your performance on the job, meaning that you may need to interact with your employer regarding your drug treatment regimen and a reasonable accommodation.

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Nursing AssistantMinimum wage and overtime violations can occur in a variety of ways and can occur in almost any type of workplace. Regardless of the nature of your employment, there is the possibility that your employer could illegally underpay you when it comes to overtime pay that you’ve earned. If this happens to you, you need to take prompt action and contact an experienced New Jersey wage and hour attorney about your case.

One recent example of this was an overtime case involving Tymeco, Iesha, and Teairra, three certified nursing assistants who all worked at the same assisted living facility in South Jersey. The terms of the CNAs’ employment were stated in a collective bargaining agreement completed between the facility owner and the nurses’ union. The CBA required that all disputes arising out of the CBA must go to arbitration rather than directly to court.

The three CNAs’ lawsuit alleged that the employer underpaid them in two ways. First, according to the employees, the employer paid wage differentials that were included in their regular rate of pay, but, when the employer paid overtime, it failed to include those wage differentials in the calculation, meaning that the overtime rate of pay they received was less than the full time-and-a-half they should have received.

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Holiday PartyIt is that time of year again. The holidays are upon us. For many working individuals, the holidays will also mean holiday parties held by their employers. While holiday parties can be a fun and festive time, they can also be a source of problems for both employees and employers if an employee, perhaps fueled by an abundance of alcohol, crosses the line and engages in sexual harassment. Unfortunately, holiday party-related sexual harassment happens too often, and, if it happens to you, you should promptly reach out to an experienced New Jersey sexual harassment attorney to help you protect your rights.

In many instances, employees are less inhibited at holiday parties than they are in a conventional business setting. Sometimes, this is a result of alcohol. Other times, even without alcohol, the mere presence of the party atmosphere and removal of the office setting influences improper actions. These two factors mean that holiday parties can be, as one New Jersey employment attorney speaking to called them, “a breeding ground for sexual harassment claims.”

There are several ways that employers can be pro-active to reduce the risk of potential cases of sexual harassment at a holiday party. The employer could, for example, eliminate alcohol from the party or could seek to limit consumption. (For example, Huffington Post reported on changes at the Vox Media party in Brooklyn, where that employer decided that it would “ramp up the food and cut down on the drinks.” That new practice included giving each person two drink tickets instead of having an open bar.) The employer could also eliminate practices like “gag gift” exchanges, since some gag gifts could be inappropriate.

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question mark figureIf you’ve been a victim of workplace discrimination or harassment, there may be many things that may occur to you as responses to the harm you’ve suffered. One of these responses should not be to attempt to take on your employer in court and pursue litigation on your own. While you doubtlessly understand the facts of your case and how the illegal conduct harmed you, there is much more to pursuing a discrimination or harassment action than just those things. It is this “more” where having an experienced New Jersey discrimination attorney on your side can be enormously valuable to you and your case.

A couple of recent federal cases demonstrate this truth in clear and unfortunate detail. In one case, Hatem was a dockworker at a dairy. According to Hatem, he suffered frequent and severe harassment based upon his heritage and religion. Hatem, who was a Palestinian and a Muslim, allegedly received taunts calling him a terrorist, quizzing him regarding the location of his camel, and questioning why he went by the western nickname of “Freddie.” This harassment came not only from co-workers but from a supervisor as well, allegedly.

Hatem launched a religious and national origin discrimination lawsuit under Title VII. Hatem, however, decided to proceed without a lawyer. The dockworker never had the chance to prove that the discrimination he suffered met the standard for liability under Title VII. In fact, he never made it to trial. Why? He never managed to complete properly the process of serving notice of the lawsuit against his employer.

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signatureMany employment cases may involve multiple different types of harm that are suffered as a result of different transgressions committed against you. Your employer, for example, may have violated the Family and Medical Leave Act or anti-discrimination laws around the same time that you suffered an injury potentially covered by workers’ compensation. Whenever your case involves multiple claims, it could make sense to settle some and pursue others. If you do, it is vital to understand fully exactly what you are releasing (in other words, giving up) as part of any settlement agreement you sign. An experienced New Jersey employment attorney can help you understand your rights and your options when this type of scenario arises.

One example in which this did happen was the case of Craig. Craig was like thousands of people across the country who have gotten hurt while on the job. He returned to work for a few days after the injury but eventually needed an extra week off to heal. After that week off, the injured market worker returned to work. Just two weeks after he returned to work, the market fired the man.

Craig eventually brought a lawsuit that accused the employer of violating the FMLA. The FMLA gives employees who need to take leave from work certain rights. Among the obligations that the FMLA imposes on employers is to notify an employee who takes leave of his rights under the FMLA statute. The man’s lawsuit contended that the market never informed him of his rights. The employer also allegedly broke the law “by not designating his leave as FMLA protected.”

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finger pointingWhile many people may associate the phrase “hostile work environment” with sexual harassment cases, that phrase has a broader meaning in New Jersey. In New Jersey, you can be entitled to a judgment and damages based upon a hostile work environment created for many reasons, including a hostile work environment created due to a disability. In order to succeed in such an action, there are several things you, as an aggrieved employee, must show to the court. An experienced New Jersey disability discrimination attorney can help in this and other employment law concerns.

An example of this type of case was a recent federal court action that involved Francis, a “Manager of Strategic Global Accounts.” The manager’s job involved selling commercial office furniture and servicing the accounts of several large multinational companies. The job routinely called for him to travel to customers’ places of business because the employer expected its account managers to “get out into the marketplace and make face-to-face sales calls.”

Francis had experienced back problems for years, and, in the summer of 2012, he underwent spinal fusion surgery. This caused him to take a medical leave of absence from work and go on short-term disability. After four and one-half months, even though Francis wore a back brace, he was without restrictions at work.

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gavelThere are many different ways in which an employer can engage in impermissible discrimination in New Jersey. These can include acts of discrimination based upon your gender, race, age, sexual orientation, gender identity, military service, or genetic information, among others. Another illegal basis is a disability or perceived disability. The law requires you to demonstrate to the court several things in order to have a successful disability discrimination case. A knowledgeable New Jersey disability discrimination attorney can help you if you think you’ve suffered from disability discrimination.

Recently, a South Jersey worker faced such a scenario. The employee in the case, Jeffrey, was a lot attendant at a Mitsubishi dealership in Cherry Hill. His job entailed cleaning up the lot and “general customer service tasks.” In October 2014, the attendant took FMLA leave due to a shoulder injury. In late December, the employee presented his employer with a note from his doctor detailing his work restrictions once he restarted work on Jan. 5, 2015. The attendant’s restrictions included not lifting more than five pounds, performing no overhead activities, and using his right upper extremities and hand only on a limited basis. None of these restrictions would have prevented Jeffrey from doing his job.

However, on Jan. 5, instead of Jeffrey returning to work, the employer laid him off. The employer alleged that, while Jeffrey was out, another employee had managed to complete both his duties and Jeffrey’s duties, so the employer decided to consolidate the two jobs and retain the other man to fill the position.

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clockWhen it comes to an employer’s complying with the Fair Labor Standards Act, there may be a variety of ways that the employer can violate the law and open itself up to liability. Knowledgeable New Jersey wage law attorneys can help you determine if your employer is operating afoul of the law in the way that it pays you. One area in which problems can arise is breaks. As the federal Third Circuit Court of Appeals explained, an employer does not have to maintain a break policy, but, if it does, it must comply with the FLSA’s rules.

The employer that was sued in this action was a print and online publishing firm based in suburban Philadelphia. Among its employees, the publisher had on staff a group of sales representatives who earned compensation in a variety of ways. The employer paid them a base hourly wage and also gave them the ability to earn bonuses. Until 2009, the employer gave the sales representatives two paid 15-minute breaks each day.

In 2009, the company crafted a new system that eliminated paid breaks. The new arrangement allowed representatives to log on and off at their own discretion, with the employer paying the employees only for the time when they were logged in. Any break, regardless of duration, was unpaid as long as the worker was logged off for more than 1.5 minutes. The new system maximized “employees’ ability to take breaks from work at any time, for any reason, and for any duration,” according to the employer. The average sales representative worked five hours per day and received $7.25 per hour.

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